Article 368 is short, and most of the marks lost on it are lost to imprecision rather than ignorance. This note is the whole procedure on one page: what the article says, the three routes an amendment can take, and the four mistakes examiners see most often. It is a design specimen for the notes format, not published writing.
The three routes#
Routes of amendment
- Simple A majority of members present and voting, in each House, by ordinary law. Not an amendment under Article 368 at all: Articles 4, 169, and paragraph 7 of the Fifth and paragraph 21 of the Sixth Schedule say so in terms.
- Special A majority of the total membership of each House, and two-thirds of those present and voting. The default route under Article 368(2). Most amendments take it.
- Ratified The special majority, then ratification by the legislatures of not less than half the States before the Bill goes to the President. Required by the proviso to 368(2) for the federal provisions.
| Provision | Route |
|---|---|
| Creating a new State, altering boundaries (Art. 3) | Simple |
| Abolishing or creating a Legislative Council (Art. 169) | Simple |
| Fundamental Rights, Directive Principles | Special |
| Election of the President (Arts. 54, 55) | Ratified |
| Extent of executive power of Union and States (Arts. 73, 162) | Ratified |
| Union and State judiciary (Part V Ch. IV, Part VI Ch. V) | Ratified |
| The Seventh Schedule lists | Ratified |
| Representation of States in Parliament | Ratified |
| Article 368 itself | Ratified |
What the courts added#
- Shankari Prasad, 1951 An amendment is not “law” under Article 13, so it cannot be struck down for abridging a fundamental right.
- Golaknath, 1967 Reversed: an amendment is law, and Parliament cannot abridge fundamental rights. Prospective only.
- Kesavananda Bharati, 1973 The amending power is plenary but cannot damage the basic structure. Golaknath overruled.
- Minerva Mills, 1980 Clauses 4 and 5 of Article 368, inserted by the 42nd Amendment to bar judicial review, are themselves void: a limited power cannot make itself unlimited.
Practice stem
Framed, not quoted: “The procedure under Article 368 is neither as rigid as the American nor as flexible as the British.” Examine, with reference to the three routes. Fifteen marks, two hundred and fifty words.
- ↑
The absence of a time limit is a matter of the text; conventions of legislative practice have filled the gap.