Political Philosophy
Save as Otherwise Provided: What the Constitution Asks When a Majority Is Not Enough
22 September 2026 · 14 min read
Most of what a legislature decides, it decides by the smallest available margin. Article 100(1) says so, and says it as a residual rule: "Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker." Article 189(1) repeats it for the Legislature of a State. The presiding officer does not vote in the first instance and has a casting vote on an equality.
Three features of that default are worth fixing before anything else.
It counts votes, not members. An absence and an abstention are alike absent from the denominator.
It operates against a low floor of attendance. Until Parliament by law otherwise provides, Article 100(3) sets the quorum of either House at one-tenth of its total number of members, and Article 189(3) sets a State House's at ten members or one-tenth, whichever is greater. Both clauses have a history of their own: the Constitution (Forty-second Amendment) Act, 1976 omitted them, and the footnote in the official compilation records that the omission was never notified and that the Constitution (Forty-fourth Amendment) Act, 1978 then omitted the omitting provision with effect from 20 June 1979. The quorum rules survive because a repeal was passed and never brought into force.
And it survives the one situation in which the Constitution has to break a deadlock between the two Houses. Where a Bill has failed under Article 108(1) and the President has summoned a joint sitting, Article 108(4) provides that the Bill "is passed by a majority of the total number of members of both Houses present and voting", and is then "deemed for the purposes of this Constitution to have been passed by both Houses". The fraction does not move; the two Houses are simply counted as one. Article 368(2), by contrast, requires an amendment Bill to be passed "in each House" by the majorities it prescribes — a requirement stated House by House, which a single count of a merged sitting does not produce.
Everything above the default is an express departure from it. There are six, they are distributed unevenly across the document, and the distribution does not track how grave the decision is.
Six departures
Two-thirds of those present and voting. The lightest departure raises the fraction and leaves the denominator alone. Article 249(1) allows Parliament to legislate on a State List entry if the Council of States "has declared by resolution supported by not less than two-thirds of the members present and voting" that it is necessary or expedient in the national interest. Article 312(1) uses the identical words for the creation of an all-India service, including an all-India judicial service. Article 244A(3), inserted by the Constitution (Twenty-second Amendment) Act, 1969, requires the same of each House of Parliament when a law creating an autonomous State within Assam is amended in respect of the matters on which that State's legislature may make laws, or to which its executive power extends.
No minimum attendance is attached to any of the three; the only floor is the general quorum. A resolution under Article 249, which opens a State List entry to Parliament for up to a year and may be renewed for further years, needs two-thirds of whoever is in the Chamber.
A majority of the total membership, and two-thirds of those present and voting. The composite formula is what is usually meant by "special majority". It sets a floor in absolute numbers and a fraction among those who attend, and both must be satisfied. It appears five times.
Article 368(2) uses it for an amendment of the Constitution. Article 124(4) uses it for an address seeking the removal of a Judge of the Supreme Court, presented by both Houses to the President in the same session, on the ground of proved misbehaviour or incapacity; Article 218 applies that clause to the High Courts. Article 352(6), part of the block substituted by the Forty-fourth Amendment with effect from 20 June 1979, requires it of the resolutions by which each House approves a Proclamation of Emergency and each six-month continuance of it. Article 169(1) requires it of the Legislative Assembly resolution on which Parliament may abolish or create a State Legislative Council. Article 243M(4)(a) requires it of the Legislative Assembly of Nagaland, Meghalaya or Mizoram when that State's Legislature extends Part IX to the State.
Three further offices borrow Article 124(4) rather than repeat it. The Comptroller and Auditor-General "shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court" (Article 148(1)). The proviso to Article 324(5) says the same of the Chief Election Commissioner. The proviso to Article 243K(2) says it of a State Election Commissioner, with the High Court substituted for the Supreme Court.
Two-thirds of the total membership. The strictest fraction of a House's full strength is used in one article. Article 61 governs the impeachment of the President for violation of the Constitution. The charge may be preferred only by a resolution moved on at least fourteen days' notice in writing signed by not less than one-fourth of the total number of members of the House, and passed "by a majority of not less than two-thirds of the total membership of the House". The other House then investigates, the President has the right to appear and to be represented, and removal follows only if that House passes a resolution by the same majority declaring the charge sustained. At both stages an absence counts against the charge.
A majority of all the then members. The fourth formula is used five times, and every use concerns a chair. A Vice-President may be removed by a resolution of the Council of States "passed by a majority of all the then members of the Council and agreed to by the House of the People" (proviso (b) to Article 67). The Deputy Chairman of the Council of States (Article 90(c)), the Speaker or Deputy Speaker of the House of the People (Article 94(c)), the Speaker or Deputy Speaker of a State Legislative Assembly (Article 179(c)) and the Chairman or Deputy Chairman of a State Legislative Council (Article 183(c)) are removable on the same majority. Each clause is guarded by a requirement of fourteen days' notice and by nothing else. None of the five states a ground of removal, and none asks for a fraction above one-half.
The Constitution uses "total membership" eight times and "all the then members" five times, and defines neither. On their face the phrases point at different things — the strength a House is constituted to have, and the members who at that moment hold seats in it. Articles 100(2) and 189(2) confirm that the gap between them is live rather than notional, since a House may act "notwithstanding any vacancy in the membership thereof".
Three-fourths of the total membership. The highest fraction of a full membership anywhere in the Constitution is in the Sixth Schedule. Paragraph 10 empowers the District Council of an autonomous district to make regulations for the regulation and control of money-lending or trading within the district by persons other than Scheduled Tribes resident in the district — including regulations requiring a licence to carry on the business of money-lending, prescribing the maximum rate of interest recoverable, and providing that no person who is not a member of the Scheduled Tribes resident in the district shall carry on wholesale or retail business in any commodity except under a licence from the Council. The proviso to sub-paragraph (2) then requires that "no regulations may be made under this paragraph unless they are passed by a majority of not less than three-fourths of the total membership of the District Council", and sub-paragraph (3) requires every such regulation to be submitted to the Governor and gives it no effect until he has assented to it.
Three-fourths of weighted votes. Article 279A(9), inserted by the Constitution (One Hundred and First Amendment) Act, 2016 with effect from 12 September 2016, provides that every decision of the Goods and Services Tax Council shall be taken "by a majority of not less than three-fourths of the weighted votes of the members present and voting", with the vote of the Central Government weighted at one-third of the total votes cast and the votes of all the State Governments taken together at two-thirds. Article 279A(7) sets the quorum at one-half of the Council's total number of Members. It is the only place in the Constitution where votes are weighted rather than counted, and the body it governs is not a House.
The distribution does not follow the stakes
Set the formulas against the decisions they attach to, and the pattern is not one of ascending gravity.
Article 352(6) requires the composite special majority in both Houses before a Proclamation of Emergency may stand beyond a month, and again at every six-month renewal. Article 356(3) requires, for the Proclamation by which the President assumes to himself all or any of the functions of the Government of a State and declares that the powers of the State Legislature shall be exercisable by or under the authority of Parliament, only that it be "approved by resolutions of both Houses of Parliament". No majority is prescribed, so Article 100(1) supplies one. Article 360(2)(c) is drafted identically for a financial emergency — under which, by Article 360(4), the Union may direct the reduction of the salaries and allowances of persons serving a State, and the President may direct the reduction of those of persons serving the Union "including the Judges of the Supreme Court and the High Courts". Two of the three emergency powers are exercisable on the residual rule.
The asymmetry runs the other way as well. Imposing a national Emergency takes the composite majority in both Houses. Ending one takes an ordinary majority in one: under Article 352(7) the President "shall revoke" the Proclamation if the House of the People passes a resolution disapproving it, and Article 352(8) entitles not less than one-tenth of the total number of members of that House to compel a special sitting within fourteen days to consider such a resolution. The threshold guards the decision to continue, not the decision to stop. That distribution was written into Article 352 in 1978, after the Emergency of 1975 to 1977.
The most demanding procedure in the Constitution ends on the lightest rule of all. The proviso to Article 368(2) requires that an amendment seeking to change Article 54, Article 55, Article 73, Article 162, Article 241 or Article 279A; or Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI; or any of the Lists in the Seventh Schedule; or the representation of States in Parliament; or Article 368 itself, shall "also require to be ratified by the Legislatures of not less than one-half of the States" by resolutions to that effect passed by those Legislatures before the Bill is presented to the President for assent. No majority is prescribed for those resolutions. Article 189(1) therefore governs them, and the federal check on the amending power is carried in each ratifying House by a majority of the members present and voting.
And Article 249 asks two-thirds of those present in a single House to open a State List entry to Parliament for a year at a time, with no floor beyond the general quorum — a lighter requirement, on a question of legislative competence as between the Union and the States, than a State Assembly must meet under Article 169(1) to abolish its own second chamber.
What the thresholds are protecting
Two things attract the composite special majority consistently: a change to the text of the Constitution, and the removal of a person the text places outside ordinary political control.
Article 368(2) is the first, and Article 169(1) belongs with it. A law made on a State Assembly's resolution to abolish or create a Legislative Council "shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law", and Article 169(3) then declares that no such law "shall be deemed to be an amendment of this Constitution for the purposes of article 368". The special majority is the condition on which the exemption is given. Article 243M(4)(a) is nearer to an ordinary legislative power — it lets a State Legislature extend Part IX to a State otherwise outside it — but the decision is one a State takes once, about its own permanent institutional shape.
Article 124(4), read with Article 218 and borrowed by Articles 148(1), 324(5) and 243K(2), is the second category. Article 352(6) belongs to neither, and it was put where it is in 1978 rather than in 1950.
The effective-majority clauses protect something narrower: the chair. A presiding officer displaceable by whoever happened to be in the House on a thin evening would preside at the pleasure of a shifting floor, and a majority of all the then members means the office cannot be lost by attrition. But no ground of removal is stated in any of the five clauses, which is consistent with a rule about security of tenure rather than about fitness for office. The single use of the strictest fraction points the same way from the other side. The President is the one officeholder for whom the Constitution both prescribes a ground — violation of the Constitution — and puts the finding of it to a House; and there it made absence count against the charge.
What the pattern does not disclose is any principle that the more consequential a power, the larger the majority needed to exercise it. The heaviest voting fraction in the document is attached to nothing constitutional at all. It guards a District Council's regulations on money-lending and trading, a power over entry into a livelihood, and even there it is not trusted on its own: sub-paragraph (3) withholds effect from the regulation until the Governor assents. Three-fourths for that; a bare majority of those present for the resolution by which a State ratifies a change to the Seventh Schedule.
Read together, the thresholds follow permanence rather than severity. They rise where a decision alters the constitutional text, or removes someone the text was written to insulate, or is taken by a small body about people it does not itself comprise. They thin out where a decision, however drastic in its effects, is in terms temporary and revocable — which, in terms, is what Articles 356, 360 and 249 each are.
Where the fraction is not a majority at all
Three provisions turn up on any search for these fractions and are not voting rules. They are worth separating, because they show what the drafting does when it wants something other than a majority.
The proviso to Article 243ZD(2)(b) requires that not less than four-fifths of the total number of members of a District Planning Committee "be elected by, and from amongst, the elected members of the Panchayat at the district level and of the Municipalities in the district", in proportion to the rural and urban populations. The proviso to Article 243ZE(2)(b) makes the corresponding requirement of two-thirds for a Metropolitan Planning Committee. Four-fifths is the largest fraction in the Constitution, and it is a rule about the composition of a body, not about a division within it.
Paragraph 4(2) of the Tenth Schedule provides that a merger of a member's original political party "shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger". That is a rule about the assent of a group measured outside the House altogether: no resolution is moved, no question is put, and nothing is counted on the floor. Paragraph 3, which stood immediately before it, was omitted by the Constitution (Ninety-first Amendment) Act, 2003 with effect from 1 January 2004.
One genuine majority sits outside the legislature entirely. Article 145(5) provides that no judgment and no such opinion as Article 143 contemplates shall be delivered by the Supreme Court "save with the concurrence of a majority of the Judges present at the hearing of the case", while preserving the right of a Judge who does not concur to deliver a dissenting judgment or opinion. The denominator is those who heard; the fraction is the ordinary one. A Bench settles what a provision means by the same margin a House uses to enact it.
That is what the inventory keeps returning to. The Constitution's thresholds are answers to the question of how many must agree, and the answer it gives most often — including for a good deal of what it takes most seriously — is the one in Article 100(1).
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.