Article 368 and the Basic Structure: Why the Amendment Power Is Wide but Not Unlimited

The Constitution must be capable of change, yet constitutional amendment cannot become a method for destroying the system it is meant to develop. Article 368 and the basic-structure doctrine express that balance.

The amendment procedure

Article 368 permits Parliament to amend the Constitution through the constituent procedure it specifies. Most amendments require a majority of the total membership of each House and at least two-thirds of members present and voting. Amendments affecting specified federal provisions also require ratification by at least one-half of the State Legislatures.

Some constitutional changes occur through provisions that prescribe a simple legislative majority and state that the law is not an amendment for Article 368 purposes. The applicable route therefore depends on the provision being changed; “constitutional change” does not always mean one identical voting formula.

Kesavananda Bharati

In His Holiness Kesavananda Bharati v. State of Kerala, 1973 Supp SCR 1, a thirteen-judge Bench held by a narrow majority that Parliament’s amendment power is extensive but cannot alter the Constitution’s basic structure. The case rejected both an unamendable Constitution and an unlimited power capable of eliminating constitutional identity.

The judgments did not provide one closed statutory list of basic features. Later decisions have recognised principles including constitutional supremacy, republican and democratic government, secularism, federalism, separation of powers, judicial review, rule of law, free and fair elections and the balance between fundamental rights and directive principles, depending on the context.

How review operates

Basic-structure review asks whether a constitutional amendment damages or destroys an essential constitutional feature. It is not enough that a court considers the amendment unwise. The enquiry concerns the nature of the affected principle, the degree of injury and the amendment’s effect on the constitutional system.

Minerva Mills v. Union of India, (1980) 3 SCC 625, applied the doctrine to invalidate clauses that sought to make the amendment power unlimited and exclude judicial review. The Court treated limited amending power and judicial review themselves as structural safeguards.

The doctrine does not make courts a substitute constituent assembly. Parliament retains broad authority to adapt institutions and rights. Judicial intervention follows only when the amendment crosses the structural boundary established by the Constitution as interpreted in binding precedent.

Federal ratification

Where Article 368 requires State ratification, the requirement protects the federal distribution of constitutional authority. An amendment touching specified matters—such as Union-State legislative relations, superior courts or State representation in Parliament—cannot be completed by Parliament alone. Whether a proposed amendment falls within the ratification proviso depends on its true constitutional effect, not only its drafting label.

Conclusion

Article 368 allows democratic constitutional development while the basic-structure doctrine preserves constitutional continuity. The amendment power is therefore neither ordinary legislation nor sovereign power without legal limits.

Sources

Supreme Court of India archive, His Holiness Kesavananda Bharati v. State of Kerala, 1973 Supp SCR 1: https://www.sci.gov.in/document/his-holiness-kesavananda-bharati-v-state-of-kerala-1973-supp-scr-1/

Constitution of India, Article 368: https://legislative.gov.in/documents/page/4

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