Amendment of the Constitution & the Basic Structure (Article 368): The Three Routes, Kesavananda Bharati & Minerva Mills (UPSC Polity)
Article 368 & the Procedure for Amendment
🎯 Exam priority: High-yield. This is one of Polity's most-tested blocks. Prelims repeatedly asks the THREE types of amendment (which provision needs state ratification, what is amendable by simple majority), the special-majority definition, and that the President MUST assent. Mains has asked the basic-structure doctrine and Parliament's limited amending power (2019). Master Article 368, the three routes, and the Kesavananda-to-Minerva-Mills case chain — this is where marks are concentrated.
A Constitution must change with the times — but not so easily that every passing majority can rewrite it. India's framers chose a middle path: the Constitution is "neither flexible nor rigid but a synthesis of both". The machinery for that change is Article 368, and the limit on it is the basic structure doctrine.
Article 368 and the procedure for amendment
Article 368, in Part XX, gives Parliament the "constituent power" to amend the Constitution by addition, variation or repeal — but, since Kesavananda Bharati (1973), not so as to damage its basic structure.
Initiation: an amendment can be introduced only by a bill in either House of Parliament (not in a state legislature), by a minister or a private member, and needs no prior permission of the President.
Special majority: the bill must be passed in each House by a special majority — a majority of the total membership of the House and a majority of two-thirds of members present and voting. ("Total membership" means all seats, ignoring vacancies.)
No joint sitting: each House must pass the bill separately; unlike an ordinary bill, there is no provision for a joint sitting to break a deadlock.
State ratification (where needed): if the bill amends the federal provisions, it must also be ratified by the legislatures of half the states by a simple majority — with no time limit on the states.
Presidential assent is compulsory: the 24th Amendment (1971) made it obligatory for the President to assent — he can neither withhold assent nor return the bill. Once assented, the Constitution stands amended.
The Three Types of Amendment
Although Article 368 speaks of two routes, the Constitution can actually be amended in three ways — and which route applies to which provision is the single most-asked Prelims point here.
The three types of amendment
Route | Majority needed | Examples of provisions |
1. Simple majority (outside Article 368) | Ordinary majority of members present & voting in each House | Admission/formation of new states, alteration of boundaries/names (Art 2–4); abolition or creation of state Legislative Councils; citizenship; salaries/quorum/privileges of Parliament; use of official language; Fifth & Sixth Schedules; delimitation; UTs |
2. Special majority of Parliament | Majority of total membership + two-thirds of those present & voting, in each House | Fundamental Rights; Directive Principles; and all other provisions not in routes 1 or 3 |
3. Special majority + ratification by half the states | Route-2 majority PLUS consent of legislatures of half the states (simple majority) | Election of the President; Union & state executive power; Supreme Court & High Courts; distribution of legislative powers (Centre–state); GST Council (Art 279A); Seventh Schedule; representation of states in Parliament; Article 368 itself |
Trap to remember: amendments by simple majority (new states, Council creation, citizenship, Fifth/Sixth Schedules) are not deemed amendments under Article 368 at all. Only routes 2 and 3 are "Article 368" amendments. The GST Council (101st Amendment, 2016) and Article 368 itself need state ratification.
Criticism, the Verdict & Landmark Amendments
The amendment procedure has been criticised, yet it has worked — over one hundred and six amendments have been made without the Constitution losing its identity.
Criticism — and the verdict
Key criticisms: there is no special amending body (no Constitutional Convention as in the USA); states cannot initiate amendments (except a resolution to create/abolish a Legislative Council); most of the Constitution can be amended by Parliament alone, and where states are needed only half consent (versus three-fourths in the USA); there is no time limit on state ratification and no joint sitting for deadlocks; and the provisions are "too sketchy", leaving wide scope for the judiciary.
The verdict: despite the defects, the process "strikes a good balance between flexibility and rigidity" (K.C. Wheare), who admired that "this variety in the amending process is wise but rarely found". Nehru wanted "a certain flexibility" so as not to "stop the nation's growth"; Ambedkar praised the "facile procedure" that avoided the rigidity of America or Australia.
"While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility." — Jawaharlal Nehru, Constituent Assembly
Landmark amendments to know: 1st (1951) — added the Ninth Schedule; 7th (1956) — reorganised states; 42nd (1976) — the "Mini-Constitution"; 44th (1978) — undid emergency excesses, removed Right to Property; 52nd (1985) — anti-defection (10th Schedule); 61st (1989) — voting age 21→18; 73rd & 74th (1992) — panchayats & municipalities; 101st (2016) — GST; 103rd (2019) — EWS reservation; 106th (2023) — women's reservation (the latest enacted).
The Basic Structure Saga — Case by Case
Can Parliament amend any part of the Constitution — even the Fundamental Rights? The answer evolved over three decades through a tug-of-war between Parliament and the Supreme Court, culminating in the basic structure doctrine.
The basic structure saga — case by case
Shankari Prasad (1951): challenging the 1st Amendment, the Court held that the power to amend under Article 368 includes the power to amend Fundamental Rights, and that "law" in Article 13 means only ordinary law, not a constitutional amendment. Sajjan Singh (1964) reaffirmed this.
Golaknath (1967): the Court reversed itself — Fundamental Rights are "transcendental and immutable", a constitutional amendment is "law" under Article 13, and Parliament cannot abridge the FRs.
24th Amendment (1971): Parliament struck back, amending Articles 13 and 368 to declare it can take away any Fundamental Right, and that such an amendment is not "law" under Article 13.
Kesavananda Bharati (1973) — the turning point: a 13-judge bench overruled Golaknath and upheld the 24th Amendment — Parliament can amend any part, including the FRs — but laid down the new "basic structure" doctrine: Parliament's constituent power cannot alter the basic structure of the Constitution.
Indira Nehru Gandhi (1975) — the Election case: the Court applied the doctrine to strike down a clause of the 39th Amendment that had put the PM's and Speaker's election disputes beyond all courts — it damaged the basic structure (free elections, judicial review).
42nd Amendment (1976) → Minerva Mills (1980): the 42nd amended Article 368 to declare there is no limit on Parliament's amending power and no amendment can be questioned in court. In Minerva Mills the Court struck this down — "a limited amending power is itself a basic feature"; the donee of a limited power cannot convert it into an unlimited one. It also protected judicial review as basic structure.
Waman Rao (1980): clarified that the basic-structure doctrine applies to amendments made after 24 April 1973 (the date of the Kesavananda judgment), giving earlier amendments and Ninth Schedule entries a degree of protection.
"The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one." — Supreme Court, Minerva Mills (1980)
Elements of the Basic Structure
The Supreme Court has deliberately never given an exhaustive list of what the basic structure is — it is decided case by case. But from the judgments, a settled set of "basic features" has emerged.
Elements of the basic structure
Core elements declared so far include: supremacy of the Constitution; the sovereign, democratic and republican character of the polity; secularism; separation of powers; the federal character of the Constitution; unity and integrity of the nation; the welfare state (socio-economic justice); judicial review; freedom and dignity of the individual; the parliamentary system; the rule of law; harmony and balance between Fundamental Rights and Directive Principles; the principle of equality; free and fair elections; independence of the judiciary; the limited amending power of Parliament; effective access to justice; and the powers of the Supreme Court (Art 32, 136, 141, 142) and High Courts (Art 226, 227).
How the doctrine was built, case by case
Case (year) | Basic-structure elements it declared |
Kesavananda Bharati (1973) | Supremacy of the Constitution; separation of powers; republican & democratic government; secular & federal character; sovereignty & unity; individual freedom & dignity; welfare-state mandate; parliamentary system |
Indira Nehru Gandhi (1975) | Sovereign democratic republic; equality of status & opportunity; secularism & freedom of religion; rule of law; judicial review; free & fair elections |
Minerva Mills (1980) | Limited amending power of Parliament; judicial review; harmony between Fundamental Rights & Directive Principles |
Waman Rao (1980) | Doctrine applies to amendments after 24 April 1973 |
Indra Sawhney (1992) / Kihoto Hollohan (1992) | Rule of law; free & fair elections (later cases keep adding elements) |
Why this matters for UPSC
Prelims: the three amendment routes and which provision needs state ratification (GST Council, Supreme Court/High Courts, Article 368 itself); special-majority definition; President must assent (24th Amendment); basic structure is judge-made (Kesavananda 1973), not in the text; the latest amendment is the 106th (2023).
Mains: "Parliament's power to amend the Constitution is limited" — discuss with the basic-structure doctrine (asked 2019); the Kesavananda-to-Minerva-Mills evolution; basic structure as a check on majoritarianism.
Further Reading
Standard NCERT-level texts and reference books on modern Indian history (any UPSC reading list).
Test Yourself: Practice Questions & PYQs
Test yourself on Article 368, the three amendment routes, and the basic-structure case chain from Shankari Prasad to Minerva Mills. This is a heavyweight chapter — work through all thirteen MCQs before revealing the answers.
Practice Questions
Q1. Which Article of the Constitution lays down the procedure for its amendment?
(a) Article 368
(b) Article 360
(c) Article 352
(d) Article 13
Show answer
Answer: (a) — Article 368 in Part XX deals with Parliament's constituent power to amend the Constitution and the procedure for doing so.
Q2. A constitutional amendment bill under Article 368 must be passed in each House by a 'special majority', which means:
(a) a three-fourths majority of members present and voting
(b) a majority of the total membership AND two-thirds of members present and voting
(c) a two-thirds majority of the total membership
(d) a simple majority of members present and voting
Show answer
Answer: (b) — Special majority = a majority of the total membership of the House AND a majority of two-thirds of the members present and voting.
Q3. Which of the following amendments requires ratification by the legislatures of half of the states?
(a) Creation of a new state
(b) A change to citizenship law
(c) Abolition of a state Legislative Council
(d) A change to the distribution of legislative powers between the Centre and states
Show answer
Answer: (d) — Federal provisions — like the Centre–state distribution of powers, the Supreme Court/High Courts, the GST Council and Article 368 itself — need ratification by half the states. The others are amendable by simple majority.
Q4. Which case laid down the basic structure doctrine for the first time?
(a) Kesavananda Bharati (1973)
(b) Golaknath (1967)
(c) Shankari Prasad (1951)
(d) Minerva Mills (1980)
Show answer
Answer: (a) — In Kesavananda Bharati (1973) the Supreme Court overruled Golaknath, upheld Parliament's power to amend FRs, but ruled that Article 368 does not allow it to alter the 'basic structure'.
Q5. In the Golaknath case (1967), the Supreme Court held that:
(a) the President must assent to amendment bills
(b) the basic structure cannot be amended
(c) Parliament cannot abridge or take away the Fundamental Rights
(d) Parliament can amend any part of the Constitution
Show answer
Answer: (c) — Golaknath (1967) held the Fundamental Rights are 'transcendental and immutable' and a constitutional amendment is 'law' under Article 13, so Parliament cannot abridge the FRs. This was later overruled by Kesavananda.
Q6. The 24th Amendment Act (1971) made which of the following obligatory?
(a) Prior permission of the President to introduce a bill
(b) A joint sitting for amendment bills
(c) The President's assent to a constitutional amendment bill
(d) Ratification by all states
Show answer
Answer: (c) — The 24th Amendment made it obligatory for the President to assent to a constitutional amendment bill — he can neither withhold assent nor return the bill.
Q7. In the Minerva Mills case (1980), the Supreme Court struck down a part of the 42nd Amendment because it:
(a) reduced the voting age
(b) abolished the Rajya Sabha
(c) excluded judicial review and gave Parliament unlimited amending power
(d) created the GST Council
Show answer
Answer: (c) — Minerva Mills struck down the 42nd Amendment's attempt to give Parliament unlimited amending power and to bar judicial review, holding that a limited amending power and judicial review are themselves basic features.
Q8. Which of the following can be amended by a SIMPLE majority of Parliament, outside the scope of Article 368?
(a) The powers of the Supreme Court
(b) The election of the President
(c) The distribution of legislative powers
(d) Creation or abolition of state Legislative Councils
Show answer
Answer: (d) — Creation/abolition of Legislative Councils, admission of new states, citizenship and the Fifth/Sixth Schedules are amendable by simple majority and are NOT deemed amendments under Article 368. The others need special majority plus state ratification.
Q9. From which date did the Waman Rao case (1980) hold that the basic structure doctrine applies to amendments?
(a) 1 January 1980
(b) 25 June 1975
(c) 24 April 1973 (the date of the Kesavananda judgment)
(d) 26 January 1950
Show answer
Answer: (c) — Waman Rao (1980) clarified that the basic-structure doctrine applies to constitutional amendments enacted after 24 April 1973, the date of the Kesavananda Bharati judgment.
Q10. Which of the following is NOT recognised as an element of the basic structure?
(a) Secularism
(b) The right to property
(c) Free and fair elections
(d) Judicial review
Show answer
Answer: (b) — The Right to Property is NOT part of the basic structure — it was removed as a Fundamental Right by the 44th Amendment. Judicial review, secularism and free and fair elections are all basic-structure elements.
Q11. How many times has the Constitution been amended, and which is the latest enacted amendment (as of 2024)?
(a) Over 100 times; the 106th Amendment (women's reservation, 2023)
(b) Over 100 times; the 103rd Amendment (EWS, 2019)
(c) About 90 times; the 86th Amendment (2002)
(d) Exactly 100 times; the 100th Amendment (2015)
Show answer
Answer: (a) — The Constitution has been amended over a hundred times; the latest enacted is the 106th Amendment (2023), which provides for the reservation of seats for women in legislatures.
Q12. There is NO provision for a joint sitting of the two Houses in the case of:
(a) an ordinary bill
(b) a constitutional amendment bill
(c) a financial bill
(d) a money bill returned by the Rajya Sabha
Show answer
Answer: (b) — Unlike an ordinary bill, a constitutional amendment bill has no provision for a joint sitting to resolve a deadlock — each House must pass it separately by special majority.
Q13. In Shankari Prasad (1951) and Sajjan Singh (1964), the Supreme Court held that the word 'law' in Article 13:
(a) includes a constitutional amendment act
(b) includes customs and usages only
(c) does NOT include a constitutional amendment act
(d) includes only ordinances
Show answer
Answer: (c) — Shankari Prasad and Sajjan Singh held that 'law' in Article 13 means only ordinary law, NOT a constitutional amendment, so Parliament could amend the Fundamental Rights. Golaknath later reversed this before Kesavananda settled it.
UPSC Previous Year Questions (PYQs)
Ten questions UPSC has actually asked on Article 368 and the basic-structure chain. Notice how often the answer turns on a specific amendment NUMBER — those are worth memorising cold.
Q14. An amendment to the Constitution of India can be initiated by: (UPSC Prelims PYQ)
(a) a recommendation of the President to Parliament
(b) a resolution passed by at least half of the State Legislatures
(c) the introduction of a bill in the Lok Sabha only
(d) the introduction of a bill in either House of Parliament
Show answer
Answer: (d) — Article 368 allows a Constitution Amendment Bill in EITHER House. Three points candidates get wrong: no prior recommendation of the President is needed to introduce it; state legislatures cannot initiate one (unlike creating or abolishing a Legislative Council under Article 169); and there is no provision for a joint sitting if the Houses disagree — the bill simply falls.
Q15. Which of the following provisions require ratification by the legislatures of at least half the States, in addition to a special majority in Parliament? 1. Election of the President 2. Representation of States in Parliament 3. Any of the Lists in the Seventh Schedule (UPSC Prelims PYQ)
(a) 2 and 3 only
(b) 1 and 3 only
(c) 1, 2 and 3
(d) 1 and 2 only
Show answer
Answer: (c) — All three. The federal provisions — the President's election and its manner, the extent of Union and State executive power, the High Courts, distribution of legislative powers, the Seventh Schedule lists, State representation in Parliament and Article 368 itself — need state ratification. Note it is ratification by HALF the states, not two-thirds, and there is no time limit on it.
Q16. The 42nd Amendment Act of 1976 is often called: (UPSC PYQ)
(a) the 'Panchayati Raj Amendment'
(b) the 'Right to Education Amendment'
(c) the 'Mini-Constitution'
(d) the 'Anti-Defection Amendment'
Show answer
Answer: (c) — The 42nd Amendment is called the Mini-Constitution because of the sheer sweep of its changes — it added 'Socialist', 'Secular' and 'Integrity' to the Preamble, created Part IVA (Fundamental Duties), added several Directive Principles, and tried to place amendments beyond judicial review. Much of it was undone by the 44th Amendment (1978).
Q17. The Ninth Schedule, giving certain laws immunity from challenge on Fundamental Rights grounds, was inserted by which amendment? (UPSC PYQ)
(a) 42nd Amendment (1976)
(b) 44th Amendment (1978)
(c) 24th Amendment (1971)
(d) 1st Amendment (1951)
Show answer
Answer: (d) — The very FIRST Amendment (1951) added the Ninth Schedule along with Article 31B, chiefly to shield land-reform laws. Its protection is no longer absolute: I.R. Coelho (2007) held that any law added after 24 April 1973 can still be struck down if it damages the basic structure.
Q18. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that: (UPSC PYQ)
(a) Parliament has unlimited power to amend every provision including the Preamble
(b) Parliament may amend any part of the Constitution but cannot alter its basic structure
(c) Only the Supreme Court may amend the Constitution
(d) Parliament cannot amend the Fundamental Rights at all
Show answer
Answer: (b) — The 13-judge bench — the largest ever constituted — held by 7:6 that Parliament's amending power under Article 368 is wide but not unlimited: it cannot damage or destroy the basic structure. This overruled Golaknath (1967), which had wrongly held that Fundamental Rights could not be amended at all.
Q19. In Minerva Mills v. Union of India (1980), the Supreme Court struck down which provisions? (UPSC PYQ)
(a) Clauses (4) and (5) of Article 368, inserted by the 42nd Amendment
(b) The entire Ninth Schedule
(c) Articles 20 and 21 as amended in 1976
(d) Article 31C in its original form
Show answer
Answer: (a) — Minerva Mills struck down Article 368(4) and 368(5) — inserted by the 42nd Amendment to bar judicial review of amendments and declare Parliament's amending power unlimited. The Court held that limited amending power and judicial review are THEMSELVES part of the basic structure, so Parliament could not use that power to destroy the very limit on it.
Q20. Which amendment lowered the voting age for Lok Sabha and State Assembly elections from 21 years to 18 years? (UPSC PYQ)
(a) 52nd Amendment (1985)
(b) 42nd Amendment (1976)
(c) 61st Amendment (1988)
(d) 44th Amendment (1978)
Show answer
Answer: (c) — The 61st Amendment (1988) amended Article 326 to lower the voting age to 18. Keep the nearby numbers straight: the 52nd (1985) brought the anti-defection law and the Tenth Schedule, and the 44th (1978) reversed much of the 42nd, including deleting the Right to Property.
Q21. The Constitution (One Hundred and First Amendment) Act, 2016 relates to: (UPSC PYQ)
(a) reservation for economically weaker sections
(b) the creation of Telangana
(c) the National Judicial Appointments Commission
(d) the Goods and Services Tax
Show answer
Answer: (d) — The 101st Amendment introduced GST, inserting Article 246A, Article 279A (the GST Council) and Article 269A. For contrast: the 99th Amendment set up the NJAC and was struck down in 2015, and the 103rd Amendment (2019) provided 10 per cent EWS reservation.
Q22. Consider the following statements: 1. The Constitution of India defines its 'basic structure' in terms of federalism, secularism, fundamental rights and democracy. 2. The Constitution of India provides for judicial review to safeguard citizens' liberties and to preserve the ideals on which the Constitution is based. Which is/are correct? (UPSC Prelims 2021)
(a) 1 only
(b) Both 1 and 2
(c) 2 only
(d) Neither 1 nor 2
Show answer
Answer: (c) — Statement 1 is false — the Constitution NOWHERE defines the basic structure, and no judgement has produced a closed list either. It is built case by case, deliberately left open-ended. Statement 2 is correct: Articles 13, 32 and 226 together supply judicial review.
Q23. The 24th Amendment Act of 1971 did which of the following? (UPSC PYQ)
(a) Abolished the Privy Purses of the former rulers
(b) Added 'Socialist' and 'Secular' to the Preamble
(c) Created the Ninth Schedule
(d) Made the President's assent to a Constitution Amendment Bill obligatory
Show answer
Answer: (d) — The 24th Amendment (1971) was Parliament's direct answer to Golaknath: it affirmed that Parliament can amend any part of the Constitution including Fundamental Rights, and made the President's assent to such a bill OBLIGATORY (removing any discretion). Privy purses went with the 26th Amendment; 'Socialist' and 'Secular' with the 42nd.
Mains Practice Questions
Use these to frame full-length answers. You don't have to answer one exactly — they show the angles UPSC tests, so let them guide which points you cover.
'Parliament's power to amend the Constitution is a limited power.' Discuss in the light of the basic structure doctrine. (UPSC Mains 2019, theme)
Trace the evolution of the basic structure doctrine from Shankari Prasad to Minerva Mills.
The Indian Constitution 'strikes a good balance between flexibility and rigidity.' Examine with reference to Article 368.
Distinguish the three types of constitutional amendment and identify which provisions need ratification by the states.
The basic structure doctrine is a judicial innovation that checks majoritarianism. Critically evaluate.