Power of Parliament to amend the Constitution and procedure therefor

Article 304, Draft Constitution of Indian 1948

(1) An amendment of the Constitution may be initiated by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

(a) Any of the Lists in the Seventh Schedule;

(b) The representation of States in Parliament; or

(c) The powers of the Supreme Court. the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States for the time being specified in Part I of the First Schedule and the Legislatures of not less than one-third of the States for the time being specified in Part III of that Schedule.

(2) Notwithstanding anything in the last preceding clause, an amendment of the Constitution seeking to make any change in the provisions of this Constitution relating to the method of choosing a Governor or the number of Houses of the Legislature in any State for the time being specified in Part I of the First Schedule may be initiated by the introduction of a Bill for the purpose in the Legislative Assembly of the State or, where the State has a Legislative Council, in either House of the Legislature of the State, and when the Bill is passed by the Legislative Assembly or, where the State has a Legislative Council, by both Houses of the Legislature of the State, by a majority of the total membership of the Assembly or each House, as the case may be, it shall be submitted to Parliament for ratification, and when it is ratified by each House of Parliament by a majority of the total membership of that House it shall be presented to the President for assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.

Explanation.-Where a group of States is for the time being specified in Part III of the First Schedule, the entire group shall be deemed to be a single State for the purposes of the proviso to clause (1) of this article.

Article 365, Constitution of India 1950

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

⁠Provided that if such amendment seeks to make any change in—

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Draft Article 304 was debated in the Constituent Assembly on 17 September 1949. It granted the exclusive power to amend the Constitution to Parliament and outlined the procedure for exercising this power. According to the Draft Article, an amendment required the approval of a two-thirds majority in Parliament and, in some cases, the consent of half of India’s states.

During the debate, the Drafting Committee Chairman moved an amendment that tightened the language of the Draft Article and increased the number of Articles requiring the consent of India’s states for their amendment.

Most Assembly members who participated in the debate opposed the two-thirds majority requirement and favoured a “simple majority.” They believed that the Draft Article made it difficult, if not impossible, to amend the Constitution. These members presented various reasons why a rigid Constitution was not desirable. They argued that a rigid Constitution would hinder progressive legislation, limit the Constitution’s ability to adapt to social and political uncertainties, and was not justified given the Constituent Assembly’s modest representative credentials.

There was also a concern that the involvement of States in the amendment process would weaken the supremacy of the Union Parliament and impede future attempts to modify India’s federal structure if Parliament wished to do so.

The Chairman of the Drafting Committee responded by reminding members that other Draft Articles provided for amendments by a simple majority and that Draft Article 304 concerned a special category of articles requiring a higher threshold for amendment. He cited the amendment provisions of Ireland, Switzerland, Australia, and the United States to demonstrate that no major Constitution in the world allowed all parts of the Constitution to be amended by a simple majority. He also reiterated that the involvement of States in the amendment process was necessary to protect their interests.

In the end, only the Chairman of the Drafting Committee’s amendment was accepted by the Assembly.

Originally titled “Procedure for the Amendment of the Constitution” in the Constitution of India 1050, this Article was later renamed after the Supreme Court’s Golaknath case of 1967, which limited Parliament’s authority to amend Fundamental Rights. In response, Parliament enacted the Constitution (Twenty-fourth Amendment) Act in 1971, which added two clauses to bring Fundamental Rights under Parliament’s amending power. In the landmark Kesavananda Bharati case of 1973, the Supreme Court upheld Parliament’s power to amend all parts of the Constitution, including Fundamental Rights. However, the court also established the doctrine that Parliament could not amend the basic structure of the Constitution.