Amendment Process of the ConstitutionAmendment Process of the Constitution

Part XX of the Constitution of India deals exclusively with the amendment procedure under a single article.

• Constitutional Article: Article 368 contained in Part XX (Power of Parliament to amend the Constitution and procedure therefor).
• Introduction of Bill: An amendment bill can be introduced in either House of Parliament (Lok Sabha or Rajya Sabha) and NOT in the state legislatures.
• Prior Permission: The bill can be introduced either by a minister or by a private member and does not require prior recommendation of the President.
• Passing Requirements: The bill must be passed in each House by a special majority, i.e., a majority of the total membership of the house and a majority of two-thirds of the members present and voting.
• No Joint Sitting: There is no provision for a joint sitting of the two Houses if there is a deadlock over a constitutional amendment bill.
• Presidential Assent: The President MUST give assent to the constitutional amendment bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give assent.

Judicial interpretation has shaped the boundaries within which Parliament can exercise its constituent power.

• Shankari Prasad Case (1951): Supreme Court held that the power to amend the Constitution under Article 368 includes the power to amend Fundamental Rights under Part III.
• Golaknath Case (1967): Supreme Court reversed its earlier stance, holding that Fundamental Rights cannot be abridged or taken away by constitutional amendments, considering amendments as 'law' under Article 13.
• 24th Amendment Act (1971): Enacted by Parliament to nullify the Golaknath ruling, amending Articles 13 and 368 to explicitly confer power on Parliament to amend any part of the Constitution including Fundamental Rights.
• Kesavananda Bharati Case (1973): The historic 13-judge bench upheld the validity of the 24th Amendment but propounded the 'Basic Structure Doctrine', restricting Parliament from altering the core framework of the Constitution.
• Minerva Mills Case (1980): Supreme Court invalidated provisions of the 42nd Amendment that gave unlimited amending power to Parliament, reinforcing that judicial review and a limited amending power are part of the Basic Structure.

Though the Constitution does not define 'Basic Structure', judicial pronouncements over decades have identified several key elements.

• Supremacy of the Constitution: The Constitution is the supreme law of the land, and no organ of the state can override it.
• Democratic and Republican Form: The governance structure must remain democratic with an elected head of state.
• Secular Character: Equal respect and protection for all religions by the state form an unalterable core.
• Separation of Powers: Delimitation of powers between the legislature, executive, and judiciary is a basic feature.
• Judicial Review: The power of courts to examine the constitutionality of legislative and executive actions cannot be taken away.

Constitutional experts have pointed out various procedural bottlenecks and lacunae in Article 368.

• No Provision for Special Body: Unlike the US Constitution, India does not have a separate Constituent Convention for amending the Constitution; the Parliament alone undertakes it.
• Limited Role of States: State legislatures cannot initiate amendments, and only a few federal provisions require consent from half of the state legislatures.
• Vagueness of Basic Structure: Critics argue that the 'Basic Structure' is undefined in the text, giving wide discretionary power to the judiciary to strike down amendments.
• Frequent Amendments: The Constitution has been amended over 100 times, reflecting political expediency rather than deep constitutional necessity in several instances.