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The Justice Kurian Joseph Committee on Union-State Relations, constituted by the Government of Tamil Nadu in April 2025 – and of which the author is a member – submitted Part I of its Report in February 2026. This article draws upon, and expands, Chapter 2 (“Amendment of the Constitution”) and Chapter 3 (“Territorial Integrity of States”) of that report.

In The Indian Constitution: Cornerstone of a Nation (1966), Granville Austin described India’s amendment procedure as “one of the most ably conceived aspects of the Constitution.” Yet even he acknowledged early criticism – that it was “too flexible” and the Constitution’s sanctity had already begun to erode due to the seventeen amendments enacted by that time.

One can only imagine what Austin might have written had he witnessed what followed: 106 constitutional amendments in 76 years, of which at least 15 moved from introduction to Presidential assent in ten days or less. The lesson is stark: a Constitution that is too easy to amend can, in the wrong hands, be too easy to bend.

The 39th Constitutional Amendment (1975), which placed election disputes concerning the President, Vice-President, Prime Minister and Speaker beyond judicial review and retrospectively validated formper prime minister Indira Gandhi’s electoral victory after it had been set aside by the Allahabad High Court, exemplified this danger.

The 42nd Constitutional Amendment (1976) enacted at the height of the Emergency – went even further. In one fell swoop, it altered the Preamble, amended 40 Articles, inserted 14 new Articles and two new Parts, revised the Seventh Schedule and, most ominously, inserted clauses (4) and (5) into Article 368 (the amending provision), declaring that no amendment “shall be called in question in any court on any ground” and that there shall be “no limitation whatever” on Parliament’s constituent power.

It is true that the 44th Constitutional Amendment (1978), together with a vigilant Supreme Court, restored aspects of the constitutional equilibrium disturbed by the excesses of the Emergency. But a Republic cannot rely indefinitely on judicial correction to remedy structural infirmities in its constitutional design. The amendment process itself must embody adequate safeguards.

Recent amendment proposals bring this danger into sharper focus. The 129th Constitutional Amendment Bill (2024) proposes “One Nation, One Election”. The 130th Amendment Bill (2025) contemplates the removal of the Prime Minister, Chief Minister or a Minister upon prolonged detention. The recently defeated 131st Amendment Bill (April 2026) sought to lift the 50-year freeze on inter-state Lok Sabha representation while rushing through sweeping delimitation changes within three days, including expanding the House to 850 seats.

These proposals reveal a central truth: only a pliant constitution permits measures of such import to be advanced with such haste and so little deliberation. In mature federations, whose amendment procedures are designed with far more exacting safeguards, such aberrations would be inconceivable.

The amending provision

The amending provision is the most vital part of any constitution – its very lifeline. If one were to trace the moral biography of the Indian constitution, nothing would illuminate it more clearly than the evolution of Article 368, its amending clause. The story is familiar, but merits brief recall.

On September 17–18, 1949, the Constituent Assembly debated a three-tier scheme of amendment, of which the first two tiers found expression in Article 368.

First, the bulk of constitutional provisions were to be amendable by a special majority in Parliament – requiring both a majority of the total membership of each House and a two-thirds majority of members present and voting.

Second, a narrow set of federally sensitive provisions was to be subject, in addition, to ratification by not less than one-half of the State Legislatures.

Third, provisions of a minor, transitional or administrative character were kept outside Article 368 and could be altered by parliament through ordinary legislation – by a simple majority of members present and voting in each House – under specific enabling provisions.

This amendment scheme rendered India, in Dr B.R. Ambedkar’s evocative phrase, “a flexible federation” – perhaps, in retrospect, more flexible than prudence would justify. The framers’ preference for a flexible amendment procedure was understandable in 1950. India was then a newly independent and fragile Union – recovering from Partition, integrating hundreds of princely states, and anxious to avoid constitutional paralysis. Flexibility appeared indispensable for institution-building and national consolidation. But what was once a necessity has, over time, become a vulnerability.

The constitutional limits of the amending power were tested early. In Shankari Prasad v. Union of India (1951), the Supreme Court upheld the 1st Constitutional Amendment (1951) on the reasoning that the word “law” in Article 13(2) referred only to ordinary legislation and not to a constitutional amendment under Article 368. Accordingly, the amending power was held not to be subject to Article 13(2)’s prohibition against laws that take away or abridge fundamental rights.

This interpretation was reaffirmed by a 3:2 majority in Sajjan Singh v. State of Rajasthan (1965), which upheld the 17th Constitutional Amendment (1964) and endorsed parliament’s authority to amend any part of the constitution, including fundamental rights. However, the dissents of Justices J.R. Mudholkar and M. Hidayatullah questioned whether an unlimited amending power could extend to altering the very identity of the Constitution itself.

A decisive reversal came in I.C. Golak Nath v. State of Punjab (1967). By a slender 6–5 majority, the Supreme Court held that constitutional amendments were “law” within the meaning of Article 13(2) and therefore could not abridge fundamental rights. The judgment placed fundamental rights beyond the reach of the amending power, setting the stage for a constitutional confrontation.

Parliament responded through the 24th Constitutional Amendment (1971). It amended the title of Article 368 from a mere “procedure for amendment” to “Power of Parliament to amend the Constitution and procedure therefor”. It inserted a new clause (1) affirming parliament’s constituent power to amend “any provision” of the constitution – and redesignated the original Article 368 as clause (2). Presidential assent was made obligatory. It added clause (3) to Article 368, expressly excluding the application of Article 13 to constitutional amendments, and introduced Article 13(4) to reinforce the same position. Through this, parliament sought to restore its supremacy in matters of constitutional change.

The issue reached its culmination in Kesavananda Bharati v. State of Kerala (1973). By a slender 7–6 majority, the Supreme Court held that parliament’s amending power, though wide, is not unlimited: it cannot alter or destroy the “Basic Structure” of the constitution. This judicially evolved doctrine recognises that the Constitution derives its identity not merely from individual provisions, but from deeper organising principles – constitutional supremacy, democracy, republicanism, federalism, secularism, separation of powers, judicial review and judicial independence.

These principles pervade and interlink the entire constitutional scheme. To abrogate them would not be to amend the constitution, but to destroy its essential identity.

Subsequent events vindicated this limitation. The 42nd Constitutional Amendment (1976) sought to place constitutional amendments beyond judicial scrutiny and to confer unbounded constituent power on Parliament. In Minerva Mills v. Union of India (1980), the Supreme Court struck down these provisions, reaffirming that the amending power is subject to inherent constitutional limits.

This trajectory reveals a deeper truth: the Basic Structure doctrine emerged as a judicial response to an overly pliant amendment process and the absence of robust procedural safeguards.

Rethinking Article 368

The recommendations that follow seek to articulate a modernised amendment framework that restores federal balance, deepens democratic legitimacy, and ensures meaningful institutional restraint.

1. Mandate prior public consultation for constitutional amendments

The Preamble proclaims that “We, the People of India … give to ourselves this Constitution”. Yet, paradoxically, the people play no formal role – direct or consultative – in amending the very charter they are said to have enacted. This omission stands in sharp contrast to the far more participatory precedent set by the Constituent Assembly.

The Drafting Committee under B.R. Ambedkar released its first draft of the constitution on February 21, 1948 for wide public scrutiny, inviting comments from citizens, provincial governments, central ministries, the judiciary, and members of the assembly. The revised draft, substantially shaped by this extensive consultation, was introduced over eight months later, on November 4, 1948.

No comparable process exists today. Constitutional amendments are often rushed through parliament, and even the Union government’s pre-legislative consultation policy, applied sporadically to ordinary bills, is almost never invoked for constitutional change.

Institutionalising a mandatory, time-bound process of public consultation for all constitutional amendments would reduce opacity, check legislative haste, and significantly enhance democratic legitimacy. It would tap into the collective intelligence of the citizenry – the “wisdom of the crowds” – which no closed parliamentary process, however well-intentioned, can fully replicate. More importantly, it would revive the participatory ethos that guided the framing of the constitution itself.

Insert a new clause (2A) in Article 368 stipulating that no Bill to amend the Constitution shall be........

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