Constitutional Law
Constitutional Amendment and Basic Structure
Master Article 368 amendment procedure, State ratification and the basic structure doctrine through Kesavananda Bharati and later landmark cases.
Quick answer
Parliament may amend every part of the Constitution through the required procedure, but it cannot damage or destroy the Constitution's basic structure.
Three routes for constitutional change
Not every constitutional change uses the same voting rule, and some changes are not Article 368 amendments in the technical sense.
Simple majority outside Article 368
Specified provisions allow change through the ordinary legislative majority, including important examples under Articles 2 to 4 and 169. These changes follow the procedure stated in the relevant provision.
Article 368 special majority
Each House must pass the Bill by a majority of its total membership and by at least two-thirds of members present and voting. The Houses must agree separately because there is no joint sitting.
Special majority plus State ratification
Changes affecting specified federal provisions also require ratification by the Legislatures of at least one-half of the States before presidential assent.
Presidential assent
After valid passage and any required State ratification, the Bill is presented to the President, who shall give assent. The Constitution then stands amended according to the Bill.
When the States must ratify
The proviso to Article 368 protects provisions central to the federal distribution and constitutional courts.
Federal executive and presidential election
Ratification is required for the specified provisions concerning election of the President and the extent of Union and State executive power.
Superior courts
Changes to the identified constitutional chapters concerning the Supreme Court and High Courts enter the ratification route.
Legislative distribution and representation
The route covers the specified Union-State legislative chapter, any of the Seventh Schedule Lists and State representation in Parliament.
Article 368 itself
A proposal to alter Article 368 also requires State ratification. The affected provisions, not the political importance of the proposal alone, determine the route.
The basic structure limitation
Procedure answers how an amendment is passed. Basic structure asks whether the resulting constitutional change remains an amendment rather than destruction of constitutional identity.
The Kesavananda rule
Parliament's power extends to every constitutional provision, including Fundamental Rights, but it cannot alter the basic structure or framework of the Constitution.
No closed list
The Court identifies basic features contextually. Constitutional supremacy, republican and democratic government, secularism, federalism, separation of powers, judicial review and rule of law are established examples.
Limited amending power is itself basic
Minerva Mills rejected an attempt to make the amending power unlimited and unreviewable. A limited constitutional power cannot enlarge itself into absolute authority.
Ninth Schedule review
I.R. Coelho held that post-24 April 1973 Ninth Schedule insertions remain reviewable where their impact damages basic structure through destruction of protected constitutional principles.
Landmark cases
Learn the facts, the rule and why the case matters. The citation alone will not strengthen an answer.
Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225Facts: A religious institution challenged Kerala land-reform laws while constitutional amendments had expanded Parliament’s power and protected redistributive legislation from rights review.
Legal question: Can Parliament use Article 368 to change any part of the Constitution without an enforceable substantive limit?
Held: Parliament may amend every provision but cannot damage or destroy the Constitution's basic structure.
Reasoning: The amendment power is broad enough to change every provision, but the word and function of amendment require the Constitution to survive with its basic identity intact.
Use in an answer: Use it as the controlling source of the substantive limit on Article 368.
Read the judgmentMinerva Mills Ltd. v. Union of India
(1980) 3 SCC 625Facts: The Forty-second Amendment claimed an unlimited amending power and attempted to prevent courts from reviewing constitutional amendments.
Legal question: Can Parliament enlarge Article 368 so that its own amendment power becomes unlimited and unreviewable?
Held: Limited amending power and judicial review are basic features, and harmony between Fundamental Rights and Directive Principles cannot be destroyed.
Reasoning: A limited power cannot convert itself into an unlimited one. Judicial review and harmony between Fundamental Rights and Directive Principles preserve the Constitution’s basic identity.
Use in an answer: Use it to show that Parliament cannot make its own amendment power unlimited.
Read the judgmentI.R. Coelho v. State of Tamil Nadu
(2007) 2 SCC 1Facts: A nine-judge Bench considered whether Parliament could protect laws from Fundamental Rights review merely by inserting them into the Ninth Schedule.
Legal question: Are post-Kesavananda Ninth Schedule insertions completely immune from basic structure review?
Held: Laws inserted into the Ninth Schedule after 24 April 1973 are not automatically immune where their impact damages the basic structure.
Reasoning: No. Insertions made after 24 April 1973 remain reviewable where the law's impact damages basic structure through destruction of protected constitutional principles.
Use in an answer: Use it for Ninth Schedule immunity, the rights test and post-Kesavananda review.
Read the judgmentHow to write this answer in an exam
- Classify the change as simple-majority, special-majority or ratification route.
- State the voting requirement in each House and absence of joint sitting.
- Check whether the proviso to Article 368 requires State ratification.
- Apply the basic structure impact test.
- Support the conclusion with Kesavananda, Minerva Mills and the most relevant later case.
Quick revision
- Some constitutional changes use ordinary legislative procedure.
- Article 368 requires two majorities in each House.
- Specified federal changes require ratification by at least half the States.
- There is no joint sitting for an amendment Bill.
- Procedural validity does not replace basic structure review.
Test yourself
- What are the two components of the Article 368 special majority?
- Which kinds of change require State ratification?
- Why is the list of basic features not closed?
Frequently asked questions
Can Parliament amend Fundamental Rights?
Yes. Kesavananda permits amendment of every constitutional provision, including Fundamental Rights, but the amendment cannot damage or destroy basic structure.
Do all States have to ratify a federal amendment?
No. Where the proviso applies, ratification by the Legislatures of at least one-half of the States is required.