CONSTITUTION AS A LIVING DOCUMENT

Are Constitutions Static?

The Soviet Union had four constitutions in its life of 74 years (1918, 1924, 1936 and 1977). After the Soviet federation disintegrated, the newly formed Russian federation adopted a new constitution in 1993.

But in India, the same constitution continues to function as the framework within which the government of our country operates.

But no constitution can provide for all eventualities. No document can be such that it needs no change.

The reasons for the working of same constitution in India are:

(i). Our Constitution accepts the necessity of modifications according to changing needs of the society.

(ii). In the actual working of the Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution.

These factors have made our Constitution a living document rather than a closed and static rulebook.

The provisions of the constitution reflect efforts to tackle the problems that the society is facing at the time of making of the constitution.

At the same time, the constitution must be a document that provides the framework of the government for the future as well.

A constitution is not a frozen and unalterable document. It is an instrument that societies create for themselves and needs revision from time to time.

Therefore our Constitution makers sought to strike a balance. Thus, the Indian Constitution is a combination of both the approaches: that the constitution is a sacred document and that it is an instrument that may require changes from time to time. 

How to amend the Constitution?

1. Our Constitution makers wanted the Constitution to be ‘flexible’ and at the same time ‘rigid’. Flexible means very easy to change and rigid means very difficult to change.

2. There are many provisions in the Constitution such as provisions related to federal polity, temporary provisions, provisions related to fundamental rights and other provisions.

3. Different provisions have different levels of rigidity, that is some provisions can be easily amended while others need significant consensus to amend.

Article 368 : Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

4. There are many articles in the Constitution, which can be amended by a simple law of the Parliament and there is no difference at all between an amendment and an ordinary law. 

5. For amending the remaining parts of the Constitution, provision has been made in Article 368 of the Constitution.  In this article, there are two methods of amending the Constitution. 

6. After such passage by the Parliament or the required number of state legislatures as the case may be, an  amendment bill, like all other bills, goes to the President for his assent but in this case, the President has no powers to send it back for reconsideration.

7. Thus, sovereignty of elected representatives (parliamentary sovereignty) is the basis of the amendment procedure. 

Special Majority

1.  Ordinarily bills are passed with simple majority which means more than 50% of all the members present and voting.

2. Amendment to the Constitution requires two different kinds of special majorities:

(i). Firstly, those voting in favour of the amendment bill should constitute at least half of the total strength of that House.

(ii). Secondly, the supporters of the amendment bill must also constitute two-thirds of those who actually take part in voting.

Both Houses of the Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session).

3. So the ruling party would need to take at least some opposition parties into confidence, if it wanted to amend the Constitution.

4. Thus, the basic principle behind the amending procedure is that it should be based on broad support among the political parties and parliamentarians.

Ratification by States

1. For some articles, special majority is not sufficient. When an amendment aims to modify an article related to distribution of powers between the States and the central government, or articles related to representation, it is necessary that the States give their consent.

2. For such amendment consent of half the States is required and a simple majority of the State legislature is sufficient.

We may summarise that the Constitution of India can be amended through large-scale consensus and limited participation of the States.

Why have there been so many Amendments? 

1. In 69 years of its existence, the Constitution has been amended 105 times (as on Jan, 2021).

2. Barring the first decade after the commencement of the Constitution, every decade has witnessed a steady stream of amendments. Figure shows the number of amendments in each decade.

Contents of Amendments made so far

Amendments made so far may be classified in three groups.

1. Amendments of a technical or administrative nature : These were only clarifications, explanations, and minor modifications etc. of the original provisions. 

For example: Amendment to increase the retirement age og High court judges, Amendments to extend reservation for scheduled castes and scheduled tribes after every 10 years, amendment to Article 74 (1) to clarify that the advice of the Council of Ministers will be binding on the President.

2. Differing Interpretations:

- Many amendments are a product of different interpretations of the Constitution given by the judiciary and the government of the day. 

- The constitution was amended during 1970 to 1975 to overcome adverse interpretations by the judiciary. 

- Some such interpretations were: relationship between fundamental rights and directive principles, scope of right to private property and the scope of Parliament’s power to amend the Constitution. 

3. Amendments through Political Consensus:

- These were made as a result of the consensus among the political parties and to reflect the prevailing political philosophy and aspirations of the society.

- For example : the anti-defection amendments (52nd and 91st), 61st amendment bringing down the minimum age for voting from 21 to 18 years, the 73rd and the 74th amendments, etc.

Controversial Amendments

1. Many times, the opposition parties have alleged some amendments as attempts by the ruling party to subvert the Constitution.

2. In particular, the 38th, 39th and 42nd amendments have been the most controversial amendments so far. They sought to make basic changes in many crucial parts of the Constitution.

3. The 42nd amendment:

(i). It had following provisions:

- It was an attempt to override the ruling of the Supreme Court given in the Kesavananda case. 

- The duration of the Lok Sabha was extended from five to six years.

- It included a chapter on Fundamental Duties in the Constitution.

- It put restrictions on the review powers of the Judiciary.

- This amendment made changes to the Preamble, to the seventh schedule of the Constitution

and to 53 articles of the Constitution.

○ Later, through the 43rd and 44th amendments, most of the changes effected by the 38th, 39th and the 42nd amendments were cancelled.

Basic structure and evolution of the Constitution

1. Judiciary advanced this theory in the famous case of Kesavananda Bharati. This ruling has contributed to the evolution of the Constitution in the following ways:

(i) It says that no amendment can violate the basic structure of the Constitution.

(ii) It allows Parliament to amend any and all parts of the Constitution (within this limitation).

(iii) It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.

2. This theory of basic structure is itself an example of a living constitution. There is no mention of this theory in the Constitution and it has emerged from judicial interpretation.

3. The basic structure doctrine has further consolidated the balance between rigidity and flexibility: by saying that certain parts cannot be amended, while allowing amendments to all others.

Review of the Constitution:

In the year 2000, a commission to review the working of the Constitution was appointed by the Government of India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice Venkatachaliah. The commission stuck to the theory of basic structure and did not suggest any measures that would endanger the basic structure of the Constitution. This shows the significance of the basic structure doctrine in our constitutional practice. 

There are many examples of judicial interpretations of the constitution:

(i). Reservations in jobs and educational institutions cannot exceed fifty percent of the total seats. 

(ii). For other backward classes, introduction of the idea of creamy layer.

(iii). Interpretation of various provisions concerning right to education, right to life and liberty and the right to form and manage minority educational institutions. 

Constitution as a living document

1. What does it mean : Almost like a living being, this document keeps responding to the situations and circumstances arising from time to time.

 Even after so many changes in the society, the Constitution continues to work effectively because of this ability to be dynamic, to be open to interpretations and the ability to respond to the changing situation.

It is a constitution, which protects democracy and yet allows for evolution of new practices.

2. Contribution of the Judiciary : Parliament thought that it had the power and responsibility to make laws for furthering the interests of the poor, backward and the needy. 

The Judiciary insisted that all this has to take place within the framework provided by the Constitution. As democracy is as much about checks on arbitrary use of power as it is about the well-being of the people.

3. Maturity of the Political Leadership : After the Kesavananda Bharati judgement, Parliament assert its supremacy with the 42nd amendment. 

But the Court again repeated its earlier stand in the Minerva Mills case (1980). 

Now the political parties, political leaders, the government, and Parliament, accepted the idea of inviolable basic structure. 

In the Constituent Assembly, all the leaders mentioned this vision: dignity and freedom of the individual, social and economic equality, well-being of all people, unity based on national integrity. This vision has not disappeared. People and leaders alike hold to the vision and hope to realize it. 

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