Constitution as a Living Document

Learning Outcomes:

1. Understand that the Indian Constitution can be amended to meet changing needs.
2. Recognize that despite numerous amendments, the core premises of the Constitution remain unchanged.
3. Acknowledge the judiciary’s significant role in interpreting and protecting the Constitution.
4. Appreciate the evolving and adaptable nature of the Indian Constitution in response to societal changes.

Are Constitutions Static?

Constitutions of many countries undergo rewriting to reflect political upheavals or changing societal needs. For instance, the Soviet Union had four constitutions during its 74-year existence. When the Soviet Union disintegrated in 1991, the Russian Federation adopted a new constitution in 1993. India, however, continues to be governed by the same Constitution adopted in 1949, which took effect in 1950. Over the past 69 years, India has relied on this same foundational document.

Does this mean that India’s Constitution was perfect from the start? In some ways, yes. The Indian Constitution is robust and designed to suit the country’s complexities. However, no constitution is flawless or immune to the need for revisions. France has had numerous constitutions in the last two centuries due to political changes and experimentation. For example, France’s fifth republic was established in 1958 with a new constitution. The frequent amendments of France’s Constitution show that constitutional changes are closely linked to political events.

India’s Constitution remains adaptable. It accommodates changes, accepts modifications, and allows judicial flexibility in interpretation. This adaptability prevents it from becoming a rigid or static document.

Important Note: Constitutional drafting faces the challenge of balancing current societal needs with the future’s unforeseen challenges. The dual nature of contemporary relevance and future durability makes constitutions living documents.

Flexibility and Adaptability of the Indian Constitution

The Indian Constitution’s success lies in its ability to address contemporary societal problems while also providing a framework for future governance. Flexibility is a key feature that allows the Constitution to evolve without losing its core structure. The Constitution is treated as a sacred document, but it also acknowledges that modifications are sometimes necessary to remain relevant.

1. Dynamic Nature: The Constitution reflects societal dreams and democratic governance. It serves as a social contract between the people and their government, ensuring both immediate and long-term governance.
2. Sacred Yet Amendable: The Indian Constitution balances being a revered document and being a tool for evolving governance. Thus, while it must be respected, it also recognizes the need for change when societal opinions shift.

How to Amend the Constitution?

Article 368 outlines the process for amending the Indian Constitution. Amendments can be made through addition, variation, or repeal of provisions in accordance with specific procedures. The framers intended for the Constitution to be both flexible (open to change) and rigid (resistant to unnecessary changes). A balance was struck between the two.

1. Simple Amendments: Some amendments can be passed with a simple majority in Parliament. Articles like Article 2 (admission of new states) and Article 3 (changes to state boundaries) are examples where flexibility exists.
2. Special Majority Amendments: More critical sections of the Constitution require a special majority in both Houses of Parliament.
3. State Ratification: Certain provisions affecting federalism require both a special majority in Parliament and ratification by at least half the State legislatures.

The Indian Constitution avoids unnecessary complications in the amendment process, underlining the principle of parliamentary sovereignty—only elected representatives can amend the Constitution, ensuring the sovereignty of the people through their elected officials.

Special Majority and Its Significance

A special majority is required for specific constitutional amendments. For an amendment bill to pass, it must be supported by at least half of the total members of each House of Parliament, and two-thirds of the members present and voting.

This requirement for a special majority ensures that amendments have broad support across political parties and prevents any single party from altering the Constitution without widespread agreement. The basic principle behind the amending process is to ensure broad consensus.

Important Note: The special majority process demonstrates the importance of ensuring that changes to the Constitution reflect widespread support and are not made unilaterally by a small group of legislators.

Ratification by States

Certain amendments related to federalism require the approval of half the State legislatures. This ensures that the rights and powers of the States are protected and cannot be easily overridden by the central government. At the same time, the process remains flexible, as only a simple majority in the State legislatures is required.

Why Have There Been So Many Amendments?

The Indian Constitution has been amended 103 times in 69 years, reflecting the need for constant updates and adjustments. The 1970-1990 period saw a large number of amendments, while periods of political instability, like 1974-1976 and 2001-2003, also witnessed frequent changes.

Amendments have occurred for various reasons:

1. Political Considerations: During periods of strong political majority, such as Congress dominance, the party in power could pass amendments more easily.
2. Judicial Interpretation: Conflicts between judicial rulings and the government’s view often led to amendments that clarified the Constitution’s interpretation.
3. Consensus-Based Amendments: Many amendments were passed with broad consensus among political parties, reflecting societal aspirations.

Differing Interpretations and Amendments

The Constitution often undergoes amendments when there are differing interpretations between the Judiciary and the government. For example, during 1970-1975, amendments were made to counter judicial interpretations of the Constitution regarding fundamental rights, private property, and the scope of Parliament’s power to amend the Constitution.

1. Judicial Interpretations: Conflicting interpretations between the judiciary and government have led to amendments that clarify or override court rulings.
2. Consensus Amendments: Some amendments are based on broad political consensus, such as those related to anti-defection, lowering the voting age from 21 to 18, and expanding reservations.

Controversial Amendments

Several amendments have been controversial, particularly during periods of political upheaval, like the internal emergency of 1975. The 38th, 39th, and 42nd amendments are among the most controversial, as they made far-reaching changes to the Constitution, overriding judicial rulings and extending the term of the Lok Sabha.

1. Emergency-Related Amendments: These amendments were passed during a period of political unrest and were seen as an attempt to subvert the Constitution.
2. Reversal of Amendments: After the 1977 elections, the new government reversed many of the controversial changes through the 43rd and 44th amendments, restoring constitutional balance.

Basic Structure and the Evolution of the Constitution

The Basic Structure Doctrine has had a lasting impact on the evolution of the Indian Constitution. Introduced by the Supreme Court in the Kesavananda Bharati case in 1973, this doctrine limits Parliament’s power to amend the Constitution by stating that no amendment can violate the basic structure of the Constitution.

1. Limits to Amendments: Parliament can amend any part of the Constitution, but not in a way that violates its basic structure.
2. Judicial Interpretation: The Judiciary decides if an amendment violates the basic structure, thus placing itself as the final authority on constitutional amendments.
3. Living Constitution: This doctrine has contributed to the Constitution’s adaptability, making it a living document that evolves through judicial interpretation without the need for formal amendments.

Important Note: The judiciary plays a crucial role in protecting the Constitution and ensuring that its core principles remain intact, even as society evolves.

The Constitution as a Living Document

The Indian Constitution continues to function effectively because it is a living document. It adapts to changing societal needs through amendments and judicial interpretations. This ability to evolve makes it durable and respected by citizens.

The Constitution balances democracy and the rule of law, ensuring that all political institutions remain accountable to the people. The judiciary’s contribution in interpreting the Constitution and resolving disputes between the government and citizens further strengthens democratic governance.

The Kesavananda ruling is a prime example of how the judiciary interprets the Constitution in light of social circumstances and aspirations, rather than relying solely on the letter of the law. By doing so, the Court ensures that the Constitution remains relevant and aligned with the spirit of democracy.

MCQ:
Which of the following is true about the Indian Constitution?

1. It can be amended with a simple majority in all cases.
2. It requires ratification by the judiciary for amendments to take effect.
3. It is both flexible and rigid, depending on the type of amendment.
4. The President can veto constitutional amendments.

Answer: 3