How the Constitution is amended: Article 368 and the three types

The Indian Constitution is neither as rigid as America's nor as flexible as Britain's. It can be amended, and has been 106 times, but the procedure changes with the importance of what is being changed. This article explains Article 368, the three types of amendment, and the limits Parliament cannot cross.

Why a constitution must be amendable

A constitution that cannot change becomes a museum piece, and one that changes too easily becomes a plaything of majorities. The framers wanted a living document that could adapt to new social and economic realities without losing its identity. Ambedkar defended the amendment procedure in the Constituent Assembly as striking this balance, and the last 75 years have tested it repeatedly, from land reforms in the 1950s to the Goods and Services Tax in 2016 and women's reservation in 2023.

Amendments have served five broad purposes: keeping the Constitution a living document, social engineering such as the 103rd Amendment's EWS reservation, correcting judicial interpretations that blocked policy, rebalancing Centre-state powers, and evolving rights, as when the 86th Amendment made education a fundamental right. They have also been used for institutional reform, most controversially the 99th Amendment's attempt to create the National Judicial Appointments Commission.

Type one: amendments by simple majority

Not every constitutional change needs Article 368. A large class of provisions can be amended by Parliament with a simple majority, exactly like ordinary legislation, and these changes are not even deemed amendments under Article 368. The most important examples are the admission, formation and reorganisation of states under Articles 2, 3 and 4, the abolition or creation of legislative councils in states under Article 169, the emoluments in the Second Schedule, and the quorum and procedural rules of Parliament.

This is the flexibility half of the famous blend. It explains why India has gone from 14 states in 1956 to 28 states and 8 Union Territories today without a single Article 368 amendment for most reorganisations. Telangana's creation in 2014, which made it the 29th state at the time, came through ordinary legislation under Articles 3 and 4, not a constitutional amendment. The exam trap is to assume every constitutional change needs a special majority; the simple-majority category is the standard trick option.

Type two: amendments by special majority

This is the Article 368 procedure most people mean when they say constitutional amendment. The bill must be passed in each House by a special majority with two elements: a majority of the total membership of the House, and a majority of not less than two-thirds of the members present and voting. Both conditions must be satisfied together, which makes abstentions and absences matter strategically.

The procedure has distinctive features. The bill can be introduced in either House, never in a state legislature. It can be moved by a minister or a private member and needs no prior permission of the President. Each House must pass it separately, and there is no provision for a joint sitting under Article 108 if the Houses disagree, which means the Rajya Sabha can block an amendment even against a massive Lok Sabha majority. The bulk of the Constitution, including Fundamental Rights and Directive Principles, is amended this way.

Type three: special majority plus state ratification

For provisions that touch the federal structure, Article 368 adds a second lock: after Parliament passes the bill by special majority, it must be ratified by the legislatures of at least half the states, each by a simple majority, before it goes for presidential assent. The protected provisions include the election of the President (Articles 54 and 55), the extent of executive power of the Union and states (Articles 73 and 162), the Supreme Court and High Courts, the distribution of legislative powers (Articles 245 to 255), the Seventh Schedule, the representation of states in Parliament, and Article 368 itself.

The 101st Amendment of 2016, which introduced the Goods and Services Tax by reworking the Seventh Schedule's tax entries, went through this route with ratification by more than half the states. The rule ensures that the federal bargain cannot be rewritten by the Centre alone, though critics note that states cannot initiate amendments at all and remain dependent on Parliament's willingness to act.

The President's role: assent is compulsory

Once an amendment bill clears Parliament and, where needed, the states, it goes to the President for assent under Article 368(2). Unlike ordinary bills, where the President can withhold assent or return the bill for reconsideration, the President must give assent to a constitutional amendment. This was not always explicit; the 24th Amendment of 1971, passed in response to the Golaknath judgment, made it obligatory. The President is thus the final rubber stamp in the amendment process, with no discretion to refuse.

Procedural limitations: the rules Parliament must follow

The limitations on the amending power come in two kinds. The procedural limitations are the explicit conditions in Article 368 itself: the special majority requirement in each House, separate passage with no joint sitting, ratification by half the states for federal provisions, presidential assent, and compliance with ordinary legislative procedure on notice, debate, quorum and voting. Procedural lapses can invite judicial scrutiny, as the Court noted in the Raj Narain context.

These may look technical, but they have bitten. The absence of a joint sitting means amendment bills die if the two Houses disagree, a much harder test than ordinary legislation. And the ratification requirement has forced the Centre to negotiate with states, as during the GST amendment.

Substantive limitations: what Parliament can never do

The deeper limits are judicial creations that protect the Constitution's identity. The doctrine of basic structure, born in Kesavananda Bharati v. State of Kerala (1973), holds that Parliament can amend any part of the Constitution but cannot destroy its basic structure. In Minerva Mills (1980), the Court struck down clauses (4) and (5) of Article 368, inserted by the 42nd Amendment to declare Parliament's power unlimited, holding that limited amending power is itself part of the basic structure.

The doctrine has since been applied repeatedly: Parliament cannot abrogate the Fundamental Rights that form part of the basic structure, such as equality and liberty; it cannot alter the essential federal balance, as reaffirmed in Kuldip Nayar (2006); and even laws parked in the Ninth Schedule after 1973 remain open to basic-structure review under I.R. Coelho (2007). Parliament's power to amend is therefore a limited power that cannot be enlarged into an absolute power, the exact proposition UPSC has asked about in a GS-II paper.

Criticisms of the amendment process

The procedure has four standard criticisms. First, frequency: with 106 amendments in 75 years, critics say the Constitution is amended too easily compared to the American one. Second, central dominance: state legislatures cannot initiate amendments, leaving federal change hostage to the Centre's political will. Third, the undefined basic structure: since the Court has never exhaustively listed its elements, every major amendment carries litigation risk and invites charges of judicial overreach. Fourth, the no-joint-sitting rule: a small minority in the Rajya Sabha can block an amendment backed by an overwhelming Lok Sabha majority, as nearly happened with several reform amendments.

What examiners keep asking

• Article 368 allows amendment by addition, variation or repeal; it sits in Part XX, which has only this one article.
• Three types: simple majority (Articles 4, 169, Second Schedule), special majority, and special majority plus ratification by half the states.
• Special majority means a majority of total membership plus two-thirds of those present and voting, in each House separately, with no joint sitting.
• Amendment bills originate only in Parliament, need no prior presidential permission, and the President must assent (24th Amendment, 1971).
• Ratification covers federal provisions: presidential election, Articles 73 and 162, SC and HCs, Articles 245 to 255, Seventh Schedule, state representation in Parliament, Article 368 itself.
• Procedural limits come from Article 368; substantive limits from the basic structure doctrine (Kesavananda 1973, Minerva Mills 1980, Coelho 2007).
• A GS-II paper asked about procedural and substantive limitations on the amending power; another asked whether Parliament can destroy the basic structure.

Key Terms

• Kesavananda Bharati v. State of Kerala: Kesavananda Bharati v. State of Kerala (1973) is the Supreme Court's landmark 13-judge decision that created the basic structure doctrine. Kesavananda Bharati, head of a Kerala math, challenged land reform laws and the 24th, 25th and 29th Amendments; the Court upheld Parliament's power to amend any provision including fundamental rights, but ruled the basic structure itself unamendable. Decided 7:6, it is the longest-heard case in the Court's history and the foundation of constitutional law for UPSC. heard over 68 working days, it remains the longest hearing in Supreme Court history
• the Goods and Services Tax: The Goods and Services Tax is India's comprehensive destination-based indirect tax, subsuming excise duty, service tax, VAT, and other levies into one system. Introduced by the 101st Constitutional Amendment in 2016 through Articles 246A, 269A, and 279A, it applies CGST plus SGST on intra-state supply and IGST on inter-state supply, with rates set by the GST Council. Example: the GST Council's decisions on tax slabs illustrate cooperative federalism in action. The GST Council's periodic decisions fixing tax slabs and rates for goods and services across states.
• National Judicial Appointments Commission: The National Judicial Appointments Commission was the six-member body created by the 99th Constitutional Amendment Act and the NJAC Act, both of 2014, to replace the collegium system for appointing Supreme Court and High Court judges. It comprised the Chief Justice of India, two senior Supreme Court judges, the Union Law Minister and two eminent persons. In October 2015 the Supreme Court struck it down in the Fourth Judges case for violating judicial independence, restoring the collegium. The 4:1 majority verdict in Supreme Court Advocates-on-Record Association v. Union of India (2015).
• special majority plus ratification: Special majority plus ratification is the toughest Article 368 amendment procedure: the amendment needs a special majority in Parliament (majority of total membership plus two-thirds present and voting) and, because it touches federal provisions such as the Seventh Schedule or state representation, ratification by at least half of the state legislatures. It matters for UPSC because it is the standard test for identifying amendments that alter Centre-State relations, a favourite mains theme. The 101st Constitutional Amendment (GST, 2016), ratified by the states before assent.
• doctrine of basic structure: The doctrine of basic structure is the Supreme Court’s holding that Parliament’s amending power under Article 368 cannot be used to destroy the Constitution’s essential features. Propounded in Kesavananda Bharati v. State of Kerala (1973) and refined in Minerva Mills (1980), it reconciles parliamentary sovereignty with constitutional supremacy. It is arguably the most important doctrine in Indian constitutional law and a perennial UPSC mains theme. Minerva Mills (1980) used the doctrine to strike down the 42nd Amendment’s attempt to give directive principles primacy over fundamental rights.
• basic structure doctrine: Basic structure doctrine is the constitutional principle laid down in Kesavananda Bharati (1973) that Parliament may amend the Constitution under Article 368 but cannot destroy its basic structure. Features like supremacy of the Constitution, rule of law, judicial review, and federalism are beyond amendment. For UPSC mains, it is the central doctrine in any answer on the balance between Parliament's amending power and constitutional limits. Kesavananda Bharati v. State of Kerala, Supreme Court, 1973
• Constituent Assembly: The Constituent Assembly was the body that framed India's Constitution, constituted under the Cabinet Mission Plan of 1946 with 389 members drawn from provinces, princely states, and chief commissioners' provinces. It met first on 9 December 1946 under Sachchidanand Sinha, with Rajendra Prasad as permanent president, and adopted the Constitution on 26 November 1949. For UPSC, it is the foundation of Indian constitutional history and polity. Jawaharlal Nehru moved the Objectives Resolution on 13 December 1946, setting the Assembly's guiding principles.
• Directive Principles: The Directive Principles of State Policy are the non-justiciable guidelines in Part IV (Articles 36 to 51) of the Indian Constitution that direct the state toward social and economic justice. Borrowed from the Irish Constitution, they are fundamental to governance but unenforceable in courts. For UPSC, the tension and harmony between them and Fundamental Rights is a recurring mains theme. In Minerva Mills v. Union of India (1980), the Supreme Court held that the Constitution balances Fundamental Rights with Directive Principles.
• Indian Constitution: The Indian Constitution is the supreme law of India, adopted by the Constituent Assembly on 26 November 1949 and brought into force on 26 January 1950. It is the world's longest written constitution, blending parliamentary democracy, fundamental rights, directive principles and federalism with a strong centre. Drafted under B.R. Ambedkar's chairmanship of the Drafting Committee, it draws on the Government of India Act, 1935 and several foreign constitutions. For UPSC, it is the foundation of the entire polity syllabus.
• Kesavananda Bharati: Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod, Kerala, who filed the 1970 writ petition challenging Kerala's land reform laws that became the landmark Kesavananda Bharati case. His thirteen-judge challenge produced the basic structure doctrine, and he died in September 2020. He matters for every GS-2 polity discussion of constitutional limits on Parliament's power to amend the Constitution. The Edneer Mutt seer who petitioned the Supreme Court in 1970
• Fundamental Rights: Fundamental Rights are the justiciable individual rights guaranteed by Part III of the Indian Constitution (Articles 12 to 35). They comprise six categories today, namely the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and the right to constitutional remedies. They matter for UPSC because they are the constitutional core tested against legislative and executive action, and because right to property was removed from Part III by the 44th Amendment in 1978, becoming the legal right under Article 300A. The Supreme Court's Kesavananda Bharati judgment of 1973, which upheld Parliament's power to amend Fundamental Rights but limited it through the basic structure doctrine.
• State ratification: State ratification is the formal approval of a constitutional amendment by state legislatures under Article 368. Amendments affecting the federal structure, such as changes to the Seventh Schedule or representation of states, must be ratified by at least half the state legislatures before receiving Presidential assent. For UPSC, it is a favourite prelims fact and a mains point on cooperative federalism and the rigidity of the amendment process. The 101st Constitutional Amendment (GST, 2016), ratified by state legislatures before receiving Presidential assent

Practice questions

The amendment journey in four steps

The Indian Constitution reflects the journey of India from a colony to a sovereign republic. As Pandit Nehru noted, a constitution must be both rigid and flexible to meet a nation's evolving needs. Article 368 empowers Parliament to amend the Constitution, balancing continuity with change, and with 106 amendments so far the process has adapted the document to social, political and economic transformation while preserving its core ideals. As Dr. B.R. Ambedkar noted, the Constitution is a living document that must evolve with the changing times, challenges and aspirations of the nation.

Two details trap examiners: there is no joint sitting if the Houses disagree on an amendment Bill, and no time limit is fixed for state ratification.

Why constitutions must change: six necessities

• Evolving social order: protect weaker sections and ensure social justice, as in the 106th Amendment's women's reservation.
• Strengthening institutions: improve governance and political stability, as in the 52nd Amendment's anti-defection law.
• Technological change: address new issues such as digital privacy and data protection.
• Fulfilling the social contract: implement constitutional ideals such as Gram Swaraj through the 73rd and 74th Amendments.
• Structural adjustment: reshape economic provisions as needs change, as in the abolition of the right to property.
• Administrative efficiency: simplify systems and reduce complexity, as in the GST through the 101st Amendment.

The process itself draws criticism, and a strong mains answer pairs each limitation with an improvement. Procedural limitations include no dedicated constitutional review body, no deadlock resolution between the Houses, no ratification time limit, and limited public consultation. Substantive limitations include federal imbalance when amendments disturb Centre-State relations, majoritarian passage of far-reaching changes, and the undefined edges of the basic structure doctrine. Suggested improvements run from a dedicated review mechanism and fixed ratification timeframes to wider stakeholder consultation and stronger safeguards for State legislatures.