Definition: The amendment of the Indian Constitution refers to the process of modifying, adding, or repealing provisions within the supreme law of the land, as mandated by Article 368 under Part XX. This mechanism ensures the Constitution remains a ‘living document’ capable of evolving with societal needs while preserving its foundational integrity through the judicial doctrine of Basic Structure.
The Procedure for Constitutional Amendment
Unlike many rigid constitutions, the Indian Constitution strikes a balance between flexibility and rigidity. Article 368 empowers the Parliament to amend the Constitution, but it does not permit the alteration of its Basic Structure. The process begins with the introduction of a bill in either House of Parliament, which must be passed by a special majority.
The amendment process can be categorized into three types based on the majority required:
- Simple Majority: Certain provisions (e.g., formation of new states, quorum in Parliament) can be amended by a simple majority, similar to ordinary legislation.
- Special Majority: Most constitutional provisions require a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting.
- Special Majority with State Ratification: Amendments affecting the federal structure (e.g., election of the President, Supreme Court/High Court powers, GST Council) require the special majority plus ratification by at least half of the state legislatures by a simple majority.
The Doctrine of Basic Structure
The Basic Structure Doctrine is a judicial innovation that acts as a check on the Parliament’s constituent power. While the Parliament has the authority to amend any part of the Constitution, the Supreme Court, in the landmark Kesavananda Bharati v. State of Kerala (1973) case, ruled that this power does not extend to altering the ‘basic structure’ or ‘essential features’ of the document.
“The Parliament cannot, under the guise of amendment, abrogate or emasculate the fundamental features of the Constitution, such as secularism, federalism, judicial review, and the rule of law.” — Interpreted from the Kesavananda Bharati verdict.
This doctrine ensures that the core philosophy of the Indian republic—democracy, sovereignty, and individual rights—remains protected from transient political majorities. The judiciary determines what constitutes the “basic structure” on a case-by-case basis, making it a dynamic legal principle.
Evolution of the Amendment Power
The relationship between the Parliament and the Judiciary regarding amendments has been a historical tug-of-war. Initially, in the Shankari Prasad case (1951), the Supreme Court held that the Parliament could amend Fundamental Rights. However, this was challenged in the Golaknath case (1967), where the Court ruled that Parliament cannot abridge Fundamental Rights.
The Parliament responded with the 24th Amendment Act (1971), asserting its power to amend any part of the Constitution. The Kesavananda Bharati (1973) case finally settled the debate by allowing amendments to Fundamental Rights provided the Basic Structure remains intact. Later, the 42nd Amendment Act (1976) attempted to limit judicial review, but this was struck down by the Minerva Mills case (1980), which reaffirmed the supremacy of the Constitution and the role of the judiciary.
Key Points to Remember
- Article 368: The primary article governing the amendment process.
- Types of Majorities: Distinguish between simple, special, and special with state ratification.
- Kesavananda Bharati Case (1973): The origin of the Basic Structure Doctrine.
- Minerva Mills Case (1980): Established that ‘judicial review’ is a part of the basic structure.
- Constitutional Amendment Bill: Cannot be introduced in state legislatures; only in Parliament.
- Presidential Assent: The President must give assent to a constitutional amendment bill (cannot return or withhold it).
- Joint Sitting: There is no provision for a joint sitting of the two Houses for a constitutional amendment bill.
Important Facts: Amendment Categories
| Category | Requirement | Examples |
|---|---|---|
| Simple Majority | Simple majority of members present and voting | Creation of new states, citizenship rules |
| Special Majority | 2/3 of members present and voting + 50% of total membership | Fundamental Rights, DPSP |
| Special + Ratification | Special majority + 50% state assembly approval | Election of President, GST, Supreme Court powers |
Quick Revision Summary
- The Constitution is a blend of rigidity (special majority) and flexibility (simple majority).
- Article 368 is the specific provision for amending the Constitution.
- The Basic Structure Doctrine prevents the destruction of the Constitution’s core identity.
- The President has no veto power over a Constitutional Amendment Bill.
- Federal provisions require ratification by at least 50% of the state legislatures.
- Judicial review is an essential component of the basic structure.
- The Parliament cannot use its amending power to destroy the Constitution.
- The power to amend is a ‘constituent’ power, distinct from ‘legislative’ power.
