Indian Constitution has conferred the amending power on the ordinar... | UPSC Mains Model Answer

Indian Constitution has conferred the amending power on the ordinary legislative institutions with a few procedural hurdles. In this context, describe the procedure for the amendment of the Constitution. Also discuss the procedural and substantive limitations on the amending power of the Parliament to change the Constitution.

Based on 23 evaluated answers to this question on CollectorBabu: here is what aspirants most often missed, the mistakes that cost marks, and a model answer.

What most aspirants missed

Joint sitting is not permitted for constitutional amendment Bills under Article 368, unlike ordinary Bills.
Special majority is an absolute majority of total membership plus two-thirds of members present and voting, not two-thirds of total membership.
Simple majority amendments under Articles 3, 4 and 169 fall outside Article 368 and should be treated as a separate category.
State ratification requires at least half of the state legislatures, currently about 15 of 28 states.
Kesavananda Bharati (1973) is the origin of the basic structure doctrine, with examples such as federalism, secularism and judicial review.
Minerva Mills (1980) struck down clauses 4 and 5 of Article 368 and limited Parliament's amending power, while the 24th Amendment context explains the premise of the question.

Common mistakes

Stating the special majority formula wrongly, for example as two-thirds of total membership or as an 'effective majority'.
Treating Article 368 as the only amendment route and leaving out simple majority amendments under Articles 3, 4 and 169.
Listing Fundamental Rights or judicial review under procedural limits when they belong to substantive limits.
Naming cases without stating their holdings, or citing irrelevant cases such as Navtej Singh, which concerns Article 377, rather than amending power.

What the better answers did

Separating the answer into three tiers of amendment procedure with specific Articles for each.
Stating the ratification list under Article 368(2) with examples such as Articles 54, 55, 73 and 162.
Tracing the judicial evolution from Golaknath and the 24th Amendment to Kesavananda, Minerva Mills and I.R. Coelho, with the holding of each case.
Ending with a critical assessment of whether the limits are adequate, as the question asks to examine them.

Introduction

Open by stating that Article 368 uses ordinary legislative machinery with added hurdles, then note that courts have limited even this power.

Conclusion

Close by assessing whether the three-tier design plus the judicial basic structure test adequately balances Parliament's flexibility with federal consent and judicial independence.

Model answer

Article 368 does not create a separate constituent body. Parliament amends the Constitution through its ordinary law-making machinery, with added safeguards. There are three routes: amendments by simple majority outside Article 368 (Articles 3, 4 and 169), amendments by special majority under Article 368(2), and special majority plus ratification by at least half the state legislatures for federal provisions.

Procedure under Article 368

The Bill may be introduced in either House of Parliament, not in a state legislature.
It must be passed in each House by a majority of the total membership and by a majority of not less than two-thirds of members present and voting.
For federal provisions, such as the President's election (Articles 54, 55), Union and State executive and legislative powers (Articles 73, 162, Part XI), the Supreme Court and High Courts (Part V, Part VI) and representation of States in Parliament (Fourth Schedule), at least half of the state legislatures must ratify.
The President must give assent. He cannot withhold it or return the Bill.

Procedural limitations

Special majority: absolute majority of total membership plus two-thirds of present and voting.
State ratification for listed federal provisions.
No joint sitting: Article 368 Bills cannot be resolved in a joint sitting, unlike ordinary Bills under Article 108.
No time limit between introduction and passage, and no pocket veto for the President.

Substantive limitations

Golaknath (1967) held Fundamental Rights unamendable. The 24th Amendment (1971) overruled it and asserted Parliament's power to amend any part.
Kesavananda Bharati (1973) held that Parliament can amend any provision but cannot alter the basic structure, such as democracy, federalism, secularism, separation of powers and judicial review.
Indira Gandhi v Raj Narain (1975) applied this to free and fair elections.
Minerva Mills (1980) struck down clauses 4 and 5 of Article 368 inserted by the 42nd Amendment. Limited amendability and the balance between Fundamental Rights and Directive Principles were held part of the basic structure.
SR Bommai (1994) treated federalism as basic structure. The NJAC case (2015) struck down the 99th Amendment for impinging on judicial independence.
I.R. Coelho (2007) held that laws placed in the Ninth Schedule after 24 April 1973 can be tested against basic structure.
Courts review amendments through Articles 32 and 226 on basic structure grounds.

The three-tier design balances flexibility with federal consent. However, the absence of a time limit for passage and the judicially defined basic structure, which is not listed in the text, leave the scope of the limits contested.

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