Article 368 is a provision in Part XX of the Constitution of India that grants Parliament the constituent power to amend the Constitution by way of addition, variation, or repeal of any provision. It was created by the framers of the Constitution to strike a balance between the need for constitutional flexibility to adapt to changing socio-economic conditions and the need for constitutional rigidity to protect its fundamental principles. The Article defines the procedure for constitutional amendments, which is distinct from the procedure for ordinary legislation.
The mechanism of amendment under Article 368 involves two main types of special majority. The first type requires the Amendment Bill to be passed in each House of Parliament by a special majority, meaning a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting. The second, more stringent type, is required for amendments affecting the federal structure, such as the election of the President (Article 54 and Article 55) or the provisions of Article 368 itself. This type requires the special majority in Parliament plus ratification by the Legislatures of not less than one-half of the States. In both cases, the President is constitutionally bound to give assent to the Bill, after which the Constitution stands amended.
Article 368 is intrinsically connected to the Basic Structure Doctrine, a concept established by the Supreme Court in the landmark judgment of Kesavananda Bharati v. State of Kerala in 1973. The ratio of the 7:6 majority judgment was that Parliament has wide power to amend any part of the Constitution under Article 368, but it cannot alter or destroy the basic structure or framework of the Constitution.
The Article itself has been changed, notably by the Constitution (Twenty-fourth Amendment) Act, 1971, which clarified Parliament's power to amend any provision and made Presidential assent mandatory. Later, the Constitution (Forty-second Amendment) Act, 1976, inserted clauses 368(4) and 368(5), which attempted to exclude judicial review of constitutional amendments and declared no limitation on Parliament's constituent power. However, the Supreme Court later held these clauses unconstitutional in Minerva Mills v. Union of India in 1980, reinforcing that the power under Article 368 is subject to the Basic Structure Doctrine and judicial review. The core procedure of amendment by special majority and state ratification for federal provisions, as laid out in Article 368(2), has remained the same.