Amendment of the Constitution Under Article 368

Article 368 gives Parliament the power to amend any provision of the Constitution by addition, variation or repeal, through a Bill passed in each House by a majority of its total membership and by two-thirds of the members present and voting. Some amendments, such as those touching the Seventh Schedule Lists or Article 368 itself, also need ratification by at least half the State Legislatures. The power is wide but not unlimited: since Kesavananda Bharati v. State of Kerala (1973), Parliament cannot use it to destroy the basic structure of the Constitution.

This explainer is written for B.A. LL.B. and LL.B. students preparing for Constitutional Law papers, and for any citizen who wants to understand why a court can strike down an amendment passed by Parliament. If you are a student in Nagercoil revising the night before an internal test, the exam section near the end is for you.

What does Article 368 actually say?

Read the bare text before any textbook. Article 368 now carries the heading "Power of Parliament to amend the Constitution and procedure therefor", a heading substituted by the Constitution (Twenty-fourth Amendment) Act, 1971. Its clauses work like this:

• Clause (1): notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent power, amend any provision by addition, variation or repeal, following the procedure in the article.
• Clause (2): an amendment can begin only by a Bill introduced in either House of Parliament. It must pass each House by a majority of the total membership of that House and by not less than two-thirds of members present and voting. On the President's assent, the Constitution stands amended.
• Clause (3): nothing in Article 13 applies to an amendment made under Article 368. This was also added in 1971 to answer Golaknath.
• Clauses (4) and (5): inserted by section 55 of the Forty-second Amendment Act, 1976. They tried to bar courts from questioning any amendment and declared there was "no limitation whatever" on Parliament's constituent power. The official text carries a footnote that this section was declared invalid in Minerva Mills Ltd. v. Union of India (1980).

When do the States have to ratify?

The proviso to clause (2) adds a federal check. Ratification by the Legislatures of not less than one-half of the States is needed, before the Bill goes for assent, if the amendment changes:

1. Articles 54, 55, 73, 162, 241 or 246A (246A was added by the 101st Amendment, 2016, for GST);
2. Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI;
3. any of the Lists in the Seventh Schedule;
4. the representation of States in Parliament; or
5. Article 368 itself.

This proviso is not a formality. In Union of India v. Rajendra N. Shah (2021), the Supreme Court held that Part IXB on co-operative societies, inserted by the 97th Amendment, needed State ratification and had not received it. Using severability, the Court let Part IXB operate only for multi-State co-operative societies.

Is every change to the Constitution an "amendment" under Article 368?

No. Some provisions can be changed by ordinary law and are expressly kept outside Article 368. Article 4(2), for example, says a law forming a new State or altering boundaries under Articles 2 or 3 "shall not be deemed to be an amendment of this Constitution for the purposes of article 368". So students usually describe three routes: simple majority (outside Article 368), special majority under Article 368(2), and special majority plus State ratification under the proviso.

How has the Supreme Court read the amending power?

The case law is a conversation between Parliament and the Court. Learn it in order:

• Shankari Prasad Singh Deo v. Union of India (1951): amendments are not "law" under Article 13(2), so Parliament can amend fundamental rights.
• Sajjan Singh v. State of Rajasthan (1965): the majority followed Shankari Prasad. Justices Hidayatullah and Mudholkar wrote separate opinions doubting that view, and Mudholkar J. asked whether Parliament could change the basic features of the Constitution.
• I.C. Golak Nath v. State of Punjab (1967): an eleven-judge bench held, 6:5, that an amendment is "law" and cannot take away or abridge Part III rights. Parliament replied with the 24th Amendment.
• Kesavananda Bharati v. State of Kerala (24 April 1973): a thirteen-judge bench overruled Golaknath, upheld the power to amend every provision including fundamental rights, but held that the basic structure cannot be altered.
• Indira Nehru Gandhi v. Raj Narain (1975): struck down clause (4) of Article 329A, inserted by the 39th Amendment, applying the basic structure test.
• Minerva Mills Ltd. v. Union of India (1980): struck down sections 4 and 55 of the 42nd Amendment. A limited amending power is itself a basic feature, so Parliament cannot convert it into an unlimited one.
• Kihoto Hollohon v. Zachilhu (1992): struck down paragraph 7 of the Tenth Schedule (anti-defection) while upholding the rest.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): by 4:1, struck down the 99th Amendment creating the National Judicial Appointments Commission as a threat to judicial independence.
• Janhit Abhiyan v. Union of India (7 November 2022): by 3:2, upheld the 103rd Amendment providing EWS reservation against a basic structure challenge.

Is there a Tamil Nadu connection?

Yes, and it is a useful one for students here. I.R. Coelho v. State of Tamil Nadu, decided by a nine-judge bench on 11 January 2007, arose from the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, which had been placed in the Ninth Schedule after the Supreme Court struck down part of it. The Court held that laws added to the Ninth Schedule after 24 April 1973, the date of Kesavananda, do not get blanket immunity and can be tested against the basic structure, including the essence of Articles 14, 19 and 21. The Madras High Court, like every High Court, is bound by these Supreme Court rulings under Article 141 when a Tamil Nadu law or amendment is challenged before it.

What is the current position in 2026?

Parliament can amend any part of the Constitution, including Part III, by following Article 368(2) and, where needed, the ratification proviso. Courts can review the amendment on two grounds: procedure (was the special majority or State ratification missing?) and substance (does it damage the basic structure?). Clauses (4) and (5) remain printed in the text but have no effect. Always check the latest Bare Act edition from the Legislative Department, because the list in the proviso has changed before.

How should you write about Article 368 in an exam?

1. Open with the text: constituent power, special majority, the five items in the proviso.
2. Explain the three methods of amendment with Article 4(2) as an example of the non-368 route.
3. Trace the case law in date order, one line on what each case held.
4. Give two or three examples of basic features named by the Court, such as judicial review, limited amending power and judicial independence, and tie each to its case.
5. Close with Coelho and a recent case such as Janhit Abhiyan to show the doctrine is still applied.

Moot court and clinic work sharpen this kind of reasoning; our programmes page lists where Constitutional Law sits in the syllabus.

Sources

• The Constitution of India (as on 1 May 2024): official English text published through the Parliament digital library.
• Article 368, Indian Kanoon: text of Article 368 with footnotes on the 24th, 42nd and 101st Amendments.
• I.R. Coelho v. State of Tamil Nadu (2007): Supreme Court judgment on Ninth Schedule laws and the basic structure.
• Janhit Abhiyan v. Union of India (2022): Supreme Court judgment upholding the 103rd Amendment.
• LiveLaw: Constitutional amendments struck down by the Supreme Court: list of amendments invalidated wholly or partly, with case names.
• Supreme Court Observer: EWS Reservation: case tracker for the 103rd Amendment challenge.