Actual Article
Article 368: Power of Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding anything in this Constitution, Parliament may in the 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, 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 or Article 241, 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 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.
UPSC Notes for Article 368
Explanation:
- Amendment Power: Article 368 grants Parliament the power to amend the Constitution by adding, varying, or repealing any of its provisions.
- Initiation and Process: An amendment can only be initiated by introducing a Bill in either House of Parliament. The Bill must be passed by a majority of the total membership of each House and by a two-thirds majority of members present and voting.
- Special Provisions: Certain amendments require ratification by at least half of the State Legislatures before being presented to the President for assent. These include amendments affecting the election of the President, the powers of the Union and State executives, the judiciary, the Seventh Schedule, and the representation of States in Parliament.
- Article 13 Exclusion: Amendments made under Article 368 are not subject to the provisions of Article 13, which deals with laws inconsistent with or in derogation of fundamental rights.
- Judicial Review: Amendments, including those affecting Part III (Fundamental Rights), are not subject to judicial review on any ground.
- Constituent Power: Parliament’s power to amend the Constitution is unlimited and includes addition, variation, or repeal of provisions.
Key Points:
- Constituent Power: Empowers Parliament to modify the Constitution to reflect changing needs and circumstances.
- Rigorous Process: The amendment process requires substantial consensus, ensuring that changes are carefully considered and broadly supported.
- State Ratification: Certain amendments necessitate ratification by State Legislatures, protecting the federal structure.
- Judicial Review Limitation: Excludes amendments from judicial review, ensuring that parliamentary amendments are final and binding.
Important Cases and Commissions Related to Article 368
Cases:
- Keshavananda Bharati vs. State of Kerala (1973): The Supreme Court ruled that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure.
- Minerva Mills Ltd. vs. Union of India (1980): Reaffirmed the basic structure doctrine and invalidated amendments that violated this principle.
- Golak Nath vs. State of Punjab (1967): Held that Parliament could not amend fundamental rights, a position later modified by the Keshavananda Bharati case.
Commissions:
- Sarkaria Commission (1983): Discussed Centre-State relations and the implications of constitutional amendments on federalism.
- National Commission to Review the Working of the Constitution (2002): Examined the amendment process and suggested measures to balance flexibility and stability in constitutional amendments.
Important Reports Related to Article 368:
- Law Commission Reports: Various reports have analyzed the implications of constitutional amendments and recommended reforms to enhance the amendment process.
Previous Year Prelims Questions Related to Article 368
- (UPSC Prelims 2016) What is the majority required in each House of Parliament to pass a constitutional amendment under Article 368?
A. Simple majority
B. Absolute majority
C. Two-thirds majority of members present and voting
D. Three-fourths majority Correct Answer: C. Two-thirds majority of members present and voting - (UPSC Prelims 2018) Which constitutional amendments require ratification by State Legislatures under Article 368?
A. Amendments affecting the Union List
B. Amendments affecting fundamental rights
C. Amendments affecting the representation of States in Parliament
D. Amendments affecting the Directive Principles of State Policy Correct Answer: C. Amendments affecting the representation of States in Parliament
Previous Year Mains Questions Related to Article 368
- Mains 2016: “Discuss the significance of the basic structure doctrine in the context of Article 368. How does this doctrine limit Parliament’s power to amend the Constitution?”
- Mains 2019: “Evaluate the role of State Legislatures in the constitutional amendment process under Article 368. How does this provision ensure the protection of the federal structure?”
Additional Insights:
- Basic Structure Doctrine: The Supreme Court’s interpretation that the basic structure of the Constitution cannot be altered by amendments ensures the preservation of fundamental principles.
- Balance of Power: The requirement for State ratification for certain amendments maintains a balance between the Union and State powers.
- Flexibility and Stability: Article 368 provides a flexible yet rigorous process for constitutional amendments, ensuring that changes are made with broad consensus and careful consideration.
Understanding Article 368 is crucial for UPSC aspirants as it provides insights into the constitutional provisions for amending the Constitution, highlighting the balance between flexibility, stability, and the preservation of fundamental principles. This knowledge is essential for both preliminary and main examinations, offering a comprehensive understanding of the mechanisms ensuring the adaptability and continuity of the Indian Constitution.