Amending the Indian Constitution: Procedure & Judicial Interpretation

Introduction

The Indian Constitution is a living document, designed to adapt to changing times while protecting its core principles. The amendment process (Article 368) balances flexibility with rigidity, ensuring stability without stagnation. However, judicial interventions—especially the

Basic Structure Doctrine—have shaped how amendments are interpreted.

This blog explores:

✔ Constitutional Amendment Procedure (Article 368)

✔ Types of Amendments (Simple, Special, Federal)

✔ Judicial Review of Amendments (Key Cases)

✔ Controversies & Recent Developments

1. Amendment Procedure Under Article 368

Step 1: Initiation

• Amendments can be introduced only in Parliament (not state legislatures).

• No prior Presidential recommendation is needed (unlike Money Bills).

Step 2: Parliamentary Approval

Type of Amendment	Lok Sabha	Rajya Sabha	State Ratification
Simple Majority (e.g., creation of states)	50%+ of members present & voting	50%+ of members present & voting	Not required
Special Majority (most amendments)	2/3rd of members present & voting + >50% of total strength	2/3rd of members present & voting + >50% of total strength	Not required
Special Majority + State Ratification (federal features)	2/3rd present & voting	2/3rd present & voting	≥50% of state legislatures

Step 3: Presidential Assent

• The President must give assent (no veto power).

2. Types of Amendments

A. Simple Majority (Outside Article 368)

• Used for less critical changes (e.g., creation of new states, delimitation of constituencies).

• Examples:

  • 7th Amendment (1956) – Reorganized states linguistically.

  • 31st Amendment (1973) – Increased Lok Sabha seats.

B. Special Majority (Article 368)

• Required for most amendments (e.g., Fundamental Rights, Directive Principles).

• Examples:

  • 1st Amendment (1951) – Added reasonable restrictions to free speech.

  • 44th Amendment (1978) – Restored judicial powers after Emergency.

C. Special Majority + State Ratification

• Needed for amendments affecting federal structure (e.g., President’s rule, High Court jurisdiction).

• Examples:

  • 7th Amendment (1956) – Required state approval for altering boundaries.

  • 101st Amendment (2016) – GST implementation (required state consensus).

3. Judicial Interpretation: Can Courts Strike Down Amendments?

A. Early Debates (1951–1967)

• Shankari Prasad (1951) & Sajjan Singh (1965): Parliament could amend any part, including Fundamental Rights.

• Golaknath Case (1967): SC reversed itself, saying Fundamental Rights cannot be amended.

B. Kesavananda Bharati (1973): The Basic Structure Doctrine

• Landmark Ruling: Parliament can amend the Constitution except its "Basic Structure."

• What is Basic Structure?

  • Democracy, secularism, judicial review, federalism, etc.

C. Key Cases Applying Basic Structure

1. Indira Gandhi v. Raj Narain (1975): Struck down Article 329A (immunity for election disputes).

2. Minerva Mills (1980): Upheld balance between Fundamental Rights & Directive Principles.

3. NJAC Judgment (2015): Struck down National Judicial Appointments Commission.

4. Controversies & Recent Trends

A. CAA (2019) & Basic Structure Challenge

• Issue: Does fast-tracking citizenship for non-Muslims violate secularism?

• Pending in SC.

B. Abrogation of Article 370 (2019)

• Challenge: Did it undermine federalism?

• SC’s 2023 Verdict: Upheld the move but avoided Basic Structure scrutiny.

C. 103rd Amendment (2019): EWS Quota

• Challenge: Does 10% reservation for economically weak upper castes violate equality (Article 14)?

• SC’s 2022 Split Verdict: 3:2 in favor, but unresolved on Basic Structure.

5. Global Comparison

Country	Amendment Process	Judicial Review?
India	Rigid (Special Majority + State Ratification)	Yes (Basic Structure Doctrine)
USA	Supermajority (2/3rd Congress + 3/4th States)	Yes (Marbury v. Madison)
UK	Flexible (No written constitution)	No

Conclusion: A Dynamic Yet Guarded Process

India’s amendment procedure ensures evolution without erosion of constitutional values. While Parliament holds significant power, the Basic Structure Doctrine acts as a safeguard against authoritarian changes.

Recent debates (CAA, EWS Quota, Article 370) show that this balance remains contentious yet crucial for India’s democracy.