1. Why a constitution is amended
A constitution is written at one time but has to serve later times, so it needs a way of changing. A rigid constitution is hard to change; a flexible constitution can be changed as easily as an ordinary law. The Indian Constitution is a balance of the two: some parts are changed easily, most need a special majority, and some need the states as well.
| Idea | Meaning |
|---|---|
| Why a constitution changes | Society, needs and knowledge change, so a constitution must be able to adapt |
| Rigid constitution | One that is difficult to change, because change needs a demanding procedure |
| Flexible constitution | One that can be changed easily, in the way an ordinary law is changed |
| The Indian balance | Some parts can be changed easily, most need a special majority, and some also need the states |
Key terms
- Amendment
A formal change in the text of the Constitution, made by the procedure that the Constitution itself provides.
- Rigid constitution
A constitution that is difficult to change, because change needs a demanding procedure.
- Flexible constitution
A constitution that can be changed easily, in the way an ordinary law is changed.
2. Article 368: the three ways
Article 368 gives Parliament the power to amend the Constitution and lays down the procedure. As commonly taught, there are three ways:
- Simple majority: ordinary laws, such as Article 3 (new states) and Article 169 (Legislative Councils), technically not amendments under Article 368.
- Special majority in each House: for most provisions, including the Fundamental Rights.
- Special majority plus ratification by at least half of the state legislatures: for federal matters.
| Matter | Detail |
|---|---|
| How it is passed | As an ordinary law, by a simple majority of members present and voting |
| Article 3 | Forming new states, and changing the area, boundaries or names of states |
| Article 169 | Creating or abolishing a Legislative Council in a state, after a resolution of the state Assembly |
| Status | Technically not counted as amendments under Article 368 |
| Point | Special majority |
|---|---|
| Condition 1 | A majority of the total membership of the House |
| Condition 2 | Two thirds of the members present and voting |
| Both needed | A bill that meets only one of the two conditions fails |
| Used for | Most provisions of the Constitution, including the Fundamental Rights |
Key terms
- Simple majority
More than half of the members present and voting.
- Special majority
A majority of the total membership of a House together with two thirds of the members present and voting.
- Ratification
Formal approval of an amendment by the legislatures of the states, where the Constitution requires it.
3. Federal matters and the rules of the procedure
The matters that need ratification include the election of the President, the executive power of the Union and the states, the Supreme Court and the High Courts, the lists of the Seventh Schedule, the representation of states in Parliament and Article 368 itself.
A bill can start in either House; there is no joint sitting; the President must assent (24th Amendment, 1971). More than a hundred amendments have been made; the 106th, in 2023, is the latest as of 2024.
| Matter affected | Why states are involved |
|---|---|
| Election of the President | The states take part in the election |
| Executive power of the Union and the states | It concerns the division of power between the two levels |
| The Supreme Court and the High Courts | The courts serve the Union and the states |
| Lists of the Seventh Schedule | They divide subjects between the Union and the states |
| Representation of states in Parliament | It concerns how states are heard at the centre |
| Article 368 itself | The way of amending must not be changed without the states |
| Step | Imagined House with 540 members in total |
|---|---|
| The imagined bill | The 140th Amendment Bill, to widen a Fundamental Right |
| Condition 1 | More than half of 540 means at least 271 votes for the bill |
| Condition 2 | With 360 present and voting, two thirds is 240 votes |
| Case A: 300 vote for | 300 is at least 271 and at least 240: the bill passes in this House |
| Case B: 270 vote for | 270 is above 240 but below 271: the bill fails |
| Imagined bill | Method and reason |
|---|---|
| A law forming the imagined state of Tarnia from districts of Merivia | Simple majority under Article 3; not an amendment under Article 368 |
| The 140th Amendment Bill: widen a Fundamental Right | Special majority in each House; no ratification by the states |
| The 141st Amendment Bill: move a subject from the State List to the Union List | Special majority plus ratification by at least half of the states |
| The 142nd Amendment Bill: change the way the President is elected | Special majority plus ratification; the election of the President is a federal matter |
| Rule | Detail |
|---|---|
| Where it starts | In either House of Parliament; a state legislature cannot begin it |
| Joint sitting | None for amendment bills: each House must pass the bill on its own |
| Assent | The President must give assent; the 24th Amendment (1971) made this obligatory |
| How many amendments | More than one hundred; the 106th, in 2023, is the latest as of 2024 |
Key terms
- Federal provision
A provision that affects the division of power between the Union and the states; amending it needs ratification by the states.
4. Kinds of amendments and the 1970s
Amendments are commonly grouped as technical or administrative (15th, 1963: retirement age of High Court judges from 60 to 62), those from differing interpretations of the judiciary and Parliament, those through political consensus (52nd, 1985; 61st, 1988; 73rd and 74th, 1992) and the controversial amendments of the 1970s.
The 42nd Amendment (1976) was passed during the national Emergency (1975 to 1977); it changed many parts of the Constitution, added socialist, secular and integrity to the Preamble and added the Fundamental Duties. The 44th Amendment (1978) restored several provisions.
| Kind | Example |
|---|---|
| Technical or administrative | The 15th Amendment (1963) raised the retirement age of High Court judges from 60 to 62 |
| Differing interpretations | A disagreement between the judiciary and Parliament, for example over property and the Fundamental Rights |
| Political consensus | The 52nd (1985), the 61st (1988), and the 73rd and 74th (1992) |
| Controversial amendments of the 1970s | The 42nd Amendment (1976) and the 44th Amendment (1978) |
| Kind | What it shows |
|---|---|
| Technical or administrative | A change of detail, such as an age or a date, that does not alter any policy |
| Differing interpretations | When the judiciary and Parliament read a provision differently, Parliament may amend the text |
| A test question | Does the change adjust a detail, answer a court reading, or reflect wide agreement? |
| Amendment | Year | Subject |
|---|---|---|
| 52nd | 1985 | Defection by elected members (anti-defection) |
| 61st | 1988 | Voting age lowered to 18 |
| 73rd and 74th | 1992 | Local government, rural and urban |
| Point | The 42nd Amendment, 1976 |
|---|---|
| When | Passed during the national Emergency (1975 to 1977) |
| Scope | Changed many parts of the Constitution in a single amendment |
| Preamble | Added the words socialist, secular and integrity |
| Duties | Added the Fundamental Duties |
| Point | The 44th Amendment, 1978 |
|---|---|
| When | Passed in 1978, after the Emergency had ended |
| What it did | Restored several provisions that the 42nd Amendment had changed |
| Why they are studied together | One amendment changed many parts and a later one restored several of them |
| Lesson | The amending power is wide, and its use is a matter for study and judgement |
Key terms
- Anti-defection law
The rule, made by the 52nd Amendment in 1985, on the disqualification of elected members who defect from their party.
5. The basic structure doctrine
Golaknath (1967): Parliament cannot amend the Fundamental Rights. 24th Amendment (1971): Parliament asserted its power over every part. Kesavananda Bharati (1973): Parliament can amend any part but cannot alter the basic structure. Minerva Mills (1980): the doctrine was reaffirmed, with the balance between the Fundamental Rights and the Directive Principles.
The courts have identified features over time, for example: supremacy of the Constitution, the republican and democratic form of government, the secular character, separation of powers, the federal character, judicial review and the rule of law.
| Point | Golaknath case, 1967 |
|---|---|
| Question | Can Parliament amend the Fundamental Rights? |
| Held | The Supreme Court held that Parliament cannot amend the Fundamental Rights |
| Why it matters | It limited the amending power and set Parliament and the Court at odds |
| Point | 24th Amendment, 1971 |
|---|---|
| Assertion | Parliament asserted its power to amend any part of the Constitution |
| Assent | The President must give assent to a duly passed amendment bill |
| Place in the story | A response to the position taken in the Golaknath case |
| Point | Kesavananda Bharati case, 1973 |
|---|---|
| The principle | Parliament can amend any part of the Constitution but cannot alter its basic structure |
| The bench | A bench of thirteen judges heard the case, the largest in the history of the Court |
| The result | The basic structure doctrine, which became the main limit on amendments |
| Feature, as identified by the courts over time, for example | Meaning |
|---|---|
| Supremacy of the Constitution | All laws and all organs of government are bound by the Constitution |
| Republican and democratic form of government | Rule by elected representatives and a head of state who is not hereditary |
| Secular character | The state has no official religion and treats all faiths with respect |
| Separation of powers | The legislature, executive and judiciary have their own roles |
| Federal character | Power is shared between the Union and the states |
| Judicial review | Courts can examine whether laws and amendments follow the Constitution |
| The rule of law | Everyone, including the government, is subject to the law |
| Point | Minerva Mills case, 1980 |
|---|---|
| Doctrine | Reaffirmed the basic structure doctrine |
| Balance | Stressed the balance between the Fundamental Rights and the Directive Principles |
| Fundamental Rights | Rights in Part III that citizens can enforce in the courts |
| Directive Principles | Guidelines in Part IV for governments, not enforced by the courts |
| Question about the imagined 143rd Amendment Act | Applying the doctrine |
|---|---|
| The Act says no court may examine laws for accord with the Constitution | It touches judicial review, a feature of the basic structure |
| It was passed by the special majority and ratified by the states | Procedure alone does not settle whether it is valid |
| A petition challenges it | The Court may test whether the Act alters the basic structure |
| If it does alter it | The Court may strike the Act down; Parliament cannot alter that core |
Key terms
- Basic structure
The core features of the Constitution that Parliament cannot alter by amendment, as identified by the courts.
- Judicial review
The power of the courts to examine whether laws and amendments follow the Constitution and to strike down those that do not.
- Fundamental Rights
The rights in Part III of the Constitution that citizens can enforce in the courts.
- Directive Principles
Guidelines in Part IV of the Constitution for governments in making policy, which the courts do not enforce.
6. Significance of the doctrine
The doctrine balances rigidity and flexibility: the wide amending power gives flexibility, and the protection of the core gives stability. It limits the amending power.
Some argue that it gives judges too much power over an elected Parliament. Others argue that it protects the core of the Constitution from a passing majority. A good answer presents both and gives reasons.
| Some argue | Others argue |
|---|---|
| Judges are not elected, so the doctrine gives them too much power over Parliament | The doctrine protects the core of the Constitution from a passing majority |
| The list of features is not fixed, so judges decide what is basic | A fixed list would not meet new situations, and the courts give reasons case by case |
| Elected representatives should have the last word on amendments | Some features are so central that no majority should change them |
| Step in planning a five mark answer | Imagined question: examine the significance of the doctrine |
|---|---|
| Define | The doctrine: Parliament can amend any part but cannot alter the basic structure |
| Flexibility | The wide power to amend lets the Constitution adapt |
| Stability | The protection of core features keeps it stable |
| View one | Some argue that judges gain too much power |
| View two | Others argue that the core is protected |
7. The Constitution as a living document
A living document grows with society and keeps its core. It changes through amendments by Parliament, through judicial interpretation (courts have read the right to livelihood and the right to privacy into Article 21) and through political practice and conventions. Parliament and the judiciary contribute together.
| Point | Judicial interpretation |
|---|---|
| Meaning | Courts explain what a provision means and, over time, can read a wider meaning into it |
| Article 21 | The right to life and personal liberty |
| Examples | Courts have read the right to livelihood and the right to privacy into Article 21 |
| Effect | Rights widen without any change in the wording of the text |
| Point | Political practice and conventions |
|---|---|
| Convention | An accepted practice, not written in a law, that guides how political actors behave |
| Imagined example | In Pellara the head of state always invites the leader of the largest group to form a government |
| Effect | The practice fills a silence in the text and changes how the constitution works |
| Limit | A convention cannot override what the written text clearly provides |
Key terms
- Living document
A constitution that keeps growing and adapting, through amendment, interpretation and practice, while keeping its core.
- Convention
An accepted practice, not written in a law, that guides how political actors behave and fills a silence in the text.
Exam tips
Common mistakes
- Saying every change needs a special majority: Article 3 and Article 169 changes need only a simple majority.
- Defining the special majority as two thirds of the total membership: it is a majority of the total membership and two thirds of those present and voting.
- Saying a joint sitting settles a deadlock on an amendment bill: there is no joint sitting for amendment bills.
- Saying Kesavananda Bharati stopped all amendments: Parliament can amend any part but cannot alter the basic structure.
- Taking a side on the doctrine without reasons: present both views.
Tips: put the cases in order with years (1967, 1971, 1973, 1980); give one example for each method; use imagined bills and countries for examples; date facts (the 106th Amendment, 2023, as of 2024).