Amendments of the Indian Constitution – What is Article

368?
To define constitutional amendment process, Article 368 of Part XX of Indian Constitution
provides for two types of amendments.

1. By a special majority of Parliament

2. By a special majority of the Parliament with the ratification by half of the total states

But, some other articles provide for the amendment of certain provisions of the Constitution
by a simple majority of Parliament, that is, a majority of the members of each House present
and voting (similar to the ordinary legislative process). Notably, these amendments are not
deemed to be amendments of the Constitution for the purposes of Article 368.

Types of Amendments in Indian Constitution

The list of types of amendments can be found below. There are three ways in which the
Constitution can be amended:

1. Amendment by simple majority of the Parliament

2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half of
the state legislatures.

1. By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the two
houses of Parliament outside the scope of Article 368. These provisions include:

• Admission or establishment of new states.

• Formation of new states and alteration of areas, boundaries or names of existing states.
• Abolition or creation of legislative councils in states.
• Second Schedule-emoluments,
• Allowances, privileges and so on of the president, the governors, the Speakers, judges,
etc.
• Quorum in Parliament.
• Salaries and allowances of the members of Parliament.
• Rules of procedure in Parliament.
• Privileges of the Parliament, its members and its committees.
• Use of the English language in Parliament.
• Number of puisne judges in the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Citizenship-acquisition and termination.
• Elections to Parliament and state legislatures.
• Delimitation of constituencies.
 • Union territories
• Fifth Schedule-administration of scheduled areas and scheduled tribes.
• Sixth Schedule-administration of tribal areas.

2. By Special Majority of Parliament

• The majority of the provisions in the Constitution need to be amended by a special

majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total
membership of each House and a majority of two-thirds of the members of each House
present and voting. The expression ‘total membership’ means the total number of
members comprising the House irrespective of the fact whether there are vacancies or
absentees.
• The special majority is required only for voting at the third reading stage of the bill but
by way of abundant caution, the requirement for the special majority has been provided
for in the rules of the Houses in respect of all the effective stages of the bill.
• The provisions which can be amended by this way include (i) Fundamental Rights; (ii)
Directive Principles of State Policy; and (iii) All other provisions which are not covered
by the first and third categories.

3. By Special Majority of Parliament and Consent of States

Those provisions of the Constitution which are related to the federal structure of the polity can
be amended by a special majority of the Parliament and also with the consent of half of the
state legislatures by a simple majority. If one or some or all the remaining states take no action
on the bill, it does not matter; the moment half of the states give their consent, the formality is
completed. There is no time limit within which the states should give their consent to the bill.
The following provisions can be amended in this way:

• Election of the President and its manner.

• Extent of the executive power of the Union and the states.
• Supreme Court and high courts.
• Distribution of legislative powers between
• the Union and the states.
• Any of the lists in the Seventh Schedule.
• Representation of states in Parliament.
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Types of amendments in the Indian Constitution is an important topic under UPSC Political
Science Syllabus which IAS aspirants may check in the linked article.

Types of Amendments – Constitutional Amendment Process

The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows:

• An amendment of the Constitution can be initiated only by the introduction of a bill

for the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) and not in
the state legislatures.
• The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president.
• The bill must be passed in each House by a special majority, that is, a majority (that
is, more than 50 per cent) of the total membership of the House and a majority of two-
thirds of the members of the House present and voting.
• Each House must pass the bill separately.
• In case of a disagreement between the two Houses, there is no provision for holding a
joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
• If the bill seeks to amend the federal provisions of the Constitution, it must also be
ratified by the legislatures of half of the states by a simple majority, that is, a majority
of the members of the House present and voting.
• After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent.
• The president must give his assent to the bill. He can neither withhold his assent to the
bill nor return the bill for reconsideration of the Parliament
• After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment
act) and the Constitution stands amended in accordance with the terms of the Act.

Directive Principles of State Policy

Background: The source of the concept of Directive Principles of State Policy

(DPSP) is the Spanish Constitution from which it came in the Irish Constitution.

o The concept of DPSP emerged from Article 45 of the Irish Constitution.

▪ Constitutional Provisions: Part IV of the Constitution of India (Article 36–51)
contains the Directive Principles of State Policy (DPSP).
o Article 37 of the Indian Constitution States about the application of the
Directive Principles.
• These principles aim at ensuring socioeconomic justice to the people
and establishing India as a Welfare State.
▪ Fundamental Rights Vs DPSP:
o Unlike the Fundamental Rights (FRs), the scope of DPSP is limitless and it
protects the rights of a citizen and work at a macro level.
• DPSP consists of all the ideals which the State should follow and
keep in mind while formulating policies and enacting laws for the
country.
o Directive Principles are affirmative directions on the other hand,
Fundamental Rights are negative or prohibitive in nature because they put
limitations on the State.
o The DPSP is not enforceable by law; it is non-justiciable.
o It is important to note that DPSP and FRs go hand in hand.
• DPSP is not subordinate to FRs.
▪ Classification of Principles: The Directive Principles are classified on the basis of
their ideological source and objectives. These are Directives based on:
o Socialist Principles
 o Gandhian Principles
o Liberal and Intellectual Principles

Directives based on Socialist Principles

▪ Article 38: The State shall strive to promote the welfare of the people by securing and
protecting a social order by ensuring social, economic and political justice and by
minimising inequalities in income, status, facilities and opportunities
▪ Articles 39: The State shall in particular, direct its policies towards securing:
o Right to an adequate means of livelihood to all the citizens.
o The ownership and control of material resources shall be organised in a
manner to serve the common good.
o The State shall avoid concentration of wealth in a few hands.
o Equal pay for equal work for both men and women.
o The protection of the strength and health of the workers.
o Childhood and youth shall not be exploited.
▪ Article 41: To secure the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disability.
▪ Article 42: The State shall make provisions for securing just and humane
conditions of work and for maternity relief.
▪ Article 43: The State shall endeavour to secure to all workers a living wage and a
decent standard of life.
o Article 43A: The State shall take steps to secure the participation of workers
in the management of industries.
▪ Article 47: To raise the level of nutrition and the standard of living of people and
to improve public health.

Directives based on Gandhian Principles

▪ Article 40: The State shall take steps to organise village panchayats as units of Self
Government
▪ Article 43: The State shall endeavour to promote cottage industries on an individual
or cooperative basis in rural areas.
o Article 43B: To promote voluntary formation, autonomous functioning,
democratic control and professional management of cooperative societies.
▪ Article 46: The State shall promote educational and economic interests of the
weaker sections of the people particularly that of the Scheduled Castes (SCs),
Scheduled Tribes (STs) and other weaker sections.
▪ Article 47: The State shall take steps to improve public health and prohibit
consumption of intoxicating drinks and drugs that are injurious to health.
▪ Article 48: To prohibit the slaughter of cows, calves and other milch and draught
cattle and to improve their breeds.

Directives based on Liberal-Intellectual Principles

▪ Article 44: The State shall endeavour to secure for the citizen a Uniform Civil Code
through the territory of India.
▪ Article 45: To provide early childhood care and education for all children until
they complete the age of six years.
 ▪ Article 48: To organise agriculture and animal husbandry on modern and scientific
lines.
o Article 48A: To protect and improve the environment and to safeguard the
forests and wildlife of the country.
▪ Article 49: The State shall protect every monument or place of artistic or historic
interest.
▪ Article 50: The State shall take steps to separate judiciary from the executive in the
public services of the State.
▪ Article 51: It declares that to establish international peace and security the State
shall endeavour to:
o Maintain just and honourable relations with the nations.
o Foster respect for international law and treaty obligations.
o Encourage settlement of international disputes by arbitration.

Amendments in DPSP:

▪ 42nd Constitutional Amendment, 1976: It introduced certain changes in the part-IV

of the Constitution by adding new directives:
o Article 39A: To provide free legal aid to the poor.
o Article 43A: Participation of workers in management of Industries.K1M
o Article 48A: To protect and improve the environment.
th
▪ 44 Constitutional Amendment, 1978: It inserted Section-2 to Article 38 which
declares that; “The State in particular shall strive to minimise economic inequalities in
income and eliminate inequalities in status, facilities and opportunities not amongst
individuals but also amongst groups”.
o It also eliminated the Right to Property from the list of Fundamental Rights.
th
▪ 86 Amendment Act of 2002: It changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21 A.

Conflicts Between Fundamental Rights and DPSP: Associated Cases

▪ Champakam Dorairajan v the State of Madras (1951): In this case, the Supreme
Court ruled that in case of any conflict between the Fundamental Rights and the
Directive Principles, the former would prevail.
o It declared that the Directive Principles have to conform to and run as
subsidiary to the Fundamental Rights.
o It also held that the Fundamental Rights could be amended by the Parliament
by enacting constitutional amendment acts.
▪ Golaknath v the State of Punjab (1967): In this case, the Supreme Court declared
that Fundamental Rights could not be amended by the Parliament even for
implementation of Directive Principles.
o It was contradictory to its own judgement in the ‘Shankari Parsad case’.
▪ Kesavananda Bharati v the State of Kerala (1973): In this case, the Supreme
Court overruled its Golak Nath (1967) verdict and declared that Parliament can
amend any part of the Constitution but it cannot alter its “Basic Structure”.
o Thus, the Right to Property (Article 31) was eliminated from the list of
Fundamental Rights.
▪ Minerva Mills v the Union of India (1980): In this case, the Supreme Court
reiterated that Parliament can amend any part of the Constitution but it cannot change
the “Basic Structure” of the Constitution.
Implementation of DPSP: Associated Acts and Amendments

▪ Land Reforms: Almost all the states have passed land reform laws to bring changes
in the agrarian society and to improve the conditions of the rural masses. These
measures include:
o Abolition of intermediaries like zamindars, jagirdars, inamdars, etc
o Tenancy reforms like security of tenure, fair rents, etc
o Imposition of ceilings on land holdings
o Distribution of surplus land among the landless labourers
o Cooperative farming
▪ Labour Reforms: The following acts were enacted to protect the interests of the
Labour section of the society.
o The Minimum Wages Act (1948), Code on Wages, 2020
o The Contract Labour Regulation and Abolition Act (1970)
o The Child Labour Prohibition and Regulation Act (1986)
• Renamed as the Child and Adolescent Labour Prohibition and
Regulation Act, 1986 in 2016.
o The Bonded Labour System Abolition Act (1976)
o The Mines and Minerals (Development and Regulation) Act, 1957
o The Maternity Benefit Act (1961) and the Equal Remuneration Act (1976)
have been made to protect the interests of women workers.
rd
▪ Panchayati Raj System: Through 73 Constitutional Amendment Act, 1992,
government fulfilled constitutional obligation stated in Article 40.
o Three tier ‘Panchayati Raj System’ was introduced at the Village, Block and
District level in almost all parts of the country.
▪ Cottage Industries: To promote cottage industries as per Article 43, the government
has established several Boards such as Village Industries Board, Khadi and Village
Industries Commission, All India Handicraft Board, Silk Board, Coir Board, etc.,
which provide essential help to cottage industries in finance and marketing.
▪ Education: Government has implemented provisions related to free and compulsory
education as provided in Article 45.
th
o Introduced by the 86 Constitutional Amendment and subsequently passed
the Rights to Education Act 2009, Elementary Education has been accepted
as Fundamental Right of each child between the 6 to 14 years of age.
▪ Rural Area Development: Programmes such as the Community Development
Programme (1952), Integrated Rural Development Programme (1978-79) and
Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA-
2006) were launched to raise the standard of living particularly in rural areas, as stated
in the Article 47 of the Constitution.
▪ Health: Central Government sponsored schemes like Pradhan Mantri Gram
Swasthya Yojana (PMGSY) and National Rural Health Mission (NRHM) are
being implemented to fulfill the social sector responsibility of the Indian State.
▪ Environment: The Wildlife (Protection) Act, 1972, the Forest (Conservation) Act,
1980 and the Environment (Protection) Act, 1986 have been enacted to safeguard
the wildlife and the forests respectively.
o The Water and Air Pollution Control Acts have provided for the
establishment of the Central Pollution Control Board.
▪ Heritage Preservation: The Ancient and Historical Monument and
Archaeological Sites and Remains Act (1958) has been enacted to protect the
monuments, places and objects of national importance.
 Emergency
A state of emergency in India refers to a period of governance that can be proclaimed by the
President of India during certain crisis situations. Under the advice of the cabinet of
ministers, the President can overrule many provisions of the Constitution, which guarantees
Fundamental Rights to the citizens of India.

▪ The emergency provisions are contained in Part XVIII of the Constitution of India, from
Article 352 to 360. These provisions enable the Central government to meet any abnormal
situation effectively.
▪ The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and
security of the country, the democratic political system and the Constitution.
▪ The Constitution stipulates three types of emergencies-
1. National Emergency
2. Constitutional Emergency
3. Financial Emergency

NATIONAL EMERGENCY

▪ National emergency can be declared on the basis of war, external aggression or armed
rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote
an emergency of this type.
▪ Grounds of declaration:
o Under Article 352, the president can declare a national emergency when the security
of India or a part of it is threatened by war or external aggression or armed
rebellion.
o The President can declare a national emergency even before the actual occurrence
of war or armed rebellion or external aggression
o When a national emergency is declared on the grounds of ‘war’ or ‘external
aggression’, it is known as ‘External Emergency’. On the other hand, when it is
declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.
• This term ‘armed rebellion’ is inserted from the 44th amendment. Before
this term it was known as internal disturbance.
▪ Example:
o If India and Pakistan openly accept that they will use armed forces against each
other is simply war.
o If there is no formal declaration that there will be armed forces used against a
country is External aggression.
o And if because of these two grounds an emergency is proclaimed as an external
emergency.

Facts

▪ th
The 38 Amendment Act of 1975 made the declaration of National Emergency immune to
judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of
1978.
▪ In Minerva Mills case (1980), the Supreme Court held that National Emergency can be
challenged in the court on the ground of malafide or that the declaration was based on
wholly extraneous and irrelevant facts.
▪ Parliamentary approval and duration
o The proclamation of emergency must be approved by both the houses of parliament
within one month from the date of its issue.
o However, if the proclamation of emergency is issued at a time when the Lok Sabha
has been dissolved or the dissolution takes place during the period of one month
without approving the proclamation, then the proclamation survives until 30 days
from the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha
has in the meantime approved it.
o If approved by both the houses, the Emergency continues for 6 months and can be
extended to an indefinite period with an approval of the Parliament for every six
months.
o Every resolution approving the proclamation of emergency or its continuance must
be passed by either House of Parliament by a special majority.
▪ Revocation of proclamation
o A proclamation of Emergency may be revoked by the President at any time by a
subsequent proclamation. Such proclamation does not require parliamentary
approval.
o The emergency must be revoked if the Lok Sabha passes a resolution by a simple
majority disapproving its continuation.
▪ Effects of national emergency
o A proclamation of Emergency has drastic and wide-ranging effects on the political
system. These consequences can be grouped into 3 categories:
• Effects on the centre-state relations: While a proclamation of Emergency is
in force, the normal fabric of the Centre-State relations undergoes a basic
change. this can be studied under three heads:
• Executive: Centre becomes entitled to give executive directions to a
state on ‘any’ matter
• Legislative: The parliament becomes empowered to make laws on
any subject mentioned in the state list, the president can issue
ordinances on State subjects also, if the parliament is not in session.
The laws made on state subjects by the parliament become
inoperative six months after the emergency has ceased to be in
operation.
• Financial: the president can modify the constitutional distribution of
revenues between the centre and the states.
• Effect on the life of the Lok Sabha and State Assembly:
• While a proclamation of National Emergency is in operation, the life
of the Lok Sabha may be extended beyond the normal term for one
year at a time. However, this extension cannot continue beyond a
period of six months after the emergency has ceased to operate.
• Similarly, the Parliament may extend the normal tenure of a state
Legislative Assembly by one year each time during a national
emergency, subject to a maximum period of six months after the
emergency has ceased to operate.
• Effect on fundamental rights: Articles 358 and 359 describes the effect of a
National Emergency on the Fundamental Rights. These two provisions are
explained below:
• Suspension of Fundamental rights under Article 19: According to
Article 358, when a proclamation of National Emergency is made,
the six fundamental rights under article 19 are automatically
 suspended. Article 19 is automatically revived after the expiry of the
emergency.
• The 44th Amendment Act laid out that Article 19 can only be
suspended when the National Emergency is laid on the
grounds of war or external aggression and not in the case of
armed rebellion.
• Suspension of other Fundamental Rights: Under Article 359, the
President is authorised to suspend, by order, the right to move any
court for the enforcement of Fundamental Rights during a National
Emergency. Thus, remedial measures are suspended and not the
Fundamental Rights.
• The suspension of enforcement relates to only those
Fundamental Rights that are specified in the Presidential
Order.
• The suspension could be for the period during the operation
of emergency or for a shorter period.
• The Order should be laid before each House of Parliament
for approval.
• The 44 Amendment Act mandates that the President cannot
suspend the right to move the court for the enforcement of
Fundamental Rights guaranteed by Article 20 and 21.
▪ Declarations made so far: This type of emergency has been proclaimed three times so far- in
1962, 1971 and 1975
o The first proclamation of National Emergency was issued in October 1962 on
account of Chinese aggression in the NEFA and was in force till January 1968.
o The second proclamation of National Emergency was made in December 1971 in the
wake of the attack by Pakistan.
o Even when the emergency was in operation, the third proclamation of National
Emergency was made in June 1975. Both the second and the third proclamations
were revoked in March 1977

President’s Rule

▪ Article 355 imposes a duty on the centre to ensure that the government of every state is
carried on in accordance with the provisions of the constitution.
▪ It is this duty in the performance of which the centre takes over the government of a state
under Article 356 in case of failure of constitutional machinery in a state.
▪ This is popularly known as ‘President’s Rule’.
▪ Grounds of imposition: the president’s ruler can be proclaimed under Article 356 on two
grounds:
1. Article 356 empowers the President to issue a proclamation if he is satisfied that a
situation has arisen in which the government of a state cannot be carried on in
accordance with the provisions of the constitution.
2. Article 365 says that whenever a state fails to comply with or to give effect to any
direction from the centre, it will be lawful for the President to hold that a situation
has arisen in which the government of the state cannot be carried on in accordance
with the provisions of the constitution.
▪ Parliamentary approval and duration: A proclamation imposing president’s rule must be
approved by both the houses of parliament within two months from the date of its issue.
o However, if the proclamation of President’s rule is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the
 period of two months without approving the proclamation, then the proclamation
survives until 30 days from the first sitting of the Lok Sabha after its reconstitution,
provided that the Rajya Sabha approves it in the meantime
▪ Consequences of the President’s rule: The President acquires the following extraordinary
powers when the President’s rule is imposed in a state:
o He can take up the functions of the state government and powers vested in the
governor or any other executive authority in the state.
o He can declare that the powers of the state legislature are to be exercised by the
parliament.
o He can take all other necessary steps including the suspension of the constitutional
provisions relating to any body or authority in the state.
▪ th
Scope of judicial review: The 38 Amendment act of 1975 made the satisfaction of the
President in invoking Article 356 final and conclusive which would not be challenged in any
court on any ground.
Amendment Act of 1978
o But, this provision was subsequently deleted by the 44th
implying that the satisfaction of the President is not beyond judicial review.

Financial Emergency

▪ Grounds of declaration: Article 360 empowers the president to proclaim a Financial

Emergency if he is satisfied that a situation has arisen due to which the financial stability or
credit of India or any part of its territory is threatened.
▪ Parliamentary approval and duration: A proclamation declaring financial emergency must
be approved by both the Houses of Parliament within two months from the date of its issue.
o However, if the proclamation of Financial Emergency is issued at a time when the
Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during
the period of two months without approving the proclamation, then the
proclamation survives until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha has in the meantime approved it.
• Once approved by both the houses of Parliament, the Financial Emergency
continues indefinitely till it is revoked.

Effects of Financial Emergency

▪ Extension of the executive authority of the Union over the financial matters of the States.
▪ Reduction of salaries and allowances of all or any class of persons serving in the State.
▪ Reservation of all money bills or other financial bills for the consideration of the President
after they are passed by the legislature of the State.
▪ Direction from the President for the reduction of salaries and allowances of all or any class
of persons serving the Union; and the judges of the Supreme Court and the High Courts.

Criticism of the Emergency Provision

▪ Some members of the Constituent Assembly criticised the incorporation of emergency

provisions in the constitution on the following grounds:
o The federal character of the constitution will be destroyed and the union will
become all-powerful
o The powers of the State- both the Union and the Units- will entirely be concentrated
in the hands of the union executive.
o The president will become a dictator
o The financial autonomy of the state will be nullified
 o Fundamental rights will become meaningless and, as a result, the democratic
foundation of the constitution will be destroyed.’
▪ While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar
accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there is
a possibility of the Articles being abused or employed for political purposes.’