Article 368 is a provision contained in Part XX of the Constitution of India that grants the Parliament the constituent power to amend the Constitution by way of addition, variation, or repeal of any provision. It was created to provide a mechanism for the Constitution to evolve and adapt to changing times, balancing the need for stability with the need for flexibility. The procedure for amendment is distinct from ordinary legislation, ensuring the sanctity of the supreme law.
The mechanism of Article 368 outlines two main procedures for amendment. The first requires a special majority in both Houses of Parliament: a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting. The second procedure, for amendments affecting the federal structure, requires the same special majority in Parliament, plus ratification by the Legislatures of not less than one-half of the States by a simple majority. This second category includes changes to provisions like the election of the President (Article 54 and Article 55), the extent of the Union's executive power (Article 73), the distribution of legislative powers in the Seventh Schedule, and the provisions of Article 368 itself.
A crucial concept connected to Article 368 is the Basic Structure Doctrine. This doctrine was established by the Supreme Court in the landmark judgment of Kesavananda Bharati v. State of Kerala in 1973, which held that Parliament's amending power under Article 368 is not unlimited and cannot be used to alter or destroy the basic structure or framework of the Constitution. This judgment effectively solved the problem of potential parliamentary overreach by imposing an inherent limitation on the constituent power.
Article 368 itself has been amended, notably by the Constitution (Twenty-fourth Amendment) Act, 1971, which confirmed Parliament's power to amend any part of the Constitution, and the Constitution (Forty-second Amendment) Act, 1976, which attempted to make amendments non-justiciable. However, the Supreme Court, in Minerva Mills Ltd. v. Union of India in 1980, declared the clauses inserted by the 42nd Amendment that limited judicial review and declared Parliament's power unlimited (Article 368(4) and Article 368(5)) as invalid, thereby restoring judicial review and reinforcing the Basic Structure Doctrine. The core procedure of amendment by special majority and the requirement of state ratification for federal provisions have remained central to the article.