Long Questions with Answers - Constitution as a Living Document

Q. 1. Discuss in brief the procedure for the amendment of the Indian Constitution.
Ans. The method of amending the Constitution of India is neither very difficult nor overly easy. The framers of the Constitution adopted a middle path and made it neither too rigid nor too flexible. The procedure of amendment is laid down in Article 368. Broadly, there are three types of amendment procedures under the Constitution:
1. Amendment by the Parliament by a Simple Majority: Certain provisions can be changed by a simple majority of the members present and voting in Parliament. These relate to matters such as the admission of new States, creation of new States, change of state boundaries, consequential changes in the First and Fourth Schedules, creation or abolition of a State Legislative Council (on the recommendation of the concerned Legislative Assembly), extension of the jurisdiction of the Supreme Court, creation of High Courts for Union Territories and entrusting additional functions to the Public Service Commission. Laws on ordinary subjects (legislation under the ordinary law-making process) are not regarded as constitutional amendments under Article 368.
2. Amendment by the Parliament by a Two-Thirds Majority: For most constitutional provisions not specifically requiring state ratification, an amendment bill must be passed by both Houses of Parliament by a special majority - that is, a majority of the total membership of the House and not less than two thirds of the members present and voting. The bill, after being passed by both Houses in this manner, is presented to the President for assent and becomes part of the Constitution once the President signs it.
3. Amendment by Special Majority of Parliament and Ratification by State Legislatures: Certain important provisions require, in addition to the special majority in both Houses of Parliament, ratification by not less than one half of the State Legislatures. After parliamentary approval by special majority and ratification by the required number of state legislatures, the amendment is sent to the President for assent and becomes effective once assented to. The subjects which require this additional ratification include:
(a) Election of the President,
(b) Manner of election of the President,
(c) Extent of executive power of the Union,
(d) Extent of executive power of the States,
(e) High Courts for Union Territories,
(f) Union Judiciary,
(g) High Courts in the states,
(h) Legislative relations between the Centre and the States,
(i) The lists in the Seventh Schedule,
(j) The representation of States in Parliament, and
(k) Article 368 itself.
These requirements show that the most important provisions cannot be altered by Parliament alone; the consent of a substantial number of states is necessary.
Blend of Flexibility and Rigidity: The Indian Constitution combines flexibility with rigidity. It is neither as flexible as the British Constitution nor as rigid as the American one. This design enables the Constitution to be changed according to the needs of the time while protecting core features. So far, the Constitution has been amended several times to respond to social and political developments.
Criticism: The amendment procedure has also attracted criticism on several grounds:

1. States Have No Initiative for Constitutional Amendment: The power to initiate amendment bills rests with Parliament; State Legislatures cannot initiate constitutional amendments. Moreover, state approval is required only for certain categories of amendments, not for all.
   
2. No Time Limit Fixed for Ratification by States: The Constitution does not prescribe any time limit for state ratification. States may therefore delay approval indefinitely, which can cause uncertainty.
   
3. Disagreement of Two Houses of Parliament Over an Amendment: There is no special mechanism for resolving deadlocks between the two Houses on a constitutional amendment bill. Practically, however, such a bill is treated as a special type of ordinary bill and, if necessary, a joint sitting of both Houses may be called to resolve differences.
   
4. Assent of the President in Constitutional Amendments: The Constitution does not expressly explain the ambit of the President's assent in the case of constitutional amendments or whether the President may withhold assent; in practice, the President's assent is given to bills that have satisfied the prescribed procedure.
   
5. Some Notable Provisions: Certain provisions allow Parliament to legislate without following Article 368. For example, Article 253 enables Parliament to make laws to give effect to international treaties and obligations; such laws may alter existing arrangements without using the formal amendment route.
   
6. Constitutional Protection: As Dr Jennings observed, not every clause may need the highest level of constitutional protection. There are clauses that are less fundamental and could be amended through ordinary processes. Nevertheless, the constitutional scheme protects key provisions through the prescribed amendment procedures.
   

Q. 2. 'Indian Constitution is a living document.' Explain. 
Ans. The Indian Constitution is often described as a living document because it has evolved over time to meet the changing needs of the nation while retaining its basic framework. A living constitution is dynamic rather than frozen; it adapts to social, political and economic changes without losing its essential character.
Several factors have contributed to this dynamism:
1. Amendments
2. Laws
3. Judicial Decisions
4. Conventions
5. Political Parties
1. Amendments: Constitutional amendments have been a primary means of change. Amendments have brought important changes in governmental structure and social policy. Examples include:

• The 24th Amendment (1971), which clarified Parliament's power to amend the Constitution under Article 368 in response to earlier judicial rulings.
  
• The 36th Amendment (1975), which made Sikkim a State of the Union.
  
• The 42nd Amendment (1976), which attempted to strengthen Parliament's role and gave precedence to Directive Principles over some Fundamental Rights (later modified by other judicial and legislative actions).
  
• The 44th Amendment (1978), which limited certain emergency powers and restored safeguards.
  
• The 73rd and 74th Amendments (1992), which provided constitutional status to Panchayats and Urban Local Bodies respectively.
  
• The 86th Amendment (2002), which made education for children aged 6-14 a constitutional obligation and led to the Right to Education Act (2010).
  
• The 91st Amendment (2003), which limited the total number of Ministers to 15% of the strength of the Lok Sabha.
  

2. Laws: Ordinary laws enacted by Parliament and state legislatures have supplemented the Constitution by filling gaps and implementing constitutional provisions. Examples include the Representation of the People Acts (1950, 1951), the States Reorganisation Act (1956), the Official Languages Act (1963), various security and administrative laws, and many others that shape constitutional practice.
3. Judicial Decisions: The Supreme Court and High Courts have played a crucial role in interpreting and giving content to constitutional provisions. Important cases include:

• Gopalan v. State of Madras, where the Supreme Court interpreted the scope of personal liberty;
  
• Golak Nath v. State of Punjab (1967), where the Court held that Parliament could not abridge Fundamental Rights by amendment (a view later addressed by Parliament);
  
• Kesavananda Bharati v. State of Kerala (1973), where the Supreme Court held that Parliament could amend the Constitution but could not alter its basic structure.
  Judicial review and interpretation have therefore expanded and clarified constitutional meaning over time.
  

4. Conventions: Many unwritten practices or conventions have developed, such as consulting the Chief Minister before appointing a Governor. These conventions guide constitutional functioning though they are not written into the text.
5. Political Parties: Political parties and their actions influence how constitutional provisions are used and re-shaped in practice. Party politics has affected constitutional change through legislation, amendments and governmental practice.
In summary, through amendments, legislation, judicial interpretation, conventions and political practice, the Indian Constitution has continued to evolve. This capacity to adapt while protecting core principles is why it is called a living document.

Q. 3. Explain the meaning, need of the amendment of the Constitution. Reflect the conflict between Judiciary and Parliament.
Ans: An amendment of the Constitution is a formal change made to its provisions to update, correct or improve its workings in the light of new circumstances. The Constitution requires amendments so that it can respond to social changes, technological advances, economic needs and political developments. It is not a closed or static rule book; it is created by and for human beings and must be capable of change to remain relevant.
Reasons why the Constitution needs amendments include:

• To correct defects or ambiguities discovered after enactment.
  
• To incorporate social and economic reforms and evolving values.
  
• To adapt governmental structures and procedures to new needs.
  
• To give effect to international obligations or changing federal arrangements.
  

An early example is the First Amendment (1951), enacted soon after the Constitution came into force to meet difficulties arising from land reform laws and related judicial challenges.
Conflict Between Judiciary and Parliament: There has been a long-standing tension between Parliament's power to amend the Constitution and the judiciary's power of constitutional review. Key episodes illustrate this conflict:

• In Golak Nath v. State of Punjab (1967), the Supreme Court held that Parliament could not abridge Fundamental Rights by constitutional amendment. This decision limited Parliament's amendment power.
  
• Parliament responded by passing the 24th Amendment (1971), which clarified that Parliament could amend any part of the Constitution, including Fundamental Rights, by following the procedure in Article 368.
  
• In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court sought to strike a balance: it held that Parliament had wide powers to amend the Constitution but that it could not alter the basic structure of the Constitution. This doctrine constrained Parliament's amendment power to protect essential constitutional features such as democracy, rule of law and fundamental rights.
  

Following these events, further tensions arose, particularly during the Emergency period (1975-77), when certain amendments (for example the 42nd Amendment) were seen as attempts to curtail judicial review and centralise authority. Subsequent judicial decisions (such as Minerva Mills (1980)) reaffirmed the basic structure doctrine and restored balance between Parliament and the judiciary.
Thus, the conflict between Parliament and the judiciary reflects a constitutional dialogue: Parliament represents democratic will and legislates for change, while the judiciary protects constitutional limits and fundamental principles. The resulting checks and balances have helped shape the Constitution into a document that can change, yet still preserve its core identity.