Amendment Procedure of the Indian Constitution

A constitution that cannot be changed becomes a museum piece; one that can be changed at will is not a constitution at all. Every framer therefore has to set a price for constitutional change — high enough to keep the document out of the reach of a transient majority, low enough to let a living society revise its own basic law. Article 368 is where the Indian framers set that price, and the hundred and six amendments since 1950 are the record of what it bought and what it cost.

Why a Constitution Must Provide for Its Own Amendment

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Permanence and generality as constitutional characteristics

• Permanence is what separates a constitution from ordinary legislation. It is written for generations rather than for a parliamentary term, and its authority rests precisely on being harder to change than the laws made under it.
• Generality follows from permanence. A constitution states principles and directions of governance, not a complete code of rules, and this is a design choice rather than an oversight.
  • The framers cannot anticipate the situations a country will confront — wars, economic transformations, technologies, social movements none of them had a vocabulary for.
  • It is neither practical nor desirable to specify in advance the rules future generations must live by. A document that tried would be obsolete within a decade and tyrannical thereafter.
• A constitution written for permanence must contain the machinery of its own revision, or permanence becomes paralysis. The alternative to a formal amendment clause is not stability but the accumulation of unmet demands until the document is overthrown rather than amended.

“A well-drawn constitution will provide for its own amendment in such a way as to forestall, as far as humanly possible, revolutionary upheavals.” — C. J. Friedrich

• Friedrich‘s point is institutional. An amendment clause converts what would otherwise be extra-constitutional pressure — agitation, coup, revolution — into a procedure the constitution itself governs and therefore survives.
• The nineteenth-century American theorist Elisha Mulford put the same thought more sharply: an unamendable constitution is the worst tyranny of time, the dead hand of one generation closed on the throat of the next.
• Amendment sustains legitimacy. Consent is not given once in a founding moment; it is renewed, and a document that offers no lawful route to revision withdraws from the people the very sovereignty it claims to embody.

The generational argument: Jefferson against Burke

• Thomas Jefferson furnished the classic case for amendability, and Ambedkar quoted him at length in the Constituent Assembly on 25 November 1949 while defending the ease of the Indian procedure.

“We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.” — Thomas Jefferson, quoted by B. R. Ambedkar in the Constituent Assembly

• Jefferson’s premise is that the earth belongs to the living. Institutions exist for the use of the nation living under them, and the notion that preceding generations held the earth more freely than we do is, in his words, most absurd against the nation itself.
• Edmund Burke supplies the opposite pole: society is a partnership between the dead, the living and the unborn — a contract across time in which the present generation is trustee rather than owner, and inherited institutions carry a wisdom no single generation’s reasoning can replace.
• The two positions define the tension inside every amendment clause: Jefferson pushes towards flexibility and majority revision, Burke towards entrenchment and continuity.
  • A Jeffersonian constitution risks becoming a party manifesto rewritten after every election.
  • A Burkean constitution risks becoming an heirloom nobody may touch, and therefore an object of resentment.
  • Article 368 sits between them by design, and the three-track structure is the mechanism by which the Indian framers split the difference provision by provision rather than for the document as a whole.

Bryce’s classification and where India sits

• James Bryce classified constitutions as rigid and flexible according to the relationship between constitutional law and ordinary law.
  • A flexible constitution is amended by the ordinary legislature in the ordinary way; constitutional and ordinary law are the same kind of law — Britain.
  • A rigid constitution requires a special procedure — supermajorities, state ratification, referendums — making constitutional law a superior order of law — the United States.
• India fits neither box. Some provisions are amended by ordinary majority outside Article 368, most need a special majority, and a defined federal core needs a special majority plus ratification by half the states.
• Rigidity in India is graded, not uniform, and it tracks the political importance of a provision rather than its place in the text — the scheme’s most distinctive feature.

The Indian framers did not choose between rigidity and flexibility; they distributed both across the Constitution, provision by provision, according to how much protection each provision was thought to deserve.

The Indian Design as a Middle Path

• The framers rejected both extremes consciously, having studied each.
  • The American procedure was thought so difficult that it had produced a handful of amendments in a century and a half, leaving the constitution to be updated by judicial reinterpretation.
  • The Australian referendum requirement had defeated the great majority of proposals put to it.
  • The British model offered no protection at all against a legislature in a hurry.
• Nehru stated the balance the Assembly was aiming at, in the debate on the Draft Constitution on 8 November 1948.

“While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people.” — Jawaharlal Nehru

• K. C. Wheare called the Indian amendment provisions a “happy blend” of rigidity and flexibility — notable praise from a scholar otherwise sceptical of the Constitution’s federal credentials, who coined the label quasi-federal for it.
• Granville Austin treated them as among the Constituent Assembly’s most successful innovations, precisely because the Assembly refused a single uniform standard and matched the difficulty of amendment to the subject matter.
• Ambedkar defended the procedure against the charge that it was too easy, and his answer has become the standard one.

“If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even a two-thirds majority in the parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.” — B. R. Ambedkar

• The middle path has a cost. A procedure that a single party with a two-thirds majority can operate alone offers no structural protection against a dominant government, which is exactly what the Emergency amendments demonstrated.

Article 368 and the Three Routes of Amendment

• An amendment is a formal change to the text of the Constitution — an addition, a variation or a repeal. Even the insertion of a punctuation mark, effected through the Article 368 procedure, is one.
• Article 368, as its marginal note has read since the Twenty-fourth Amendment, confers the power of Parliament to amend the Constitution and the procedure therefor. On its face it provides two procedures; in practice there are three, because the first sits outside Article 368 altogether.

Route one: simple majority outside Article 368

• Many provisions can be altered by an ordinary law passed by a simple majority, and these changes are technically not amendments for the purposes of Article 368 at all.
• The Constitution says so expressly, which shows the exclusion is deliberate.
  • Article 4(2) provides that a law made under Articles 2 or 3, including consequential changes to the First and Fourth Schedules, “shall not be deemed to be an amendment of this Constitution for the purposes of Article 368”.
  • Article 169(3) says the same of a law creating or abolishing a legislative council in a state.
  • Similar language appears in paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule, governing the administration of scheduled areas and tribal areas.
• The provisions amendable this way are more consequential than the label suggests.
  • Articles 2 and 3 — admission of new states, formation of new states by separation or merger, and alteration of areas, boundaries and names. The entire map of the Union is alterable by ordinary law.
  • Article 11 — power to regulate the acquisition and termination of citizenship, which is why every Citizenship Act amendment is ordinary legislation.
  • Salaries, allowances, privileges and immunities of members of Parliament, and the quorum in each House.
  • Official languages and the use of English for official purposes.
  • The number of judges in the Supreme Court under Article 124(1), and conferment of further jurisdiction on it.
  • Delimitation of constituencies and the administration of union territories.
• The federal significance of this category is easy to miss. A state’s territory, boundary and name can be altered by a simple majority in Parliament, on a Bill on which the state legislature’s views are merely sought and need not be accepted — which is why Wheare called India quasi-federal.

Route two: special majority under Article 368(2)

• The special majority is two requirements stacked.
  • A majority of the total membership of each House, counted against sanctioned strength, so abstentions and vacancies tell against the government — at least 273 of 543 in the Lok Sabha.
  • A majority of not less than two-thirds of the members present and voting in that House.
• The total-membership requirement applies to the Bill and to each clause, which is why a thin House cannot pass a constitutional amendment even unanimously.
• The great majority of the Constitution falls here — everything not in the simple-majority list or the proviso’s federal list.
  • The whole of Part III, the Fundamental Rights.
  • The whole of Part IV, the Directive Principles, and Part IVA, the Fundamental Duties.
  • The Preamble — settled by Kesavananda Bharati (1973), which held it part of the Constitution and amendable, and reaffirmed in Dr. Balram Singh v. Union of India (November 2024), where the Court dismissed petitions to delete “socialist” and “secular” and held the retrospective date of 26 November 1949 no bar to amendment.
• No special protection for Part III — the single most consequential design decision in Article 368, and the origin of the entire constitutional litigation of the first three decades.

Route three: special majority plus ratification by the states

• The proviso to Article 368(2) lists the provisions additionally requiring ratification by the legislatures of not less than one-half of the states. Every item touches the federal balance.
  • Election of the President — Articles 54 and 55.
  • Extent of the executive power of the Union and of the states — Articles 73 and 162.
  • Article 241 — High Courts for union territories.
  • Article 279A — the GST Council, added to the list by the 101st Amendment itself.
  • Chapter IV of Part V (the Supreme Court) and Chapter V of Part VI (the High Courts).
  • Chapter I of Part XI — the distribution of legislative powers between the Union and the states.
  • Any of the Lists in the Seventh Schedule.
  • Representation of states in Parliament.
  • Article 368 itself, so the amending power cannot be enlarged without the states.
• Three features of the ratification requirement are frequently misunderstood.
  • Ratification requires only a simple majority in the state legislature, not a special majority.
  • There is no time limit for ratification, so a Bill may wait indefinitely for the fiftieth per cent.
  • A state may not withdraw ratification once given; consent is irrevocable.
• The requirement is one-half, not two-thirds or three-fourths, and states ratify a completed text — with no power of initiative, of amendment, or of negotiation. Against the American three-fourths or the Canadian seven-provinces formula, this is a weak federal veto.
• It is nevertheless real, as Union of India v. Rajendra N. Shah (2021) showed when it struck down a whole Part of the Constitution for want of ratification.

The Procedure in Detail

• Introduction is confined to Parliament. A Constitution Amendment Bill may be introduced in either House, and not in a state legislature. The states have no power to originate a constitutional amendment.
  • One qualified exception lies outside Article 368: under Article 169, Parliament may create or abolish a state legislative council only if that state’s assembly has first resolved to that effect by a special majority — the only case where state initiative is a precondition of change.
• The Bill may be introduced by a minister or a private member, and needs no prior recommendation of the President — unlike a Money Bill or a Bill under Article 3.
  • Private members do use it. In December 2025 a Rajya Sabha member introduced a private member’s Bill to delete “socialist” and “secular” from the Preamble, weeks after the Court had rejected the same demand in litigation.
  • Such Bills almost never succeed: only fourteen private members’ Bills of any kind have ever become law, and none has passed both Houses since 1970.
• Each House must pass the Bill separately, by the majority required.
• No joint sitting is provided for. Article 108, which allows a joint sitting to resolve deadlock over an ordinary Bill, does not apply to a Constitution Amendment Bill.
• Where the proviso applies, ratification must be completed before the Bill goes to the President — a condition of presentation, not a subsequent formality.
• Presidential assent is compulsory. The Twenty-fourth Amendment (1971) inserted into Article 368(2) the words that the President “shall give his assent”, removing the discretion the original text was read as leaving him.
  • Before 1971 the President arguably enjoyed an absolute veto over amendment Bills, and Rajendra Prasad‘s wish to exercise independent judgment on assent had already provoked a sharp disagreement with Nehru.
  • The President can neither withhold assent nor return the Bill for reconsideration, unlike an ordinary Bill under Article 111.
  • No time limit for assent is prescribed, so a theoretical pocket veto survives as a matter of text, though it has never been used against an amendment.
• On assent the Bill becomes a Constitution Amendment Act, and the Constitution stands amended in its terms.

Why the absence of a joint sitting matters

• The missing joint sitting is a genuine structural check, and it is routinely overlooked. Where an ordinary Bill deadlocked between the Houses can be carried at a joint sitting on a combined simple majority, a Constitution Amendment Bill simply fails if the Rajya Sabha refuses it.
• This gives the Rajya Sabha an absolute veto on constitutional amendment, and therefore gives the states’ chamber a hold that its ordinary legislative role does not provide.
• The check has bitten. The Forty-fourth Amendment Bill (1978) carried a clause requiring a national referendum for amendments affecting secularism, democracy, fundamental rights, free elections and judicial independence. The Lok Sabha passed it; the Rajya Sabha rejected it, and India’s one serious attempt to entrench its basic features procedurally died there.
• The same arithmetic explains why governments with large Lok Sabha majorities but no Rajya Sabha majority find amendment slow, and why the 101st Amendment on GST took years of negotiation rather than a whipped vote.

Amendment Procedures Compared

Why India amends so much more often

• The frequency follows from what the Constitution contains, not from instability. Four causes explain nearly all of it.
  • Length and detail. With over 470 articles and twelve schedules, the Constitution absorbs material other systems leave to statute — service conditions, tribunal structures, reservation timelines, tax heads, the composition of commissions.
  • The constitutionalising of ordinary administrative matter. Extending the reservation of seats for Scheduled Castes and Scheduled Tribes for a further ten years is an administrative decision everywhere else; in India it requires a constitutional amendment, and it has required one roughly every decade — the Eighth, Twenty-third, Forty-fifth, Sixty-second, Seventy-ninth, Ninety-fifth and 104th Amendments.
  • Single-party dominance for long periods, which supplied the special majorities without which nothing could have passed at all.
  • Federal reorganisation. Creating, dividing and renaming states, and adjusting the Seventh Schedule, is constitutional business in India as it is not in most federations.
• The claim that frequency reflects instability is wrong. A very large proportion of the amendments are technical or consequential — a reservation timeline extended, a schedule updated after a state is reorganised, a tax entry adjusted, a High Court’s territorial jurisdiction altered.
• The substantive amendments that changed the character of the system are few and identifiable: the First, Seventh, Twenty-fourth, Twenty-fifth, Forty-second, Forty-fourth, Fifty-second, Seventy-third, Seventy-fourth, Ninety-first, 101st and 106th. On that count India has amended its constitutional design less often than the raw number implies.
• A blunter comparison. The United States left ordinary administrative matter to Congress and updates constitutional meaning through its Supreme Court; India put the same material into the Constitution and updates it through Parliament. Both change constantly; India’s changes are simply visible as amendments.

The number of Indian amendments measures the size of the Constitution far better than it measures the stability of Indian democracy.

Criticism of the Amendment Procedure

• No special constituent body or convention. The ordinary Parliament, in ordinary session with ordinary members, exercises the constituent power; nothing distinguishes the body that makes the Constitution from the one that makes laws under it but the majority required.
  • Parliament is thus said to have a dual role — as legislature, and as a temporary constituent assembly from time to time.
  • The United States allows a constitutional convention; several European systems require dissolution or a fresh mandate for certain changes. India requires nothing.
• No popular referendum, on any amendment, ever. Neither Article 368 nor any other provision permits, let alone requires, a direct popular vote, and the 44th Amendment Bill’s referendum clause was defeated in the Rajya Sabha. The people who gave themselves the Constitution have never once been asked about a change to it.
• No state initiative, and no role in framing. States ratify a finished text or they do not; they cannot propose an amendment, amend a Bill, or attach conditions — contrast the American power of two-thirds of states to compel a convention.
• The vagueness of “if necessary” in Article 368. The article requires ratification where an amendment “seeks to make any change” in the listed provisions, leaving unsettled how large an incidental effect triggers the proviso. It took Union of India v. Rajendra N. Shah (2021) to establish that a Part inserted without any textual change to the Seventh Schedule could still require ratification, because of its effect on state legislative competence.
• No joint sitting, which cuts both ways. It is a check on a determined Lok Sabha majority, but it is equally a licence for a Rajya Sabha minority to block a reform with wide support — as the referendum clause of 1978 shows.
• Speed. Nothing in Article 368 requires a minimum interval between stages, a committee reference, or public consultation. At least fifteen amendments have gone from introduction to assent in ten days or less, and the Thirty-ninth Amendment — placing the Prime Minister’s election beyond judicial scrutiny — passed in three days.
• A determined majority can amend very large parts of the Constitution. Everything outside the proviso list, including the whole of Part III, is reachable by a party controlling two-thirds of both Houses, and the 42nd Amendment is the demonstration that this is not a theoretical worry.
• The rigidity is now judicial, not procedural. The basic structure doctrine supplies, case by case, the entrenchment the framers declined to write into the text.
  • The objection to that answer is that judicially supplied rigidity is unpredictable — its content is settled by the same judges who apply it — and that it substitutes a court for the constituent people.
  • The defence is that a doctrine which has been used sparingly, and largely to protect free elections, judicial review and federalism, has done what the missing referendum clause was meant to do.
• The Venkatachaliah Commission, the National Commission to Review the Working of the Constitution appointed in 2000, examined the record and proposed nothing that would endanger the basic structure doctrine. Its restraint is itself a comment on how the missing procedural safeguards are now understood to be supplied.

The Record of Amendments

The First Amendment (1951)

• The First Amendment set the template, and it was passed within fifteen months of the Constitution coming into force.
• Its immediate provocation was a pair of decisions striking at the two central planks of the Congress social programme.
  • State of Madras v. Champakam Dorairajan (1951) held the Madras Communal Government Order, reserving seats in educational institutions by community, void as inconsistent with Article 29(2), and laid down that the Directive Principles must “conform to and run as subsidiary to” the Fundamental Rights.
  • The Patna High Court in the Kameshwar Singh litigation struck down the Bihar Land Reforms Act, 1950 on the ground that its classification of zamindars for differential compensation violated Article 14 — throwing the entire zamindari abolition programme into doubt.
  • High Courts had also read Article 19(1)(a) broadly enough to imperil laws on public order and incitement.
• The amendment answered all three.
  • Article 15(4) was inserted, empowering the state to make special provision for socially and educationally backward classes and for Scheduled Castes and Scheduled Tribes — the foundation of reservation in education.
  • Article 19(2) was recast to add public order, friendly relations with foreign states and incitement to an offence as grounds of restriction on free speech, and to insert the word “reasonable” before restrictions.
  • Article 31A protected laws for the acquisition of estates from challenge under Articles 14 and 19.
  • Article 31B and the new Ninth Schedule together provided that no Act specified in that Schedule shall be deemed void on the ground that it takes away or abridges any right conferred by Part III. Thirteen laws were placed in it at the outset, almost all zamindari abolition statutes.
• The oddity of the First Amendment is who passed it. It was enacted by the Provisional Parliament — the Constituent Assembly itself, sitting in its legislative capacity, with no general election yet held and no elected Lok Sabha in existence.
  • The framers were therefore amending their own handiwork before the country had voted on it, which fatally weakens any argument that the Constitution’s original text embodied a settled national consensus that later Parliaments departed from.
  • It equally undercuts the opposite claim, that later governments corrupted a pure founding design. The founders themselves narrowed free speech within fifteen months of promising it.
• The criticism has two serious strands.
  • On free speech, the men who had drafted Article 19 restricted it at the first sign of judicial inconvenience, and the grounds they added have been the basis of every subsequent restriction on expression in India.
  • On judicial review, Article 31B and the Ninth Schedule created a device for shielding legislation from challenge by listing it, a technique with no equivalent in comparable constitutions, and one that grew from thirteen entries to 284.
• Its validity was upheld in Shankari Prasad v. Union of India (1951), the first case on the amending power, which held that “law” in Article 13 does not include a constitutional amendment and that Article 368 therefore reaches Fundamental Rights.

The First Amendment did not merely change the Constitution; it established the working assumption of the next quarter-century — that where a court obstructs a social programme, the answer is to amend the Constitution.

The Seventh Amendment (1956)

• The Seventh Amendment gave effect to the States Reorganisation Act, 1956 and remade the political map on linguistic lines, following the report of the States Reorganisation Commission under Fazl Ali.
• It abolished the four-fold classification of Part A, B, C and D states inherited from the merger of provinces and princely states, and replaced it with a uniform category of states plus union territories.
• It restructured High Court jurisdiction, provided for common High Courts for two or more states, and made consequential changes to the First and Fourth Schedules.
• Its significance is that it was possible at all. Redrawing the internal boundaries of a federation is, in most systems, either impossible or requires the consent of the affected units. In India Articles 2 to 4 made it an exercise of ordinary legislative power, and the accompanying constitutional adjustments passed as a routine amendment.

The Golak Nath response: Twenty-fourth to Twenty-ninth

• Golak Nath v. State of Punjab (1967) held, by six to five, that Fundamental Rights are “transcendental and immutable” and beyond the amending power altogether, overruling Shankari Prasad and Sajjan Singh (1965).
  • The decision produced a constitutional impasse: Parliament could not amend Part III at all, so no legislative solution to the property-rights obstruction of land reform was available.
  • Golak Nath is best read as the first sustained act of judicial assertion, made possible by the weakening of Congress dominance after the 1967 general election.
• The government’s response came as a package of four amendments between 1971 and 1972.
  • The Twenty-fourth Amendment (1971) inserted Article 13(4), excluding Article 368 amendments from Article 13; inserted Article 368(1) expressly conferring constituent power to amend by addition, variation or repeal; changed the marginal note to “Power of Parliament to amend the Constitution and procedure therefor”; and made presidential assent compulsory.
  • The Twenty-fifth Amendment (1971) replaced “compensation” in Article 31 with “amount”, expressly excluding adequacy from judicial scrutiny, and inserted Article 31C, protecting laws giving effect to Articles 39(b) and 39(c) from challenge under Articles 14, 19 and 31, with a clause barring any court from questioning the declaration.
  • The Twenty-sixth Amendment (1971) abolished the privy purses and the privileges of the former rulers, after the Supreme Court had struck down the executive derecognition order in Madhav Rao Scindia (1970).
  • The Twenty-ninth Amendment (1972) placed two Kerala land reform statutes in the Ninth Schedule — the amendment that Kesavananda Bharati was brought to challenge.
• The high-water mark of parliamentary supremacy, and it is what the thirteen-judge bench in Kesavananda Bharati v. State of Kerala (1973) was asked to review. The Court upheld the Twenty-fourth, upheld the substantive part of the Twenty-fifth, struck down its ouster of judicial review, and held that the amending power does not extend to damaging or destroying the basic structure.

The Emergency amendments: Thirty-eighth and Thirty-ninth (1975)

• Both were passed after the proclamation of internal emergency on 25 June 1975, with the opposition in detention and the press under censorship. The circumstances of passage are part of the constitutional argument about them, not merely background.
• The Thirty-eighth Amendment (1975) made the proclamation of emergency — and the President’s satisfaction underlying it, and ordinances issued by President and Governors — immune from judicial review on any ground.
• The Thirty-ninth Amendment (1975) placed the election of the President, Vice-President, Prime Minister and Speaker beyond the jurisdiction of any court, transferring disputes to a body to be created by Parliament.
  • It was moved to pre-empt the Supreme Court’s hearing of the appeal against the Allahabad High Court’s judgment setting aside Indira Gandhi’s election for electoral malpractice.
  • It passed in three days, and was ratified by the required states inside a week.
  • Indira Nehru Gandhi v. Raj Narain (1975) struck down clause 4 of the amendment as violating free and fair elections and judicial review — the first application of the basic structure doctrine to invalidate an amendment.
• These two amendments are the strongest evidence that Article 368 offers no defence against a government which already controls both Houses. Every procedural requirement was satisfied; nothing slowed them down.

The Forty-second Amendment (1976): the “Mini-Constitution”

• The Forty-second Amendment is the most extensive single amendment ever made to the Constitution. It contained fifty-nine clauses, amended fifty-three articles, altered the Preamble and the Seventh Schedule, and added two new Parts.
• It followed the report of the Swaran Singh Committee, a Congress party committee set up in February 1976 to recommend constitutional changes, several of whose proposals were exceeded in the Bill actually introduced.

What it did, grouped by purpose:

• The Preamble. Added the words “SOCIALIST” and “SECULAR” to the description of the Republic, and changed “unity of the Nation” to “unity and integrity of the Nation”.
• Fundamental Duties. Inserted Part IVA and Article 51A, with ten duties, drawn largely from Soviet constitutional practice.
• Directive Principles strengthened. Added Article 39A (equal justice and free legal aid), Article 43A (participation of workers in management) and Article 48A (protection of environment, forests and wildlife).
• Article 31C extended. The protection previously confined to laws implementing Articles 39(b) and 39(c) was extended to laws giving effect to any Directive Principle, subordinating Fundamental Rights to the whole of Part IV.
• The amending power made unreviewable. Article 368(4) provided that no amendment shall be called in question in any court on any ground — meaning not even on the ground of basic structure, and not even in the Supreme Court. Article 368(5) declared, “for the removal of doubts”, that there shall be no limitation whatever on Parliament’s constituent power.
• Terms extended. The life of the Lok Sabha and the state assemblies was raised from five years to six.
• Federal transfers. Five subjects moved from the State List to the Concurrent List: education, forests, weights and measures, protection of wild animals and birds, and administration of justice with the constitution and organisation of all courts except the Supreme Court and the High Courts.
• Judicial review curtailed. Article 226A barred High Courts from testing the validity of central laws; Article 32A barred the Supreme Court from testing state laws in Article 32 proceedings; Articles 144A and 228A required a bench of seven judges and a two-thirds majority to strike down a central law. Article 31D empowered Parliament to legislate against “anti-national activities”.
• Executive strengthened. Article 74(1) was amended to make the President’s compliance with ministerial advice explicit and binding; President’s rule under Article 356 was made extendable to one year at a time; Article 257A allowed the deployment of central armed forces in a state.
• Part XIVA added, creating administrative tribunals under Articles 323A and 323B.

Two readings of the Forty-second Amendment:

• The decisive objection is Article 368(4) and (5). No reading of the amendment as a programme of economic and social democracy explains a clause whose only function was to put all future amendments beyond judicial reach. A government seeking to redistribute wealth does not need immunity from review; one seeking to entrench itself does.
• Minerva Mills v. Union of India (1980) struck down both the extension of Article 31C and clauses (4) and (5) of Article 368, holding that a limited amending power is itself part of the basic structure, and that harmony and balance between Parts III and IV is a basic feature.
• Property Owners Association v. State of Maharashtra (November 2024) returned to the wreckage and clarified it: a nine-judge bench held, 8:1, that Article 31C as it stood before the Forty-second Amendment survives Minerva Mills, and narrowed “material resources of the community” in Article 39(b) through a context-specific test rather than the expansive reading of the Krishna Iyer line of cases.

The Forty-fourth Amendment (1978): restoration and its limits

• Passed by the Janata government under Morarji Desai after the 1977 election, the Forty-fourth Amendment is the only sustained attempt in Indian constitutional history to reverse an earlier amendment on principle.

What it restored:

• Right to property removed from Part III. Articles 19(1)(f) and Article 31 were repealed and the right relocated to Article 300A — “no person shall be deprived of his property save by authority of law” — as a constitutional legal right, enforceable but not through Article 32 and not as a Fundamental Right.
• Emergency tightened. In Article 352, “internal disturbance” became “armed rebellion”; proclamation now requires the written advice of the Cabinet, not the Prime Minister alone; approval must be by special majority within one month, and continuance renewed every six months; and the Lok Sabha may compel revocation by simple majority.
• Articles 20 and 21 made non-suspendable. Under the amended Article 359, the right to move a court for enforcement of Articles 20 and 21 cannot be suspended even during emergency — the direct legislative answer to ADM Jabalpur (1976).
• Terms restored. The Lok Sabha and state assemblies returned to five years.
• Presidential discretion partially restored. The proviso to Article 74(1) was inserted, allowing the President to require reconsideration of ministerial advice once, though he must then act on the advice tendered after reconsideration.
• The Thirty-ninth Amendment’s protection removed, restoring election disputes concerning the President, Vice-President, Prime Minister and Speaker to the courts.
• Article 257A deleted, and the guarantee of publication of parliamentary proceedings restored.
• The companion Forty-third Amendment (1977) had already repealed Articles 31D, 32A, 131A, 144A, 226A and 228A, restoring the writ jurisdiction of the High Courts and the Supreme Court’s ordinary power to declare laws unconstitutional.

What it failed to restore — the more interesting half:

• The referendum clause was lost in the Rajya Sabha, where the coalition lacked the numbers — the one attempt ever made to entrench the Constitution’s basic features by procedure rather than by doctrine.
• The right to property was not restored as a Fundamental Right; that government agreed with its predecessor on that point and completed what the Twenty-fifth Amendment had begun.
• The State List transfers stood. Education, forests, weights and measures, protection of wild animals and birds, and administration of justice remain in the Concurrent List to this day — the Forty-second Amendment’s most durable change, and one no subsequent government has tried to undo.
• “Socialist” and “secular” stayed in the Preamble, as did the Fundamental Duties and the administrative tribunals of Part XIVA.
• The preventive detention safeguard was never notified. The clause reducing detention without an advisory board’s opinion from three months to two has never been brought into force.
• The restoration was selective: what the Janata government found objectionable was the Emergency machinery, not the centralising and programmatic content of the Forty-second Amendment.

Amendments to the political process

• Fifty-second Amendment (1985) — inserted the Tenth Schedule, the anti-defection law, disqualifying a member who voluntarily gives up party membership or votes against the party whip, with exceptions for a split by one-third of the legislature party and for mergers.
• Ninety-first Amendment (2003) — deleted the one-third split exception, leaving only merger by two-thirds; disqualified a defector from ministerial office; and capped the council of ministers at fifteen per cent of the House’s strength of the House, with a minimum of twelve in the states.
  • Both bought stability at the cost of the individual legislator’s independence, converting the member’s vote into an instrument of the party rather than of conscience or constituency.
• Sixty-first Amendment (1989) — lowered the voting age from twenty-one to eighteen for elections to the Lok Sabha and the state assemblies, the single largest expansion of the franchise since 1950.

Amendments deepening federalism and local government

• Seventy-third and Seventy-fourth Amendments (1992) — inserted Part IX and Part IXA with the Eleventh and Twelfth Schedules, giving constitutional status to panchayats and municipalities: five-year terms, elections conducted by State Election Commissions, State Finance Commissions every five years, and reservation of one-third of seats for women and proportionate reservation for Scheduled Castes and Scheduled Tribes.
  • They created a third tier without disturbing the two-tier division of legislative power, which is why they passed as ordinary special-majority amendments after an earlier attempt failed in the Rajya Sabha in 1989.
• 101st Amendment (2016) — the leading modern example of the ratification route in operation. It inserted Article 246A giving concurrent taxing power over goods and services to the Union and the states, Article 269A on inter-state supply, and Article 279A creating the GST Council, and subsumed a long list of indirect taxes.
  • It required ratification because it altered the Seventh Schedule and the distribution of legislative powers; Assam ratified first, in August 2016, and assent followed in September 2016.
  • The Council is a genuinely novel institution — a standing constitutional body of Union and state finance ministers, with a weighted formula in which the Union holds one-third and the states two-thirds and decisions require three-fourths. It is the first permanent joint decision-making body for fiscal policy the Constitution has created.
  • It also shows the price of the ratification route: years of negotiation, and states surrendering taxing autonomy for a guaranteed compensation period that has since become a standing grievance.

Rights-expanding amendments

• Eighty-sixth Amendment (2002) — inserted Article 21A, making free and compulsory education for children aged six to fourteen a Fundamental Right; recast Article 45 as a directive on early childhood care and education below six; and added Article 51A(k), the duty of a parent or guardian to provide education to a child of that age.
  • It is the only amendment ever to add a new Fundamental Right to Part III, and it constitutionalised what Unni Krishnan (1993) had already derived from Article 21.
  • The pattern is worth naming: the Court reads a right into Article 21, Parliament later writes it down. The amendment codified a judicial innovation rather than initiating one.

The Ninety-seventh Amendment and the teeth of the ratification requirement

• The Ninety-seventh Amendment (2011) made co-operative societies a constitutional subject: it added them to the right to form associations in Article 19(1)(c), inserted Article 43B as a Directive Principle, and added Part IXB (Articles 243ZH to 243ZT) prescribing the number of directors, their term, reservation of seats, the timing of elections and the conduct of audits.
• In Union of India v. Rajendra N. Shah (2021) a three-judge bench held, by two to one, that Part IXB is void as it applies to co-operative societies within a state for want of ratification by half the state legislatures.
  • Co-operative societies are Entry 32 of the State List. By prescribing their internal governance directly in the Constitution, Part IXB effected a change in the distribution of legislative powers and in the Seventh Schedule in substance, and therefore attracted the proviso to Article 368(2) even though no List entry was textually altered.
  • Applying the doctrine of severability, the majority — Nariman and Gavai JJ — preserved Part IXB in its application to multi-state co-operative societies, which fall under Entry 44 of the Union List. K. M. Joseph J dissented, holding that severance had no sure foundation and the whole Part should go.
  • Article 19(1)(c) and Article 43B survived, having never been challenged.
• The ratification requirement is a real limit, not a formality. The case establishes that the proviso is engaged by substantive effect on state legislative competence, not merely by textual amendment of the listed provisions — which is a significantly stronger federal safeguard than the text alone suggests.

The Ninety-ninth Amendment and the National Judicial Appointments Commission

• The Ninety-ninth Amendment (2014) replaced the collegium system of judicial appointments with a National Judicial Appointments Commission, inserting Articles 124A, 124B and 124C and amending Articles 124, 127, 128, 217, 222, 224A and 231.
• The NJAC was to consist of six members: the Chief Justice of India as chairperson, the two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition, one of whom was to be from the Scheduled Castes, Scheduled Tribes, other backward classes, minorities or women.
• Its democratic credentials were unusually strong, which is what makes the case hard.
  • The Bill was passed almost unanimously — with a single dissenting vote in the Rajya Sabha — and by both the government and the opposition.
  • It was ratified by twenty state legislatures, far more than the sixteen required.
  • It was accompanied by the NJAC Act, 2014, and reflected recommendations parliamentary committees and law commissions had made for two decades.
• In Supreme Court Advocates-on-Record Association v. Union of India (2015) — the Fourth Judges Case — a five-judge bench struck the amendment and the Act down by four to one.
  • The majority held that primacy of the judiciary in judicial appointments is an incident of the independence of the judiciary, which is part of the basic structure, and that the amendment destroyed it.
  • The defects identified were the Law Minister as an ex officio member, two eminent persons with no judicial qualification, and above all the veto rule under which any two of the six could block a recommendation — letting the non-judicial members override the Chief Justice and both senior judges.
  • The collegium system established in the Second (1993) and Third Judges Cases (1998) was thereby revived.
• Justice J. Chelameswar dissented, and his dissent is the more powerful part of the record.
  • He held that judicial primacy in appointments has no textual basis; Article 124 as originally enacted required only consultation with the Chief Justice, and the collegium was itself a judicial construction of 1993.
  • He described the collegium’s working as lacking transparency and accountability, with no record of deliberations, and argued that the independence of the judiciary is not synonymous with the exclusive power of judges to select judges.
  • He noted that no other constitutional democracy gives the judiciary a decisive voice in its own appointment.
• The criticism of the judgment is structural. An amendment passed by near-unanimous vote in both Houses and ratified by twenty states was set aside by a 4:1 majority of a five-judge bench — four judges against several hundred legislators — in a case concerning the judges’ own appointment.
  • The counter-argument is that the basic structure doctrine exists precisely for amendments that command large majorities, since only those can be passed; and that a court cannot decline to test an amendment simply because it was popular.
  • The nemo judex objection — that judges decided a case about their own power — is answered by the doctrine of necessity: no other forum could have heard it.
• The aftermath is an impasse now more than a decade old.
  • The 2015 judgment invited the government to revise the Memorandum of Procedure governing appointments. Successive drafts have been exchanged since 2016 and no revised Memorandum has been finalised; the sticking points are the government’s claim to reject names on grounds of national security and the criteria for evaluating candidates.
  • The consequences are delays in appointment, names returned and reiterated, and High Court vacancies running into hundreds.
  • Calls to revive the NJAC recur — most prominently from holders of high constitutional office after the discovery of cash at a Delhi High Court judge’s residence in 2025 — and the Supreme Court Bar Association has pressed for the Memorandum to be settled and the process made criteria-based.
• The NJAC case shows what the basic structure doctrine costs and buys. It cost the country a reform with almost unanimous democratic backing; it bought the judiciary insulation from executive control over its own composition. Whether that trade was worth making is the live question, and the collegium’s own record of opacity is the reason it remains open.

The reservation and representation amendments

• 102nd Amendment (2018) — gave constitutional status to the National Commission for Backward Classes through Article 338B, and inserted Article 342A empowering the President to notify socially and educationally backward classes for each state after consulting the Governor.
  • In Jaishri Laxmanrao Patil (2021), the Maratha reservation case, the Supreme Court read Article 342A as having taken away the states’ power to identify backward classes for their own lists.
• 103rd Amendment (2019) — inserted Articles 15(6) and 16(6), permitting up to ten per cent reservation in education and public employment for economically weaker sections not covered by existing reservations.
  • Upheld in Janhit Abhiyan v. Union of India (2022) by three to two. The majority held that reservation on purely economic criteria does not violate the basic structure, and that exceeding the fifty per cent ceiling for a separate category does not either.
  • Chief Justice Lalit and Justice Bhat dissented, holding that excluding Scheduled Castes, Scheduled Tribes and other backward classes from a poverty-based benefit was discrimination written into the Constitution.
• 104th Amendment (2020) — extended the reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and the state assemblies for a further ten years to 2030, and discontinued the nomination of Anglo-Indians, ending a provision that had operated since 1950.
• 105th Amendment (2021) — restored to the states and union territories the power to identify and maintain their own lists of socially and educationally backward classes, expressly reversing the reading of the 102nd Amendment in the Maratha reservation case. It is a clean example of Parliament using the amending power to correct a judicial construction of an earlier amendment.
• 106th Amendment (2023) — the Nari Shakti Vandan Adhiniyam, reserving one-third of seats for women in the Lok Sabha, the state legislative assemblies and the Delhi assembly through Articles 330A, 332A and 334A.
  • It remains the most recent enacted amendment, notified in September 2023.
  • Its operation is conditional: it takes effect only after a census and the delimitation that follows, which is why it has not yet altered a single seat.

Bills pending and defeated

• The Constitution (129th Amendment) Bill, 2024 — the “One Nation, One Election” proposal, providing for simultaneous elections to the Lok Sabha and the state assemblies by synchronising terms, with an “appointed date” mechanism after which assemblies elected mid-cycle would sit only for the remainder of the term.
  • It was referred to a Joint Parliamentary Committee chaired by P. P. Chaudhary, whose tenure has been repeatedly extended — to the Monsoon Session of 2026 and then to the Winter Session of 2026. No report has yet been presented.
  • The objections are substantial: it curtails or extends the terms of state assemblies to fit a national calendar, touching state autonomy; it gives the Election Commission discretionary power to recommend deferral of a state poll, criticised by a former Chief Justice of India; and it is argued to advantage a dominant national party by nationalising every state election.
  • Whether such a Bill requires state ratification is itself contested, and Rajendra N. Shah suggests it may, since altering assembly terms bears on the federal structure.
• The Constitution (131st Amendment) Bill, 2026 — on delimitation. It proposed to let Parliament decide when delimitation occurs and which census it uses, to raise the ceiling on Lok Sabha seats from 550 to 850, and to allow the women’s reservation to proceed on the 2011 census rather than waiting for a fresh one.
  • Its redistribution consequences were the difficulty: on the proposed basis Tamil Nadu’s seats would fall from 39 to 32 while Uttar Pradesh’s rose from 80 to 89, reopening the north-south representation question that the freeze on seats has suppressed since 1976.
  • It was introduced in the Lok Sabha on 16 April 2026 and negatived on 17 April 2026 — a rare instance of a Constitution Amendment Bill being defeated on the floor rather than lapsing.
• The bill numbering itself is instructive: 131 Constitution Amendment Bills numbered against 106 Amendment Acts enacted. The gap is the record of what the procedure has stopped.

Land Reform and Constitutional Amendment

• Land reform is the single largest driver of constitutional amendment in India, and it produced the doctrine of the amending power as a by-product. The sequence is a mechanism, not a list.
• The collision was built into the Constitution. The Congress had committed itself to the abolition of zamindari and the redistribution of agricultural land; the Constitution guaranteed property as a Fundamental Right under Article 19(1)(f) and protected against acquisition without compensation under Article 31.
  • Article 31(2) required that compulsory acquisition be for a public purpose and on payment of compensation, and courts read “compensation” as meaning a just equivalent.
  • Land reform that paid a just equivalent to millions of intermediaries was fiscally impossible; land reform that did not was unconstitutional. There was no third option that did not involve amending the Constitution.
• Judicial insistence on adequacy is what made amendment unavoidable.
  • State of West Bengal v. Bela Banerjee (1954) held that compensation must be a just equivalent of what the owner is deprived of, and that the adequacy of the principles laid down by the legislature is justiciable.
  • Vajravelu Mudaliar v. Special Deputy Collector (1965) held that although the Fourth Amendment had barred challenge on the ground of inadequacy, a law providing an illusory compensation or applying irrelevant principles was still open to review — the courts kept a foothold that the Fourth Amendment had tried to remove.
  • R. C. Cooper v. Union of India (1970), the bank nationalisation case, struck down the legislation for providing compensation on principles that were not a just equivalent, confirming that judicial supervision of adequacy had survived two amendments.

• The Ninth Schedule measures the whole episode. It began in 1951 with thirteen entries, all zamindari abolition statutes, and now holds 284.
  • Its growth carried it far beyond land reform into reservation, urban ceilings, industrial regulation and state statutes of every kind — most famously the Tamil Nadu Act of 1993 providing sixty-nine per cent reservation.
  • A device created to protect one redistributive programme became a general-purpose immunity from Part III. That drift is the strongest argument for the judicial correction that followed.
• I. R. Coelho v. State of Tamil Nadu (2007) supplied the correction. A nine-judge bench held that laws placed in the Ninth Schedule on or after 24 April 1973 — the date of Kesavananda — are open to challenge for damaging or destroying the basic structure, applying the rights test and the essence of rights test.
  • The cut-off had been fixed earlier in Waman Rao v. Union of India (1981); Coelho confirmed and elaborated it.
  • The effect is that Article 31B no longer confers blanket immunity: the Schedule protects against a claim that a law violates a specific Fundamental Right, but not against a claim that it destroys a basic feature.
• The pattern the episode reveals recurs. A socio-economic programme collides with a justiciable individual right; the courts enforce the right; Parliament amends the Constitution to remove the obstruction; the courts respond with a new doctrinal limit; Parliament amends again. Basic structure is the point at which that cycle stopped escalating, because the last move in it could not itself be amended away.

Land reform did not merely produce a set of amendments; it produced the Indian doctrine of the limits of amendment, because it was the field on which Parliament and the Court tested those limits for twenty-five years.

The Limits on the Amending Power

• Does “amendment” include repeal, or the making of a new constitution? The question is not verbal. Article 368(1), as inserted by the Twenty-fourth Amendment, speaks of amendment “by way of addition, variation or repeal” — language that on its face permits the repeal of any provision.
  • The narrow reading says an amendment must leave the constitution recognisably the same document; a power to replace the constitution is a constituent power belonging to the people, not a power delegated to a legislature.
  • The wide reading says that a text conferring power to repeal any provision, subject only to procedure, means what it says, and that any substantive limit is a judicial invention.
• The comparative doctrine of unconstitutional constitutional amendments shows that the Indian answer is not unique.
  • Germany’s Basic Law contains an express eternity clause in Article 79(3), placing human dignity, the federal structure, the participation of the Länder in legislation, and the principles of Articles 1 and 20 permanently beyond amendment — a direct response to the constitutional destruction of the Weimar Republic by lawful means.
  • Similar unamendable provisions exist in the constitutions of France (the republican form of government), Italy, Turkey, Brazil and Norway.
  • The intellectual bridge to India runs through Dietrich Conrad, whose lecture at Banaras Hindu University in 1965 on implied limitations on the amending power was cited in argument in Golak Nath and Kesavananda.
• India’s answer is the basic structure doctrine. Its content belongs to the law of judicial review rather than to the law of amendment. In outline:
  • Kesavananda Bharati (1973), by seven to six, held that Parliament may amend any provision but may not damage or destroy the basic structure.
  • Articles 368(4) and 368(5), the Forty-second Amendment’s attempt to abolish that limit by exercising the very power the limit constrains, were struck down in Minerva Mills (1980).
  • The features identified case by case include supremacy of the Constitution, the republican and democratic form, secularism, federalism, separation of powers, judicial review, free and fair elections, the rule of law, judicial independence, the balance between Parts III and IV, and the limited nature of the amending power itself.
• The last item is the logical keystone. If the amending power were unlimited, it would include the power to make itself unlimited, and Article 368 could be used to abolish the Constitution by constitutional means. Minerva Mills identified that as the point at which amendment becomes destruction.
• The trade-off is genuine and unresolved. The doctrine supplies the entrenchment the framers declined to write, through a body that is not elected, applying a list that is not written down. Neither the text nor the people have ever been asked to settle whether that substitution was right.

Assessment

• A Constitution amended a hundred and six times has kept its identity, and the two facts are less contradictory than they look. Almost all the amendments have operated within the design — extending a timeline, adjusting a list, creating an institution — rather than upon it.
• The frequency is largely an artefact of length. India constitutionalised material that other systems left to statute, and then had to amend the Constitution every time that material needed updating. The Constitution is amended often because it says a great deal, not because it is unstable.
  • The corollary criticism is real: a document that requires amendment to extend a reservation timeline has constitutionalised too much ordinary matter, and each such amendment devalues the currency of constitutional change.
• The procedure’s weakness is where the Emergency exposed it. Article 368 offers no defence against a government already holding two-thirds of both Houses; no referendum, constituent convention or mandatory interval was written in, and the one attempt to add one, in 1978, died in the Rajya Sabha.
  • What has done the work instead is the basic structure doctrine, the absence of a joint sitting, the ratification requirement given real content by Rajendra N. Shah, and, since 1989, the simple political fact of coalition arithmetic in the Rajya Sabha.
• The live debate has shifted to something harder to see. Constitutional change now happens as often through means that never touch Article 368 at all.
  • Ordinary legislation reorganising a state, altering citizenship, or restructuring a union territory achieves what would be a constitutional amendment elsewhere.
  • Executive and administrative practice — the use of the money-Bill route, the conduct of Governors, the working of the collegium, the practice of ordinances — reshapes constitutional relationships without a single word of text changing.
  • Judicial interpretation has expanded Article 21 far beyond anything its framers wrote, and narrowed Article 31C without any amendment at all in Property Owners Association (2024).
• The amendment count both overstates and understates constitutional change. It overstates it by including a hundred technical adjustments; it understates it by omitting everything that has been done to the Constitution without amending it.

The real question about Article 368 is no longer whether it is too easy, but whether the constitutional changes that matter most now bypass it entirely.