Article 368 | How to amend constitution of India?

Discuss about Article 368 of the Constitution of India. 

Article 368 in Part XX of the constitution provides for how to amend constitution of India such that basic structure of the constitution does not change.

Constitution of India is said to be a Living Document because it is neither too rigid nor too flexible and it can be changed by the Parliament of India based on the changing needs of the country. 

Article 368 in Part XX of the Constitution is dedicated to the procedure which needs to be followed for amending any part of the constitution, provided the basic structure of the constitution remains intact. The procedure for amending the constitution is inspired from the constitution of South Africa. The Parliament has the power to amend constitution by way of addition, repeal or variation of any provision of the constitution.

What is the procedure to amend the constitution of India? What are different types of Amendment? What parts of the constitution could be amended? What are Criticisms of Amendment procedure?

Amendment of the constitution (Article 368)

1) The procedure to amend the constitution is inspired from the constitution of South Africa.

2) Procedure to be followed for amending the constitution is present in Part-XX under Article 368.

3) Any provision of the constitution could be amended, provided basic structure of the constitution remains intact and is not hampered. [Kesavananda Bharati Case (1973) - basic structure philosophy]

4) The constitution of India is neither too flexible to allow ruling parties to change it according to their whims (unlike in Britian) nor too rigid (unlike in America), but rather a combination of both.

• Constitution of India could be amended according to the changing needs and conditions. [hence also called as Living Document]

• As said by Jawahar Lal Nehru in the constituent assembly, "If you make any Constitution rigid and permanent, you stop the nation's growth, the growth of a living, vital, organic people."

5) The powers to amend the Constitution are with Parliament of India which can amend constitution by way of addition, repeal or variation of any provision of the constitution in accordance with the procedure laid in Article 368 of Part-XX of the constitution.

6) Procedure for the Amendment of the Constitution

a) The bill to amend the constitution can be introduced in any House of the Parliament i.e Lok Sabha and Rajya Sabha.

• The bill cannot be introduced by State Legislature.

b) The bill can be introduced by a private member or a minister.

c) The introduction of Amendment bill in the Parliament doesnot require prior permission of President.

d) Bill must be passed by each House separately with a special majority.

e) There is no provision to hold joint sitting of the two Houses in case of disagreement between both the houses of Parliament.

f) If bill seeks to amend federal provision of the constitution then bill must be ratified by atleast half of the states by simple majority.

g) After being passed by both the Houses of Parliament separately (and ratified by half of the state legislature if required), bill is presented to the President for his assent.

h) President has to provide his assent to the bill.

President cannot withhold his assent or return the bill to the Parliament for reconsideration. 

i) After President's assent, bill becomes an Act and constitution stands to be amended. [Constitutional Amendment Act].

** Simple majority: Majority of the members of the House present and voting.

** Special Majority: Majority of the total membership of the house  and a majority of 2/3rd of the members of the House present and voting

7) Different types of Amendment :

There are two types of amendment provided by Article 368 to amend the constitution:

a) By special majority of Parliament

b) By ratification of half of the states by simple majority

Other articles of the constitution provides for amendment of some of the provisions of the constitution by (not Article 368):

a) Simple majority of the Parliament.

Provisions covered under each category :

Simple majority of Parliament (not Article 368)	Special Majority of Parliament (Article 368)	Special Majority of Parliament + ratification by half of the states by Simple Majority (Article 368)
Admission or establishment of new states,	Fundamental Rights	Power of Parliament to amend Article 368
Formation of new states and alteration of states,	Directive Principles of State Policy	Election of President and its manner
Union Territories	Other provisions not covered under Simple Majority of Parliament and Special Majority of Parliament + ratification by half of the states	Extent of Executive power of union and states
Citizenship – Acquisition and Termination		Distribution of legislative powers between Union and states
Privileges of Parliament, its members and its committees		Supreme Court and High Courts
Salaries and allowances of the members of Parliament		Representation of states in Parliament
Abolition or creation of Legislative Councils in states		Any of the list in 7th Schedule
Delimitation of constituencies
Elections to Parliament and State Legislatures
Quorum in Parliament
Rule of Procedure in Parliament
Use of English Language in Parliament
Use of official language
Number of Judges in Supreme Court
Conferment of more jurisdiction on Supreme Court
Second Schedule – emoluments, allowances, privileges of President, Vice-President, Governor, Speakers etc.
5th  Schedule – administration of schedule areas and schedule tribes
6th  Schedule – administration of tribal areas in Assam, Meghalaya, Tripura, Mizoram

8) Defects in Amendment Procedure or Criticism of Amendment Procedure

a) The power to initiate a bill lies entirely in Parliament. 

State legislature cannot initiate a bill to amend the constitution, except in one case :

• State legislature can pass a resolution requesting Parliament for creation or abolition of Legislative Councils in the state. 

In this case, Parliament can either accept or reject the request or may not take any action on the resolution.

b) In case of a deadlock between the two Houses of the Parliament over the passage of constitution amendment bill, there is no provision to hold joint sitting of both the Houses of the Parliament.

c) When a bill seeks to alter the federal structure of the constitution, the bill is required to be passed by special majority of the Parliament and ratification by half of the states by simple majority.

• In this case, the states are not time bound to ratify or reject the amendment submitted to them.

• Also in this case, ratification of only half of the states are required whereas in USA it is 3/4th.

d) Not all bills amending the constitution require ratification of states and can be passed by Simple majority or special majority of the Parliament.

• Only when federal structure of the constitution is altered, it must be ratified by half of the states.

e) The process of amendment is similar to ordinary legislative process.

• Except when a bill is required to be passed by special majority of Parliament, all other bills can be passed by the Parliament in a same manner as ordinary bills.

f) There is no special body like Constitutional Convention in USA or Constituent Assembly for amending the constitution.

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