Amending the Constitution: Article 368
Part XX of the Constitution, Amendment of the Constitution, holds Article 368. NCERT says a constitution that is easy to change is called flexible and one that is hard to change is called rigid, and that "The Indian Constitution combines both these characteristics." In this lesson you will learn where an amendment starts, the special majority it needs, when the States must agree, what the President does, and the basic structure that no amendment may violate.
Guess first
Start with where an amendment begins.
Guess first: where can a Bill to amend the Constitution be introduced?
Show answer
Correct answer: A
Article 368(2): "An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament". NCERT adds: "Note that all amendments to the Constitution are initiated only in the Parliament."
Option B: Article 368(2) says either House of Parliament, so an amendment Bill can also start in the Rajya Sabha.
Option C: A State Legislature cannot start an amendment; for some amendments the State Legislatures only ratify a Bill that Parliament has passed.
Option D: Article 368(2) says either House of Parliament, so an amendment Bill can also start in the Lok Sabha.
Hint: Article 368 does not prefer either House of Parliament.
An everyday picture
Think of a national sports federation whose members are State associations.
Changing the Constitution works like changing a sports federation's rule book:
A rule the council changes like any other decision Articles 2 and 3, by law
a simple majority in Parliament, like an ordinary law
A rule that needs a big vote in the council Article 368(2)
a special majority in each House of Parliament
A rule about the State associations' own share Article 368(2), proviso
the special majority plus ratification by at least half the States
The core of the founding charter basic structure (Kesavananda Bharati)
no amendment may violate it
The picture has one limit: in a federation, the members decide what the charter's core is. In India, NCERT says the Kesavananda ruling "places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure."
See it: the ways to change the Constitution
NCERT draws them as three boxes.
| Way | What Parliament needs | Examples |
|---|---|---|
| By law (Articles 2 and 3) | a simple majority, as for an ordinary law | admitting new States; changing the areas, boundaries or names of States |
| Article 368(2) | a special majority in each House: a majority of the total membership and not less than two-thirds of those present and voting | most amendments |
| Article 368(2) with its proviso | the same special majority, plus ratification by the Legislatures of not less than one-half of the States | the Lists in the Seventh Schedule; the representation of States in Parliament; Articles 54, 55 and 73; Article 368 itself |
NCERT: "no referendum is required for ratification of the amendment", and the President "has no powers to send it back for reconsideration".
Total, two-thirds, then half the States: a majority of the total membership, two-thirds of those present and voting, and half the States only when the proviso applies.
Find the rule
Three quick checks on how an amendment passes under Article 368.
Besides a majority of the total membership of the House, what share of the members present and voting must support an amendment Bill?
Show answer
Correct answer: A
Article 368(2): the Bill must be passed in each House "by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting".
Option B: One-half is about the States: for some amendments the Legislatures of not less than one-half of the States must ratify.
Option C: Three-fourths is NCERT's example from South Africa and Russia, for some amendments there.
Option D: A simple majority of those voting is the rule for an ordinary bill (NCERT).
Hint: It is more than one-half but less than three-fourths.
Which of these changes needs, besides the special majority in Parliament, ratification by the Legislatures of at least half the States?
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Correct answer: B
The proviso to Article 368(2) lists the changes that also need ratification by "the Legislatures of not less than one-half of the States", among them "(c) any of the Lists in the Seventh Schedule" and "(d) the representation of States in Parliament".
Option A: Part III (Fundamental Rights) is not in the proviso's list, so the special majority in Parliament is enough.
Option C: Article 352 is not in the proviso's list.
Option D: Part IV (Directive Principles) is not in the proviso's list.
Hint: Look for the change that touches the States' own share of law-making.
When an amendment Bill passed by both Houses is presented to the President, what does Article 368(2) say the President does?
Show answer
Correct answer: A
Article 368(2): the Bill "shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended". NCERT: the President "has no powers to send it back for reconsideration".
Option B: NCERT: for an amendment Bill, the President has no powers to send it back for reconsideration.
Option C: NCERT: "no referendum is required for ratification of the amendment".
Option D: NCERT: each House passes the Bill separately, and "there is no provision for a joint session".
Hint: The word in Article 368(2) is shall, not may.
Name it: amending under Article 368, and its limits
The rule: An amendment Bill starts in either House of Parliament and needs, in each House, a majority of the total membership and not less than two-thirds of those present and voting. Changes listed in the proviso also need ratification by the Legislatures of not less than one-half of the States. The President shall give assent. And since the Kesavananda ruling of 1973, NCERT says, no amendment can violate the basic structure.
Article 368(3): "Nothing in article 13 shall apply to any amendment made under this article." The 24th Amendment Act, 1971 inserted this clause.
Worked, half-done, solo
Question
A House has 101 members. On an amendment Bill, 90 members are present and voting. What is the least number of votes in favour that passes the Bill in that House?
Solution
- A majority of the total membership
More than half of 101 means at least 51.
- Two-thirds of those present and voting
Two-thirds of 90 is 60.
- Both conditions
Article 368(2) needs both, so the Bill needs the larger number, 60.
Answer: 60 votes in favour.
Watch out: the other House must pass the Bill the same way, separately: NCERT says "there is no provision for a joint session".
Now finish one that is half done.
Half done: the same House of 101 members; now only 60 members are present and voting. Two-thirds of 60 is 40. What is the least number of votes in favour that passes the Bill?
Show answer
Correct answer: A
Both conditions of Article 368(2) apply: at least 40 (two-thirds of the 60 voting) and at least 51 (a majority of the total membership of 101). The larger number, 51, is needed.
Option B: 40 meets two-thirds of those voting but not a majority of the total membership, which is 51.
Option C: 31 is a simple majority of the 60 voting, the rule for an ordinary bill.
Option D: 68 is the least number that reaches two-thirds of all 101 members; Article 368(2) counts two-thirds of those present and voting.
Hint: Check the total-membership condition too.
And one on your own.
The same House of 101 members; this time 99 members are present and voting. What is the least number of votes in favour that passes the Bill?
Show answer
Correct answer: B
A majority of the total membership is 51; two-thirds of the 99 present and voting is 66. Article 368(2) needs both, so 66.
Option A: 51 meets the total-membership condition but not two-thirds of the 99 voting.
Option C: 50 is a simple majority of the 99 voting, the rule for an ordinary bill.
Option D: 68 is the least number that reaches two-thirds of all 101 members, not of those present and voting.
Hint: When almost everyone votes, two-thirds of the voters is the bigger number.
The traps
- Either House: an amendment Bill can start in either House of Parliament, the Lok Sabha or the Rajya Sabha, never in a State Legislature.
- Both conditions: a majority of the total membership and not less than two-thirds of those present and voting, in each House separately.
- Half the States only for the listed matters: the proviso lists the Lists in the Seventh Schedule, the representation of States in Parliament, Article 368 itself and a few others. Part III (Fundamental Rights) is not on it.
- No referendum, no sending back: NCERT says no referendum is needed and the President cannot send the Bill back.
- Kesavananda, 1973: not 1976 (the 42nd Amendment Act) or 1980 (Minerva Mills).
- Articles 2 and 3: a law admitting or forming States is not an amendment for the purposes of Article 368 (Article 4(2)).
Neha wrote: "The Kesavananda ruling came in 1976, the year of the 42nd Amendment Act." In which year did the Supreme Court give the Kesavananda ruling, according to NCERT?
Show answer
Correct answer: A
NCERT: "The Supreme Court gave the Kesavananda ruling in 1973." It says that "no amendment can violate the basic structure of the Constitution".
Option B: 1976 is the year of the 42nd Amendment Act, which inserted Article 368(4) and Article 368(5).
Option C: 1971 is the year of the 24th Amendment Act, which gave Article 368 its present heading.
Option D: 1980 is the year of Minerva Mills, in which, the Constitution's footnote records, the Supreme Court declared invalid the section of the 42nd Amendment Act that inserted Article 368(4) and Article 368(5).
Hint: It came between the 24th and the 42nd Amendment Acts.
Mixed check
Which Part of the Constitution is titled Amendment of the Constitution?
Show answer
Correct answer: A
Part XX, "AMENDMENT OF THE CONSTITUTION", holds Article 368, "Power of Parliament to amend the Constitution and procedure therefor".
Option B: Part XVIII holds the Emergency Provisions (Articles 352 to 360).
Option C: Part XIX begins with Article 361; Article 368 comes after it.
Option D: Part III holds the Fundamental Rights.
Hint: It comes after the Emergency Provisions of Part XVIII.
Quick reference
Amending the Constitution: Part XX, Article 368
- Article 368(1)
- constituent power Parliament may amend by way of addition, variation or repeal
- Article 368(2)
- where an amendment starts a Bill in either House of Parliament, never in a State Legislature
- Article 368(2)
- special majority in each House: a majority of the total membership and two-thirds of those present and voting
- Proviso to Article 368(2)
- some changes also ratified by the Legislatures of at least half the States (the Seventh Schedule Lists, the representation of States in Parliament, Article 368 itself)
- Article 368(2)
- the President shall give assent (NCERT: cannot send it back; no referendum)
- Article 368(3)
- Article 13 does not apply to amendments (inserted by the 24th Amendment Act, 1971)
- Articles 2 and 3
- new States, areas, boundaries, names by law, a simple majority; not an amendment for Article 368 (Article 4(2))
- Kesavananda Bharati, 1973
- basic structure (NCERT) no amendment can violate it; the Judiciary decides
Why it works: the Constitution can change, but the States share in changes to their own powers, and the basic structure stays.
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