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.
The short 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.
Three routes for constitutional change
Not every constitutional change follows the same majority, and some changes technically fall outside Article 368 procedure.
Simple parliamentary majority
Specified provisions permit change by ordinary legislative majority, such as parts of State reorganisation and creation or abolition of a Legislative Council. These laws are not treated as Article 368 amendments for that purpose.
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. There is no joint sitting.
Special majority plus State ratification
Changes to specified federal provisions also require ratification by at least half of State Legislatures before presidential assent.
Assent and initiation
An amendment Bill may originate in either House of Parliament, not a State Legislature. After the required passage and ratification, the President shall give assent.
How the basic structure doctrine developed
The doctrine emerged from a constitutional dialogue over whether amendment power could destroy rights and institutional limits.
Shankari Prasad and Sajjan Singh
The early cases upheld Parliament's ability to amend Fundamental Rights and distinguished constitutional amendments from ordinary law under Article 13.
Golak Nath
The majority restricted amendment of Fundamental Rights, prompting constitutional amendments that reasserted constituent power.
Kesavananda Bharati
The Court recognised power to amend every constitutional provision but prohibited damage to the Constitution's basic structure.
Minerva Mills
Limited amending power and judicial review were protected, and Parliament could not convert Article 368 into unlimited power.
Basic features and the damage test
There is no closed statutory list; the feature and damage must be established through constitutional text, structure and precedent.
Recognised features include constitutional supremacy, republican and democratic government, secularism, federalism, separation of powers, judicial review, rule of law, free and fair elections and the balance between Parts III and IV. The relevance of a feature depends on the challenged amendment.
The court examines the amendment's width, identity-changing effect and consequences for institutional checks. Merely touching or altering a basic feature is not always enough; the question is whether the change damages or destroys its essential constitutional role.
Basic structure review is different from ordinary Fundamental Rights review. The challenged instrument is constituent law, and the limiting standard preserves the Constitution's identity rather than freezing every existing provision.
Ninth Schedule and I.R. Coelho
Placement in the Ninth Schedule after 24 April 1973 does not create complete immunity from basic structure review.
I.R. Coelho requires review of post-Kesavananda Ninth Schedule insertions where the protected law damages basic structure through its impact on rights and constitutional principles. The inquiry considers the actual effect of the law, not merely the amendment adding its schedule entry.
The judgment does not convert every rights violation into automatic basic structure damage. The right, its underlying constitutional value and the degree of injury must be connected to a basic feature.
For exam problems, identify the date of insertion, the affected right, the structural principle behind that right and the amendment's immunising effect.
Leading cases and what they establish
Read each authority for the proposition it proves, the legal question it answers and the reasoning that supports the result.
Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225
Facts: 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.
Why it matters: 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 625
Facts: 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.
Why it matters: 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 1
Facts: 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.
Why it matters: Use it for Ninth Schedule immunity, the rights test and post-Kesavananda review.
Read the judgmentUsing this topic in a legal answer
A clear answer sequence
- 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.
Points that are often confused
- Saying Parliament cannot amend Fundamental Rights at all.
- Treating every constitutional change as an Article 368 amendment.
- Writing a fixed and exhaustive list of basic features.
Open the revision and self-check sheet
Rules to retain
- 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.
Questions to test understanding
- 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?
Questions students ask
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.
Can Parliament amend every part of the Constitution?
It may amend every provision, but the amendment cannot damage or destroy the basic structure of the Constitution.
Do all amendments require ratification by States?
No. Ratification by at least half the States is required only for the federal matters listed in the proviso to Article 368(2).
Can a constitutional amendment be challenged for violating Fundamental Rights?
The controlling inquiry is basic structure review. A rights impact may establish damage where the affected right and its effect connect to a basic constitutional feature.
Is every Ninth Schedule law immune from judicial review?
No. I.R. Coelho subjects laws inserted after 24 April 1973 to review where the immunisation damages basic structure.
Can a court identify a new basic feature in a later case?
The doctrine has no closed list, but a claimed feature must be grounded in constitutional text, structure and precedent. The court must also explain how the challenged amendment damages that feature rather than merely changes an existing rule.
Primary sources and further reading
- Constitution of India, Legislative Department
- Supreme Court judgment in Kesavananda Bharati
- Supreme Court judgment in Minerva Mills
- Supreme Court judgment in I.R. Coelho
This article is written for legal education. Verify the governing provision, applicable amendments and complete judgment before relying on a proposition in practice.