Chapter 9 Constitution As A Living Document

Introduction

This chapter examines the functioning of the Indian Constitution over its existence since 1950 and how India has successfully been governed under this single document. Despite significant changes in society and politics, the same Constitution continues to serve as the fundamental framework.

Upon completing this chapter, you will understand that:

• The Indian Constitution can be amended to adapt to changing times.
• Despite numerous amendments, the Constitution's basic structure and core principles have remained intact.
• The judiciary has played a crucial role in safeguarding and interpreting the Constitution.
• The Constitution is a dynamic document that evolves and responds to new situations, making it a 'living document'.

Are Constitutions Static?

Constitutions are not always permanent or unchanging. Many nations have rewritten their constitutions due to significant political changes or shifts in societal ideas (e.g., the Soviet Union had multiple constitutions before its disintegration, leading to a new constitution in Russia in 1993; France has had numerous constitutions over the last two centuries reflecting different republics and political periods).

In contrast, India's Constitution, adopted in 1949 and implemented in 1950, has remained the governing framework for over 74 years.

Why has India's Constitution endured? It is partly due to its robustness and the foresight of its makers, who designed a framework well-suited for the country and anticipated many future challenges. However, no constitution can foresee every eventuality or be completely free of the need for change.

The enduring nature of the Indian Constitution stems from two key factors:

1. It allows for modifications (amendments) as required by the changing needs of society.
2. Its actual working has demonstrated significant flexibility in interpretations, both through political practice and judicial rulings.

These characteristics prevent the Constitution from being a rigid, static rulebook, making it a living document.

Constitution makers face the challenge of creating a document that addresses the problems of their time while providing a framework for the future. A constitution thus contains both contemporary elements and provisions with lasting importance. However, as a human creation, it must also be open to revision and re-examination.

This dual nature raises questions about its status: should it be considered so sacred that it can never be changed, or can it be modified like any ordinary law? The Indian Constitution's framers sought to balance these views. They gave the Constitution a status superior to ordinary law but included provisions for its modification, recognising that future needs and differing societal opinions might require changes.

Therefore, the Indian Constitution is neither completely unchangeable nor easily alterable; it is a dynamic document capable of responding to evolving circumstances.

(The comparison with the U.S. Constitution, which is much older but amended far fewer times, highlights that different constitutional systems balance rigidity and flexibility in unique ways.)

(The statement "It seems to me that constitutional changes are very closely linked to political developments" is accurate; political changes often necessitate or drive constitutional amendments.)

How To Amend The Constitution?

The Indian Constitution aims for a balance between flexibility (openness to change) and rigidity (resistance to changes). It provides different procedures for amending different parts of the Constitution.

Article 368 of the Constitution outlines the Parliament's power to amend the Constitution. Amendments can involve adding, varying, or repealing any provision, provided it's done according to the procedure laid down in this article.

Methods of Amendment:

1. Simple Majority in Parliament: Many articles can be amended by a simple law passed by Parliament, requiring a simple majority (more than half of members present and voting). The phrasing "by law" in certain articles (like Articles 2 and 3 concerning the admission or formation of new states, or altering state boundaries) indicates this flexibility. These amendments are treated like ordinary legislation.
2. Special Majority in Parliament: This method is outlined in Article 368. It requires an amendment bill to be passed by both Houses of Parliament separately with a special majority:
   • Supported by at least half of the total strength of the House.
   • Supported by at least two-thirds of the members present and voting.
   There is no provision for a joint sitting of Parliament to resolve disagreements on amendment bills.
3. Special Majority in Parliament + Ratification by States: This is the most rigid method, also under Article 368. It is required for amendments affecting the federal structure of the Constitution or the distribution of powers between the Centre and States, or articles related to representation (like presidential election, Supreme Court/High Courts, legislative relations, etc.). In addition to the special majority in Parliament, the amendment must be ratified by the legislatures of at least half of the States by a simple majority.

Amendment bills can only be initiated in Parliament, not by State legislatures or other bodies. No public referendum is required for ratification after parliamentary passage (and state ratification where applicable). The amendment bill, like other bills, goes to the President for assent, but the President is constitutionally obliged to give assent and cannot send it back for reconsideration.

These procedures highlight that the power to amend rests solely with the elected representatives (Parliament and, in some cases, State legislatures), reflecting the principle of parliamentary sovereignty in the amendment process, albeit with safeguards to ensure significant consensus (special majority and state ratification for some matters).

(The question "What happens if some States want an amendment... Can’t they propose an amendment?" accurately identifies a limitation of the Indian amendment process compared to some federal systems; States cannot initiate amendments.)

Special Majority in Practice:

A simple majority requires more than half of the members present and voting. A special majority requires two conditions simultaneously: support by a majority of the *total* strength of the House *and* two-thirds of those present and voting. For example, in a Lok Sabha of 545 members, any amendment needs support from at least 273 members (majority of total strength). If, say, 400 members vote, the bill also needs at least (2/3) * 400 = 267 votes. To pass, it needs to meet *both* conditions, so it would need 273 votes in this case (as 273 is more than 267 and meets the total strength requirement). This ensures significant support across the House, not just from those present on a given day.

(The statement "I am fed up with this business of special majority... Is it politics or maths?" reflects the complexity of the special majority calculation and hints that while it's a mathematical rule, its application is driven by political necessity to build broad consensus.)

The requirement of special majority and separate passage by both Houses means an amendment requires significant consensus among political parties and Parliamentarians. If the ruling party has a thin majority, it needs support from opposition parties to amend the Constitution. This aligns with the principle that major constitutional changes should have broad political support.

Amending Procedures in Other Countries:

Many modern constitutions also use the principle of special majority (e.g., U.S. requires 2/3rd, South Africa/Russia require 3/4th for some amendments). Another principle in some countries is direct public participation (e.g., Switzerland allows citizens to initiate amendments, Russia/Italy allow public approval). India's system relies primarily on elected representatives and special majorities.

Dr. Ambedkar's quote suggests that the special majority requirement ensures that proposed constitutional changes reflect broad public support, not just a simple parliamentary majority, linking the process to public opinion.

Ratification by States

For amendments affecting the federal distribution of powers or representation (e.g., changing the list of subjects, altering representation in Parliament, provisions related to the President, Supreme Court, High Courts), ratification by the legislatures of at least half of the States is required in addition to the special majority in Parliament. This safeguards the federal structure, ensuring that the Centre cannot unilaterally alter key provisions affecting the States.

This requirement respects the federal principle and gives States a voice in the amendment process. The procedure is kept somewhat flexible by requiring consent from only half the states and a simple majority within the State legislatures. Overall, the Indian amendment process balances the need for broad consensus (special majority) with federal requirements (state ratification for certain parts), ensuring the Constitution is neither too easy nor too difficult to amend, allowing future generations to adapt it to their needs.

Why Have There Been So Many Amendments?

As of January 26, 2024, the Indian Constitution has been amended 106 times over 74 years. This number might seem high given the somewhat difficult amendment procedure.

Looking at the trends (graphs):

• The periods 1970-1980 and 1980-1990 saw a large number of amendments.
• Short bursts of amendments occurred, with ten amendments made in just three years (1974-1976 and 2001-2003).

These periods differ politically: 1970s had strong Congress dominance, while 2000s had coalition governments with significant political rivalry. This suggests that the frequency of amendments isn't solely dependent on a single party's majority.

Contents Of Amendments Made So Far

Amendments can be grouped into three categories:

1. Technical/Administrative Amendments: These involve clarifications, explanations, or minor modifications that don't substantially change the original provisions but are legally considered amendments. Examples include increasing the retirement age of High Court judges (15th Amendment), increasing judges' salaries (54th Amendment), and periodic extensions of reservation for SCs/STs in legislatures (leading to multiple amendments like 79th, 89th, 95th, 104th). These are often routine adjustments or necessary continuations of existing policies.
2. Amendments due to Differing Interpretations: Conflicts between the judiciary and the government over the interpretation of constitutional provisions have frequently led to amendments. When Parliament disagreed with a judicial ruling, it sometimes amended the Constitution to assert its interpretation or overcome the court's decision. This was particularly common between 1970 and 1975, concerning issues like the relationship between fundamental rights and Directive Principles, the scope of property rights, and Parliament's power to amend the Constitution.
3. Amendments through Political Consensus: A significant number of amendments reflect an evolving consensus among political parties and society, aiming to align the Constitution with prevailing political philosophies and aspirations. Many amendments since 1984 fall into this category, passed despite coalition politics due to broad agreement. Examples include the anti-defection amendments (52nd and 91st), lowering the voting age (61st), and the 73rd/74th amendments on local self-government. Amendments related to reservations for Backward Classes also reflect this consensus-building process.

(The question "Is the Constitution too flexible?" touches on the criticism about the high number of amendments, suggesting it might be easier to amend than intended. However, the categorization shows many amendments are not fundamental changes but technical updates or reflections of consensus.)

(The question "If there is a written constitution, where is the scope for different interpretations?" highlights that the language of any document, including a constitution, is subject to interpretation, leading to potential disagreements, especially between different branches of government.)

Controversial Amendments

Not all amendments have been uncontroversial. Amendments passed between 1970 and 1980, especially the 38th, 39th, and 42nd amendments (enacted during the internal emergency of 1975-1977), generated significant legal and political controversy. Opponents viewed these as attempts by the ruling party to undermine the Constitution's basic structure.

The 42nd Amendment Act, 1976, was particularly wide-ranging and controversial. It significantly altered the Preamble (adding 'socialist' and 'secular'), the Seventh Schedule, and 53 articles, effectively attempting to rewrite large parts of the Constitution. It also aimed to override the Supreme Court's Kesavananda Bharati ruling by asserting parliamentary supremacy in amendment and restricting judicial review. The duration of the Lok Sabha was extended from five to six years, and Fundamental Duties were added. Passed while many opposition MPs were jailed during the Emergency, it was widely criticised.

Following the defeat of the Congress party in the 1977 elections, the new government enacted the 43rd and 44th Amendments (1977-1978) to repeal most of the controversial changes made by the 38th, 39th, and 42nd amendments, restoring constitutional balance.

(The statement "So, it is all about politics!" connects the controversial amendments directly to the political context of the Emergency period, suggesting that constitutional changes can be driven by political power struggles rather than solely by legal or societal necessity.)

Basic Structure And Evolution Of The Constitution

The most significant factor shaping the evolution of the Indian Constitution has been the judicial development of the theory of the basic structure. Propounded by the Supreme Court in the landmark Kesavananda Bharati case (1973), this doctrine holds that the Constitution contains certain fundamental features that cannot be amended or destroyed by Parliament, even through a constitutional amendment.

Impact of the Basic Structure doctrine:

• It imposes a specific limit on Parliament's amending power, preventing it from altering the essential identity of the Constitution.
• Within this limitation, it allows Parliament to amend any other part of the Constitution.
• It vests the Judiciary with the authority to decide whether an amendment violates the basic structure and to define what constitutes the basic structure.

Despite not being explicitly mentioned in the Constitution, the basic structure theory, an outcome of judicial interpretation, has become a fundamental principle guiding constitutional development and practice in India since 1973. It serves as an example of how the Constitution evolves through interpretation, acting as a 'living document'. The Court has elaborated on this theory in subsequent cases, providing instances of what constitutes the basic structure (e.g., secularism, democracy, federalism, judicial review itself). This doctrine has strengthened the balance between rigidity and flexibility in the Constitution by protecting certain core aspects while allowing others to be amended.

Judicial interpretation has led to the evolution of the Constitution in numerous other ways. For example, the Supreme Court has ruled on the principle that reservations should not exceed 50% and introduced the 'creamy layer' concept for OBC reservations. Interpretations of the Right to Life (Article 21) have expanded its scope to include rights like education, clean environment, livelihood, etc. Judicial rulings on the rights of minorities to establish and manage educational institutions have also contributed to the Constitution's development.

(The statement "Ah! So it is the judiciary that has the final word! Is this also judicial activism?" highlights the judiciary's powerful position due to the basic structure doctrine and links it to the concept of judicial activism.)

(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 frustration with the perceived inconsistency and highlights the tension between the democratic process of amendment by elected representatives and the judiciary's power of interpretation, which can alter the practical meaning of constitutional provisions.)

Review Of The Constitution

In 2000, a commission was appointed to review the working of the Constitution, chaired by Justice Venkatachaliah. Although boycotted by some opposition parties, the commission adhered to the basic structure theory, not suggesting anything that would endanger it. This indicates the significant acceptance and influence of the basic structure doctrine in India's constitutional practice.

Constitution As A Living Document

Describing the Constitution as a 'living document' means it's not a fixed, unchangeable set of rules but one that evolves and responds to changing societal needs, circumstances, and experiences. Its ability to adapt through interpretations and amendments is key to its durability despite significant societal changes over time.

This dynamism is a characteristic of a democratic constitution. As democratic practices and ideas evolve, the constitution must accommodate them while protecting the democratic framework. A constitution that facilitates this evolution remains not only durable but also earns citizens' respect.

Over the past decades, critical situations have tested the Constitution and its ability to protect democracy. A major recurring issue has been the question of the supremacy of Parliament. In a parliamentary democracy, Parliament is expected to be supreme as it represents the people. However, this supremacy operates within the constitutional framework, which also grants powers to other organs like the judiciary and executive. Balancing parliamentary supremacy with the principle of the rule of law and the need for checks and balances among institutions is crucial.

During conflicts, the judiciary has asserted that while Parliament can make laws for the people's welfare, this must occur within the constitutional framework and follow legal procedures. This is essential to prevent arbitrary use of power, which undermines democracy.

The success of the Indian Constitution lies in its ability to manage these tensions. The judiciary, particularly through the Kesavananda ruling and the basic structure doctrine, found a way to reconcile conflicting claims by looking at the 'spirit' and underlying intent of the Constitution, not just its literal text. The basic structure theory, though not explicitly written, is seen as embodying principles without which the Constitution's fundamental nature would be lost.

(The statement "I get it! It’s like a see-saw. Or is it a game of tug of war?" metaphorically represents the dynamic and sometimes conflictual relationship between the different organs of government in a system of checks and balances, constantly adjusting the balance of power.)

Maturity of the Political Leadership:

The resolution of constitutional conflicts also reflects the maturity of India's political leadership and its willingness to accept a long-term, balanced view. Despite fierce debates and periods of confrontation, political parties and leaders have largely accepted the judiciary's interpretations, including the basic structure doctrine. Even attempts to review the Constitution have respected the limits set by this doctrine.

The enduring strength of the Constitution is also attributed to the shared vision of India held by its founders and continued by subsequent generations: a commitment to individual dignity and freedom, social and economic equality, collective well-being, and unity based on national integrity. This vision, embodied in the Constitution, continues to command respect and authority.

Debates about the basic structure and other constitutional interpretations are natural and healthy in a democracy, reflecting its diversity and openness. However, successful democratic politics also requires compromise and the willingness of political actors to moderate extreme views to reach common ground. Indian politicians and citizens have demonstrated this ability, contributing to the relatively successful working of the democratic Constitution.

Ultimately, the final authority in a democracy rests with the people. Their freedoms and well-being are the purpose and outcome of democratic politics. While different government organs compete over their importance and what constitutes public welfare, they must function with accountability to the people.

Exercises

As per instructions, the content of the exercises is not included, only the section heading structure is provided.