A constitution that can change
A constitution written in 1950 cannot answer every question a country will face. So it has to be changeable — but not too easily.
Make it too rigid and it breaks under pressure. Make it too flexible and it stops being a constraint on government at all. Article 368 is where the framers struck that balance.
India's answer is three different procedures, depending on what is being changed. Some provisions can be altered like an ordinary law. Others need a special majority. The most important need the states to agree as well.
The amendment procedure was borrowed from South Africa. The Indian Constitution is often called partly rigid and partly flexible for exactly this reason — it has no single amendment standard.
The three procedures
| Procedure | Majority needed | Applies to |
|---|---|---|
| Simple majority | Ordinary law — more than half of members present and voting | Creating or abolishing states, changing state names and boundaries, citizenship, creating or abolishing a Legislative Council. Not counted as an amendment under Article 368 |
| Special majority | Two-thirds of members present and voting, and a majority of the total membership of each House | Fundamental Rights, Directive Principles, and most of the Constitution |
| Special majority plus state ratification | Special majority in Parliament, plus approval by at least half the state legislatures | Federal provisions — election of the President, distribution of legislative powers, the Seventh Schedule, representation of states in Parliament, Article 368 itself |
Changes made by simple majority are not amendments at all for the purposes of Article 368. Article 4 says so directly. This is why creating Telangana in 2014 needed only an ordinary Act of Parliament rather than a constitutional amendment.
Two further points about the procedure. An amendment bill can be introduced in either House, and it needs no prior recommendation from the President. There is no joint sitting to resolve deadlock — each House must pass it separately.
Since the 24th Amendment, 1971, presidential assent to an amendment bill is mandatory. Before that it was arguable that the President could withhold assent. The President now has no veto over a constitutional amendment.
Can a joint sitting be called to resolve deadlock on a Constitutional Amendment Bill?
No. Each House must pass it separately by the required special majority. A joint sitting is available only for ordinary bills.
The limit on amendment
Article 368 says Parliament may amend the Constitution. For twenty-three years the question was whether that power had any limit at all.
| Case | Year | What it held |
|---|---|---|
| Shankari Prasad | 1951 | Parliament can amend Fundamental Rights; an amendment is not an ordinary law under Article 13 |
| Golaknath | 1967 | Parliament cannot amend Fundamental Rights at all |
| Kesavananda Bharati | 1973 | Parliament can amend Fundamental Rights, but cannot destroy the basic structure of the Constitution |
| Minerva Mills | 1980 | Confirmed the doctrine and struck down parts of the 42nd Amendment which had tried to make amendments unchallengeable |
Laid down in Kesavananda Bharati (1973) by a bench of thirteen judges, the largest ever assembled in India, decided by 7 to 6. Parliament may amend any provision, but cannot alter features that form the Constitution's basic structure. The Court has never given a closed list, but it has held these to be part of it: supremacy of the Constitution, rule of law, judicial review, secularism, federalism, separation of powers, free and fair elections, and the balance between Fundamental Rights and Directive Principles.
The 42nd Amendment (1976) tried to remove the limit by declaring that no amendment could be questioned in any court and that Parliament's amending power was unlimited. Minerva Mills (1980) struck both clauses down — an amendment cannot destroy the very power that reviews it.
The amendments that matter
| Amendment | Year | What it did |
|---|---|---|
| 1st | 1951 | Added the Ninth Schedule to protect land reform laws from judicial review |
| 7th | 1956 | Reorganised the states; abolished the Part A, B, C, D classification |
| 24th | 1971 | Made presidential assent mandatory for amendment bills; affirmed the power to amend Fundamental Rights |
| 42nd | 1976 | The Mini-Constitution — added socialist, secular and integrity to the Preamble, created Fundamental Duties, moved education and forests to the Concurrent List |
| 44th | 1978 | Undid much of the 42nd — removed Right to Property from Fundamental Rights, replaced internal disturbance with armed rebellion, made Articles 20 and 21 non-suspendable |
| 52nd | 1985 | Anti-defection law — added the Tenth Schedule |
| 61st | 1989 | Reduced the voting age from 21 to 18 |
| 73rd and 74th | 1992 | Panchayati raj and urban local bodies; added the Eleventh and Twelfth Schedules |
| 86th | 2002 | Right to education — Article 21A, and the eleventh Fundamental Duty |
| 91st | 2003 | Capped the Council of Ministers at 15% of the House |
| 101st | 2016 | Introduced Goods and Services Tax and the GST Council |
| 102nd | 2018 | Gave constitutional status to the NCBC |
| 103rd | 2019 | EWS reservation — 10% for economically weaker sections |
| 104th | 2019 | Ended Anglo-Indian nominated seats; extended SC and ST reservation in legislatures |
| 106th | 2023 | Women's reservation — one-third of seats in the Lok Sabha and state assemblies |
42 built, 44 dismantled. The 42nd Amendment of 1976 is the largest ever made; the 44th of 1978 exists mainly to undo it. Every safeguard the 44th added is a response to something the 42nd did.
The twelve Schedules
The Constitution began with eight Schedules. It now has twelve.
| Schedule | Contains | Added by |
|---|---|---|
| First | The states and union territories and their territorial extent | Original |
| Second | Salaries and allowances of the President, Governors, judges, the CAG and the Speaker | Original |
| Third | Forms of oath for ministers, legislators, judges and the CAG | Original |
| Fourth | Allocation of Rajya Sabha seats to states and union territories | Original |
| Fifth | Administration of Scheduled Areas and Scheduled Tribes | Original |
| Sixth | Administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram | Original |
| Seventh | The three legislative lists — Union, State and Concurrent | Original |
| Eighth | The official languages — originally 14, now 22 | Original |
| Ninth | Laws protected from judicial review, mostly land reform | 1st Amendment, 1951 |
| Tenth | The anti-defection law | 52nd Amendment, 1985 |
| Eleventh | 29 subjects for panchayats | 73rd Amendment, 1992 |
| Twelfth | 18 subjects for municipalities | 74th Amendment, 1992 |
The First Amendment created the Ninth Schedule so that land reform laws could not be struck down. But in I.R. Coelho (2007) the Supreme Court held that any law placed in the Ninth Schedule after 24 April 1973 — the date of the Kesavananda judgment — can still be reviewed if it violates the basic structure. Putting a law in the Ninth Schedule no longer makes it untouchable.
The Eighth Schedule began with 14 languages and now has 22. Sindhi was added in 1967, Konkani, Manipuri and Nepali in 1992, and Bodo, Dogri, Maithili and Santhali in 2003.
Nine, Ten, Eleven, Twelve — the four added Schedules. Ninth from the 1st Amendment, Tenth from the 52nd, Eleventh from the 73rd, Twelfth from the 74th.
Everything on one look
The three procedures, the basic structure cases, and the Schedules.
- Article 368 governs constitutional amendment
- There are three amendment procedures
- State ratification needs at least half the state legislatures
- The Constitution has twelve Schedules, originally eight
- The Eighth Schedule now lists 22 languages
- Kesavananda Bharati was decided 7 to 6 by 13 judges
- The 42nd Amendment is the largest ever made
- Ninth Schedule — 1st Amendment, 1951
- Tenth Schedule — 52nd Amendment, 1985
- Eleventh Schedule — 73rd Amendment, 1992
- Twelfth Schedule — 74th Amendment, 1992
- Shankari Prasad (1951) — amendment power upheld
- Golaknath (1967) — Fundamental Rights unamendable
- Kesavananda (1973) — basic structure doctrine
- Changes by simple majority are not amendments under Article 368 — Article 4 says so
- An amendment bill needs no prior presidential recommendation and can start in either House
- There is no joint sitting for a Constitutional Amendment Bill
- Presidential assent has been mandatory since the 24th Amendment, 1971
- Golaknath (1967) held Fundamental Rights unamendable; Kesavananda reversed that in 1973
- Kesavananda was decided by 13 judges, 7 to 6 — the largest bench ever
- The 42nd Amendment tried to make amendments unchallengeable; Minerva Mills struck that down
- The Ninth Schedule no longer protects laws absolutely — I.R. Coelho (2007) allows review after 1973
- The Eleventh Schedule has 29 subjects and the Twelfth has 18 — commonly swapped
- The Constitution had eight Schedules originally, not twelve
- Article 368 governs the amendment of the Constitution
- The amendment procedure was borrowed from South Africa
- The Constitution is described as partly rigid and partly flexible
- There are three amendment procedures — simple majority, special majority, and special majority with state ratification
- Changes made by simple majority are not amendments under Article 368
- A special majority means two-thirds present and voting plus a majority of total membership
- State ratification requires at least half the state legislatures to approve
- An amendment bill can be introduced in either House and needs no presidential recommendation
- There is no joint sitting for a Constitutional Amendment Bill
- Presidential assent became mandatory through the 24th Amendment of 1971
- Shankari Prasad (1951) held that Parliament can amend Fundamental Rights
- Golaknath (1967) held that Parliament cannot amend Fundamental Rights
- Kesavananda Bharati (1973) established the basic structure doctrine
- Kesavananda was decided by thirteen judges in a seven to six split
- Minerva Mills (1980) struck down the 42nd Amendment attempt to make amendments unchallengeable
- The 42nd Amendment, 1976 is called the Mini-Constitution
- The 44th Amendment, 1978 undid much of the 42nd
- The 61st Amendment, 1989 reduced the voting age from 21 to 18
- The 106th Amendment, 2023 provided one-third reservation for women in legislatures
- The Constitution originally had eight Schedules and now has twelve
- The Ninth Schedule was added by the First Amendment in 1951 to protect land reform laws
- I.R. Coelho (2007) held that Ninth Schedule laws added after 1973 can still be reviewed
- The Tenth Schedule contains the anti-defection law, added in 1985
- The Eighth Schedule lists 22 official languages, up from 14 originally