Article 368 of Indian Constitution
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is 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, 4[it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, [ article 162, article 241 or article 279A]; or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or
(c) any of the Lists in the Seventh Schedule; or
(d) the representation of States in Parliament; or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States 1*** by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.]
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]
Article 368 of Indian Constitution Explanation:
The power of the Parliament to amend the Constitution is given in Article 368 of Indian Constitution in part XX . It provides that Parliament may alter any provision of this Constitution through addition, variation, or repeal in accordance with the process outlined in this article when exercising its constituent authority. However, this is subject to the ‘doctrine of basic structure’ introduced by the Supreme Court in the Kesavanand Bharti Case.
The procedure of the Amendment of the Constitution
The Constitution of India provides for a very distinctive process of amendment as compared to other leading countries of the world. It provides for a variety in the amendment process, a feature commended by KC where who describes the uniform procedures as “unnecessarily restrictive”.
- Some provisions of the Constitution can be changed by a simple majority. However, they are not deemed to be an amendment for the purpose of Article 368 of Indian Constitution. (Type-1)
- The Constitution provides for two types of amendments under Article 368 of Indian Constitution:
- Those amendments require a special majority. (Type-2)
- Those who require, in addition to a special majority, ratification by at least half of the state legislature. (Type-3).
By Simple Majority
It is similar to the ordinary legislative process. It requires a simple majority of Parliament, i.e. majority of members of each house present and voting in each of the houses.
The provision which can be amended by this procedure are:
- Related to States:
- Formation of new states, alteration of areas, boundaries and name of state.
- Admission or establishment of new states.
- Union territories
- Related to Parliament
- Salaries and emoluments of the members of Parliament.
- Rules of procedure in Parliament.
- Use of English language in the Parliament.
- Privileges of Parliament, its members and committees.
- Related to Supreme Court
- Number of judges in the Supreme Court
- Expansion of jurisdiction of Supreme Court
- Related to Elections
- Elections to Parliament and the state legislature.
- Delimitation of Constituencies.
- Related to Schedules of the Constitution
- 2nd Schedule- emoluments, allowance and privileges of the President, the Governor, the speaker, judges etc.
- 5th Schedule- administration of scheduled regions and scheduled tribes
- 6th Schedule- administration of tribal regions.
- Other Provisions
- Use of official language
By Special Majority
The majority of the Constitutional provisions are required to be amended by a special majority, i.e. majority (50%) of the total membership of the house and 2/3rd majority of members present and voting. Total membership means total members comprising the house, irrespective of any vacancies or absentees.
- While the Constitution only mandates the requirement of a special majority at the time of voting in the third reading of the bill, rules of houses, as a precautionary measure, require a special majority at all stages of the bill.
- The provisions can be amended through this provision.
- Fundamental Rights
- Directive Policy of State Policy
- Other provisions which are not covered by Type-1 and Type-2.
By Special Majority and Ratification of States
Those provisions which have implications on the federal structure of the polity are required to be amended by a special majority along with ratification by at least ½ of the state legislature.
- If the remaining states do not take any action, it will not change anything; the amendment will be applicable to them as well.
- There is no time limit in which states have to give consent.
- The following provisions can be amended this way:
- Election of the President
- The extent of executive powers of the state
- Supreme Court and High Court
- Distribution of legislative powers between the Union and the state
- Seventh Schedule
- Representation of states in Parliament
Procedures under Article 368 of Indian Constitution
The Constitution has prescribed the following procedures under Article 368 of Indian Constitution:
- A constitutional amendment can only be initiated by introducing it in either house of the Parliament.
- The bill can be introduced by either a minister or any private member.
- The introduction of the bill does not require prior permission of the President.
- The introduced bill must be approved by each house by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members of that house present and voting.
- The bill seeking change in the federal provisions of the Constitution must also be ratified by half of the states by a simple majority, i.e. majority of members present and voting.
- There is no provision for convening a joint sitting of both houses in the case of the Constitutional Amendment.
- When the bill is so passed and ratified by states (if required), it must be presented to the President, who shall give his assent to the bill.
- The President must give assent to the bill. He can neither withhold the bill nor return the bill for reconsideration. The 24th Constitutional Amendment Act, 1971 made it binding for the President to give assent to a Constitutional Amendment Act.
- After President’s assent, the bill becomes an act.
List of Amendments in Article 368 of Indian Constitution:
|24th amendment act, 1971
· Marginal Heading was changed from “procedure for amendment of the constitution” to procedure for amendment of the constitution”.
· The act amended article 368 to provide amending powers to the parliament.
· The Amendment made it binding for the President to give assent to a Constitutional Amendment Act.
|42nd Amendment Act, 1976
|It invalidated the 42nd Amendment in Article 368 of Indian Constitution, which took away the rights of the judiciary to review the amendments in the Constitution.
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