What is Article 368?
Article 368 is like the Constitution’s built-in update button. It allows Parliament to amend the Constitution—that means change, add, or remove its provisions. But this power isn’t free-for-all. It comes with a structured procedure to protect the balance of power and the democratic spirit of the Constitution.
Three Ways the Constitution Can Be Amended
Article 368 recognizes three kinds of amendments:
1. By Simple Majority of Parliament
These are minor changes and don’t even require Article 368. They include:
- Changing state names or boundaries.
- Creating new states.
- Adjusting provisions of the Fifth and Sixth Schedules.
2. By Special Majority of Parliament (Article 368(2))
Most constitutional amendments fall under this. It needs:
- More than 50% of the total strength of each House of Parliament, and
- Two-thirds of the members present and voting.
3. By Special Majority + Ratification by Half of the States
For federal features (like the judiciary, distribution of powers, or election of the President), the amendment must also be approved by at least 50% of state legislatures.
Major Case Laws Related to Article 368
Over the years, the courts have played a big role in defining the limits and power of constitutional amendments. Here are the key cases:
1. Shankari Prasad v. Union of India (1951)
What happened: The first constitutional amendment was challenged for violating fundamental rights.
Supreme Court held: Parliament has the power to amend any part of the Constitution, including fundamental rights.
2. Sajjan Singh v. State of Rajasthan (1965)
What happened: Similar challenge as in Shankari Prasad.
Supreme Court held: Reaffirmed that fundamental rights can be amended using Article 368.
3. Golaknath v. State of Punjab (1967)
What happened: The turning point. The court reversed its earlier stand.
Supreme Court held: Parliament cannot amend fundamental rights. It ruled that constitutional amendments are law under Article 13 and must comply with fundamental rights.
4. Kesavananda Bharati v. State of Kerala (1973) – A Landmark
What happened: Parliament passed the 24th, 25th, and 29th Amendments, trying to regain full amending power.
Supreme Court held:
- Parliament can amend any part of the Constitution, including fundamental rights.
- But it cannot alter the "Basic Structure" of the Constitution.
- Introduced the Basic Structure Doctrine – elements like democracy, secularism, rule of law, judicial independence, etc., can’t be destroyed.
This case changed Indian constitutional law forever.
5. Indira Nehru Gandhi v. Raj Narain (1975)
What happened: During the Emergency, an amendment was passed to protect Indira Gandhi’s election.
Supreme Court held: The amendment was unconstitutional as it violated the basic structure (free and fair elections, judicial review).
6. Minerva Mills v. Union of India (1980)
What happened: The 42nd Amendment gave Parliament unlimited amending power.
Supreme Court held: The clause giving unlimited power was invalid. The court reaffirmed that limited power exists under Article 368 and it cannot destroy the basic structure.
What is the “Basic Structure Doctrine”?
Though not written anywhere in the Constitution, the basic structure idea is like the invisible backbone of Indian democracy. Parliament can repaint the walls, fix the roof—but it cannot break the pillars that hold the house together.
Some elements of the basic structure:
- Supremacy of the Constitution
- Rule of Law
- Judicial Review
- Separation of Powers
- Secularism
- Free and Fair Elections
- Federalism
Conclusion: Article 368 Is About Balance
Think of Article 368 as a tool with a safety lock. It lets us update our Constitution, but ensures no one misuses it to harm the nation’s foundational values.
Thanks to the courts and the brave interpretations in landmark judgments, India has found a middle path—one that embraces change but protects its soul.
Written by -Sangita patel
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