Constitution as a living document Class 11 Political Science

The concept of the Constitution as a living document means that it is adaptable and evolving to meet the changing needs and values of society over time. In the context of the textbook, this idea acknowledges that the Constitution of India is not static but can be interpreted and amended to reflect the evolving social, political, and cultural dynamics of the nation.

Are Constitutions Static?

• The Soviet Union, which existed for 74 years, had four constitutions. Following the collapse of the Communist Party of Soviet Union in 1991 and the subsequent disintegration of the Soviet federation, the newly formed Russian federation adopted a new constitution in 1993.
• In contrast, the Constitution of India was adopted on 26 November 1949 and implemented on 26 January 1950. Despite being more than 55 years old, the same constitution continues to serve as the framework for the Indian government. This raises the question of whether the Constitution is so robust that it requires no changes, or whether its makers were far-sighted enough to anticipate future changes.
• The answer is that India has inherited a very robust Constitution, with a basic framework that is well-suited to the country. The Constitution makers were far-sighted and provided solutions for many future situations. However, it is important to note that the Constitution also accepts the necessity of modifications to accommodate the changing needs of society.
• The flexibility of interpretations in the actual working of the Constitution has allowed for both political practice and judicial rulings to demonstrate maturity and adaptability in implementing the Constitution. As a result, the Indian Constitution is considered a living document that is able to respond to new eventualities, rather than a closed and static rulebook.

Challenging Issue of Constitution and Solutions

• The provisions of a constitution should reflect attempts to address current societal problems.
• A constitution must serve as a framework for the future governance of the country.
• A constitution must be capable of responding to any future challenges that may arise.
• A constitution will always have elements that are relevant to the present and those that have long-lasting significance.
• A constitution is not a fixed and unchangeable document.
• The constitution provides a structure for democratic governance of the society.
• The Indian Constitution embodies both approaches: it is considered a sacred document but also one that may require changes as circumstances evolve. In other words, the Indian Constitution is not a static document and is subject to alteration.

Preamble to the Constitution of India

How to Amend the Constitution?

Article 368 pertains to the amending power of the parliament, which enables it to amend, add, vary or repeal any provision of the constitution through its constituent power, as per the prescribed procedure.

Balancing Approach of the Indian Constitution

• The Constitution should be amended when necessary, but it should also be safeguarded against unnecessary and frequent changes.
• In other words, the Constitution should be both flexible and rigid.
• Flexibility refers to the ability to accommodate changes, while rigidity implies resistance to changes. A constitution that can be easily modified is known as flexible, while one that is difficult to amend is described as rigid.
• The Indian Constitution strikes a balance between these two characteristics.

If Faults or Mistake in our Constitution?

• The Constitution should be amendable to rectify any mistakes or shortcomings that may be discovered.
• Some provisions were added to the Constitution as temporary measures, with the understanding that they could be revised later, once a new Parliament was elected.
• However, since the Constitution established a federal system, the powers and rights of the States could not be altered without the States' consent.
• The amendment process of the Constitution is solely carried out by the Parliament without the need for any external agency such as a constitution commission or a separate body. A special majority in the Parliament is required for any amendment to be passed.
• After the amendment bill is passed, it is sent to the President for assent, without the power to send it back for reconsideration. This process can be quite rigid and complicated.
• It is important to note that only the elected representatives of the people have the power to consider and make final decisions on amendments, which is known as parliamentary sovereignty.

Special Majority

To amend the Constitution, two types of special majorities are required:

• Firstly, the number of votes in favour of the amendment bill should be at least half of the total strength of the House.
• Secondly, the supporters of the amendment bill must also constitute two-thirds of those who participate in the voting.
• Both Houses of the Parliament must separately pass the amendment bill following this procedure (a joint session is not permitted). This special majority is required for every amendment bill.
• The fundamental principle underlying the amending process is that it should have extensive support among the political parties and parliamentarians.

Ratification by States

• In cases where amendments are related to the distribution of powers between the central government and the states or articles related to representation, a special majority is not sufficient.
• In such cases, it is mandatory to consult with the states and obtain their consent.
• To ensure this, the Constitution provides that the amendment bill must be passed by the legislatures of at least half of the states before it can come into effect.
• The protection of fundamental rights is also ensured in a similar way.
• Thus, amendments to the Indian Constitution require broad consensus and the participation of states, especially when it comes to issues related to federalism and fundamental rights.

Why have there been so many Amendments?

• Criticism is frequently directed towards the Constitution of India due to the high number of amendments it has undergone. Despite political considerations not being the sole cause for these amendments, the fact that there have been 93 amendments in just 55 years appears unusual. This steady stream of amendments has occurred every decade, regardless of the nature of politics or the party in power. The question arises whether the original Constitution was inadequate, and whether it is too flexible.
• During a period marked by political turbulence, including the anti-defection amendment (52nd amendment), several amendments were introduced. These amendments included those reducing the minimum voting age from 21 to 18, the 73rd and 74th amendments, as well as those clarifying and expanding the scope of job and admission reservations.
• Following 1992-93, a consensus emerged in the country regarding these measures, leading to amendments being passed with relative ease. These amendments, including the 77th, 81st, and 82nd amendments, were introduced to clarify and expand the scope of reservations in jobs and admissions.

Basic Structure and Evolution of the Constitution

• Kesavananda Bharati, the most prominent case, established specific limitations on the Parliament's authority to modify the Constitution. According to this case, no amendment can violate the fundamental structure of the Constitution, but the Parliament can alter any component of the Constitution within this restriction. Additionally, the Judiciary has the ultimate authority to determine if an amendment violates the basic structure and to identify what constitutes the basic structure.
• The theory of basic structure emerged from judicial interpretation rather than being explicitly stated in the Constitution. Consequently, the Judiciary has essentially amended the Constitution without a formal amendment process. Judicial interpretation has impacted our understanding of the Constitution in various ways, including the establishment of a fifty percent cap on reservations in employment and education, the introduction of the idea of the creamy layer for other backward classes, and the interpretation of provisions concerning the right to education, life and liberty, and the right to establish and manage minority educational institutions.

Parliamentary Democracy

• The Parliament serves as the representative of the people and, as such, is expected to hold a position of authority over both the Executive and the Judiciary. However, the Constitution delineates powers to other branches of government, and therefore, the supremacy of the Parliament must function within this established framework.
• Democracy is not merely a matter of voting and electing representatives, but it is also centered on the concept of the rule of law. A democratic system also emphasizes the development of institutions and working through these institutions.
• It is essential for all political institutions to be accountable to the people and to maintain a balance with one another.