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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AMENDMENT OF THE CONSTITUTION

(ARTICLE 368)

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368. 1[POWER OF PARLIAMENT TO AMEND THE

CONSTITUTION AND PROCEDURE THEREFOR]

2[(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.]
_____________________
1. Substituted by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3, for
"Procedure for amendment of the Constitution".
2. Inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3.

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…ARTICLE 368
3[(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:
_____________________
3. Article 368 renumbered as clause (2) thereof by the Constitution (Twenty-fourth Amendment) Act,
1971, Section 3.
4. Substituted by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3, for certain words.

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…ARTICLE 368
Provided that if such amendment seeks to make any change in-
(a) article 54 article 55, Article 73, 5[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 6[***] by resolution to that effect passed by those Legislatures before the Bill making provision
for such amendment is presented to the President for assent.
____________________
5. Substituted by the Constitution (One Hundred and first Amendment) Act, 2016, Section 15, w.e.f. 16.09.2016, for the
following:- "Article 162 or Article 241"
6. The words and letters "specified in Parts A and B of the First Schedule" omitted by the Constitution (Seventh Amendment)
Act, 1956, Section 29 and Schedule.

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…ARTICLE 368
7[(3) Nothing in article 13 shall apply to any amendment made under this article.]
8[(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.]
____________________
7. Inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3.
8. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 55 (w.e.f. 3-1-1977). This section has been declared invalid
by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others AIR 1980 SC 1789.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AMENDMENT OF THE CONSTITUTION

• Constitutions are considered rigid or flexible depending on how

easy or difficult it is to change them
• Formal change brought about by an amendment is only one of
the many modes of change or development
• Judicial decisions and conventions are obvious examples of
other modes of bringing about constitutional change

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BALANCE BETWEEN CHANGE AND STABILITY

• law of the constitution is bound to reflect the socio-economic conditions of the country at the time of its
adoption and the balance of the political forces obtaining at that time.
• Since those conditions are not constant and political equilibrium also suffers change,
• change in the law of the constitution is also inevitable.
• None the less a Constitution, by its very nature, must be stable.
• It is different from ordinary laws in as much as it is the fundamental and Supreme law of a country and
other laws are made and unmade within the confines fixed by this law.
• All government institutions including the Legislature owe their origin to the constitution, derive their
powers and functions from it and are always subject to it.
• This characteristic of the constitution would stand lost in practice if the power-delimiting provision of the
Constitution gets changed frequently by the very Institutions which are supposed to work within the
limits of the constitution.

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… CHANGE AND STABILITY

• Moreover, constitutions also evoke a feeling of reverence.

• If the constitution keeps changing too often and every now and then, the
fundamental law character of the Constitution suffers irreparable damage in the
psyche of the people.

• These are the conflicting considerations which we must keep in mind while
judging the merits of the respective claims of Parliament and the Supreme court
in the fortunate / unfortunate contest between democracy and constitutionalism
that occurred between 1965 and 1980.

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CHANGES IN THE TEXT WHICH DO NOT AMOUNT TO AMENDMENT

• judicial decisions and conventions are informal modes of bringing about constitutional change.

• They differ from formal amendment in as much as by formal amendment change is brought about
in the text of the Constitution whereas the other two do not do so.

• Judicial decisions change the meaning of the text and

• conventions bring about a change in the way in which the rule operates without changing either its
text nor its meaning.

• However, the Indian Constitution has another speciality:

• all the changes in the text of the Constitution are not called amendments of the constitution. There are
five cases of this type.

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All the changes in the text of the Constitution are not called
amendments of the constitution

• There are three cases where Parliament at its own initiative can bring about a
change by following the same procedure which it follows while enacting an
ordinary law.
• First, part II of the constitution relates to citizenship and it provides for the acquisition of
citizenship at the time of the commencement of the constitution. In addition, we have the
citizenship Act 1955 and according to article 10 and 11 of the constitution, in case of a
conflict between the citizenship Act and part- II of the constitution the former shall
prevail.
• Second, paragraph 7 of Schedule V and
• Third, paragraph 21 of Schedule VI authorise Parliament to make such changes in the
respective schedules as it thinks necessary and such changes are not to be construed
as amendments of the constitution.

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… All the changes in the text of the Constitution

• There are two other cases where Parliament can make changes by following the ordinary
procedure, but it is required to observe some other formalities.

• Under Article 169(1), Parliament by following the procedure of enacting an ordinary law may
create a legislative council in a state where it does not exist or may abolish the Legislative Council
of a state where it exists.

• It can act only if the Legislative Assembly of the state concerned has expressed such a wish by
Passing a resolution by a two-thirds majority vote of the members present and voting which is not
less than the majority of the total membership of the assembly.

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… All the changes in the text of the Constitution

• Article 3 of the Constitution.

• Schedule-I enumerate the states and union territories of India and their territories.

• But under Article 3, Parliament has the power to form a new state, and it can do this by separating the
territory from any state or by uniting two or more States or parts of states or by uniting any territory to a
part of any state.

• It also has the power to increase or diminish the area of any state;

• it can also change the boundaries or the name of any state.

• And whatever a parliament can do in relation to a state, it can also do in relation to a union territory.

• All this it can do by following the same procedure which it follows while enacting an ordinary law

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SUBSTANTIVE LIMITATIONS ON THE AMENDING POWER

• Art, 13 (2) :
The state shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the
contravention, be void.
PHASE 1: SHANKARI PRASAD AND SAJJAN SINGH
PHASE 2: GOLAK NATH
PHASE 3: KESAVANANDA BHARATI

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SHANKARI PRASAD SINGH DEV V. UNION OF INDIA, AIR 1951 SC 458

H.J. KANIA, C.J., M. PATANJALI SASTRI, B.K. MUKHERJEA, SUDHI RANJAN DAS AND N. CHANDRASEKHARA AIYAR, JJ.
5 JUDGE

Ground:
• the constitutionality of the First Amendment had been assailed
• it was violative of article 13 subclause 2 of the constitution.
Arguments:
• Article 13 subclause 2 prohibits the state from making any law which was in
contravention of any of the rights guaranteed in Part III of the constitution and
further provides that a law if so enacted, would be void to the extent of the
contravention.
• The argument of the petitioners in the case was that the word “law” in the article
encompassed both an ordinary law and a Constitution Amendment Act.

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Shankari Prasad Singh Deo v. Union of India, the
14 Hon'ble Supreme Court held that the power to amend
the Constitution including the Fundamental Rights is
conferred under Article 368, and the word 'Law' as
mentioned under Article 13(2) does not include an
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… SHANKARI PRASAD
Held:
• Justice Patanjali Sastri who spoke for the bench said that
there was a distinction between a law enacted in the exercise
of ordinary legislative power and a Constitution Amendment
Act passed in the exercise of the constituent power
• the provision of article 13 was applicable only in relation to the
former variety of law and not to the latter variety.
• He said that article 13 sub-clause 2 must yield to Article 368
and should be limited in its application to ordinary laws.

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SAJJAN SINGH V. STATE OF RAJASTHAN, AIR 1965 SC 845

P.B. GAJENDRAGADKAR, C.J., J.R. MUDHOLKAR, K.N. WANCHOO, M. HIDAYATULLAH AND RAGHUBAR DAYAL, JJ.
5 JUDGE (3:2)

Ground:
• the constitutionality of the 17th amendment had been challenged, and a request was made to
review the decision in Shankari Prasad.
• this request was with regard to that part of the judgement which had rejected the contention that
the first amendment violated clause (b) of the proviso to Article 368 sub-clause (2)
• and was not for that part of the decision which had held that the provision of article 13 sub-clause
(2) was limited only to the enactment of ordinary laws enacted in the exercise of ordinary
legislative power.
• Consequently, no arguments were held at the bar on that issue.

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…SAJJAN SINGH
Held:
• The request for review was unanimously rejected by a constitution bench headed by
chief justice Gajendragadkar.
• Still Chief Justice Gajendragadkar while delivering the judgement, on his own behalf and
on behalf of two other brother judges, preferred to iterate expressly that the bench was
endorsing the judgement in Shankari Prasad on that part of the judgement as well which
had held that the provision of article 13 sub-clause 2 did not apply to Constitution
Amendment Acts.
• He rejected the proposition that fundamental rights, or for that matter any other rights,
could be eternal and inviolate.
• Referring to article 19 of the Indian Constitution he said that the rights needed to be
limited and regulated and he was not ready to believe that the list of permissible grounds
of restriction was static and could not be expanded in the future.

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part of the Constitution including the Fundamental Rights.
It is noteworthy to point out that two dissenting judges, in this
case, remarked whether the fundamental rights of citizens could
become a plaything of the majority party in Parliament.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…SAJJAN SINGH
Dissenting Opinion:
• Justice Hidayatullah said that
• he would require stronger reasons than those given in Shankari Prasad to make him accept the view that fundamental
rights were not really fundamental but were intended to be within the power of amendment in common with the other
parts of the constitution and without the concurrence of the states.
• To this he added that the constitution gave so many assurances in part III that it would be difficult to think that they
were the playthings of a special majority.
• Justice Mudholkar in his separate judgement, emphasised that
• there was a distinction between the constitution as originally framed and an amendment of the constitution,
• And unlike the former the latter was not immune from judicial investigation for being ascertained whether it had been
enacted in conformity with the constitutional requirements.
• He also expressed surprise that if the framers thought of making the fundamental rights amendable, they made their
amendment easier than the matters included in the proviso.
• Finally, he doubted whether the amending power could be so used as to change the fundamental character of the
Constitution or to change its basic features.

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GOLAK NATH V. STATE OF PUNJAB, AIR 1967 SC 1643

11 JUDGE (6:5)

• In view of the doubts expressed by justice Hidayatullah and Justice Mudholkar in Sajjan Singh
case on the correctness of that part of the judgement in Shankari Prasad in which it was held that
proviso of article 13 sub-clause 2 did not apply to Constitution Amendment Acts,
• the whole thing was re-examined By a 11 judge bench headed by Chief Justice Subba Rao in
Golaknath
Ground:
• the constitutionality of the Constitution 17th Amendment Act again came for examination.
• In this case, for the first time substantive limitations on the amending power were argued to
consist of two varieties,
• express and
• implied.

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… GOLAK NATH
ARGUMENT:
• It was argued that whereas article 13 subclause (2) constituted an express limitation,
• Certain limitations were implicit in the very concept of the amendment
• which did not comprehend within its fold major changes of a revolutionary character so as to alter the
basic or fundamental features of the constitution.
Held:
• The majority judgements held that article 13 sub-clause (2) constituted an express limitation on the
amending power of Parliament contained in article 368(2).
• They emphasised the point that parliament, being a constituted body, could not be a constituent body,
• especially when there was so much in common in the respective procedures for amending the
constitution and enacting an ordinary legislation.
• They concluded that an amendment of the Constitution was as much law under article 13(2) as any
other enactment.

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… GOLAK NATH
• Chief Justice Subba Rao in his judgement with a view to augment this point further, held that
amending power was Not contained in Article 368 but in article 248
• This showed that the amendment of the Constitution was not fundamentally different from any
other legislation.
• In this connection, he pointed out that the marginal note to Article 368 indicated that the article
prescribed only the procedure for amendment.
• Justice Hidayatullah held that Article 368 laid down a procedure which, if followed, resulted in the
amendment of the constitution.
• In other words, in his view Article 368 contained both the power and procedure for
amendment.

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… GOLAK NATH
• however both judgements, while holding that Parliament did not possess the power to amend part
III of the Constitution so as to breach the fundamental rights.
• found enough doctrinal reasons not to upset the socio-economic revolution that had been brought
about in the country on the faith of the correctness of earlier decisions.
• Both the judges held that Shankari Prasad, though wrongly decided, would still have its force,
• Chief Justice Subba Rao overruled it only prospectively
The 17th Amendment, according to Justice Subba Rao, violated the Constitution’s fundamental rights to acquire land
and engage in any lawful profession provided to Indian citizens. However, because he applied the Prospective
Overruling Doctrine, the Supreme Court’s decision had no bearing on the constitutionality of the 17th Amendment and
thus the 1953 law. However, Justice Subba Rao emphasised that the Parliament would no longer have the power to
modify Part III of the Constitution, which deals with people’s fundamental rights.

Significance of Golaknath Case Judgement:

Parliament passed the 24th Amendment in 1971 to repeal the SC judgement. It amended the Constitution to provide
expressly that Parliament has the power to amend any part of the Constitution, including the provisions relating to
Fundamental Rights.
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KESAVANANDA BHARATI V. STATE OF KERALA, AIR 1973 SC 1461

(13 JUDGES)

• the constitutional validity of both the Amendments, viz., XXIV and XXV, was challenged in the Supreme
Court through an Art. 32 writ-petition by Swami Kesavananda Bharati, a mutt chief of Kerala
• The matter was heard by a bench consisting of 13 Judges of the Court because Golak Nath, a decision by a
Bench of 11 Judges was under review.
• Eleven opinions were delivered by the Judges on April 24, 1973.
• Held:
• the power to amend the Constitution is to be found in Art. 368 itself.
• Judges found it difficult to believe that the constitution-makers had left the important power to amend
the Constitution hidden in Parliament’s residuary power.
• On this point, therefore, the views expressed in Shankari Prasad and Sajjan Singh were endorsed and
the view expressed in Golak Nath that the power to amend the Constitution was not to be found in Art.
368 was overruled.

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… KESAVANANDA BHARATI
• there is a distinction between an ordinary law and a constitutional law.
• An examination of the various provisions of our Constitution shows that it
has made a distinction between ‘the Constitution’ and ‘the laws’.
• It was asserted that the constitution-makers did not use the expression
"law" in Art. 13 as including "constitutional law".
• This would thus mean that Art. 368 confers power to abridge a
Fundamental Right or any other part of the Constitution.
• To this extent, therefore, Golak Nath was now overruled.

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… KESAVANANDA BHARATI
• Kesavananda did not concede an unlimited amending
power to Parliament under Art. 368.
• The amending power was now subjected to one very significant
qualification,
• viz., that the amending power cannot be exercised in such a
manner as to destroy or emasculate the basic or Fundamental
Features of the Constitution.
• A constitutional amendment which offends the basic structure of the
Constitution is ultra vires.

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… KESAVANANDA BHARATI
● Some of the features regarded by the Court as fundamental and, thus,
non-amendable are:
(i)Supremacy of the Constitution:
(ii)Republican and democratic form of government;
(iii)Secular character of the Constitution;
(iv)Separation of powers between legislative, executive and the
judiciary;
(v)Federal character of the Constitution.

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… KESAVANANDA BHARATI
• The justification for this judicial view:
• The expression ‘amend’ in Art. 368 has a restrictive connotation and could
not comprise a fundamental change in the Constitution.
• The words "amendment of the Constitution" in Art. 368 could not have the
effect of destroying or abrogating the basic structure of the Constitution".
• The 2/3rd majority in Parliament may not represent majority of the votes
of the people in the country.
• This means that there are inherent or implied limitations on the power of
amendment under Art. 368.

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… KESAVANANDA BHARATI
• What is a fundamental feature of the Constitution is a
moot point.
• The list given above is not final or exhaustive of such features.
• It is for the courts to decide as and when a question arises
whether a particular amendment of the Constitution affects
any ‘basic’ or "fundamental" feature of the Constitution or not.
• The question of basic features has to be considered in each
case in the context of the concrete problem.

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KESAVANANDA IS AN IMPROVEMENT OVER

THE FORMULATION IN GOLAK NATH
(i) Golak Nath formulation only confined itself to Fundamental Rights and did not cover other parts
of the Constitution. This gap has been filled by Kesavananda by holding that all ‘basic’ features of
the Constitution are non-amendable.
(ii)Golak Nath made all Fundamental Rights as non-amendable. Kesavananda introduces some
flexibility in this respect. Not all Fundamental Rights en bloc are now to be regarded as non-
amendable but only such of them as may be characterised as constituting the "basic" features of
the Constitution.
● Theoretically, Kesavananda is, therefore, a more satisfactory formulation as regards the amend-ability of
the Constitution than Golak Nath which gave primacy to only one part, and not to other parts, of the
Constitution.
● Kesavananda also answers the question left unanswered in Golak Nath, namely, can Parliament, under Art.
368, rewrite the entire Constitution and bring in a new Constitution?
● The answer to the question is that Parliament can only do that which does not modify the basic features of
the Constitution and not go beyond that.

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Kesavananda illustrates judicial creativity

•The majority judges sought to protect and preserve the basic features of the
Constitution against the onslaught of transient majorities in Parliament.
•An unqualified amending power could mean that a political party with a two-thirds
majority in Parliament, for a few years, could make any changes in the Constitution,
even to the extent of establishing a totalitarian State, to suit its own political
exigencies.
•It was a conscious ‘policy’ decision on the part of the Supreme Court to read
implied limitations on the amending power in order to preserve basic, core,
constitutional values against the onslaught of a transient majority in Parliament.

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INDIRA NEHRU GANDHI V. RAJ NARAIN

AIR 1975 SC 2299
• The validity of Cl. 4 of the Constitution (Thirty-ninth Amendment) Act, 1975 was in question.
•This Amendment sought to do three things:
1. to withdraw the election of the Prime Minister and a few other Union officials from the scope of the ordinary
judicial process;
2. to void the High Court decision declaring Indira Gandhi’s election to the Lok Sabha as void; and,
3. to exclude the Supreme Court’s jurisdiction to hear any appeal.
•The constituent power had discharged a judicial function in deciding the election dispute against the Prime
Minister and in doing this it had followed no procedure and applied no law.
•Thus, the Kesavananda ruling was directly invoked.
•The Supreme Court upheld the contention and declared Cl. 4 as unconstitutional.
•The first part of Cl. 4 was regarded to violate the "essential features" of the Constitution.

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42ND AMENDMENT
• The Government very much desired to ensure that never in future, the courts should have
the power to pronounce a constitutional amendment invalid.
• Accordingly, Art. 368 was again amended by the Forty-Second Amendment enacted in
1976.
• The Forty-Second Amendment sought to ensure that a constitutional amendment may not
be challenged before any Court on any ground whatsoever.
• To achieve this objective, two new clauses were added to Art. 368
• These clauses were very broadly worded and were designed to make it clear to the
judiciary that there should be no limitation whatsoever on Parliament’s constituent power
under Art. 368.
• The provision even went to the extent of reviving the constitutional amendments held
invalid by the Supreme Court earlier, viz.: the second limb of Art. 31C in Kesavananda and
a few clauses of the Thirty-ninth amendment in Indira Nehru Gandhi.

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MINERVA MILLS LTD. V. UNION OF INDIA,

AIR 1980 SC
•The petition challenged the constitutional validity of clauses (4) and (5) of Art. 368, introduced by S. 55 of the
42nd Amendment.
•S. 55 of the Constitution (Forty-second Amendment) Act, 1976, inserted subsections (4) and (5) in Art. 368.
•In Minerva, this section was held to be beyond the amending power of the Parliament and void
•since it sought to remove all limitations on the power of Parliament to amend the Constitution and confer a
power on Parliament to amend the Constitution so as to damage or destroy its basic or essential features or its
basic structure.
•The newly introduced clause 4 in Art. 368 sought to deprive the courts of their power to call in question any
amendment of the Constitution.
•Depriving the courts of the power of judicial review will mean making Fundamental Rights "a mere adornment,"
as they will be rights without remedies.
•A ‘controlled’ Constitution will become ‘uncontrolled’

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WAMAN RAO V. UNION OF INDIA

AIR 1981 SC 271
•the Court ruled that the First and the Fourth Amendment Acts introduced in 1951 and 1955 did
not damage any basic or essential feature of the Constitution or its basic structure and were thus
valid and constitutional being within the constituent power of the Parliament.
•The First Amendment introduced Art. 31A into the Constitution with retrospective effect as well
as Art. 31B.
•31A(1) obliterates Arts. 14, 19 and 31 totally and completely for the laws falling within its scope
•Article 31B contains a device for saving laws from challenge on the ground of violation of
Fundamental Rights. Article 31B is to be read along with the Ninth Schedule.
•Art. 13(2) of the Constitution invalidates a law inconsistent with a Fundamental Right. Article 31B
extends a protective umbrella to such a law if it is included in the IX Schedule.
•Article 31B is, in substance and reality, a constitutional device employed to protect State laws
from being declared void under Art. 13(2).

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…WAMAN RAO
•The Court declared in Waman Rao that all Acts and Regulations included in the Ninth
Schedule uptil the landmark case of Kesavananda (April 24, 1973) will receive the full
protection of Art. 31B.
•Since the IXTH Schedule is a part of the Constitution, no additions or alterations can be
made therein without complying with the restrictive provisions governing amendments to the
Constitution.
•Therefore, the Acts and Regulations included in the IXTH Schedule after Kesavananda (i.e.,
on or after April 24, 1973) will not receive the protection of Art. 31B for the plain reason
that in the face of the Kesavananda judgment, there is no justification for making additions
to the IX Schedule with a view to conferring a blanket protection on the laws included
therein.
• "The various constitutional amendments, by which additions were made to the IX Schedule
on or after April 24, 1973, will be held valid only if they do not damage or destroy the
basic structure of the Constitution."

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