Chapter 9 Constitution As A Living Document

Constitutions are fundamental documents outlining the framework of government. However, societies and circumstances change over time. This chapter explores how the Indian Constitution has functioned for over 69 years, adapting to changing needs while maintaining its core principles. It examines the process of constitutional amendments, the role of the judiciary in protecting and interpreting the Constitution, and how the Constitution continues to evolve as a 'living document'.

After studying this chapter, you will find out:

• The Indian Constitution can be amended to suit the needs of the time.
• Despite many amendments, the Constitution's basic structure and premises have remained intact.
• The judiciary has played a vital role in protecting and interpreting the Constitution.
• The Constitution is a dynamic document that evolves in response to changing situations.

Are Constitutions Static?

Constitutions are often rewritten in response to major changes in society, political upheavals, or evolving ideas. Some countries, like France, have had numerous constitutions over the past two centuries, reflecting periods of revolution, empire, and different republic forms. The Soviet Union also had multiple constitutions before its disintegration and the adoption of a new constitution by the Russian Federation.

In contrast, the Constitution of India, adopted in 1949 and implemented in 1950, has served as the continuous framework for governance for over six decades. This raises questions: Is the Indian Constitution so perfect that it needs no change? Were the Constitution makers so prescient that they foresaw all future developments? While the Indian Constitution is robust and its basic framework is well-suited to the country, and the framers were indeed farsighted, no constitution can anticipate all future events or be entirely free of flaws or the need for revision.

The durability of the Indian Constitution stems from its ability to be modified according to changing needs and its flexibility in interpretation through political practice and judicial rulings. These factors allow the Constitution to remain a dynamic, living document rather than a rigid, static set of rules. Constitutions are human creations that reflect the contemporary problems and aspirations of a society, while also providing a framework for the future. They must be capable of responding to future challenges.

The makers of the Indian Constitution understood the need to strike a balance between making the Constitution a sacred, enduring document and recognizing the necessity of future modifications. They placed it above ordinary law and expected future generations to respect it, but also allowed for revisions when societal opinions or circumstances changed. This balance between flexibility and rigidity is a key characteristic of the Indian Constitution.

The question "I know that the Constitution of the US came into existence more than 200 years ago and so far it has been amended only 27 times! Isn’t that very interesting?" prompts comparison and reflection on different approaches to constitutional rigidity and amendment frequency. The US Constitution is often seen as relatively rigid due to its difficult amendment process.

The check your progress statements explore different perspectives on the Constitution's nature. Some statements (e.g., "like any other law," "change after every ten or fifteen years") may reflect a view that underestimates the Constitution's fundamental status or the need for stability. Other statements (e.g., "sacred document," "never be changed") may overemphasize its unalterable nature. The Constitution embodies the people's will and philosophy but requires a process for change. Its status is higher than ordinary law but it is not entirely static.

How To Amend The Constitution?

The Indian Constitution, reflecting the framers' desire for balance, is designed to be amendable when needed, but protected from arbitrary and frequent changes. It combines aspects of flexibility and rigidity in its amendment procedure.

Many articles in the Constitution can be amended by a simple majority of Parliament, similar to passing an ordinary law. These provisions are considered flexible. Articles 2 and 3, for instance, allow Parliament to create new states or alter state boundaries "by law", indicating a simple legislative process is sufficient.

For other parts of the Constitution, a more complex procedure is required under Article 368. This article outlines two methods for amendment:

1. Special Majority in Parliament: An amendment can be made by a special majority in both Houses of Parliament separately. This requires approval by a majority of the total membership of each House and a two-thirds majority of the members present and voting in each House. (Detailed calculation in the section on Special Majority below). Both Houses must pass the amendment bill separately in this manner; there is no provision for a joint session to resolve disagreements on amendment bills.
2. Special Majority in Parliament + Ratification by States: For certain articles, particularly those relating to the federal structure and distribution of powers between the Centre and States, a more difficult method is required. In addition to the special majority in Parliament, the amendment must also be ratified by the legislatures of at least half of the States by a simple majority.

All amendments to the Constitution are initiated only in Parliament. No external agency or referendum is required for ratification after parliamentary passage. The amendment procedure avoids some complexities found in other constitutions, making it relatively simpler while upholding the principle that only elected representatives can decide on amendments. The sovereignty of elected representatives (parliamentary sovereignty) is central to this process.

The question "What happens if some States want an amendment to the Constitution? Can’t they propose an amendment?" highlights that the power to initiate amendments is vested solely in the Union Parliament, not State legislatures. This is another feature that centralizes power regarding constitutional changes.

Special Majority

A special majority, as required for amending the Constitution under Article 368, is more stringent than a simple majority. It necessitates:

1. Approval by a majority of the total membership of the House.
2. Approval by a two-thirds majority of the members present and voting in that House.

Both conditions must be met. For example, in the Lok Sabha (545 members), any amendment must be supported by at least 273 members (majority of total strength). If 400 members are present and voting, it needs 273 votes (satisfying both 2/3rd of 400 is ~267, so 273 is >2/3rds; and 273 is > half of 545). If only 300 members vote, it still needs 273 votes, even though 2/3rds of 300 is only 200. This tough requirement ensures that amendments have broad support within each House. Since both Houses must pass the amendment separately with special majorities, consensus or significant cross-party support is needed for amendments to pass, preventing a simple ruling party majority from easily changing fundamental provisions.

This emphasizes that amendments should be based on broad support among political parties and parliamentarians. Dr. Ambedkar's quote highlights that this difficult procedure ensures that dissatisfaction with the Constitution, if it exists, is not merely limited to a small group but requires wide public support (reflected in a supermajority of representatives).

Ratification By States

For certain specific articles, particularly those concerning the federal distribution of powers between the Centre and States, or provisions related to representation of States, the special majority in Parliament is not enough. The amendment must also be ratified by the legislatures of at least half of the States. This gives States a say in amending provisions that affect their powers and representation, respecting the federal nature of the Constitution. The procedure is somewhat flexible: consent of only half the states is needed, and simple majority in State legislatures is sufficient for ratification. This acknowledges States' participation without making the process overly rigid.

In summary, the Indian Constitution's amendment process aims for a balance between easy change and rigidity, relying on broad consensus (special majority in Parliament) and, for certain provisions, State consent (ratification by half States). This protects against easy tampering while allowing modification based on needs and requirements.

Check your progress question asks about conditions for amendments. Citizenship clause (Part II) and Election Commission (Art 324) would require special majority in Parliament + State ratification. Right to freedom of religion (Fundamental Right) requires special majority in Parliament. Changes in Union List require special majority in Parliament + State ratification. Changes in State boundaries (Art 3) are by simple law.

Why Have There Been So Many Amendments?

Given the complex amendment procedure, the number of amendments (103 in 69 years, as of 2019) might seem high. Analyzing the frequency of amendments (Graphs 1 and 2) shows patterns:

• Amendments per decade: Graph 1 shows a steady stream, particularly high in the 1970s and 1980s.
• Years per 10 amendments: Graph 2 shows periods of rapid amendments (3 years for 10 amendments in 1974-76 and 2001-03).

The period 1974-76 was one of Congress dominance and emergency. 2001-03 was an era of coalition politics with different parties in power. This suggests amendment frequency is not solely dependent on the ruling party's majority. The question arises: Is the high number due to the original Constitution's inadequacies or excessive flexibility? The view presented is that amendments were needed from time to time, but also reflect political dynamics.

Graph 1: Bar chart showing the number of constitutional amendments passed in each decade from 1950s to 2010s.

A bar chart illustrating how many amendments were made to the Indian Constitution during each ten-year period since its implementation.

Graph 2: Bar chart showing the time taken to pass every ten constitutional amendments (cumulative).

A bar chart illustrating the duration (in years) required to pass successive blocks of ten amendments to the Indian Constitution.

The question "Why was our Constitution amended so many times? Is there something wrong with our society or with the Constitution?" reflects public perception and debate. The answer lies in a combination of factors including the need for flexibility and adaptation.

Contents Of Amendments Made So Far

Amendments can be broadly classified:

• Technical/Administrative: Clarifications, explanations, minor modifications. These are legal amendments but make no substantial change to original provisions (e.g., increasing retirement age of High Court judges, increasing judges' salaries). Amendments extending reservations for SC/ST by ten years every decade are also seen as technical in this sense, maintaining the original provision.
• Due to Differing Interpretations: Amendments made to assert a particular interpretation of the Constitution by Parliament when it clashed with judicial interpretations (e.g., frequently in the 1970s).
• Political Consensus: Amendments reflecting broad agreement among political parties on certain issues, especially after 1984 (e.g., anti-defection law, reducing voting age, Panchayati Raj/Nagarpalika amendments, expanding reservations).

The statement "Yes, I think we should be looking at the changes rather than the number of amendments. That is what we should be doing as students of politics." suggests focusing on the substance and impact of the changes rather than just the quantity of amendments, as the number can be misleading (e.g., technical amendments). Studying the political context is crucial for understanding the reasons behind significant amendments.

Differing Interpretations

The Constitution is a text, but its meaning can be interpreted differently by various institutions, particularly the judiciary and the government (executive/legislature). Conflicts arise when these interpretations clash, particularly regarding the scope of their respective powers or specific constitutional provisions (e.g., fundamental rights vs. directive principles, right to property, power to amend). The period 1970-1975 saw frequent clashes, with Parliament amending the Constitution to override judicial rulings it disagreed with. This highlights that a written constitution doesn't eliminate interpretation differences and power struggles.

The question "I am still confused. If there is a written constitution, where is the scope for different interpretations? Or do people read in the constitution what they want to be there?" reflects the nature of legal and political interpretation. A written text provides a framework, but its application to specific, evolving circumstances requires interpretation. Different actors (judges, politicians, citizens) may interpret provisions based on their values, perspectives, and goals, leading to different understandings of what the Constitution means in a given context. This is a core aspect of how the Constitution lives and adapts, but also a source of conflict.

Amendments Through Political Consensus

A significant number of amendments, particularly in the post-1984 period (despite political turbulence and coalition governments), resulted from a broad consensus among political parties on certain issues. This demonstrates that amendments can be driven by evolving political philosophy and societal aspirations. Examples include anti-defection laws, lowering the voting age, and amendments related to Panchayati Raj/Nagarpalikas and reservations. These amendments reflect a shared understanding that certain changes were necessary and had sufficient support across the political spectrum.

The statement "So politicians do agree on some matters! And yet they fight over the meaning of what they agreed on!" humorously points out that while political parties can find consensus on broad issues and necessary reforms, their interpretations of the intent, implementation, and consequences of those agreements can still lead to debates and conflicts.

Controversial Amendments

Some amendments have been highly controversial. The period 1970-1980, particularly the emergency period (1975-1977), saw amendments (38th, 39th, 42nd) criticized as attempts to subvert the Constitution and centralize power. The 42nd Amendment (1976) was exceptionally broad, making changes to the Preamble, schedules, and many articles, extending the Lok Sabha's term, adding Fundamental Duties, and restricting judicial review power (trying to override the Kesavananda ruling). Opposition parties were often jailed during its passage. Following the defeat of the ruling party in 1977, the new government reversed many of these changes through the 43rd and 44th amendments, restoring constitutional balance. This period highlights how amendments can become instruments of political conflict and attempts to alter the fundamental nature of the Constitution.

The statement "So, it is all about politics! Didn’t I say that this entire thing about constitutions and amendments is linked to politics rather than law?" reflects a view that sees constitutional changes primarily as outcomes of political power struggles and goals, rather than purely legal or procedural matters.

Basic Structure And Evolution Of The Constitution

The theory of the basic structure of the Constitution, advanced by the Judiciary (Supreme Court) in the Kesavananda Bharati case (1973), has had a profound and lasting impact on the evolution of the Indian Constitution. This theory emerged from the conflict between Parliament's power to amend and the judiciary's role in protecting rights and interpreting the Constitution.

The basic structure doctrine posits that while Parliament has the power to amend any part of the Constitution (under Article 368), this power is not unlimited. Parliament cannot amend the Constitution in a way that alters its fundamental basic features. The Court did not provide an exhaustive list of these basic features, but reserved to itself the power to decide, on a case-by-case basis, whether a particular amendment violates the basic structure and what constitutes these basic features (e.g., it ruled that the right to property was not part of the basic structure, allowing its abridgement, but that judicial review is part of it).

The Kesavananda ruling has governed subsequent interpretations of the Constitution and has been accepted by institutions across the country. The theory of basic structure itself is seen as an example of a living constitution; it is not explicitly mentioned in the Constitution's text but emerged from judicial interpretation, effectively amending the Constitution without a formal amendment procedure. This demonstrates how judicial interpretation contributes to the evolution of the Constitution, adding new dimensions to its meaning and scope.

Since 1973, the Court has further elaborated on the basic structure theory in subsequent cases, clarifying what might constitute a basic feature (e.g., democracy, secularism, federalism, independence of judiciary, fundamental rights). This doctrine has strengthened the balance between rigidity and flexibility: it creates a rigid boundary by declaring certain core principles unamendable, while allowing flexibility for amendments to all other parts.

A political cartoon related to the theory of the basic structure of the Constitution and the judiciary's role in defining and protecting it, potentially commenting on judicial power or interpretation.

The statement "Ah! So it is the judiciary that has the final word! Is this also judicial activism?" reflects the perception that the basic structure doctrine gives the judiciary significant power, including the final say on the validity of constitutional amendments, and questions whether this power constitutes judicial activism or is a legitimate function of constitutional interpretation.

Judicial interpretation has also contributed to the Constitution's evolution in other ways, effectively leading to informal amendments. For instance, the Supreme Court has interpreted various provisions to expand the scope of fundamental rights (e.g., reservations, right to education, right to life/liberty, rights related to minority educational institutions), significantly altering our understanding of constitutional guarantees without formal constitutional amendments.

Review Of The Constitution

In the late 1990s, a commission was appointed by the government (chaired by Justice Venkatachaliah) to review the working of the Constitution. Despite political controversy and boycotts by opposition parties, the commission adhered to the basic structure theory and did not suggest changes that would violate it. This review exercise, even amidst political debate, demonstrated the established significance of the basic structure doctrine in India's constitutional practice; even attempts to review the entire Constitution acknowledged the limits set by this judicial interpretation.

The statement "It’s all wrong. First they say that an amendment requires consensus and now we see that Judges change the whole meaning of the Constitution." expresses a critique that perceives inconsistency between the idea of constitutional change requiring broad political consensus (amendment process) and judicial interpretations (like basic structure) which can fundamentally alter the Constitution's meaning based on court rulings. This highlights tension between parliamentary sovereignty and judicial review.

Constitution As A Living Document

The Indian Constitution is described as a living document because it is dynamic and capable of evolving over time, responding to changing situations, experiences, and societal needs. Its ability to be open to interpretations and adapt to new circumstances is a key reason for its durability and continued effectiveness, even after decades of significant societal changes. This dynamism is considered a hallmark of a democratic constitution.

In a democracy, practices and ideas evolve, and society experiments. A constitution that protects democratic principles while allowing this evolution becomes durable and earns citizens' respect. The Constitution's survival and effectiveness stem from its ability to adapt and remain relevant.

Over the past six decades, critical situations arose in Indian politics and constitutional development (e.g., debates about the supremacy of Parliament). Parliament, as the representative of the people, is expected to have primacy. However, its power operates within the constitutional framework that also grants powers to other organs. Democracy involves not just representation but also the rule of law and effective institutions that maintain a balance and are accountable to the people.

The statement "I get it! It’s like a see-saw. Or is it a game of tug of war?" uses analogies to describe the dynamic balance of power between government organs, implying a constant interplay and potential for tension or shifts in influence.

Contribution Of The Judiciary

The judiciary has made significant contributions to the Constitution's evolution, particularly in resolving tensions between the Judiciary and other branches. During the controversy with Parliament, the judiciary asserted that while Parliament makes laws (and amendments) for public welfare, these actions must adhere to the constitutional framework and legal procedures. The judiciary emphasized that pro-people measures should not bypass laws, as bypassing laws, even with good intentions, can lead to arbitrary power use, undermining democracy. The Judiciary, particularly in the Kesavananda ruling, found a way to resolve complications by turning to the spirit of the Constitution rather than just its literal text. The 'basic structure' doctrine, not explicitly in the Constitution, emerged from judicial interpretation as something essential and unamendable, representing a fundamental spirit without which the Constitution cannot be imagined. This invention by the Judiciary, accepted by other institutions, is a prime example of how interpretation contributes to the Constitution's evolution, practically amending it without formal amendment procedures. It shows how rulings contribute to the evolution by interpreting provisions (e.g., expanding scope of rights).

Maturity Of The Political Leadership

The ongoing evolution is also facilitated by the maturity of the political leadership. Following the controversies (1967-1973) and rulings (Kesavananda, Minerva Mills), Parliament and the Executive realized the need for a balanced, long-term view. Despite initially resisting judicial limits on amending power and asserting parliamentary supremacy (e.g., 42nd Amendment), political leadership eventually accepted the idea of an inviolable basic structure, acknowledging limits set by the judiciary. Even discussions about reviewing the Constitution remained within the framework of the basic structure doctrine. This demonstrates maturity in setting limits to political debates based on fundamental constitutional principles.

The statement "Let us not ignore that there are many instances of political immaturity as well. Does one have to list these?" is a counterpoint acknowledging that while maturity exists, instances of political immaturity and actions that undermine democratic norms also occur.

The shared vision of India's founding leaders (dignity, freedom, equality, justice, welfare, unity) has not disappeared and continues to guide public imagination. The Constitution, based on this vision, maintains respect and authority. Debates about what constitutes basic structure are natural in a democracy, reflecting diversity and openness. Political parties and leadership have shown maturity in setting boundaries for these debates, understanding that democracy requires compromise and finding common ground, not just adhering to extreme positions. This practice of negotiation and compromise has contributed to the successful working of India's democratic Constitution.

Competition among government organs and debates over public welfare are inherent in democracy. Ultimately, the final authority rests with the people, and the purpose of democracy is to ensure their freedoms, well-being, and rights are realized, forming the outcome of democratic politics.

Exercises

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