Article 368 and Article 369 of the Constitution of India

Article 368: Power of Parliament to amend the Constitution and procedure therefor

Article 368 is contained in Part XX of the Constitution. It confers constituent power on Parliament to amend the Constitution by addition, variation or repeal, subject to the procedure laid down in the Article.

How a constitutional amendment is initiated and passed

A Constitution Amendment Bill may be introduced in either House of Parliament. Article 368(2) requires the Bill to be 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. After the applicable parliamentary and ratification requirements are completed, the Bill is presented to the President, who shall give assent.

Amendments requiring ratification by States

Where a proposed amendment changes specified federal provisions, Article 368 requires ratification by the Legislatures of not less than one-half of the States before the Bill is presented to the President for assent. The specified subjects include Articles 54, 55, 73, 162, 241 and 279A; Chapter IV of Part V; Chapter V of Part VI; Chapter I of Part XI; any of the Lists in the Seventh Schedule; representation of States in Parliament; and Article 368 itself.

Article 368(3), (4) and (5)

Clause (3) states that Article 13 does not apply to an amendment made under Article 368. Clauses (4) and (5), inserted by the Constitution (Forty-second Amendment) Act, 1976, purported to exclude judicial challenge to constitutional amendments and declare that Parliament's constituent power had no limitation. Their legal effect must, however, be read in light of the Supreme Court's basic structure jurisprudence.

Basic structure doctrine and Article 368

In Kesavananda Bharati v. State of Kerala, the Supreme Court held that Parliament's power under Article 368 does not extend to altering the basic structure or framework of the Constitution. The doctrine therefore operates as a substantive limitation on the amending power. The Supreme Court's later constitutional jurisprudence, including Minerva Mills Ltd. v. Union of India, reaffirmed limits on the amending power and the role of judicial review.

For authoritative material, see the Legislative Department - Constitution of India and the Supreme Court of India - Kesavananda Bharati judgment.

Article 369: Temporary power to Parliament over specified State List matters

Article 369 was a temporary constitutional arrangement. For five years from the commencement of the Constitution, it empowered Parliament to make laws on certain specified matters as if those matters were enumerated in the Concurrent List.

The specified matters included intra-State trade and commerce in, and production, supply and distribution of, cotton and woollen textiles, raw cotton, cotton seed, paper including newsprint, foodstuffs including edible oilseeds and oil, cattle fodder, coal, iron, steel and mica. The Article also covered offences relating to those matters, jurisdiction and powers of courts other than the Supreme Court concerning those matters, and relevant fees other than court fees.

The five-year period ran from the commencement of the Constitution on 26 January 1950. Accordingly, the special legislative power conferred by Article 369 was transitional and has expired. A Parliamentary law made solely by virtue of Article 369 ceased, to the extent Parliament otherwise lacked legislative competence, upon expiry of that period, while preserving things already done or omitted under the law.

Article 368 and Article 369: key distinction

Article 368 is the continuing constitutional mechanism for amendment of the Constitution, subject to constitutional limitations recognised by the Supreme Court. Article 369, by contrast, conferred a temporary legislative competence over a defined group of subjects and did not create a continuing source of legislative power after its five-year period expired.

Official legal resources

Constitution of India - Legislative Department
Constitution and constitutional information - Supreme Court of India
Kesavananda Bharati - Supreme Court of India
Supreme Court Reports judgment search