Special majority

Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 3 "Election and Representation"; Class 11, Ch 4 "Executive"; Class 11, Ch 6 "Judiciary"; Class 11, Ch 9 "Constitution as a Living Document"

Meaning

A special majority is any majority in Parliament that is harder to reach than a simple majority (more than half of the members who vote). The most common kind, under Article 368, needs two things in each House separately: a majority of the House's total membership, and at least two-thirds of the members present and voting. It matters because the most serious acts need it. These include amending the Constitution, approving a national emergency, removing judges and impeaching the President. No single party with a thin majority can do these things alone.

Explanation

Key words used in counting

• Total membership means every seat in the House. Empty seats and absent members still count [3][4].
• Present and voting means members who vote "Aye" or "No" [3][4].

• A member who abstains (stays in the House but does not vote) is not counted [3][4].

• Effective strength means total membership minus vacant seats.

• Quorum is the smallest number of members who must be present before the House can sit. It is one-tenth of the total members (Art. 100(3)) [6].
• Quorum decides whether the House can sit at all. It is not a type of majority.

The three kinds of special majority

Kind	Formula	Used for
(a) Art. 368 type	Majority of total membership and at least two-thirds of present and voting, in each House separately	Constitutional amendments (Art. 368(2)); approving a national emergency (Art. 352(6)); removing a Supreme Court or High Court judge (Art. 124(4), Art. 218); removing the Chief Election Commissioner (Art. 324(5))
(b) Two-thirds of present and voting	At least two-thirds of the members who vote	Rajya Sabha resolution letting Parliament make laws on a State List subject in the national interest (Art. 249) [8]; Rajya Sabha resolution to create a new All India Service (Art. 312) [5]
(c) Two-thirds of total membership	At least two-thirds of all seats, vacancies included	Impeaching the President (Art. 61). Each House must pass the resolution by this majority [9]

How the Art. 368 double test works

• Both tests must be passed. The number of votes needed is whichever test gives the higher figure.
• Lok Sabha (543 seats): the total-membership test always needs 272.
• NCERT's question: 400 members vote.
• Two-thirds of 400 = 266.67, so 267.
• Majority of total membership = 272.
• Answer: 272, not 267.

Members present and voting	Two-thirds test	Total-membership test	Votes needed
300	200	272	272
400	267	272	272
408	272	272	272
450	300	272	300
543 (all vote)	362	272	362

• Rule of thumb: if 408 or fewer members vote, the total-membership test decides. If more vote, the two-thirds test decides.
• Rajya Sabha (245 members: 233 elected + 12 nominated) [5]. More than half of 245 = 123. If all 245 vote, two-thirds = 164.

Steps for an Art. 368 amendment

Step	What happens	Majority or condition
1	Bill introduced in either House by a minister or a private member	No prior permission of the President needed
2	Passed in House 1	Special majority at every effective stage, including the vote on each clause [4]
3	Passed in House 2	Special majority, separately. No joint sitting (Art. 108) is allowed. If either House rejects the bill, it fails [5]
4	Ratification by states, only if federal provisions are touched	At least half the states, by simple majority (proviso to Art. 368(2)) [5]
5	President's assent	The President must give assent (made binding by the 24th Amendment, 1971) [2]

In the Constitution and practice

• Art. 368(2) says an amendment bill must pass 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" [2].
• 44th Amendment, 1978 added Art. 352(6).
• Since then, approval of a national emergency needs the Art. 368-type special majority.

• Before it, a simple majority was enough.

• 104th Amendment Act, 2019 (in force from 25 January 2020) [7]:

• It extended SC/ST seat reservation to 25 January 2030.
• It did not extend the nomination of 2 Anglo-Indian members under Art. 331 [7].
• No Anglo-Indian member was nominated to the 17th Lok Sabha [6].

• So the Lok Sabha now has 543 seats, and the amendment threshold is 272. NCERT still gives 545 seats and 273.

• Limit of arithmetic.

• In the 1970s, governments with two-thirds majorities passed sweeping changes, such as the 42nd Amendment (1976).
• But in Kesavananda Bharati v. State of Kerala (1973), the Supreme Court had already held that even a valid special majority cannot destroy the basic structure (core features such as democracy, federalism and judicial review).

• Numbers decide how an amendment passes. The basic structure decides what it can change.

• Record: India had passed 106 amendments by 2023.

Don't confuse with

• Absolute majority: more than half of total membership only (272 in the Lok Sabha). It is needed to form a government. It is only the first of the two Art. 368 tests.
• Effective majority: more than half of members actually in office ("all the then members"). It is used to remove the Vice-President (Art. 67(b)), the Speaker or Deputy Speaker (Art. 94(c)) and the Rajya Sabha Deputy Chairman (Art. 90(c)). It is not a special majority.
• Simple majority for Art. 4 and Art. 169 laws: these laws (new states, changing state boundaries, creating or abolishing a Legislative Council) change the Constitution's text. They still need only a simple majority and are not Art. 368 amendments.
• Two-thirds of total membership (Art. 61): used only to impeach the President [9]. Do not mix it up with the Art. 368 formula, which takes two-thirds of those present and voting.

Prelims Hooks

• Art. 368 special majority = majority of total membership + two-thirds of present and voting, in each House separately. There is no joint sitting for amendment bills [5].
• Abstentions are left out of "present and voting". Vacancies are counted in "total membership" [3][4].
• Arts. 249 and 312: a resolution by two-thirds of present and voting, passed by the Rajya Sabha only [8][5].
• Art. 352(6) (national emergency approval) needs a special majority. It was added by the 44th Amendment, 1978.
• Art. 67(b) trap: the Rajya Sabha removes the Vice-President by an effective majority. The Lok Sabha only has to agree, and a simple majority is enough for that.
• Lok Sabha: if 400 vote, 272 votes are needed. If all 543 vote, 362 are needed. Rajya Sabha: 123 is a majority of 245 [5].

Mains Points

• Consensus as a safeguard.
• The double test, one on total seats and one on votes cast, stops a thin or poorly attended majority from changing the Constitution.
• A ruling party usually has to win over some opposition parties.

• Federal changes also need the states (proviso to Art. 368(2)) [5]. So amendments rest on broad agreement, not on one party's will.

• Flexible yet stable.

• Ambedkar wanted a Constitution neither as rigid as the American one nor as easy to change as an ordinary law.
• The US has 27 amendments in over 230 years. India had 106 by 2023.

• Critics say the large majorities of 1971–76 made amendment too easy. That is why the basic structure doctrine (1973) acts as a check that numbers alone cannot override.

• A graded scale and reform debate.

• The Constitution sets harder tests for more serious acts. Electing a presiding officer needs a simple majority. Removing one needs an effective majority. Removing a judge or the CEC needs a special majority. Impeaching the President needs two-thirds of total membership. This protects independent offices from a passing majority.
• Some suggest wider ratification by the states, or a referendum, for changes to core features. Others argue that the Rajya Sabha's equal role and the coalition politics of 1989–2014 already force consensus.

Related concepts

• Simple majority
• Absolute majority
• Effective majority

Read more

• Majorities in Parliament: the arithmetic