AMENDABILITY OF

THE INDIAN
CONSTITUTION AND
LIMITS ON THE
POWERS OF THE
PARLIAMENT TO
AMEND IT.
-S.R.VINODHARANI, BA BL (Hons), School of
Excellence in LawChennai
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CONTENTS
1. Synopsis……………………………4

2. Introduction………………………….5

3. ‘Amendment’…………………………6

4. Modes of Amending Constitution……..8

5. Procedure for Amendment under

Article 368………………………10

6. Amendability of the constitution,

Article 13 and Limits on the amending

power of Parliament………………13

Page 2 of 24
7. 24th Amendment Act,1971………17

8. Keshavananda Bharati Case and un-

amendable Basic Structure……….18

9. 42nd Amendment Act,1976………21

10. Minerva Mills vs Union of India

and Related cases………………..22

11. Conclusion…………………………23

12. Reference…………………………24

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SYNOPSIS

PROJECT TITLE: Amendability of the Constitution of India.

AIM/OBJECTIVE: The object of this study is to make an in

depth analysis on the Amendability of the Constitution of India
and provide simple and short results for easy understanding of the
amending system in our country. The main aim is to identify
whether an amendment of the Constitution under Article 368
would stand as included as ‘law’ in Article 13 and also to look into
the limits on the Parliament to make Amendments to the
Constitution.

SCOPE: The project includes a clear cut interpretation of

Amending Provisions of the Constitution of India and the
developments in the Judicial Prospectives on the issue including
historical landmark Judgements.

METHODOLOGY: The method adopted for the research is

limited to Doctrinal study based on references from reliable text
books and internet sources from renounced writers.

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INTRODUCTION

“The institutions under which we live are being changed

continually by the Parliament, because we are never satisfied with
them. Sometimes they are scrapped for new ones; sometimes they
are altered; sometimes they are done away with as nuisances.”1
The life of a State is vibrant and in order to facilitate the ever
dynamic and needs of society, its economic, social and political
conditions mutate continuously. So, a Constitution drafted in one
context at a particular time may prove inadequate at a later stage.
Every Constitution has some method of Amendment whereby a
provision is modified by way of addition, deletion or correction so
as to suit the needs of the present. Provisions for the amendment
of the Constitution are made with a view to overcome the
difficulties which may encounter in future in the effective working
of the Constitution. But there are also instances where the
Parliament might be blinded with certain black curtain issues that
might tend them to make laws unfavourable to the rights of the
people who in fact are the Source of the Constitution. This is why
it is important for a limitation to exist on the amending power of
the Parliament. But this can only be understood by analysing
various Judgements as they lack any explanatory provision.

1 Sir George Bernard Shaw.

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‘AMENDMENT’

The framers of our Constitution were very keen to avoid excessive

rigidity but did not want to provide wide flexibility either. This
notion and ideal thinking led them to a thoughtful process of
making a beautiful Constitution that could be amended easily for
certain matters while limiting the flexibility in case certain
immense questions arise. They wanted to have a document that
could grow with a growing nation and adopt itself to the ever
changing needs of the people. Our Constitution was clearly framed
keeping in mind the future growth necessary to make India an
egalitarian nation.
Generally, an amendment means changes made to legislation,
for the purpose of adding to, correcting or modifying the operation
of legislation. But, in Keshavananda Bharati Sripadagalavaru vs.
State of Kerala and Another2 provided the best explanation as to
the scope and definition of the word ‘Amendment’. It purported
that “a broad definition of the word ‘amendment’ will include any
alteration or change. The word ‘amendment’ when used in
connection with the Constitution may refer to the addition of a
provision on a new and independent subject, complete in itself and
wholly disconnected from other provisions, or to some particular
2 1973 (4) SCC 225
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article or clause, and is then used to indicate an addition to, the
striking out, or some change in that particular article or clause.”
Sometimes under the impact of new powerful social and economic
forces, the pattern of government will require major changes.
Keeping this factor in mind the Draftsmen of the Indian
Constitution incorporated Article 368 in the Constitution which
dealt with the procedure of amendment. Due to Article 368 the
Indian Constitution can neither be called rigid nor flexible but in
fact it is partly rigid and partly flexible.
Constituent power is the area in the history of Indian
Constitutional Law which has lead to most serious disagreements
between Parliament and Judiciary, the conflict involving
Parliamentary Supremacy on one hand and on the other Judicial
review of the Scope and extent of the power and the manner in
which such power is to be exercised. Constituent power is termed
as a power which is exercised by a representative body authorised
by a Constitution to amend the Constitution. This amending power
is one of the most desirable powers in a Constitution, if a
Constitution as a fundamental document is to continue.

Page 7 of 24
MODES OF AMENDMENT

The Constitution of India provides for the amendment by way of

Amending Acts in a formal manner. Different degrees of rigidity
attach to different portions of the Constitution depending on their
importance and significance. For the purpose of amendment, the
various Articles of the Constitution are divided into three
categories. The first category is out of the purview of Article 368
whereas the other two are a part and parcel of the said Article. The
various categories are:
a) Amendment by Simple Majority:
As the name suggests an Article can be amended in the same
way by the Parliament as an ordinary law is passed which requires
simple majority. The amendment contemplated under Articles 5-11
(Citizenship), 169 (Abolition or creation of Legislative Councils
in States), 239-A (Creation of local Legislatures or Council of
Monists or both for certain Union Territories) ,Second Schedule,
Article 2,73(2), 59(3), 75(6), 97, 125(2), 148(3), 158(3), 221(2),
105(3), 100(3), 124(1), 133(3), 135, 137, 171(2), 170(3), 343(2),
343(3) and 348(1) [not an exhaustive list] can be made by simple
majority. These Articles are specifically excluded from the
purview of the procedure prescribed under Article 368.

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b) Amendment by special majority:
Articles which can be amendment by special majority are laid
down in Article 368. All amendments under this category must be
affected by a majority of total membership of each House of
Parliament as well as 2/3rd of the members present and voting.

c) Amendment by special majority and ratification by States:

Amendment to certain Articles requires special majority as
well as ratification by states. Proviso to Article 368 lays down
the said rule. Ratification by states means that there has to
be a resolution to that effect by one - half of the state
legislatures. The ratification must be done before presenting the
Bill to the President. These Articles include Article 54 (Election
of President) , 55 ( Manner of election of President), 73 ( Extent
of executive power of the union ), 162 ( Extent of executive
power of state), 124 - 231( the high courts in the states ) , 241
( High courts for union Territories) , 245 - 255 ( Distribution of
Legislative powers ) and Article 368 ( Power of the Parliament
to amend the constitution and procedure thereof) itself. Any list
of seventh schedule or representation of states as mentioned
in the fourth schedule is also included.

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PROCEDURE FOR AMENDMENT UNDER
ARTICLE 368

A Bill to amend the Constitution may be introduced in either

House of the Parliament. It must be passed 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 present and voting.
Thereafter, the Bill is presented to the President for his assent who
shall give his assent and thereupon the Constitution shall stand
amended. In case, ratification by States is required, it has to be
done before presenting it to the President for his/her assent.

Article 368: – Amendment of the 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
Page 10 of 24
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.

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(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.

Points Relating to Article 368:

1. There is no provision for Joint Sitting of the Houses of
Parliament for the Constitution Amendment Bills under Article
368 of the Constitution as Article 368 specifically requires each
house to pass the Bill by a Special Majority.
2. An amendment can be initiated only by the introduction of a
Bill in either House of Parliament.
3. When the Bill is so passed, it must be presented to the President
who shall give his assent to the Bill.
4. No specific time limit for the ratification of an amending Bill by
the State Legislatures is laid down. However it should be passed
before the amending Bill is presented to the President for his
assent.

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AMENDABILITY OF THE CONSTITUTION,
ARTICLE 13 AND LIMITS ON THE AMENDING
POWER OF PARLIAMENT:

According to Vepa.P.Sarathi, there will never be a conflict

between Legislature and Judiciary and these two powerful organs
will be better capable of guiding the third branch,i.e.,Executive. If
the following view for the purpose of amendment is accepted,
Article 368 can be interpreted in the following manner:
A) The power of the Parliament to amend the Constitution is
absolute and there are no limits on that power.
B) Parliament should not, however, take away the power of the
courts to strike down ordinary legislation as tested against the
amended Constitution.
The elementary question in controversy has been whether
Fundamental Rights are amendable so as to take away the basic
rights guaranteed by the Constitution. Another controversy deals
with the extent, scope an authority of Parliament to amend
Constitution. The answer has been given by the Supreme Court
from time to time, sometimes under immense pressure and can be
understood in the light of the following cases.

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Shankari Prasad vs. Union of India3
This is the first of the cases that came up before Court regarding
amending provisions of the Constitution. The validity of the First
Amendment to the Constitution was challenged on the ground that
it purported to abridge the Fundamental Rights under Part III of
the Constitution of India. The Supreme Court held that the power
to amend the Constitution, including Fundamental Rights is
contained in Article 368. It was also held that an Amendment is
not a law within the meaning of Article 13(2). Article 13(2) states
that-“The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention to this clause shall, to the extent of the
contravention be void.” The Supreme court ruled that a
Constitutional Amendment, not being law under Article 13(2), will
be valid even if it abridges or takes away any of the Fundamental
Rights.4

Sajjan Singh vs. State of Rajasthan5

The validity of the 17th Constitutional Amendment6 was
challenged on the ground that one of the acts inserted by the

3 AIR 1951 SC 458

4 Curtailing the right to property guaranteed by Article 31 was challenged.
5 AIR 1965 SC 845
6 1964 amendment affected ‘right to property’ under Article 19(f).
Page 14 of 24
amendment in the Ninth Schedule affected the petitioner on the
basis that the amendment fell within the purview of Article 368
and the requirements in the proviso to Article 368 had not been
complied with. Supreme Court approved the Judgement in the
Shankari Prasad case and held that Article 368 extends to all the
parts of the Constitution.

Golaknath vs. State of Punjab7

The question to the amending power of the legislatures as
envisaged under Article 368 was again raised in Golaknath’s case.
The constitutional validity of the 17th Amendment Act which
inserted certain State acts in the Ninth Schedule again, was
challenged. The majority in 6:5 ratio, prospectively overruling the
earlier Judgements of Shankari Prasad’s an Sajjan singh’s case,
held that the Parliament had no power from the date of this
decision to amend Part III of the constitution so as to take away or
abridge the Fundamental Rights.
CJ Subba Rao, in this case put forward the curious position
that Article 368, containing the provisions related to the
amendment of the Constitution, merely lays down the amending
procedure(Procedure for Amendment of the Constitution). Article
368 did not confer upon Parliament the power to amend the

7 AIR 1967 SC 1643

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Constitution. The amending power which is a constituent power of
the Parliament arose from other provisions that is Article 245,
Article 246 and Article 248 contained in the Constitution which
gave it the power to make laws (plenary legislative power). Thus
the apex court held that the amending power and legislative
powers of Parliament were essentially the same and therefore, any
amendment of the Constitution must be deemed to be a law as
understood in Article 13 (2).
The majority judgement invoked the concept of implied
limitations on Parliament’s power to amend the Constitution. This
view held that the Constitution gives a very sacrosanct part to the
fundamental rights and while giving to themselves the
Constitution, the people of India, have reserved these rights for
themselves which is clearly expressed in the words of
Article 13 (2).
Parliament could not modify, restrict or impair fundamental
freedoms due to this very scheme of the Constitution and the
nature of the freedoms granted under it. They observed that a
Constituent assembly might be summoned by the Parliament for
the purpose of amending the Fundamental rights if necessary.

Page 16 of 24
24th AMENDMENT ACT, 1971

Golaknath’s case8 created a lot of difficulties and as a result the

Parliament enacted the 24th Amendment Act,1971 whereby it
changed the old heading of Article 368-“Procedure for
Amendment of the Constitution” to the new one-“Power of the
Parliament to amend that Constitution and procedure thereof”. To
the benefit of the Legislators, the 24th Amendment Act, 1971
restored and extended the scope of power of Parliament to amend
the Constitution by adding the words “amend by way of addition
or variation or repeal any provision in accordance with the
provisions laid down in this Article”.
Further, the amendment provided that “Nothing in Article 13
shall apply to any amendment made under this Article” by way of
addition of Clause 3 to Article 368.
The next in hierarchy is the famous Keshavanda Bharati case.

8 ibid
Page 17 of 24
KESHAVANDA BHARATI vs. STATE OF KERALA9

One of the various questions raised in this case was the extent of
the power of the Parliament to amend under Article 368. A 13
Judge Constitutional Bench was formulated under Chief Justice
Sikri in order to evaluate the intricacies of Golaknath’s case10. The
Supreme Court overruled its decision in Golaknath’s case and held
that even before the 24th Amendment, Article 368 contained
power as well as procedure for Amendment. [The majority held
that there are inherent limitations on the amending power of the
Parliament and Article 368 does not confer power so as to destroy
the ‘Basic Structure’ of the Constitution].

UN-AMENDABLE BASIC STRUCTURE

On April 24, 1973,11the eleven separate judgments (Keshavanda

Bharati) were delivered by nine judges; collectively these ran into
more than 1000 printed pages. Six judges Chief Justice S.M. Sikri
and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N.
9 1973 (4) SCC 225
10 ibid, page 14
11T.R. Andhyarujina. The writer is a former Solicitor-General of India. This passage is based on his
lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme
Court Bar Association on April 4, 2007.)

Page 18 of 24
Grover, and S. Mukherjea were of the opinion that Parliament's
power was limited because of implied and inherent limitations in
the Constitution, including those in fundamental rights. Six other
judges Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N.
Dwivedi, M.H. Beg, and Y.V. Chandrachud were of the opinion
that there were no limitations at all on Parliament's power to
amend the Constitution. But one judge Justice H.R. Khanna took
neither side. He held that Parliament had the full power of
amending the Constitution; but because it had the power only "to
amend," it must leave "the basic structure or framework of the
Constitution" intact. It was a hopelessly divided verdict after all
the labour and contest of five months. No majority, no minority,
nobody could say what was the verdict.

How was it then said that the Court by a majority held that
Parliament had no power to amend the basic structure of the
Constitution? Thereby hangs a tale not generally known.
Immediately after the eleven judges finished reading their
judgments, Chief Justice Sikri, in whose opinion Parliament's
power was limited by inherent and implied limitations, passed on
a hastily prepared paper called a "View of the Majority" for
signatures by the thirteen judges on the bench. One of the
conclusions in the "View of the Majority" was that "Parliament did

Page 19 of 24
not have the power to amend the basic structure or framework of
the Constitution." This was lifted from one of the conclusions in
the judgment of Justice H.R. Khanna. Nine judges signed the
statement in court. Four others refused to sign it.

By any reading of the eleven judgments, this conclusion could not

have been the view of the majority. It was only the view of one
judge Justice H.R. Khanna. So a single judge's opinion Justice
Khanna's of a limitation of the basic structure on Parliament's
power has passed off as the law. But Justice Khanna was
responsible for another vital dimension of the basic structure two
years after the case was decided. In the Kesavananda case, he did
not say that fundamental rights were part of the basic structure of
the Constitution, although six other judges said that and the case
was entirely about the validity of amending fundamental rights by
the challenged constitutional amendments. Three of Justice
Khanna's brother judges in the Kesavananda case were clearly of
the opinion that Justice Khanna had not held that fundamental
rights were part of the basic structure in the Kesavananda Bharati
case.

Page 20 of 24
But in Indira Gandhi's election case12 two years later, Justice
Khanna "clarified" his judgment in the Kesavananda case. He now
said that he had given clear indications in his judgment that
fundamental rights were part of the basic structure.
The Basic Structure doctrine applies only to the
Constitutionality of amendments and not to ordinary Acts of the
Parliament, which must conform to the entirety of the Constitution
and not just to its basic structure. Various Judges nevertheless
have stated different concepts as basic structures all of which
holds good to the doctrine.

42nd AMENDMENT ACT, 1976

The 42nd Amendment Act added clause 4 and clause 5 to Article

368. Article 368(4) provides that no Constitutional Amendment
shall be called in any court on any ground. Article 368(5) provides
that there shall be no limitation whatsoever on the constituent
power of the Parliament to make laws. This amendment literally
almost vested the Parliament to amend anything in the
Constitution as per their whims and fancies. Then comes the
Minerva Mills case to the limelight.

12 Indira Gandhi vs. Raj Narain 1975 SCC (2) 159

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MINERVA MILLS vs. UNION OF INDIA13

The supreme Court struck down clauses 4 and 5 of Article 368

inserted by the 42nd Amendment Act as unconstitutional.
Justification for the deletion of the said clauses was based on the
destruction of ‘Basic Structure’. The court was satisfied that
Article 368(4) and 368(5) clearly destroyed the ‘Basic Structure’
as it gave the Parliament absolute Power to amend the
Constitution.
Further, Waman Rao’s case14 unanimously upheld the view of
Minerva Mills Case. In the case of S.P.Sampath Kumar vs. Union
of India15, the Constitutional validity of Article 323 A and the
provisions of the Administrative Tribunals Act was challenged on
the ground that it excluded the jurisdiction of High Courts under
Article 226 and 227. It was not proved beyond reasonable doubt
that Article 323 A and the Administrative Tribunals Act destroyed
the Basic Structure and the court upheld their validity.
In L.Chandra Kumar vs. Union of India16, the Supreme Court
struck down clause 2(d) of Article 323 A and clause 3(d) of Article
323 B as they excluded the jurisdiction of High Court under

13 AIR 1980 SC 1789

14 Waman Rao vs. Union of India [(1981) 2 SCC 362]
15 AIR 1987 SC 386
16 AIR 1997 SC 1125
Page 22 of 24
Article 226 and 227 as well as jurisdiction of Supreme Court
under Article 32 as they damage the power of Judicial Review
which is a basic feature of the Constitution.

CONCLUSION
The overview now is,
a) Parliament has the power to amend the Constitution under
Article 368 and nothing of Article 13 shall apply to any
amendment made under article 368.
b) An amendment should not be against the Basic Structure.
c) The Apex Court with the power of Judicial Review can strike
down any such laws/amendments as null and void as Judicial
Review is a part of Basic Structure.
It is clear that all laws and Constitutional amendments are
now subject to Judicial review and the laws that transgress the bas
structure are likely to be struck down by the Supreme court. In
essence of Parliament’s power to amend the Constitution is not
absolute but amendments are necessary to adapt to the changing
needs of National development and strength and to overcome
difficulties which may encounter in the future working of the
constitution.
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REFERENCES

• www.legalserviceindia.com
• P.M.Bakshi, The Constitution of India, Universal Law
Publications.
• B.Shivrao, The Framing of Indian Constitution, Universal
Law Publications,2nd Edition.
• M.P.Jain, Indian Constitutional Law, Lexis Nexis, 7th Edition.
• V.N.Shukla, Constitution of India, Mahendra Pal Singh,
Eastern book Company, 12th Edition.
• Vepa.P.Sarathi, Interpretation of Statutes.
• Lexis Nexis, Legal terms and maxims.
• D.D.Basu, Introduction to the Constitution of India.

,,,,,,,,,,,,,,,,

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