Article 368: Power of Parliament to amend the Constitution and procedure therefor.
This is the code that allows the Constitution to be changed (amended).
- Clause (1):
- Plain English: This gives Parliament the “constituent power” to amend (by way of addition, variation, or repeal) any provision of this Constitution, as long as it follows the procedure in Clause (2).
- Clause (2):
- Plain English: This is the Procedure. An amendment must be introduced as a Bill in either House. It must be passed in each House (Lok Sabha and Rajya Sabha) by a Special Majority:
- A majority of the total membership of that House (e.t., 273+ in Lok Sabha, 123+ in Rajya Sabha); AND
- A majority of not less than two-thirds (2/3) of the members of that House present and voting.
- Plain English: This is the Procedure. An amendment must be introduced as a Bill in either House. It must be passed in each House (Lok Sabha and Rajya Sabha) by a Special Majority:
- Proviso to Clause (2):
- Plain English: This is the extra procedure needed to change “federal” provisions. If the amendment seeks to change any of the following “entrenched” provisions…
- (a) Election of the President (Art 54, 55).
- (b) Extent of Union or State executive power (Art 73, 162).
- (c) The Judiciary (Supreme Court, High Courts, High Courts for UTs).
- (d) The three legislative lists in the Seventh Schedule.
- (e) The representation of States in Parliament (Rajya Sabha seats).
- (f) The provisions of Article 368 itself.
- …then the amendment Bill, after being passed by the Special Majority, must also be ratified (approved) by the legislatures of at least half of all the states in India (by a simple majority).
- Plain English: This is the extra procedure needed to change “federal” provisions. If the amendment seeks to change any of the following “entrenched” provisions…
- Real-World Examples:
- Amendment (No Ratification): The government wants to amend Article 21 to add the “Right to Education.” This is in Part III (Fundamental Rights), which is not in the proviso. It only needs a Special Majority in both Houses.
- Amendment (Ratification Needed): The government wants to introduce GST. This requires changing the Seventh Schedule (to give Parliament power to tax sales). Therefore, the 101st Amendment Bill was passed by a Special Majority in Parliament and was then sent to all states, where it had to be (and was) ratified by more than half of them (e.g., 15+ states) before the President could sign it.
- Clause (3):
- Plain English: (Added by 24th Amendment) This clarifies that Article 13 (which says “no law shall abridge Fundamental Rights”) does not apply to an “amendment” made under Article 368.
- Clause (4) & (5):
- Plain English: (Added by 42nd Amendment during the Emergency) These clauses tried to make Parliament’s amendment power absolute. They said (4) “no amendment shall be called in question in any court,” and (5) “there shall be no limitation whatever” on this power.
- STATUS: These two clauses (4 and 5) were struck down as unconstitutional by the Supreme Court in the Minerva Mills case (1980). The Court held that “judicial review” and the “basic structure” of the Constitution are supreme, and Parliament cannot give itself unlimited power to destroy the Constitution’s core.
