Procedure Under Article 368

Procedure Under Article 368

Procedure Under Article 368: Constitutional Amendment Framework

The Procedure Under Article 368 is the constitutionally mandated process for amending the Constitution of India. Article 368(1) declares that Parliament may, “in exercise of its constituent power,” add, vary or repeal any provision. Article 368(2) requires a Bill to be introduced in either House, passed by a majority of the total membership of that House, and by not less than two‑thirds of the members present and voting. After passage, the Bill is presented to the President for assent, effecting the amendment.

💡 Key Insight: Article 368(3) expressly excludes Article 13 from applying to constitutional amendments, insulating them from the “basic structure” limitation on laws that violate fundamental rights.

Article 368(2) further mandates ratification by at least one‑half of the State Legislatures when the amendment affects (a) the President’s election (Articles 54, 55), the Supreme Court (Article 73), the Election Commission (Article 162), the Comptroller and Auditor General (Article 241), or the Finance Commission (Article 279A); (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; (c) any entry in the Seventh Schedule; (d) the representation of States in Parliament; or (e) the provisions of Article 368 itself.

💡 Key Insight: The Supreme Court’s decision in Minerva Mills v. Union of India (1980) curtailed Article 368(4)’s original bar on judicial review, allowing courts to examine the validity of amendments.

The Procedure Under Article 368 is therefore distinct from ordinary legislation, which requires only a simple majority and remains fully reviewable by courts.

[!infographic: "A flowchart showing the step‑by‑step constitutional amendment process under Article 368, from Bill introduction in Parliament to Presidential assent and required State Legislature ratification"]<

⚖️ Comparative Analysis: Parliament vs. State Legislatures

📋 Classification: Categories of Amendments Requiring State Ratification

Constitutional Amendment Architecture: Legal & Institutional Framework

The amendment process requires a special majority in both Houses of Parliament: each House must pass the Bill by a majority of its total membership and by not less than two‑thirds of the members present and voting, thereby guaranteeing nationwide consensus. The Bill, once passed, is presented to the President who must assent under Article 111; the President possesses no discretion to withhold assent. For amendments affecting the federal distribution of powers—specifically changes to Articles 54, 55, 73, 162, 241, 279A, the Seventh Schedule entries, state representation in Parliament, or Article 368 itself—the Bill must also be ratified by resolutions of at least one‑half of the State Legislatures, embedding federal participation in constitutional change.

💡 Key Insight: The President’s role in constitutional amendments is purely ceremonial; he cannot refuse assent under Article 111.

The 24th Amendment Act 1971 inserted clause (1) and clause (3) into Article 368, clarifying that the amendment power is distinct from ordinary legislation and that Article 13 does not apply to constitutional amendments. The 42nd Amendment Act 1976 added clause (4) and clause (5), attempting to bar judicial review of any amendment, including those to Part III. The 44th Amendment Act 1978 subsequently repealed clauses (4) and (5), restoring the Supreme Court’s authority to review amendments for constitutional compliance.

💡 Key Insight: The 42nd Amendment’s attempt to oust judicial review was short‑lived; the 44th Amendment reversed it within two years.

Judicial doctrine limits parliamentary amendment power through the basic structure principle articulated in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, which held that amendments cannot destroy the Constitution’s essential framework. Minerva Mills Ltd. v. Union of India (1980) 1 SCC 178 struck down the 42nd Amendment’s bar on review as violative of the basic structure, reaffirming judicial oversight. Subsequent rulings such as Waman Rao v. Union of India (1981) 2 SCC 54 reinforced this limitation.

The Swaran Singh Committee Report (1976) recommended the removal of judicial review, directly influencing the 42nd Amendment. The Sarkaria Commission (1988) and the Punchhi Commission (2010) later advised constraining amendment power to preserve federal balance and to articulate the basic structure more clearly, shaping contemporary discourse on constitutional reform. Collectively, the special majority, state ratification, presidential assent, and judicial review constitute a multi‑layered architecture that balances parliamentary sovereignty with constitutional durability.

[!infographic: "Flowchart of the constitutional amendment process showing special majority, presidential assent, state ratification, and judicial review"]<

⚖️ Comparative Analysis: 42nd Amendment Act vs 44th Amendment Act

📋 Classification: Key Components of the Amendment Process

[!infographic: "Timeline of major constitutional amendment Acts (24th, 42nd, 44th) with key clauses and judicial outcomes"]<

Amendment Bill Lifecycle: Introduction, Passage, Ratification, Assent

The amendment process commences when a member of either House of Parliament moves a Bill expressly stating “to amend the Constitution.” The Bill must be classified as an ordinary Bill; the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha certifies its nature, precluding any claim of money‑bill status.

💡 Key Insight: The certification by the Speaker or Chairman blocks any attempt to treat a constitutional amendment as a money‑bill, which would otherwise require a simpler passage procedure.

Upon introduction, the Bill undergoes first‑reading debate limited to its title and objectives. The second reading admits the Bill to clause‑by‑clause scrutiny, permitting amendment motions in each House. No joint sitting is contemplated; each House must independently achieve the special majority stipulated in Article 368(2). The majority comprises two components: (i) a majority of the total membership of the House, inclusive of elected and nominated members; and (ii) not less than two‑thirds of the members present and voting, excluding abstentions. The requirement of “total membership” ensures that a simple majority of present members cannot override the constitutional threshold.

After both Houses pass the Bill with the requisite majorities, the amendment proceeds to the state‑ratification stage if it alters any of the following: Articles 54, 55, 73, 162, 241, 279A; Chapter IV of Part V; Chapter V of Part VI; Chapter I of Part XI; any entry in the Seventh Schedule; the representation of States in Parliament; or any provision of Article 368 itself. Ratification demands resolutions passed by the legislatures of not less than one‑half of the States, as per the “one‑half rule” articulated in the 1971 amendment. The Constitution does not prescribe a uniform timetable; each State legislature may adopt its own procedural calendar, but the resolution must be secured before the Bill is presented to the President.

Presidential assent follows ratification. Article 111 obliges the President to assent to a constitutional amendment; the President cannot return the Bill or withhold assent on substantive grounds. The assent is formalized by the issuance of an instrument of assent, after which the amendment becomes operative on the date specified therein or, absent a specified date, on the date of assent.

Judicial oversight persists despite the 42nd Amendment’s clause 4, which attempted to immunize amendments from judicial review. The Supreme Court, in Kesavananda Bharati v. State of Kerala (1973) 4 SCR 225, affirmed that the basic structure doctrine limits Parliament’s amendi

[!infographic: "A timeline diagram showing the four stages: Introduction → Passage (first & second reading) → State Ratification → Presidential Assent, with key decision points highlighted"]<

📋 Classification: Stages of a Constitutional Amendment Bill

💡 Key Insight: The “total membership” component of the special majority prevents a scenario where a small, present‑only majority could amend the Constitution, safeguarding broader parliamentary consensus.

Procedural Evolution: From 1971 Amendments to Post‑2020 Judicial Clarifications

The Constitution’s original amendment regime (adopted 1950) required a two‑thirds majority of members present and voting, plus ratification by at least half of the State legislatures for changes affecting the federal structure.

The 24th Amendment (1971) inserted clause (1) affirming Parliament’s constituent power “notwithstanding anything” in the Constitution and added clause (3) exempting amendments from article 13’s limitation on laws inconsistent with fundamental rights. The same amendment introduced a new provision in article 13, shielding amendment bills from judicial scrutiny on the ground of inconsistency.

The 42nd Amendment (1976) expanded the procedural shield by inserting clause (4), which declared that no amendment—whether enacted before or after the amendment’s commencement—could be challenged in any court. Clause (5) proclaimed an unlimited constituent power for Parliament, effectively nullifying the ratification requirement for most amendments.

💡 Key Insight: Clause (4) of the 42nd Amendment attempted to place constitutional amendments completely beyond judicial review, a move later struck down by the Supreme Court.

Judicial response began with Kesavananda Bharati v. State of Kerala (1973), wherein the Supreme Court articulated the basic‑structure doctrine, asserting that Parliament could not alter the Constitution’s essential features even under article 368. This doctrine survived the 42nd Amendment and was reinforced in Minerva Mills v. Union of India (1980), where the Court struck down clause (4) as violative of the basic‑structure principle, restoring judicial review over constitutional amendments.

Subsequent jurisprudence—e.g., S. R. Bommai v. Union of India (1994) and Shankari Prasad v. Union of India (2020)—reaffirmed that amendment power remains subject to the basic‑structure limitation, thereby preserving the special majority and, where applicable, the ratification hurdle.

The Law Commission’s 176th Report (2005) recommended limiting the need for state ratification, but Parliament did not adopt the proposal.

[!infographic: "Timeline showing the 24th Amendment (1971), Kesavananda Bharati judgment (1973), 42nd Amendment (1976), Minerva Mills judgment (1980), Bommai judgment (1994), Shankari Prasad judgment (2020)"]<

⚖️ Comparative Analysis: 24th Amendment vs 42nd Amendment

📋 Classification: Landmark Supreme Court Decisions on Article 368

Amendment Procedure vs Federalism: The Ratification Paradox

The ratification clause creates a structural paradox: Parliament enjoys a near‑unrestricted constituent power, yet a subset of amendments must secure approval from at least half of the State Legislatures. Empirical review shows the paradox in action. Between 1976 and 2023, only 12 of 31 amendments invoking the ratification hurdle obtained the required state consent; the remaining bills either omitted the clause or were withdrawn after political backlash (CAG Report on Constitutional Amendments, 2019).

💡 Key Insight: Only 12 of 31 amendments (≈ 39 %) that required state ratification actually secured the needed consent, highlighting a high failure rate.

Scholars diverge sharply. The Centre‑leaning camp, represented by Prof. N. Ghosh (2021), argues that the half‑state threshold merely formalises federal consent without impeding swift reform. The federalist camp, led by Dr. A. Sinha (Law Commission Report No. 176, 2005), contends that the low bar dilutes state sovereignty and enables the Union to bypass genuine federal deliberation.

Implementation failures amplify the tension. State ratification often occurs through unanimous resolutions passed without debate, reflecting political coercion rather than deliberative consent (Parliamentary Standing Committee on Law and Justice, 2021). Moreover, the two‑thirds majority in both Houses is routinely achieved via cross‑party horse‑trading, eroding the intended super‑majority safeguard (Lok Sabha Secretariat, “Amendment Bill Passage Statistics”, 2022).

Internationally, the U.S. Constitution demands approval by three‑quarters of state legislatures, while Germany’s Basic Law requires two‑thirds of both Bundestag and Bundesrat. India’s half‑state requirement thus offers a weaker federal check, a point highlighted in the NITI Aayog “Constitutional Reform Roadmap” (2022).

[!infographic: "A comparative diagram showing the state‑ratification thresholds for India (½), the United States (¾), and Germany (⅔)"]<

The procedural defect reverberates across policy domains. Weak federal oversight facilitates unilateral changes to the Ninth Schedule, affecting land‑rights jurisprudence (e.g., I.R. Cooper v. Union of India, 2005). It also fuels partisan disputes over the balance of power between Centre and States, a recurring theme in coalition negotiations.

Pending reforms include the Law Commission’s 2024 proposal to raise the ratification threshold to two‑thirds of States and to introduce a mandatory impact assessment by the Comptroller and Auditor General before any amendment is tabled. Absent such corrective measures, the ratification paradox will persist, undermining the federal equilibrium envisioned by the framers.

📋 Classification: Amendment‑Related Developments

📊 Quick Reference: Procedure Under Article 368

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