Constitution as a living document Class 11 Political Science

Table of Contents
1. Are Constitutions Static?
2. Challenging Issues: Constitution and Solutions
3. How to Amend the Constitution?
4. Balancing Approach of the Indian Constitution
5. Amending the Indian Constitution: Process and Principles
6. Special Majority
7. Ratification by States
8. Why have there been so many Amendments?
9. Contents of Amendments Made So Far
10. Basic Structure and Evolution of the Constitution
11. Constitution as a Living Document
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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 Indian context this idea recognises that the Constitution of India is not static: it can be interpreted and amended to reflect changing social, political and cultural realities while retaining its core principles.

Are Constitutions Static?

• The Soviet Union existed for 74 years and had four different constitutions; after the collapse of the Communist Party in 1991 the newly formed Russian Federation adopted a new constitution in 1993.
• The Constitution of India was adopted on 26 November 1949 and came into force on 26 January 1950. Although more than five decades old in the material, it continues to govern the country.
• India inherited a constitution with a robust and flexible framework; the framers were far-sighted and included provisions to deal with many anticipated contingencies.
• The Constitution also recognises the need for modifications to meet new challenges; it therefore combines elements that are enduring with provisions that can be changed.
• Flexibility of interpretation (through judicial review) and the formal amending process (through Parliament) have together allowed the Constitution to adapt to changing political practice and social needs.
• Because of this mix of continuity and change, the Indian Constitution is commonly described as a living document rather than a closed, unchangeable rulebook.

Challenging Issues: Constitution and Solutions

• Constitutional provisions should reflect attempts to address current societal problems.
• A constitution must provide a durable framework for future governance of the country.
• A constitution must be capable of responding to future challenges and contingencies.
• Some provisions will be immediately relevant; others will have long-lasting significance.
• The constitution is not a fixed and immutable text; it may require amendment or reinterpretation.
• The constitution provides a structure for the democratic governance of society.
• The Indian Constitution embodies both approaches: it is treated with respect as a foundational document, yet it also permits change as circumstances evolve.
• The judiciary plays a vital role in protecting and interpreting the Constitution, ensuring its continuing relevance and effectiveness.

Preamble to the Constitution of India

How to Amend the Constitution?

Article 368 of the Constitution of India confers the power on Parliament to amend, add, vary or repeal any part of the Constitution. This power is exercised through a prescribed procedure that combines a special parliamentary majority and, in certain cases, ratification by state legislatures.

Balancing Approach of the Indian Constitution

• The Constitution should be amendable when necessary, but also safeguarded against frequent or unnecessary changes.
• It aims to strike a balance between flexibility (to accommodate change) and rigidity (to protect core features).
• The framers anticipated that some provisions might need revision and provided procedures to do so.
• Because India is a federal polity, certain changes that affect the powers of States require their consent.

Amending the Indian Constitution: Process and Principles

• The Constitution was deliberately drafted to allow corrections and updates while guarding against arbitrary alterations.
• Some provisions were included as temporary measures, with the expectation they might be revised by a later Parliament.
• Amendments do not require an external commission; they proceed through a parliamentary procedure that seeks broad support.
• The amending procedure is deliberately more complex than ordinary legislation to ensure stability and consensus.
• After both Houses of Parliament pass an amendment as required, the bill is sent to the President for assent; the President cannot return the bill for reconsideration.
• The principle that only elected representatives may amend the Constitution reflects the concept of parliamentary sovereignty within the constitutional framework.
• No nationwide referendum is necessary for constitutional amendment under the current procedure.

Special Majority

To pass most constitutional amendment bills under Article 368 a special majority is required in each House of Parliament. This special majority comprises two elements:

• 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.
• Additionally, the Constitution mandates that the legislatures of at least half the States must also pass the amendment bill for it to take effect.

Ratification by States

• Where an amendment seeks to alter the distribution of powers between the Centre and the States, affects the representation of States in Parliament, or relates to certain other provisions, it must be ratified by the legislatures of at least one half of the States.
• This state ratification is separate from the special majority in Parliament and must occur after the amendment is passed by both Houses.
• The requirement ensures protection of the federal nature of the Constitution and safeguards state interests in matters affecting federal relations.
• Protection of fundamental rights and other entrenched features also receives special judicial scrutiny to prevent misuse.

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.

Contents of Amendments Made So Far

1. Technical or Administrative Amendments

These amendments clarify language, correct anomalies, or make minor administrative changes without altering the substantive balance of the Constitution.

Examples

• 15th Amendment: Increased the retirement age of High Court judges from 60 to 62 years.
• 54th Amendment: Increased the salaries of judges of the High Courts and the Supreme Court.
• Reservation provisions: The original Constitution provided reservations for Scheduled Castes and Scheduled Tribes for a limited period (initially ten years); that period has been extended periodically by amendment, which are technical extensions rather than changes to the principal policy.
• Amendment to Article 74(1): Clarified that the President shall act in accordance with the advice of the Council of Ministers, serving as a legal clarification of the parliamentary system.

2. Amendments Due to Differing Interpretations

Certain amendments arose from conflicts between the Judiciary and the Parliament over the meaning and scope of constitutional provisions.

Key Issues Leading to Amendments (1970-1975)

• Conflict between Fundamental Rights and the Directive Principles of State Policy.
• Disputes over the right to private property and the extent to which it could be regulated.
• Questions about the scope of Parliament's power to amend the Constitution itself.

Judicial vs. Parliamentary Conflict

• Parliament sought to amend the Constitution in response to some Supreme Court rulings; the period 1970-75 saw several amendments aimed at resolving these conflicts.

3. Amendments Through Political Consensus

Many amendments have been passed with wide political agreement to reflect prevailing social aims and to strengthen democratic institutions.

Major examples

• 52nd Amendment (Anti-Defection Law) - aimed at preventing elected representatives from arbitrarily changing parties.
• 91st Amendment - further measures to restrict size of the Council of Ministers and strengthen the anti-defection regime.
• 61st Amendment - reduced the voting age from 21 to 18.
• 73rd and 74th Amendments - gave constitutional status to Panchayati Raj institutions and urban local bodies, strengthening local governance.
• 77th, 81st and 82nd Amendments - related to reservations in jobs and educational institutions; post-1992-93 consensus helped in their passage.

4. Controversial Amendments (1970-1980)

Some amendments during the Emergency period (1975-77) and immediately before and after it were highly controversial because they significantly altered the balance of power among branches of government.

• 38th Amendment - sought to curtail judicial review in particular circumstances.
• 39th Amendment - placed certain election matters beyond judicial scrutiny.
• 42nd Amendment (1976) - widely regarded as the most far-reaching and controversial amendment. Key changes included:
• Alteration of the Preamble in certain respects and extensive changes in the text.
• Modification of the Seventh Schedule and changes in the distribution of powers.
• Amendments to over fifty articles and insertion of Fundamental Duties.
• Extension of the term of the Lok Sabha from 5 to 6 years and curbs on the power of judicial review.

Reversal of controversial changes(Post Emergency)

• The 1977 elections brought a change of government; subsequent amendments (notably the 43rd and 44th Amendments) sought to restore constitutional balance by reversing or moderating several changes introduced during the Emergency period.

Basic Structure and Evolution of the Constitution

The Basic Structure Doctrine has been a central feature of constitutional evolution in India. In the Kesavananda Bharati case (1973) the Supreme Court held that while Parliament has wide powers to amend the Constitution, it cannot alter the "basic structure" or essential features that constitute the Constitution's identity.

Key contributions of the Basic Structure Doctrine

• Limits on Parliament's power: Parliament may not amend the Constitution in a manner that destroys its basic structure.
• Judicial authority: The Supreme Court has the final authority to determine whether an amendment violates the basic structure.
• Balance of rigidity and flexibility: The doctrine preserves core constitutional values while allowing change in peripheral areas.

Judiciary's role in constitutional evolution

• The Judiciary safeguards constitutional principles and ensures amendments conform to constitutional values and procedures.
• The Kesavananda Bharati (1973) judgment was pivotal: the Court defined the basic structure as the spirit of the Constitution that cannot be abrogated by amendment.
• Through interpretation and review, the Judiciary has expanded certain rights (for example, reading into Article 21 the right to a clean environment, education and livelihood) to keep the Constitution responsive to contemporary needs.

Review of the Constitution (2000)

• In 2000 the government appointed a commission chaired by Justice Venkatachaliah to review the working of the Constitution.
• Some opposition parties and organisations boycotted the commission, fearing far-reaching changes.
• The commission, after deliberation, upheld the significance of the basic structure doctrine and proposed no fundamental departures from it.

Constitution as a Living Document

The Constitution of India is described as a living document because it has adapted over time to changing social, political and economic conditions while maintaining its core principles. Adaptation occurs through formal amendments, judicial interpretation, and evolving democratic practice.

Why is the Constitution a Living Document?

1. Dynamic and evolving: The Constitution is not static; it grows through amendments, judicial interpretations and changing democratic practices. For example, the Basic Structure Doctrine-not explicitly stated in the text-was developed by the Judiciary in the Kesavananda Bharati case (1973) to preserve core features.

2. Judicial interpretation and adaptability: The Judiciary ensures that constitutional provisions are interpreted in light of contemporary realities. An important example is the widening of Article 21 (Right to Life) to include rights such as the right to a clean environment, education and livelihood.

3. Balance between rigidity and flexibility: The Constitution provides a framework that allows changes without compromising fundamental principles. The Kesavananda judgment limits Parliament's amending power so that the Constitution's core values remain intact while permitting modifications in other areas.

4. Democratic and institutional maturity: The Constitution has endured major political crises (for example, the Emergency and subsequent judicial-executive conflicts) because democratic institutions, political actors and citizens have continued to operate within its framework and have used constitutional mechanisms to restore balance when necessary.