Chapter 9: The Constitution as a Living Document

Introduction

The Constitution of India, adopted on November 26, 1949, and formally brought into effect on January 26, 1950, has successfully served as the governing framework for the country for over 74 years. This long-standing stability is not common globally, prompting an examination of how the same foundational document remains effective.

By studying this chapter, we understand that :

1.     The Indian Constitution can be amended according to the needs and changes of the time.

2.     Despite numerous amendments, the fundamental structure and basic premises of the Constitution have remained intact.

3.     The Judiciary has played a vital role in protecting and interpreting the Constitution.

4.     The Constitution is a living document—a text that continuously evolves and responds to changing societal situations.

Are Constitutions Static?

It is frequent for nations to rewrite their constitutions following significant political turmoil, shifts in societal values, or changed circumstances.

Comparative Constitutional Dynamics

The Durability of the Indian Constitution

The success of the Indian Constitution is attributed to its robustness and the farsightedness of its framers.

1.     Robust Framework: The basic structure of the Constitution is inherently robust and well-suited to the country.

2.     Farsighted Makers: The Constitution makers provided solutions for many unforeseen future situations, though they knew no document could provide for all eventualities.

3.     Acceptance of Modification: The Constitution explicitly accepts the need for modifications to align with the changing needs of society.

4.     Flexibility in Working: The practical operation of the Constitution has exhibited substantial flexibility of interpretations. This maturity in implementation is visible through both political practice and judicial rulings.

These factors define the Constitution as a living document rather than a fixed or static rulebook.

The Dual Role of the Constitution

Constitutions must address both the current challenges of a society and provide a framework for future governance.

●      Sacred Document: The framers placed the Constitution above ordinary law, intending for future generations to respect its authority as it reflects the dreams and aspirations of society.

●      Revisable Instrument: They also recognized that since it was made by human beings, it is not “unalterable” or “frozen” and may require revisions and changes, especially when public opinion shifts toward a particular viewpoint.

The Indian Constitution combines these two approaches, making it a flexible instrument that can be modified, while maintaining its status as a foundational text.

How to Amend the Constitution?

The framers aimed to strike a balance between making the Constitution flexible (open to changes) and rigid (resistant to unnecessary changes).This balance protects the document from unnecessary and frequent changes.

The Constituent Power

The power to amend is derived from Article 368:

Article 368: “…Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article”.

The Constitution provides three distinct methods for amendment:

Method I: Amendment by Simple Majority (Flexibility)

Many articles can be amended by a simple law of the Parliament, requiring only a simple majority of members present and voting. No special procedure under Article 368 is required for these flexible parts.

The wording ‘by law’ indicates that these articles can be modified like ordinary statutes.

●      Example (Article 2): Parliament may by law admit into the union new states.

●      Example (Article 3): Parliament may by law increase the area of any state.

 Method II: Amendment by Special Majority (Standard Rigidity)

This method, provided in Article 368, applies to the majority of constitutional provisions and requires a Special Majority in both Houses of Parliament separately.

The Special Majority requires two simultaneous conditions :

1.     Absolute Majority: Support of at least half of the total strength of that House (e.g., minimum 273 members in the Lok Sabha).

2.     Two-Thirds Majority of Attendees: Support of at least two-thirds of those members who actually take part in voting.

This stringent requirement ensures that constitutional changes are based on broad support among political parties and not merely a simple governing majority. There is no provision for a joint session for amendment bills.

Quote on Public Opinion (Dr. Ambedkar):

The requirement of a special majority is linked to public opinion:

Dr. Ambedkar, 25 November 1949: “If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even (that)…. their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.”

3. Method III: Special Majority + Ratification by States (Maximum Rigidity)

This method under Article 368 applies when an amendment modifies features related to the federal structure (like the distribution of powers or representation).

The procedure requires:

1.     Passage by Parliament with a Special Majority (Method II).

2.     Ratification (approval) by the legislatures of at least half of the States.

This provision ensures that the rights and powers of the States are not unilaterally changed by the central government. To maintain flexibility, the State legislatures only need to approve the bill by a simple majority.

Procedural Principles

●      Initiation: All amendments are initiated only in the Parliament. State legislatures cannot propose amendments.

●      External Agencies: No outside agency—such as a constitutional commission or a popular referendum—is required for amending the Constitution.

●      President’s Role: The amendment bill goes to the President for assent, but the President has no power to send it back for reconsideration.

●      Underlying Principle: The sovereignty of elected representatives (parliamentary sovereignty) is the basis of the amendment procedure.

Why Have There Been So Many Amendments?

As of January 26, 2024, the Constitution has been amended 106 times. This high number, despite a difficult amending method, requires analysis.

Historical Context of Amendments

●      The two decades from 1970 to 1990 saw a large number of amendments.

●      1974 to 1976 (3 years): Ten amendments took place during a period of strong Congress domination, where the party held a vast majority in Parliament and most State Assemblies.

●      2001 to 2003 (3 years): Ten amendments took place during a period of coalition politics and political rivalry. This shows that amendment activity is not solely dependent on the ruling party’s majority but also on the emergence of necessary consensus.

Classification of Amendments

Amendments made so far can be classified into three main groups :

1. Technical and Administrative Amendments

These are clarifications, explanations, minor modifications, or the extension of temporary provisions that make no substantive difference to the core provisions.

Example (15th Amendment): Increased the retirement age of High Court judges from 60 to 62 years.

Example (54th Amendment): Increased the salaries of High Court and Supreme Court judges.

Temporary Provisions: Amendments made every ten years (six times so far) to extend the reservation of seats in legislatures for Scheduled Castes and Scheduled Tribes.

Clarification (Article 74(1)): Reiterated the convention that the advice of the Council of Ministers is binding on the President.

2. Amendments Resulting from Differing Interpretations

These amendments arose when Parliament and the Judiciary offered competing interpretations of constitutional provisions, leading Parliament to amend the text to assert its own interpretation. This conflict was frequent between 1970 and 1975.

Key Issues: The relationship between Fundamental Rights and Directive Principles, the scope of the right to private property, and the limits on Parliament’s power to amend the Constitution.

3. Amendments through Political Consensus

This large group includes changes made due to a broad agreement among political parties, reflecting evolving political philosophy and societal aspirations. Many post-1984 amendments fall into this category.

 Anti-defection: The 52nd Amendment (Anti-defection law) and the 91st Amendment aimed to minimize political instability.

Voting Age: The 61st Amendment lowered the minimum age for voting from 21 to 18 years.

Local Governance: The 73rd and 74th Amendments granted constitutional status to Panchayats and Municipalities.

Social Justice: Amendments relating to reservations, such as the 77th, 81st, and 82nd (post-1992/93), were passed with emerging national consensus.

4. Controversial Amendments

The period between 1970 and 1980 generated intense legal and political controversy over constitutional amendments, which opposition parties viewed as attempts to subvert the Constitution.

Context: The most disputed amendments—the 38th, 39th, and 42nd—were enacted against the backdrop of the Internal Emergency, declared in June 1975.

The 42nd Amendment (1976): Often referred to as a “Mini-Constitution,” this extensive and controversial amendment affected the Preamble, the Seventh Schedule, and 53 articles. Key changes included:

○      Extending the duration of the Lok Sabha from five to six years.

○      Inserting Fundamental Duties into the Constitution.

○      Putting restrictions on the review powers of the Judiciary.

○      Attempting to override the ruling of the Supreme Court in the Kesavananda case.

Restoration: Following the defeat of the ruling party in 1977, the new government introduced the 43rd and 44th Amendments to cancel most of the fundamental changes enacted by the 38th, 39th, and 42nd Amendments, restoring the institutional balance.

Basic Structure and Evolution of the Constitution

The most significant factor in the evolution of the Constitution is the development of the Basic Structure Doctrine (BSD) by the Judiciary.

The Landmark Ruling: Kesavananda Bharati (1973)

The BSD was advanced by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala in 1973. This doctrine fundamentally limited Parliament’s amending power.

The BSD has shaped constitutional evolution in three ways :

1.     Imposition of Limits: It sets specific limits on Parliament’s constituent power, declaring that no amendment can violate, damage, or destroy the basic structure of the Constitution.

2.     Scope of Power: It affirms that Parliament retains the power to amend any and all parts of the Constitution, provided it respects the basic structural limitation.

3.     Judicial Supremacy in Review: It establishes the Judiciary as the final authority in deciding whether an amendment violates the basic structure and determining what elements constitute the basic structure itself.

The Doctrine as a Living Constitutional Norm

The BSD is an entirely unwritten theory, meaning there is no mention of the “basic structure” in the original constitutional text. It is an innovation that emerged purely from judicial interpretation. Since 1973, this doctrine has governed all constitutional interpretations and has been accepted by all institutions.

Contribution of the Judiciary to Informal Amendment

Judicial interpretation continually contributes to the Constitution’s evolution by clarifying and expanding existing provisions :

●      Reservation Policy: The Supreme Court established the norm that reservations should not exceed fifty per cent of the total seats.

●      Social Equity: In cases related to reservations for Other Backward Classes (OBCs), the Judiciary introduced the principle of the ‘creamy layer,’ ruling that individuals belonging to this economically advanced group are not entitled to reservation benefits.

●      Fundamental Rights: The Judiciary has informally evolved the understanding of provisions concerning the Right to Education, the Right to Life and Liberty (Article 21), and the right of minorities to form and manage educational institutions.

Review of the Constitution

In the year 2000, the Government of India appointed the National Commission to Review the Working of the Constitution (NCRWC), chaired by retired Chief Justice Justice Venkatachaliah.

The commission’s mandate was to recommend changes to improve governance without interfering with the ‘basic structure’ or ‘basic features’.

The commission’s adherence to this judicial doctrine, despite political controversy, underscores the entrenched significance of the basic structure in India’s constitutional practice.

Constitution as a Living Document

The enduring strength of the Indian Constitution lies in its ability to function “almost like a living being,” continually adapting to new circumstances and evolving through accumulated experience.

Institutional Balance and the Rule of Law

The successful working of the Constitution lies in resolving the inherent tension between different state organs :

●      Parliamentary Supremacy: Parliament, as the representative body, asserts its supremacy, but this power must operate within the constitutional framework.

●      Judiciary’s Role (Rule of Law): The Judiciary insists that all policy measures must strictly adhere to legal procedures. This prevents power holders from acting arbitrarily, ensuring that the Rule of Law and checks on power are upheld.

The Spirit Over the Letter

The Judiciary’s “invention” of the basic structure theory in Kesavananda Bharati was a realization that interpreting a foundational document requires respecting the intent and spirit behind it, not just the literal text. The Court looked for concepts without which the Constitution cannot be fundamentally imagined.

Maturity of the Political Leadership

The eventual acceptance of the Basic Structure Doctrine by all political institutions (notably after the Minerva Mills case, 1980) signifies the maturity of India’s political leadership. Democracy requires politicians to moderate extreme views and reach a common minimum ground through compromise. This collective skill has been crucial to the successful operation of the democratic Constitution.

The Constitution remains an object of respect because it is anchored in a shared national vision (described by Nehru as a “tryst with destiny”), which includes the principles of individual dignity and freedom, social and economic equality, and national integrity.

A Dissenting View

Even during the Constitution’s drafting, not all members were confident in its enduring nature. Lakshminarayan Sahu, a member of the Constituent Assembly, voiced dissent :

Quote from Lakshminarayan Sahu (CAD, Vol. XI, p. 613, 17 November 1949):

“The ideals on which this draft constitution is framed have no manifest relation to the fundamental spirit of India. …this Constitution …would not prove suitable and would break down soon after being brought into operation.”

The final authority and purpose of democratic governance ultimately rest with the People, their freedoms, and their well-being.