Article 368 empowers Parliament to amend the Constitution through the addition, variation, or repeal of any provision by following a special procedure. An amendment can be initiated only by a Bill introduced in either House of Parliament. It must be passed by a majority of the total membership and at least two-thirds of those present and voting. Certain amendments, such as those affecting key federal provisions, state representation, or specific constitutional articles, also require ratification by at least half of the State Legislatures. Once passed, the Bill is sent to the President, whose assent is mandatory. The Article further states that amendments made under it are not subject to Article 13, cannot be challenged in court, and that Parliament’s constituent power to amend the Constitution is unlimited.

 

BR Ambedkar proposed an amendment to tighten the wording of the Article and added to the number of articles that need approval by the Indian states to be amended. PS Deshmukh and some other members favoured a simple majority process to amend the Constitution instead of the requirement of a special majority and claimed that this provision made it extremely difficult to amend the Constitution at all. They claimed that this rigidity was not conducive and placed certain restraints on Parliament’s amending powers. Brajeshwar Prasad thought that giving the Parliament amending power itself meant that the centre held more power than state governments; hence, the involvement of states in the amending process would undermine the predominance of the Union and would be a fruitless practice.

In response, Ambedkar reminded members that Draft Article 304 dealt with a separate category of articles that required a higher bar for alteration, whereas other Draft Articles allowed for amendments by a simple majority. He used the amendment clauses of the US, Australia, Switzerland, and Ireland to show that no significant constitution in the world permitted a simple majority to change every aspect of the document. Additionally, he restated that in order to safeguard their interests, States had to be involved in the amendment process. Only BR Ambedkar’s amendments were passed in the assembly regarding this article.

 

The scope of this article narrowed when the Apex court ruled in the Golaknath judgement that the Parliament could not amend fundamental rights. However, as a counter response, the government came up with the 24th Amendment to bypass this ruling. To reestablish Parliament's absolute ability to amend any element of the Constitution, including Fundamental Rights, and to require the President's approval of constitutional amendment measures, the amendment made significant revisions to Articles 13 and 368. By stating that revisions made under Article 368 would not be regarded as "law" under Article 13, it also aimed to reverse the impacts of the Golaknath ruling and protect social welfare laws from judicial invalidation. The marginal heading of Article 368 was revised from “Procedure for amendment of the Constitution” to “Power of Parliament to amend the Constitution and procedure thereof.”

 

Later on, the 42nd amendment also came to make significant changes to the article. It added Clause 4, which took away the power of Judicial review on any amendment made by the parliament, and Clause 5, which gave precedence to DPSP over Fundamental Rights. Both these clauses were declared unconstitutional by the Supreme Court in the Minerva Mills judgment.

 

In light of the amendments mentioned in Section 12 of the GST Act, it amended Article 368 of the Constitution in order to implement the special procedure that necessitates the ratification of the Bill by the legislatures of at least half of the States, in addition to the voting process specified for a constitutional amendment. Therefore, the legislatures of half of the states must also approve any changes made to the GST Council.