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Article 368, majorities, the basic structure and key amendments

Amendment of the Constitution and the basic structure · Part 1 / 1 · Fact-checked on 18 October 2026 · how we check

Written with AI from the sources listed at the bottom of this page, then fact-checked by a separate AI.

How the Constitution is changed and how far: Article 368 and its procedure, the three routes of amendment and the provisions that need the States' ratification, the kinds of majority, the contest from Shankari Prasad to Minerva Mills that produced the basic structure doctrine, and the amendments asked about most.

A written constitution must be able to change as the country changes, but not so easily that a passing majority can rewrite the basic law. Article 368, the single Article of Part XX, strikes this balance: it gives Parliament the power to amend the Constitution and fixes the procedure. This part explains how an Amendment bill is passed, the three levels of difficulty and the kinds of majority the Constitution uses; then the contest between Parliament and the courts over cutting down Fundamental Rights, which produced the basic structure doctrine; and finally the amendments Prelims asks about most.

Article 368(1) reads: 'Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.' The words 'constituent power' came with the 24th Amendment (1971). They signal that while amending the Constitution, Parliament is not acting as an ordinary law-maker but is reshaping the basic law itself. The same amendment inserted Article 13(4), so that a constitutional amendment is not treated as a 'law' that falls merely because it abridges a Fundamental Right. The power rests with Parliament alone. No State legislature can begin an amendment, and India has no separate constituent body or referendum of the kind some countries use. Suppose a State wants a subject moved between the Lists of the Seventh Schedule: it can lobby the Union, but only a bill in Parliament can make the change.

An amendment starts as a bill in either House of Parliament. A minister or a private member may introduce it, and no prior recommendation of the President is needed. Each House must pass it on its own by a special majority: a majority of the total membership of that House together with a majority of not less than two-thirds of the members present and voting. Because each House must agree separately, an amendment bill can never go to a joint sitting; if the Rajya Sabha votes down a bill that the Lok Sabha has passed, the bill is lost. After both Houses pass it, the bill goes to the President, who 'shall give his assent'. These words were made binding by the 24th Amendment, so the President can neither withhold assent nor send the bill back for reconsideration. On assent, the Constitution stands amended in the terms of the bill.

Not every provision is equally hard to change; there are three routes. On the first, Parliament changes certain provisions by an ordinary law passed by a simple majority, and the Articles concerned say that such a law is not an amendment for the purposes of Article 368. Examples are forming new States and altering State boundaries or names (Articles 2 to 4), creating or abolishing a State Legislative Council (Article 169), the Fifth and Sixth Schedules, and matters left to Parliament 'until Parliament by law otherwise provides', such as the quorum of a House (Article 100(3)) and members' salaries (Article 106). On the second route, which covers most of the Constitution, including the Fundamental Rights and the Directive Principles of State Policy, the special majority of Article 368 is enough. On the third route, provisions that shape the federal balance need the special majority plus ratification by the legislatures of at least half the States.

The provisions that need ratification are listed in the proviso to Article 368(2). They are the election of the President (Articles 54 and 55); the extent of the executive power of the Union and of the States (Articles 73 and 162); the Supreme Court and the High Courts, including High Courts for Union territories (Article 241); the GST Council (Article 279A, added by the 101st Amendment, 2016); the distribution of legislative powers (Chapter I of Part XI) and any of the Lists in the Seventh Schedule; the representation of States in Parliament (Fourth Schedule); and Article 368 itself. The reason is federalism: these provisions decide the States' place in the Union, so the Union should not be able to rewrite them alone. The States ratify by resolutions of their legislatures, and the Constitution sets no time limit. This is why the 101st Amendment, which created GST and changed the Seventh Schedule, had to go to the States before it reached the President.

The special majority of Article 368 is only one of several majorities in the Constitution. A simple majority means more than half of the members present and voting; it passes ordinary bills and money bills and decides a no-confidence motion. An absolute majority means more than half of the total membership of a House. An effective majority counts only the seats actually filled, so it is more than half of the sitting members, with vacancies ignored; it is needed to remove the Vice-President by a Rajya Sabha resolution (Article 67(b)) and to remove the Speaker or Deputy Speaker (Article 94(c)). Special majorities take three forms. The Article 368 form joins an absolute majority to two-thirds of those present and voting; the same form removes a Supreme Court or High Court judge and approves a proclamation of National Emergency. Two-thirds of those present and voting alone is needed for a Rajya Sabha resolution under Article 249 or Article 312. Two-thirds of the total membership is needed to impeach the President under Article 61.

For two decades after 1950 the central question was whether Parliament could use Article 368 to cut down Fundamental Rights, since Article 13(2) forbids the State to make any 'law' that takes them away or abridges them. In Shankari Prasad v. Union of India (1951), and again in Sajjan Singh v. State of Rajasthan (1965), the Supreme Court held that a constitutional amendment is not a 'law' within Article 13, so Fundamental Rights too could be amended; the First and Seventeenth Amendments were upheld. In I.C. Golaknath v. State of Punjab (1967) a bench of eleven judges reversed this view and held that Parliament had no power to take away or abridge a Fundamental Right. Parliament responded in 1971 with the 24th Amendment, which affirmed its power to amend any provision, and the 25th Amendment, which added Article 31C to protect laws giving effect to the Directive Principles in Article 39(b) and (c). The stage was set for the largest bench the Court has ever formed.

In Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by thirteen judges by a majority of seven to six, the Court upheld the 24th Amendment and overruled Golaknath: Parliament may amend any part of the Constitution, Fundamental Rights included. Yet it read in a limit that appears nowhere in the words of Article 368. Changing the Constitution, the majority reasoned, is different from replacing its identity, so Article 368 cannot be used to wipe out the basic structure, the core features that make the Constitution what it is. The Court also upheld the first part of Article 31C but struck down its second part, which had tried to stop courts from asking whether a law really gave effect to the Directive Principles. Parliament tried to remove the limit through the 42nd Amendment (1976), which added clauses (4) and (5) to Article 368: no amendment could be questioned in any court, and the amending power had no limits. In Minerva Mills v. Union of India (1980) the Court struck down both clauses, holding that a limited amending power and judicial review are themselves basic features.

The Court has never issued a complete list of basic features; it recognises them one case at a time. Features named in its judgments include the supremacy of the Constitution, the republican and democratic form of government, secularism, the federal character, the separation of powers, judicial review, free and fair elections, the rule of law, the independence of the judiciary, a limited amending power and the harmony between Fundamental Rights and Directive Principles. The doctrine is mainly a test for amendments, and it guards principles rather than particular Articles. Suppose an amendment changes the voting age or the number of seats in a House: no basic feature is harmed, so it stands. Suppose instead it puts a Prime Minister's election beyond the reach of every court: that was Article 329A(4), struck down in Indira Nehru Gandhi v. Raj Narain (1975). For laws placed in the Ninth Schedule, Waman Rao v. Union of India (1981) made 24 April 1973 the dividing line, so later additions can be tested against the basic structure.

A small group of amendments carries most of the exam weight; the table below lists them. Two deserve a closer look. The 42nd Amendment of 1976, passed during the Emergency, changed so much that it is often called a 'mini-constitution'. It added 'socialist', 'secular' and 'integrity' to the Preamble, inserted the Fundamental Duties as Part IVA, and moved five subjects, among them education and forests, from the State List to the Concurrent List. The 44th Amendment of 1978, passed by the government that followed, reversed much of this. It took the right to property out of Part III and made it a legal right under Article 300A, replaced 'internal disturbance' with 'armed rebellion' as a ground for National Emergency, and provided that Articles 20 and 21 cannot be suspended during an Emergency.

The Indian method sits between the very rigid American procedure and the British practice, where Parliament changes constitutional rules by ordinary law. That balance is why the Constitution has been amended more than a hundred times while its core has stayed recognisably the same. Critics note the gaps: no special constituent body or referendum, no power for the States to start an amendment and a say only on listed subjects, no time limit for ratification, and no way out of a deadlock between the two Houses. The basic structure doctrine closes part of the gap from the other side: Article 368 settles how the Constitution may be changed, and the basic structure settles how far.

Exam traps

• An amendment bill can start in either House and can be moved by a private member; no prior recommendation of the President is needed.
• There is no joint sitting for a constitutional amendment bill: if one House rejects it, the bill fails.
• Since the 24th Amendment (1971) the President must assent to an amendment bill; there is no option to withhold assent or return the bill.
• State legislatures cannot initiate an amendment; they only ratify listed provisions, half the States are enough, and no time limit is set.
• Creating new States (Articles 2–4) and creating or abolishing a Legislative Council (Article 169) need only a simple majority and are not amendments under Article 368.
• Removing the Vice-President or the Speaker needs an effective majority; impeaching the President needs two-thirds of the total membership; neither is the Article 368 formula.
• Golaknath (1967) held Fundamental Rights could not be amended; Kesavananda (1973) held they could, but not the basic structure. Do not swap them.
• Article 368(4) and (5), added by the 42nd Amendment, were struck down in Minerva Mills (1980), not removed by the 44th Amendment.

Recap

• Article 368 (Part XX): Parliament's constituent power to amend by addition, variation or repeal; State legislatures cannot initiate.
• Bill in either House, by a minister or private member; special majority in each House separately; no joint sitting; President must assent (24th Amendment).
• Three routes: simple majority (not an amendment under Article 368), special majority, and special majority plus ratification by half the States.
• Ratification needed for Articles 54, 55, 73, 162, 241, 279A, the Union and State judiciary, distribution of legislative powers, Seventh Schedule Lists, Fourth Schedule and Article 368 itself.
• Majorities: simple, absolute, effective (Arts 67(b), 94(c)) and three special forms (Art 368 type; two-thirds present and voting, Arts 249, 312; two-thirds of total membership, Art 61).
• Shankari Prasad (1951) and Sajjan Singh (1965) allowed amending Fundamental Rights; Golaknath (1967) forbade it; the 24th and 25th Amendments (1971) answered.
• Kesavananda Bharati (24 April 1973, 13 judges, 7–6): any part can be amended, but not the basic structure; Minerva Mills (1980) struck down Article 368(4), (5).
• Basic features are identified case by case; the doctrine protects principles, not particular Articles; Waman Rao (1981) set the Ninth Schedule cut-off at 24 April 1973.
• Key amendments: 1st, 7th, 24th, 42nd ('mini-constitution'), 44th, 52nd, 61st, 73rd and 74th, 86th, 101st, 103rd, 106th.

Practice questions

Sources

• Constitution of India: Articles 2–4, 13, 31C, 61, 67, 94, 100, 106, 124, 169, 249, 279A, 300A, 312, 352 and 368; Fourth, Fifth, Sixth and Seventh Schedules — https://legislative.gov.in/constitution-of-india/
• Constitution (First, Seventh, Twenty-fourth, Twenty-fifth, Forty-second, Forty-fourth, Fifty-second, Sixty-first, Seventy-third, Seventy-fourth, Eighty-sixth, One Hundred and First, One Hundred and Third and One Hundred and Sixth Amendment) Acts — https://www.indiacode.nic.in
• Supreme Court of India: Shankari Prasad v. Union of India (1951); Sajjan Singh v. State of Rajasthan (1965); I.C. Golaknath v. State of Punjab (1967); Kesavananda Bharati v. State of Kerala (1973); Indira Nehru Gandhi v. Raj Narain (1975); Minerva Mills v. Union of India (1980); Waman Rao v. Union of India (1981) — https://digiscr.sci.gov.in