Chapter Notes

Introduction

The Constitution of India, adopted on 26 November 1949 and implemented on 26 January 1950, is a remarkable document. For over 69 years (as of the text's writing), it has served as the framework for governing the country. This chapter explores how the Constitution is not a static, unchanging rulebook but a living document that evolves over time. It can be amended to meet new challenges, and the judiciary plays a crucial role in interpreting and protecting it.

Are Constitutions Static?

Some nations rewrite their constitutions frequently due to political changes or new ideas. The Soviet Union, for instance, had four different constitutions in its 74-year history. France also underwent numerous constitutional experiments over the last two centuries.

In contrast, India has operated under the same Constitution since 1950. This durability is due to several factors:

• A Robust Framework: The Constitution's basic structure is well-suited for India.
• Farsighted Makers: The framers of the Constitution anticipated future challenges and provided solutions.
• Adaptability: The Constitution accepts the need for modifications according to the changing needs of society.
• Flexibility in Interpretation: Political practices and judicial rulings have allowed for flexible implementation of the Constitution.

The makers of the Indian Constitution struck a careful balance. They placed the Constitution above ordinary law, viewing it as a sacred document. At the same time, they recognized that it was created by human beings and would need revisions. Therefore, the Indian Constitution is neither unchangeable nor an ordinary law that can be altered easily. It is designed to be a living document that responds to new situations.

How to Amend the Constitution?

The Indian Constitution balances flexibility (openness to change) and rigidity (resistance to change) in its amendment process. This ensures it can adapt when necessary but is protected from frequent, unnecessary changes. The process is primarily laid out in Article 368 of the Constitution.

There are three main ways to amend the Constitution:

1. Amendment by Simple Majority of Parliament

Some parts of the Constitution can be changed by a simple majority, just like an ordinary law. This is the most flexible method and does not require the special procedures of Article 368.

• Process: A bill passed by a simple majority of members present and voting in both houses of Parliament.
• Examples:
  • Article 2: Admitting new states into the Union of India.
  • Article 3: Changing the area or boundaries of existing states.

2. Amendment by Special Majority of Parliament

Most provisions of the Constitution are amended using this method. It is more rigid than a simple majority and ensures that changes have broad support.

• Process: The amendment bill must be passed by a special majority in both the Lok Sabha and the Rajya Sabha separately. There is no provision for a joint session to resolve disagreements.
• What is a Special Majority? It requires two conditions to be met:
  1. The support of at least half of the total strength of the House.
  2. The support of two-thirds of the members present and voting.

3. Amendment by Special Majority plus Ratification by States

This is the most rigid method of amendment and is used for provisions that affect the federal structure of the country, ensuring that states have a say in changes that impact their powers.

• Process:
  1. The amendment bill must be passed by a special majority in both Houses of Parliament.
  2. It must then be approved (ratified) by the legislatures of at least half of the states with a simple majority.
• When is it required? This method is used for amendments related to:
  • The distribution of powers between the central government and the states.
  • Provisions related to representation.

Why Have There Been so Many Amendments?

As of early 2024, the Constitution has been amended 106 times. While this number seems high, the reasons are varied and not just due to political considerations. Amendments have occurred during periods of single-party dominance (like 1970-1980) and coalition politics (like 2001-2003).

The amendments can be classified into three main groups:

1. Technical or Administrative Amendments

These are minor changes, clarifications, or explanations that do not alter the core provisions of the Constitution.

• Example 1: The 15th Amendment increased the retirement age of High Court judges from 60 to 62.
• Example 2: Reservation of seats for Scheduled Castes and Scheduled Tribes was initially for ten years. It has been extended every ten years through amendments, which is a technical necessity to continue the original provision.
• Example 3: An amendment to Article 74 (1) formally stated that the President must act on the advice of the Council of Ministers, clarifying what was already a standard practice in India's parliamentary system.

2. Amendments due to Differing Interpretations

Many amendments arose from disagreements between the Parliament and the Judiciary over the interpretation of the Constitution. When the judiciary gave a ruling that Parliament disagreed with, it often passed an amendment to assert its interpretation.

• This was common between 1970 and 1975.
• Key areas of conflict included:
  • The relationship between Fundamental Rights and Directive Principles.
  • The scope of the right to private property.
  • The extent of Parliament's power to amend the Constitution.

3. Amendments through Political Consensus

This large group of amendments reflects a broad agreement among political parties on the need for change, reflecting the evolving political philosophy of the society.

• Example 1: The 52nd Amendment (Anti-Defection Law) was passed to curb the practice of legislators changing parties.
• Example 2: The 61st Amendment lowered the voting age from 21 to 18, reflecting a consensus to include more young people in the democratic process.
• Example 3: The 73rd and 74th Amendments granted constitutional status and greater powers to local governments (Panchayats and Municipalities).
• Example 4: Amendments expanding reservations in jobs and admissions were passed after 1992-93 due to an emerging consensus on these measures.

Controversial Amendments

Not all amendments have been smooth. The period from 1970 to 1980, especially during the internal emergency declared in June 1975, saw highly controversial amendments.

• The 38th, 39th, and 42nd amendments were particularly contentious. They were seen by the opposition as attempts by the ruling party to subvert the Constitution.
• The 42nd Amendment was the most sweeping. It was so extensive that it was sometimes called a "mini-constitution."
  • It tried to override the Supreme Court's ruling in the Kesavananda case.
  • It extended the term of the Lok Sabha from five to six years.
  • It added Fundamental Duties to the Constitution.
  • It restricted the power of judicial review.
• After the ruling Congress party was defeated in the 1977 elections, the new government passed the 43rd and 44th Amendments to reverse most of the changes made by these controversial amendments and restore the original constitutional balance.

Basic Structure and Evolution of the Constitution

One of the most significant developments in the evolution of the Indian Constitution is the doctrine of the basic structure.

The Basic Structure Doctrine

This principle was established by the Supreme Court in the landmark Kesavananda Bharati case of 1973.

• What it says: The doctrine states that while Parliament has the power to amend any part of the Constitution, it cannot change its "basic structure."
• Its Impact:
  1. It sets specific limits on Parliament's amending power.
  2. It places the Judiciary as the final authority to decide what constitutes the basic structure.

This doctrine has become a cornerstone of Indian constitutional law and has been accepted by all institutions. It creates a balance: it makes the core of the Constitution rigid and unchangeable, while keeping the rest of it flexible and open to amendment.

Judicial Interpretation as Informal Amendment

The judiciary has shaped the Constitution in other ways too, effectively creating informal amendments through its interpretations.

• Reservations: The Supreme Court ruled that reservations in jobs and education cannot exceed 50%. It also introduced the concept of the "creamy layer" to exclude affluent members of backward classes from reservation benefits.
• Rights: The Court's interpretations have expanded the meaning of rights like the right to education, right to life, and liberty.

Constitution as a Living Document

The Indian Constitution has endured because it is dynamic and responds to changing circumstances and experiences, much like a living being. This is the hallmark of a democratic constitution.

The Role of the Judiciary and Political Leadership

• Judicial Contribution: In the face of tensions between Parliament and the Judiciary, the Supreme Court resolved conflicts by looking at the spirit of the Constitution rather than just its literal text. The basic structure doctrine is the prime example of this, preserving the core vision of the framers.
• Political Maturity: After initial conflicts, India's political leaders and parties accepted the basic structure doctrine. This showed a shared commitment to a balanced constitutional framework and the foundational values of the nation: dignity and freedom of the individual, social and economic equality, and national unity.

Conclusion

In a democracy, debates and differences are natural and healthy. The success of the Indian Constitution lies in the ability of its political system to manage these debates. While institutions may compete for supremacy, Indian politics has shown a maturity to find compromises and common ground. Ultimately, the Constitution is a tool to serve the people, whose freedoms and well-being are the final purpose of democracy.