Amendment of the Constitution - Article 368 (Part XX) | UPSC Polity

What is an Amendment?

• An amendment means making a change—adding something new, removing something old, or improving something that already exists.

• Just like we update our phone apps when new features or improvements are needed, the Constitution also needs updates when society changes.

Parliament, using its special power (called constituent power), can change the Constitution by adding, changing, or removing any of its provisions, but only by following the special procedure given in Article 368.

Lets Break:

• “Constituent power” = special power to change the Constitution itself (not just ordinary laws).

• “Addition” = adding new things.

• “Variation” = changing/modifying what is already there.

• “Repeal” = deleting/removing something.

⭐ Why Do We Need Amendments?

Because society keeps changing:

• New technology

• New social demands

• New economic challenges

• New political realities

To respond to these changes, the Constitution must also grow and improve. This is why we call it a “Living Document.”

Why the Indian Constitution is a Living Document

• The Constitution can be amended to suit changing social, political, and economic needs.

• The amendment procedure is not extremely flexible (like the UK) and not extremely rigid (like the USA).
  → It is a blend of rigidity and flexibility.

Constitutional Provision

• Article 368 (Part XX) defines:

  • Parliament’s power to amend the Constitution.

  • The procedure to be followed.

• Kesavananda Bharati Case (1973):

• Parliament can amend the Constitution.

• But it cannot alter or destroy the Basic Structure (e.g., federalism, secularism, judicial review).

⭐ A Very Easy Real-Life Example

Imagine your school rulebook says:

• “Classes will be offline only.”

But later, after COVID or new technology:

• Your school wants to allow online classes, or hybrid learning.

So the school needs to change the rulebook.
This change = Amendment.

The Indian Constitution works in a similar way.

⭐ Simple Example from Indian Constitution

1. Voting Age Reduced (61st Amendment, 1989)

• Earlier: Voting age = 21 years

• After amendment: Voting age = 18 years

👉 Why?
Youth participation increased. Society changed.
So Constitution was updated.

2. GST (101st Amendment, 2016)

• Before: State tax + Central tax → very confusing

• After: One Nation, One Tax (GST)

👉 Needed cooperation of states + Parliament.

3. Right to Education (86th Amendment, 2002)

• Added Article 21A: Free & compulsory education for kids (6–14 years)

👉 Because education is essential in modern society.

⭐ Procedure for Amendment (Article 368) – Easy Explanation + Examples

The Constitution gives a step-by-step method to change its provisions. This method is different from making ordinary laws and must be followed strictly.

✅ 1. Introduction of the Amendment Bill

• The amendment process starts only in Parliament.

• A bill can be introduced in either House:
  ✔ Lok Sabha OR
  ✔ Rajya Sabha

• State legislatures cannot introduce amendment bills.

Simple Example

Like a school rule change can be proposed only by the School Committee, not by students of each class.

✅ 2. Who Can Introduce the Bill?

• Any minister or any private member (MP who is not a minister) can introduce it.

• No permission from the President is needed before introducing the bill.

Easy Example

Just like any teacher can suggest a change in the school rulebook—not only the Principal.

✅ 3. Passage by Special Majority

The bill must be passed in each House by a Special Majority, which means:

1. Majority of the total membership of the House, AND

2. Two-thirds of the members present and voting.

Easy Example

If a class has 50 students (total strength), and 45 are present:

• To pass a rule change → Need
  ✔ More than 25 (majority of total 50) AND
  ✔ Two-thirds of 45 present = 30

Both conditions must be met.

✅ 4. Both Houses Must Pass It Separately

• Lok Sabha and Rajya Sabha must each pass the bill independently.

• If they disagree, there is NO joint session (unlike ordinary bills).

Easy Example

If a school has a Junior Committee and Senior Committee, both must agree separately for any rule change. No joint meeting allowed to settle a dispute.

✅ 5. Ratification by States (Only When Needed)

• If the amendment affects federal features, then half of the State legislatures also need to approve it.

• Approval is by simple majority in the states.

Federal topics include:

• Election of the President

• Distribution of powers between Centre and States

• Supreme Court & High Courts

• GST Council

• Entries in Union/State/Concurrent Lists

• Representation of States in Parliament

• Article 368 itself

Easy Example

If a school rule affects all branches of the school (main campus + sub-campus), then half of the branches must also agree.

✅ 6. President’s Assent

• After Parliament (and states, if required) pass the bill, it goes to the President.

• President must give assent.

• President cannot:
  ❌ Withhold assent
  ❌ Return the bill

• This became compulsory after the 24th Amendment (1971).

Easy Example

Like the school Principal must approve the final rule once the committees pass it.

✅ 7. Amendment Becomes Law

• After the President’s assent, the bill becomes a Constitutional Amendment Act.

• The Constitution stands officially amended.

Easy Example

Once Principal signs the new rule, it becomes part of the school rulebook.

Types of Amendments in India

Under Article 368, amendments are of two major types:

1. By Special Majority of Parliament

2. By Special Majority + Ratification by Half of the States

But apart from Article 368, some provisions are changed through:
3. Simple Majority of Parliament

Thus, there are three ways of amendment.

1. Amendment by Special Majority of Parliament (Article 368)

What is Special Majority?

• Majority of total membership of each House, AND

• 2/3rd majority of members present and voting.

Key Points

• Vacant seats do not matter — total membership means full strength.

• Most constitutional provisions require this majority.

Provisions amended by Special Majority

• Fundamental Rights
  (Example: 44th Amendment restored FRs after Emergency changes.)

• Directive Principles of State Policy (DPSPs)

• All other provisions not requiring simple majority or state ratification.

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2. Amendment by Special Majority + Consent of Half of the States

When required?

• When the amendment affects the federal structure.

Process

• Passed by Special Majority in Parliament.

• Ratified by at least 50% of State legislatures (simple majority).

• No time limit for states to respond.

• If some states do nothing, it still passes once half approve.

Provisions requiring State Ratification

• Election of the President and its manner.

• Executive power distribution (Union–State relations).

• Supreme Court and High Courts.

• Division of legislative powers (Union/State/Concurrent Lists).

• GST Council provisions.

• Any entry in the Seventh Schedule.

• Representation of States in Parliament.

• Amendment procedure (Article 368 itself).

Example

• 101st Constitutional Amendment Act, 2016 (GST) required state ratification.

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3. Amendment by Simple Majority of Parliament

(Outside Article 368 → treated like normal legislation)

Provisions amended by Simple Majority

• Admission or creation of new states
  Example: Telangana (2014).

• Change in state boundaries or names.

• Creation or abolition of State Legislative Councils.

• Second Schedule: salaries & allowances of:

  • President, Governors, Speaker, Judges, etc.

• Quorum in Parliament.

• Salaries/allowances of MPs.

• Rules of procedure of Parliament.

• Privileges of Parliament and its committees.

• Use of English in Parliament.

• Number of Supreme Court judges.

• Expansion of Supreme Court jurisdiction.

• Official language matters.

• Citizenship (acquisition, termination).

• Elections to Parliament/state legislatures.

• Delimitation of constituencies.

• Union Territories.

• Fifth Schedule (scheduled areas & tribes).

• Sixth Schedule (tribal areas in NE India).

Criticism of the Amendment Procedure – Simplified Notes

1. No Specialised Body

• The Constitution does not create a separate, expert body for amendments.

• Countries like the USA have a Constitutional Convention, but India depends only on Parliament.

• This means the same body that makes laws also changes the Constitution.

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2. Dilution of Federal Character

• In a true federation (like the USA), states play a major role in amending the Constitution.

• But in India:

  • The amendment process begins only in Parliament, not in state legislatures.

  • States participate only in limited cases (mainly federal provisions).

  • Even when states propose the creation/abolition of legislative councils, Parliament may:
    ✔ Approve
    ✔ Reject
    ✔ Take no action

• Thus, the Centre (Parliament) has more power, weakening federal balance.

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3. No Time-bound Process for States

• When amendments require state ratification, the Constitution:

  • Does not give a time limit for states to accept or reject the bill.

  • Is silent on whether a state can withdraw its approval later.

• This creates confusion and slows down amendments.

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4. No Provision for Joint Sitting

• If Lok Sabha and Rajya Sabha disagree on an amendment bill:

  • There is no joint sitting, unlike ordinary bills.

• This may cause deadlocks and slow decision-making.

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5. Overlap With Ordinary Legislative Process

• Amendment bills follow almost the same procedure as ordinary laws.

• Only difference → special majority is required.

• This can be seen as insufficient protection, since amending the Constitution should ideally be more distinct and rigorous.

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6. Provisions Are Too Sketchy

• Article 368 gives only a brief outline of the amendment procedure.

• Many issues are not clearly defined, leading to:

  • Confusions

  • Different interpretations

  • Frequent approach to the judiciary for clarification

• Example: Supreme Court had to define “Basic Structure” because the Constitution didn’t explain limits on amendment power.