Article 368: The Constitutional Amendment Procedure

Introduction

Article 368, located in Part XX of the Indian Constitution, outlines the power of the Parliament to amend the Constitution and the specific procedure that must be followed. This procedure is designed to be more stringent than that for ordinary legislation, reflecting the sanctity and foundational nature of the Constitution. It involves specific requirements for the introduction of an amendment bill, its passage by a special majority in both Houses of Parliament, and, for amendments affecting federal provisions, ratification by at least half of the state legislatures. The President's assent is the final step, which has been made obligatory. This structured process aims to ensure that constitutional changes are made with due deliberation and broad consensus.

Source: Broad understanding synthesized from Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'; Constitution of India (Bare Act - Article 368)

The Amendment Procedure: Step-by-Step

1. Initiation of Bill

Can be introduced in either House of Parliament, by a Minister or Private Member. Generally, no prior Presidential permission needed.

2. Passage in Parliament

Requires Special Majority in EACH House separately. No Joint Sitting if disagreement arises.

3. State Ratification

(For Federal Provisions) By simple majority in legislatures of not less than half of the States. No specific time limit.

4. Presidential Assent

President MUST give assent (obligatory post-24th Amendment). Cannot withhold or return the bill.

5. Bill Becomes Act

Constitution stands amended as per the terms of the Act.

9.2.1: Initiation of Amendment Bill

Can be introduced in either House of Parliament (Lok Sabha or Rajya Sabha). Unlike Money Bills, which originate only in Lok Sabha.
Cannot be introduced in State Legislatures. Power is exclusively with Parliament; states' role is limited to ratification.
Can be introduced by a Minister or a Private Member. Initiative can come from both government and non-government MPs.
Does not require prior permission of the President. Generally NOT required for Article 368 bills, unlike some other types of bills.

Exception Nuance: Bills altering state boundaries (Art 3) or affecting state finances (Art 274) may need prior Presidential recommendation, but these are not strictly Art 368 amendments.

9.2.2: Passage of the Bill in Parliament

Must be passed in each House by a Special Majority:
1. A majority of the total membership of that House (Absolute Majority).
2. A majority of two-thirds of the members of that House present and voting.
Both conditions must be satisfied simultaneously.
Each House must pass the bill separately. If one fails, the bill fails.
No provision for a joint sitting of both Houses. If there's disagreement, the bill lapses, emphasizing consensus.

Concept: Special Majority

For Lok Sabha (543 members): Needs 272+ AND (2/3rd of P&V). E.g., if 400 present & voting, needs 272+ (absolute) AND 267+ (2/3rd P&V). So, 272+ is the binding requirement.

9.2.3: Ratification by State Legislatures

Required if the amendment seeks to change any of the "federal provisions". Applies only to provisions affecting the federal structure.
Ratification must be by a resolution passed by each State Legislature by a simple majority (of members present and voting). Not a special majority at the state level.
No specific time limit prescribed for states to give their consent. Can lead to delays.
Federal provisions requiring state ratification include:
1. Election of the President (Articles 54, 55).
2. Extent of the executive power of the Union and the States (Articles 73, 162).
3. Supreme Court and High Courts (Articles 124-147, 214-231).
4. Distribution of legislative powers between the Union and the States (Chapter I of Part XI; and any of the Lists in the Seventh Schedule).
5. Representation of States in Parliament (Fourth Schedule).
6. Article 368 itself (the power of Parliament to amend the Constitution and the procedure therefor).

9.2.4: Assent of the President

After being passed by both Houses (and ratified by states, if required), the bill is presented to the President for assent. The final legislative stage.
The President must give his assent to the bill. Made obligatory by the 24th Constitutional Amendment Act, 1971.
The President can neither withhold assent nor return the bill for reconsideration. Unlike ordinary bills (Article 111), President has no veto power here.

9.2.5: Bill becomes an Act

After the President's assent, the bill becomes a Constitutional Amendment Act.
The Constitution stands amended in accordance with the terms of the Act.
The amendment is effective from the date specified in the Act, or from the date of Presidential assent if not specified.

Summary Table: Article 368 Procedure

Stage	Key Requirements
1. Initiation	Either House of Parliament; By Minister or Private Member; No prior Prez permission (gen).
2. Passage in Parliament	EACH House separately; By SPECIAL MAJORITY (Absolute Maj + 2/3rd Present & Voting); NO Joint Sitting.
3. State Ratification (If Federal Provision)	By Legislatures of ≥ 1/2 States; By SIMPLE MAJORITY in each State Leg.; No time limit.
4. Presidential Assent	MUST give assent; Cannot withhold or return. (Obligatory post-24th Am).
5. Becomes Act	Constitution stands amended.

In-Depth Analysis & Exam Insights

Prelims-ready Notes

Amendment Procedure (Article 368, Part XX):

Initiation of Bill: In either House of Parliament (Lok Sabha or Rajya Sabha). NOT in State Legislatures. By a Minister or Private Member. Generally, NO prior Presidential permission needed for introduction.
Passage in Parliament: Must be passed in EACH House separately. By Special Majority (Majority of total membership of House AND Majority of 2/3rd of members present & voting). NO provision for Joint Sitting in case of disagreement.
Ratification by State Legislatures (for "Federal Provisions"): Required if amendment affects specified federal features. By Legislatures of not less than 1/2 of the States. Ratification by Simple Majority in each State Legislature. No time limit for states to ratify.
Federal Provisions needing ratification: Election of President, Executive powers of Union/States, SC/HCs, Distribution of legislative powers (Lists in 7th Sch), Representation of States in Parliament, Article 368 itself.
Presidential Assent: After passage (and ratification if needed), presented to President. President MUST give assent (made obligatory by 24th Am, 1971). President CANNOT withhold assent or return for reconsideration.
Bill becomes Act: After President's assent, it becomes Constitutional Amendment Act.

Mains-ready Analytical Notes

Rationale for Special Majority: Ensures amendments aren't passed lightly, requires broader consensus, adds rigidity, safeguards the Constitution.
Significance of No Joint Sitting: Ensures Rajya Sabha (representing states) has equal say, cannot be overridden by Lok Sabha, protects federal character, ensures broad consensus.
Role of State Ratification – Protecting Federalism: Crucial safeguard for state interests and federal balance. Prevents unilateral changes by Union Parliament.
- Critics: Threshold of "half of the states" by "simple majority" might still allow Centre to push amendments. Absence of time limit problematic.
President's Assent – From Discretion to Obligation: 24th Amendment made it obligatory, asserting parliamentary power and ensuring finality to the amendment process. Aligns with the principle that power to amend rests with elected representatives (within basic structure limits).
Balance of Rigidity and Flexibility in Procedure:
- Rigidity: Special majority, separate passage, no joint sitting, state ratification.
- Flexibility: No prior Presidential sanction for introduction, states ratify by simple majority, no specific time limit for states.
This blend ensures stability with adaptability.

Current Affairs and Recent Developments (Last one year)

The procedure itself is static unless Article 368 is amended. Current affairs usually involve the application of this procedure to specific amendment bills.

Constitutional Amendments Passed (if any recently): The Nari Shakti Vandan Adhiniyam (106th Amendment Act, 2023) providing for women's reservation in Lok Sabha and State Assemblies. This required special majority and, because it affected representation of states and provisions related to state legislatures, it also required ratification by at least half of the state legislatures. This process was completed.
Debates on Amending Power or Procedure: Occasional discussions about the difficulty or ease of amending certain constitutional provisions. Any judicial pronouncements that touch upon the interpretation of Article 368 or the procedure for amendment. For instance, the SC's judgment on Article 370 abrogation (Dec 2023) involved interpretation of how modifications to provisions concerning a state (J&K) were made, which, while distinct from Art 368 for that specific article, involves understanding constitutional change processes.
Calls for specific amendments (e.g., relating to federal issues, judicial reforms, electoral reforms) often bring the Article 368 procedure into public discourse.

UPSC Previous Year Questions (PYQs)

Prelims MCQs:

1. Which of the following is correct regarding the introduction of a Constitutional Amendment Bill in India?

(a) It can only be introduced in the Lok Sabha.
(b) It can only be introduced by a Minister.
(c) It requires the prior recommendation of the President.
(d) It can be introduced in either House of Parliament.

Hint/Explanation: A Constitutional Amendment Bill can be introduced in either Lok Sabha or Rajya Sabha, by a minister or a private member, and generally does not require prior Presidential recommendation.

2. For amending the provisions relating to the election of the President of India, a Constitutional Amendment Bill requires:

(a) A simple majority in both Houses of Parliament.
(b) A special majority in both Houses of Parliament.
(c) A special majority in both Houses of Parliament and ratification by legislatures of not less than half of the states.
(d) A special majority in a joint sitting of both Houses of Parliament and ratification by legislatures of all states.

Hint/Explanation: Election of the President (Articles 54, 55) is a federal provision listed in the proviso to Article 368(2), requiring special majority in Parliament plus ratification by at least half of the state legislatures. There is no joint sitting for amendment bills.

3. The President of India's assent to a Constitutional Amendment Bill passed by Parliament is:

(a) Discretionary, and can be withheld.
(b) Obligatory, but the President can return it once for reconsideration.
(c) Obligatory, and the President cannot withhold assent or return it for reconsideration.
(d) Subject to approval by the Chief Justice of India.

Hint/Explanation: The 24th Amendment Act, 1971, made it obligatory for the President to give assent to a Constitutional Amendment Bill. The President has no power to withhold or return it.

Mains Questions:

1. What is the procedure for amending the Constitution of India as laid down in Article 368? Why is this procedure often described as a blend of rigidity and flexibility? (Descriptive & Analytical)

Direction/Value Points: Introduction; Procedure (Detail stages); Blend of Rigidity and Flexibility (Flexibility points: simple majority for some changes, special majority by Parliament alone for many, states ratify by simple majority; Rigidity points: special majority itself, separate passage, no joint sitting, state ratification for core federal features); Conclusion.

2. "The requirement of ratification by state legislatures for amending certain 'federal provisions' of the Constitution is a key safeguard for maintaining India's federal character." Discuss the provisions that require such ratification and evaluate the effectiveness of this safeguard.

Direction/Value Points: Introduction; Federal Provisions Requiring State Ratification (list them); How it Safeguards Federal Character; Evaluation of Effectiveness (Strengths & Weaknesses); Conclusion.

3. Explain the concept of 'Special Majority' required for the passage of a Constitutional Amendment Bill under Article 368. Why is there no provision for a joint sitting of both Houses of Parliament in case of a disagreement over such a bill?

Direction/Value Points: Introduction; Concept of 'Special Majority' (explain two conditions); Why No Provision for Joint Sitting (upholding bicameralism, ensuring wider consensus, protecting federal principle, seriousness of amendment); Implication; Conclusion.

Trend Analysis (Past 10 Years)

Prelims: High focus on types of majorities, which provisions require state ratification, President's role (obligatory assent), no joint sitting, and amendments outside Article 368 (e.g., under Art 4).
Mains: Detailed explanation of Article 368 procedure, rationale behind requirements, blend of rigidity and flexibility, impact on federalism, and linking procedure to constitutional philosophy.

Original MCQs for Prelims

1. Which of the following conditions must be met for a Constitutional Amendment Bill to be considered passed by a House of Parliament under Article 368?

A majority of the total membership of the House.
A majority of two-thirds of the members of the House present and voting.
Ratification by the President before being voted upon in the House.

Select the correct answer using the code given below:

(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3

Explanation: A Constitutional Amendment Bill requires both (1) a majority of the total membership of the House (absolute majority) AND (2) a majority of two-thirds of the members present and voting (special majority). Prior Presidential ratification (3) is not required for passage in the House; Presidential assent comes after passage.

2. If the Lok Sabha passes a Constitutional Amendment Bill seeking to alter the distribution of legislative powers between the Union and the States, but the Rajya Sabha rejects it, what is the consequence?

(a) The President can summon a joint sitting of both Houses to resolve the deadlock.
(b) The bill is deemed to be passed if the Lok Sabha passes it again with a special majority.
(c) The bill lapses and cannot become an Act.
(d) The bill is sent to the state legislatures for ratification directly from the Lok Sabha.

Explanation: There is no provision for a joint sitting for Constitutional Amendment Bills. Both Houses must pass it separately by the requisite special majority. If one House rejects it or fails to pass it, the bill lapses.

3. The President of India's role with respect to a Constitutional Amendment Bill, after it has been duly passed by Parliament (and ratified by states if required), is to:

(a) Give assent, withhold assent, or return the bill for reconsideration.
(b) Give assent only after consulting the Council of Ministers.
(c) Mandatorily give assent to the bill.
(d) Refer the bill to the Supreme Court for its opinion on constitutionality before giving assent.

Explanation: The 24th Constitutional Amendment Act, 1971, made it obligatory for the President to give assent to a Constitutional Amendment Bill. The President cannot withhold assent or return it for reconsideration.

Original Descriptive Questions for Mains

1. "The procedure for amending the Indian Constitution under Article 368 is designed to ensure that changes to the fundamental law are a product of considered deliberation and broad consensus, rather than hasty legislative action." Elaborate on the specific procedural safeguards within Article 368 that reflect this intent.

Key Points/Structure for Answering: Introduction; Procedural Safeguards (Special Majority in Each House, Separate Passage, No Joint Sitting, Ratification by State Legislatures for Federal Provisions); How these contrast with ordinary law-making; Purpose; Conclusion.