Introduction
Constitutions are living documents—they must evolve with time to accommodate new social, economic, and political realities. The Indian Constitution, adopted in 1950, foresaw this need and included a detailed mechanism for its amendment under Article 368. Since then, over 100 constitutional amendments have been enacted, shaping everything from reservations to GST.
However, the process of constitutional amendment in India has often sparked intense debate. How flexible should a Constitution be? Should states have a greater role? Can Parliament amend any part, including fundamental rights? What limits should the judiciary impose? These questions sit at the heart of Indian constitutional democracy.
This blog explores the constitutional amendment procedure, its types, landmark amendments, and the major debates that continue to define its interpretation and reform discourse.
The Constitutional Amendment Procedure: An Overview
Article 368 of the Constitution provides for two types of amendments:
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By Special Majority of Parliament
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Requires a majority of the total membership of each House and a two-thirds majority of those present and voting.
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Used for most amendments (e.g., changing fundamental rights, directive principles).
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By Special Majority + Ratification by States
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Applies to matters affecting federal structure (e.g., representation of states in Parliament, powers of the President).
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Needs ratification by at least half of the state legislatures.
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Note: No role for the President to veto a constitutional amendment. Once passed, assent is mandatory.
Landmark Amendments and Related Debates
| Amendment | Key Content | Debates Triggered |
|---|---|---|
| 1st Amendment (1951) | Reasonable restrictions on free speech | Early signs of limiting fundamental rights |
| 42nd Amendment (1976) | Gave primacy to Directive Principles, curbed judiciary | Criticized as authoritarian (Emergency era) |
| 44th Amendment (1978) | Restored judicial powers and civil liberties | Seen as corrective measure |
| 73rd & 74th Amendments (1992) | Panchayati Raj & Urban Local Bodies | Strengthened decentralization |
| 101st Amendment (2016) | Goods and Services Tax (GST) | Complex Centre-State coordination challenges |
Debates Surrounding the Amendment Process
1. Parliamentary Supremacy vs Constitutional Supremacy
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Pro-Parliament View: Parliament should have wide powers to adapt the Constitution.
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Counterview: Unlimited power may erode the Constitution’s core identity.
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Judicial Intervention: In Kesavananda Bharati v. State of Kerala (1973), the SC ruled that Parliament cannot alter the "Basic Structure" of the Constitution, striking a balance between rigidity and flexibility.
2. Role of States in Constitutional Amendments
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Only select amendments require ratification by half the states.
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Critics argue this undermines federalism, especially when changes (like GST or cooperative federalism norms) deeply affect state autonomy.
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Suggestions: Broaden the scope of amendments requiring state ratification.
3. Lack of Public Participation and Transparency
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Amendments are often passed without wider debate or public consultation.
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Example: Farm Laws (later repealed) were passed quickly, raising fears that a similar approach could be taken with constitutional changes.
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Reform Needed: Introduce pre-legislative consultation frameworks for constitutional changes.
4. Use of Constitutional Amendments to Bypass Judicial Review
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At times, Parliament has used amendments to overturn Supreme Court verdicts.
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E.g., 39th Amendment (1975) put election disputes involving PM beyond court jurisdiction—struck down later.
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Critics view this as misuse; others see it as a check on judicial overreach.
5. Overuse of the Amendment Mechanism
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Over 100 constitutional amendments in 75 years suggests "constitutional fatigue".
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Compared to the U.S. Constitution (27 amendments in 230+ years), India’s record shows frequent tinkering.
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This may dilute constitutional sanctity and signal poor legislative foresight.
Judicial Guidelines on Constitutional Amendments
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Kesavananda Bharati (1973) – Introduced the Basic Structure Doctrine. Parliament can amend the Constitution but not its core principles (like secularism, democracy, rule of law, etc.).
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Minerva Mills (1980) – Limited Parliament’s power to take away judicial review.
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I.R. Coelho (2007) – Even laws placed under the Ninth Schedule can be reviewed if they violate the basic structure.
Bottom Line: The Supreme Court is the final guardian ensuring constitutional amendments do not dilute the foundational principles.
Recommendations for Reform
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Codify the Basic Structure Doctrine in Article 368 itself for clarity.
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Enhance role of States by mandating ratification for all amendments that impact concurrent subjects or financial rights.
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Establish a Constitutional Amendment Commission for expert scrutiny before introduction.
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Introduce a public consultation mechanism before initiating amendments.
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Fix a cooling-off period before reintroducing rejected or controversial amendments.
Conclusion
The constitutional amendment procedure is a powerful tool of transformation but also one that demands great caution. While India's approach—neither too rigid like the U.S., nor too flexible like the UK—has enabled adaptability, debates around federalism, judicial oversight, political misuse, and democratic legitimacy remain.
Striking the right balance between Parliamentary sovereignty and constitutional sanctity, between evolution and erosion, is critical. As India’s democracy matures, it must ensure that constitutional amendments reflect the will of the people—not just the will of those in power.
A robust and participatory amendment process will not only strengthen constitutional governance but also reinforce the trust of citizens in India's democratic framework.