Constitution Amendment Bill

1. Constitutional basis and categories of change

Article 368, located in Part XX, authorises Parliament to exercise its constituent power to amend the Constitution by addition, variation or repeal. Constituent power changes the constitutional framework; ordinary legislative power makes laws within that framework. The procedure balances adaptability with stability and protects federal arrangements from unilateral alteration.

Not every change affecting the constitutional text is an amendment under Article 368. Certain provisions expressly allow changes through ordinary parliamentary legislation. These generally require a simple majority of members present and voting, although additional procedural conditions may apply.

For examination purposes, constitutional changes are classified into three categories: changes by simple majority outside Article 368; amendments by the special majority under Article 368; and amendments requiring that special majority plus ratification by at least half of the State Legislatures.

• Articles 2–4 allow laws concerning admission, establishment and reorganisation of States, including consequential changes to the First and Fourth Schedules, without treating them as Article 368 amendments.
• Under Article 169, Parliament may create or abolish a State Legislative Council by ordinary law after the concerned Legislative Assembly passes the constitutionally required special-majority resolution.
• Most Fundamental Rights and Directive Principles can be amended by parliamentary special majority without State ratification, subject to the basic structure limitation.

2. Introduction, passage and presidential assent

An Article 368 bill can be introduced in either the Lok Sabha or the Rajya Sabha. Both ministers and private members may introduce it. No prior presidential recommendation is required. A State Legislature cannot introduce an Article 368 amendment bill, although States participate through ratification when specified federal provisions are affected.

Each House must pass the bill by a majority of its total membership and by a majority of not less than two-thirds of members present and voting. Both conditions apply simultaneously. Abstentions are excluded from the present-and-voting calculation but do not reduce the total-membership threshold. Vacancies also do not reduce that threshold.

For illustration, in a House with a total membership of 240, if 180 members vote, two-thirds equals 120. However, a majority of the total membership requires 121 affirmative votes. Therefore, 120 votes cannot carry the amendment.

The two Houses have equal authority in this process. There is no joint sitting to resolve disagreement over a Constitution Amendment Bill. After parliamentary passage and State ratification wherever required, the bill is presented to the President. Article 368 requires the President to give assent; there is no option to withhold assent or return the bill for reconsideration. An amendment may specify a commencement date different from its assent date.

• Do not confuse the Article 368 majority with two-thirds of the total membership.
• The special majority prescribed for Rajya Sabha resolutions under Articles 249 and 312 is different: two-thirds of members present and voting.

3. When State ratification is compulsory

Ratification protects provisions central to the federal arrangement. Where the proviso to Article 368(2) applies, legislatures of not less than one-half of the States must ratify the amendment through resolutions before the bill is presented to the President. With 28 States, the minimum is 14. Union Territory legislatures do not count towards this requirement.

The Constitution does not prescribe an Article 368-type special majority for ratification resolutions; they are passed by ordinary majority. In a bicameral State, both Houses participate in ratification. States ratify the amendment passed by Parliament rather than rewrite it. Article 368 does not itself specify a time limit for ratification.

• Election of the President: Articles 54 and 55.
• Extent of Union and State executive powers: Articles 73 and 162.
• Supreme Court and High Court provisions: Chapter IV of Part V and Chapter V of Part VI.
• Union–State legislative relations: Chapter I of Part XI, and any List in the Seventh Schedule.
• Representation of States in Parliament and Article 279A concerning the GST Council.
• Article 368 itself, including the constitutional amendment procedure.

4. Judicial limits: the basic structure doctrine

In Shankari Prasad v. Union of India (1951), the Supreme Court upheld Parliament’s power to amend Fundamental Rights. In I.C. Golak Nath v. State of Punjab (1967), it held that Parliament could not amend Fundamental Rights. The Twenty-fourth Amendment, 1971, expressly affirmed Parliament’s constituent power, excluded Article 368 amendments from Article 13 and made presidential assent mandatory.

In Kesavananda Bharati v. State of Kerala (1973), a thirteen-judge Bench held that Parliament could amend every part of the Constitution, including Fundamental Rights, but could not damage or destroy its basic structure. Thus, procedural compliance alone does not establish an amendment’s validity. Constitutional supremacy, democracy, secularism, federalism and judicial review are among the recognised basic features; the list is not exhaustive.

The Forty-second Amendment, 1976, attempted to exclude judicial review of amendments and declare Parliament’s amending power unlimited. In Minerva Mills v. Union of India (1980), the Court invalidated these changes, affirming that limited amending power and judicial review are themselves basic features.

In I.R. Coelho v. State of Tamil Nadu (2007), the Court held that laws placed in the Ninth Schedule through amendments after 24 April 1973 remain open to basic structure review. Ninth Schedule placement is therefore not an absolute shield against constitutional scrutiny.

• A constitutional amendment may fail because the prescribed procedure was violated or because its substance violates the basic structure.
• The basic structure doctrine does not make every existing constitutional provision unamendable.

5. Prelims distinctions and significance

Article 368 gives neither Parliament unrestricted supremacy nor States a veto over every amendment. State participation is confined to specified provisions, and ratification by all States is unnecessary. Conversely, a provision’s location alone may not determine whether ratification is needed: its effect on protected federal arrangements matters.

In Union of India v. Rajendra N. Shah (2021), the Supreme Court held Part IXB, inserted by the Ninety-seventh Amendment, inoperative concerning cooperative societies within States because the required State ratification had not occurred. Its operation concerning multi-State cooperative societies survived. The additions to Article 19(1)(c) and Article 43B were unaffected.

For solving objective questions, first identify whether the change falls outside Article 368, then test the parliamentary majority, State-ratification requirement and basic structure limitation. This sequence prevents confusion between ordinary lawmaking and constitutional amendment.

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