Indian Constitution At Work Chapter 9 Constitution: As A Living Document

The nature of the State according to the Preamble is as under:

(a) India is a Sovereign State;

(b) India is a Democratic State;

(c) India is a Secular State;

(d) India is a Socialist State, and

(e) India is a Republic.

Following are the objectives of Constitution given in the Preamble:

(a) Justice-Social, political and economic;

(b) Liberty of thought, expression, belief, faith and worship;

(c) Equality of status and opportunity; and

(d) Fraternity assuring the dignity of the individual and the unity of the nation.

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Switzerland, Russia, Italy etc.

(a) Special majority.

(b) Ratification by states.

(c) Ratification by state.

(d) Special majority.

(e) Special majority.

The Soviet Union had four constitutions in its life of 74 years (1918, 1924, 1936 and 1977). In 1991 the rule of the Communist Party came to an end and the Soviet federation disintegrated.

After this political upheaval the newly formed ‘Russain federation adopted a new constitution in 1993.

Following two points prove goodness of our constitution:

1. The basic framework of the constitution is very much suited to our country. It is also true that the Constitution-makers were very farsighted and provided for many solutions for future situations.

2. Through amendments, our Constitution can provide for all eventualities. It accepts the necessity of modifications according to changing needs of the society.

Only closed representatives of the people of India are emproved to consider and take final decisions on the questions of amendments of the constitution. in this way sovereingnty of elected representatives of (Parliamentry sovereignty) is the basis of the amendments produce.

Parliament of India may exercise its constituent power (under Article 368) of amending by way of addition, variation or repeat any provision of the constitution in accordance with the procedure laid down in this article (368).

How to amend the constitution:

1. Similar to ordinary law, simple majority in Parliament as mentioned in some articles.

2. Special majority in the Parliament in both houses separetely: as per article 368.

3. Special majority legislatures of half the states article 368.

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The framers of the constitution were aware of the policy of ‘Divide and Rule’ of the Britishers. So they laid great stress for the need of ensuring the unity and integrity of the nation. To achieve this goal, India has been declared a secular state and the principle of single citizenship has been adopted. There is one constitution for the whole country and 22 languages have been given recognition by the Constitution. Along with unity of the nation the word integrity has been added by 42nd amendment of the Constitution.

The dictionary meaning of the term, ‘fraternity’ is ‘brotherhood’. Without fraternity, liberty and equality are meaningless. It was the main slogan of the French Revolution. The Preamble of the Indian Constitution lay special stress upon the promotion of fellow-feeling among the people of India. Unless the people become a community of interests, the cohesion into one nation is not possible.

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The word ‘Republic’ means that head of the state shall be elected one for a fixed tenure. In Indian Constitution there is no room for a hereditary monarch like the one in England or Japan. At the time of the assumption of office, the President has to take an oath “to devote himself to the service and well-being of the people of India.”

According to the Preamble of the Indian Constitution, a democratic form of Government has been envisioned in India. The Indian politics is based on the democratic principles. Here the government is “of the people, for the people and by the people.” The people elect their representatives periodically, who form the Government and use sovereign authority on behalf of the people.

During last two centuries, after the revolution and Napoleonic period, France has got continuous constitutional changes. The constitution of 1793 is called the period of first French Republic. Second Republic Commerced with a new Constitution in 1848. New constitution was adopted for the third time in 1875. In 1946, again a new constitution was adopted. The fifth French Republic Commenled in 1958, with the adoption of a new constitution again.

The citizens of India have been guaranteed a number of freedoms by the Constitution. Part III of the Constitution deals with the Fundamental Rights of the citizens. Some of the very important freedoms have been mentioned in the Preamble itself. They are liberty of thought, freedom to express one's view, belief and worship. In the list of the Fundamental Rights guaranteed to the Indian citizen six types of freedom have been described. For example, every Indian citizen has the liberty to express his views, speech and writing, adopt any profession move anywhere in India, settle anywhere and to form associations, etc.

When an amendment aims to modify an article related to federal structure, the Fundamental Rights, or articles related to representation, the amendment bill must be passed by at least half of the State Legislatures before it comes into effect. Such a regimen ensures a greater or wider consensus in the polity. Fundamental Right from the basic structure of the Constitution. So it becomes tough for the Parliament to get away with any short of amendments. Provisions related to the Federal Structure affect the States directly.

Flexible means open to changes and rigid means resistant to changes or modified is called flexible, while the constitution which are very difficult to amend, are described as rigid. A constitution is a living document. It has to reflect the changing needs and aspirations of the people. For the smooth working of the democracy. a proper balance should be established. The constitution must be amended if so required. But it must be protected from unnecessary and frequent changes.

The Preamble speaks of ‘equality of status and opportunity’. Equality of status means all are equal in the eyes of law and have equal protection of law. Nobody can be discriminated against on the basis of his religion, caste, creed, colour or sex (Article 14 and 15). The Constitution also offers equality of opportunity in matters relating to employment under the State (Article 16). Untouchability has been abolished (Article 17) and all titles except those of academic or military distinction, have been abolished (Article 18).

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The 42nd amendment was a wide ranging amendment affecting large parts of the constitution. It was also an attempt to override the ruling of the Supreme Court given in the Keshvananda Bharati case. Duration of the Lok Sabha was extended from five to six years. This amendment put restrictions on the review powers of the Judiciary. The amendment made changes to the Preamble, to the seventh schedule of the Constitution, and to 53 articles of the constitution. Due to these voluminous changes in the Constituion, 42nd amendment was called a mini constitution.

An amendment to the constitution requires two different sets of special majorities. In the first place, those voting in favour of the amendment bill should constitute at least half of the total strength of the House. Secondly the supporters of the bill must constitute two thirds of those present and voting. Both the houses have to pass the amendment bill separately in the same manner. (There is no provision for a joint session). This implies that there is sufficient consensus over the proposed amendment, it cannot be passed. The political party in power need to take at least some opposition parties into confidence, if it wanted to amend the constitution, thus making it broad based.

(i) India's Constitution accepts the necessity of modifications according to changing needs of the society.

(ii) In the actual working of the constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown matority and flexibility in implementing the Constitution.

The above mentioned two factors have made India's Constitution a living document rather than a closed any static rulebook.

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The 42nd amendment was one of the most controversial amendments. The reason of this controversy were:

(a) It was made during emergency and the declaration of that emergency was itself controversial.

(d) It contained provisions which were controversial.

It was an attempt to override the ruling of the Supreme Court given in the Kesavananda case. Even the duration of Lok Sabha was extended from five to six years. The 42nd amendment also put restrictions on the power of judicial review of the courts. This amendment made changes to the Preamble, to the Seventh Schedule and to 53 articles of the Constitution. Many MPs belonging to the opposition parties were in jail.

(a) The Constitution is an instrument that societies create for themselves. All other laws of the society have to conform to the tenets of the constitution. Hence the constitution is not like any other law. The constitution is fundamental to oil other laws.

(b) There not should be a provision for the change of constitution every ten or fifteen years. It won't do any good to the society. The so called banana republics are examples of this.

(c) No; a constitution must be rigid but at the same time it should be flexible enough to accomodate the changing needs and aspiration of the society.

(d) A constitution is a sacred document. But at the same time to meet the challanges of democracy, its provisions must be suitably changed. The changes in the constitution to meet the changing situations in the society are not against the spirit of the democracy.

The Preamble of the Indian Constitution has been described in the following manner:

“We the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all the citizens:

Justice—social, economic and political.

Liberty of thought, expression, belief, faith and worship.

Equality of status and opportunity and to promote among them all.

Fraternity, assuring the dignity of individual and the unity and integrity of the nation.

In our Constituent Assembly the twenty sixth day of November 1949, do hereby adopt, enact and give to ourselves this Constitution.

(a) Voters are not involved in the amendment of the Constitution.

(b) President of India is involved in the amendment of the Constitution: An amendment bill after ratification by the two Houses of Parliament goes to the President for his signature. Unlike other bills, the President has not powers to send an amendment bill back for reconsideration.

(c) State Legislatures: For some articles of the Constitution related to the distribution of powers between the Centre and States, or articles related to representation, it is necessary that the States are also consulted. Hence in some articles for amendment, half of the States have to ratify that Amendment Bill before it becomes an act.

(d) Parliament: Both the Houses of the Parliament must pass the amendment bill. Some articles can be amended by simple majority and some others are amended with special majority and the third type of amendments are needed special majority in both the Houses of Parliament separately and after that this amendment or these amendments are ratified by at least half of the States also.

(e) Governors: The Governors have no role in the amendment of Indian Constitution except those amendment bills which have to be passed or ratified by half of the states also. In that case Governors also put their signatures on the bill passed by the respective State Legislature.

(f) Judiciary: The judiciary (Supreme Court) specifies the basic tenents.

(a) It is an incorrect statement. There is no mention as such of basic tenets in the constitution. The basic structure theory is an invention of the Supreme Court.
(b) It is a correct statement.
(c) It is a correct statement. The basic structure theory is the invention of the judiciary.
(d) It is also a correct statement.
(e) It is a correct statement. The basic structure theory has increased the powers of the judiciary. In due course of time, a general respect for the inviolable nature of the basic structure of our constitution has developed across the legislature, executive, intelligentia and the common people.

Supreme Court gave the Kesavananda ruling in 1973 and advanced the concept of the Basic Structure of the Constitution which has governed all the inter-pretations of the constitution and all the institutions in the country have accepted the theory of basic structure. The ruling has contributed to the evolution of the constitution in the following ways:

(i) This ruling has jet specific limit to the Parliaments power to amend the constitution. It says that no amendment can violate the basic structure of the constitution.

(ii) It allows the Parliament to amend any and all parts of the constitution within this limitation.

(iii) It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.

The Parliament has passed the 86th Amendment Act, 2002 to make elementary education a Fundamental Right for children in the age group of 6-14 years. It states that 'The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may, by law, determine.' This amendment also proposed to bring in a follow up legislation with detailed mechanism to implement this act.

This amendment has a far-reaching significance. The State can now force any guardian or parent to send his/her child to school. Also any person can move to the courts for directions if the state fails in its endeavour.

Post- 1984, a large number of amendments have been effected through consensus among the political parties. Even when there were coalitian governments, this period saw many amendments. A general consenus on the need for some changes in order to reflect the prevailing political philosophy and aspirations in the society existed among the various parties. Starting with anti-defection amendment (52nd and 91st) a lot of amendment like bringing down the minimum age too voting from 21 to 18 years, the 73rd and 74th amendments, amendment clarifying and expanding the scope of reservations in jobs and admissions (77th, 81st and 82nd) etc. have been effected in the constitution through consensus.

The amendments which are clarifications, explanations and minor modifications of the provisions of the constitution are called technical amendments. Although these are amendments in the legal sense, they make no substantial difference to the provisions.

The 15th amendment that increased the age of retirement of High Court, judges from 60 to 62 years, 55th amendment, increasing the salaries of judges of High Courts and the Supreme Court are examples of such amendments. The amendments that have been effected every ten years in the provision regarding reserved seats in the legislature for scheduled castes and scheduled tribes, are only technical amendments as there have not made any difference to the original position. The amendments effected in the Article 74(1) of the constitution to clarify that the advice of the Council of Ministers will be binding on the President (President shall act in accordance with the advice of the Council of Minisers was also a technical amendment. In original constitution, it was assumed in our parliamentary government, the President shall normally abide by the advice of the Council of Ministers. So this amendment did not make any difference because, that is exactly what has been happening all through.

In the Preamble of the Indian Constitution, the political and economic justices have been described in the following manner:

1. Political Justice: Political justice means that all the citizens should enjoy the equal political rights. In other words, the citizens should have the right to participate in the Government.

2. Economic Justice: Economic justice means that every citizen should get the opportunity to earn livelihood. There should not be a big gap in the income of the citizens for this purpose. In the Article 39 of the Constitution it has been mentioned that the State will make efforts that the economic justice is done to the people on the principle of maximum welfare for the maximum people.

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Broadly speaking there are three ways of amendment of the articles of our constitutions. These are some articles which can be amended by simple majority just like an ordinary law. No special procedure is adopted for the modification in these articles. For amending the remaining parts of the constitution, provision has been made in Article 368 of the constitution two methods under this article.

All these three methods are discribed as follows:

1. Amendment by a single majority in both the Houses of Parliament (By law):

There are some provisions of the Constitution which can be amended by a resolution passed by a simple majority in both the Houses of Parliament. This amendment is like passing an ordinary bill by the Parliament. Bill on creation of new States, changing the boundaries of existing States, changing the names of the States, creation or abolition of second chamber in State Legislature, citizenships, fixing the qualification of Members of Parliament and State Legislatures, fixing the numbers of judges of the Supreme Court, etc., can be passed by a simple majority of the members present and voting in both the Houses. This makes a part of the Constitution most flexible.

2. Amendment by two-third majority in both the Houses of Parliament (Act 368): Most of the provisions of the Constitution for amendment require the resolution to be passed by a two-third majority of the members present and voting in both the Houses of Parliament. This method is not simple. Amendment resolution can be moved in any House and after it is passed by majority of total membership and two-third majority of the members present and voting, it is sent to the other House. If the other House also passed it with the majority of total membership and a two-third majority of two member present and voting only then the amendment is passed. Many times the Rajya Sabha has rejected the amendment bills passed by the Lok Sabha. Recent example is the Bill on Panchayats and Nagarpalikas.

3. Amendment by two-third majority in both the Houses of Parliament and approval of half of the State Legislatures (Act 368): Most important articles of the Constitution are more difficult to amend. For them after the amendment resolution has been passed by both the Houses of Parliament with majority of total member strength and of two-third majority of those present and voting in each House, the resolution has to be ratified by at least half the State Legislatures. Only thereafter it is considered to be passed.

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Amendment to the Constitution requires two different kinds of special majorities; in the first place, those voting in favour of the amendment bill should constitute at least half of the total strength of that House. Secondly, the supporters of the amendment bill must also constitute two-third of those who actually take part in voting. Both the Houses of Parliament must pass the amendment bill separately. This special majority is required for the reason that it would need at least some opposition parties into confidence so that the amending procedure is based on the basic principle that it should be based on broad support among the political parties and parliamentarians. In respect of the articles related to distribution of powers between the Centre and States or articles related to representation, it is necessary that the States must be consulted. The powers of the State must not be at the mercy of the Central government. The constitution has ensured this by providing that legislatures of half of the States have to pass such an amendment bill. The articles related to federal structure, provisions about Fundamental Rights, are also amended in this manner. Thus through wide consensus and limited participation of the States, the Constitution of India can be amended. Only half of the States is required due to the reason that the framers of the Constitution were most careful to keep this procedure somewhat flexible even in its more rigid format; consent of only half the States and simple majority of the State legislature is sufficient.

Many amendments to the Constitution of India have been made due to different interpretations upheld by the Judiciary and the Parliament. The First Amendment Act of 1951 made many changes in the Constitution. The reason was that certain flaws were discovered in the working of the Constitution and those had to be remedied. The right to freedom of speech and expression as given by Article 19 of the Constitution was held by some courts to be so comprehensive that no action could be taken against any individual. Moreover many states had passed laws abolishing Zamindari System but the laws were declared ultra vires by the courts. So it was considered necessary to amend the Constitution.

In the famous case of Kesavananda Bharti, the Parliament's power to amend the Constitution was checked and it has got some specific limits. It says that no amendment can violate the basic structure of the Constitution. When the judiciary and the government clash, the Parliament had to insert an amendment. On many occasions the Parliament has not agreed with the judicial interpretation and therefore sought to amend the Constitution to overcome the ruling of the judiciary.

In the period between 1970 and 1975 such a situation arose frequently. In 1971, the Twenty-Fourth Amendment gave the power to Parliament to amend any part of the Constitution in which the Fundamental Rights were also included. Forty Second Amendment (1976) was the most controversial. 38th, 39th and 42nd amendments were made in the background of internal emergency.

The 42nd amendment also put restrictions on the review powers of the judiciary. This amendment made changes to the Preamble, to the Seventh Schedule of the Constitution and to 53 other articles of the Constitution. The 43rd and 44th amendments cancelled most of the changes that were effected by the 38th, 39th and 42nd amendments. The constitutional balance was restored by these amendments. There are some examples in which judicial interpretation changed our understanding of the Constitution. As the Supreme Court had held that reservations in jobs and educational institutions cannot exceed fifty percent of the total seats.

There has been a controversy over the amending power of the Parliament. It was advocated that the amending power is with the elected representatives and judiciary should not have the powers to decide the validity of amendments. But it is not true. In fact, amendments during the period 1970 to 1980 generated a lot of legal and political controversy. The parties that were in opposition during the period 1971-1976 saw many of these amendments as attempts by the ruling party to subvert the Constitution. In the 42nd amendment the most parts of the Constitution were amended. If the judiciary would remain silent then the elected representatives can destroy the basic structure also. In terms of constitutional legal issues, the most serious question that came up again and again from 1950 was about the supremacy of the parliament. In a parliamentary democracy as that obtain in India, the Parliament represents the people and therefore it is expected to have an upper hand over both executive and judiciary. But at the same time there is the text of the Constitution and it has given powers to other organs of the government. Hence the judiciary should have the power to decide the validity of amendments also.

It is described that our Constitution is a living document. It is almost like a living being. Our Constitution has kept responding to the situations and the circumstances arising from the time to time. The Constitution of India was adopted on 26th November, 1949. Its implementation formally started from 26th January, 1950. More than fifty-six years after that, the same Constitution continues to function as the framework within which the government of our country operates. Our Constitution makers were so farsighted and wise that they had foreseen all the changes that would take place in the future.

The basic framework of the Constitution is very much suited to our country. Like a living being, the Constitution responds to the experience. Even after so many changes in the society, the Constitution continues to work effectively. Its main characteristics are that it has ability to be dynamic, to be open to interpretations and the ability to respond to the changing situations. The most important point is that our Constitution has been able to work effectively and protect democracy. Democracy is not only about for votes and people's representation but also about the rule of law. Democracy is also about developing institutions and working through these institutions. All the political institutions must be responsible to the people and maintain a balance with each other. Our Constitution has the ability to maintain all these conditions.

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(a) No, it is incorrect.

(b) No; the Supreme court has in many cases, only elaborated upon the theory of Basic Structure and given instances of what constitutes the Basic Structure of the Constitution.

(c) Yes.

(d) Yes, it has.

C.

There was a strong pressure from the public in favour of certain amendments.

D.

There were no real differences among the parties during this time.

E.

The amendments were of a non-controversial nature and parties had an agreement on the subject of amendments.

A.

Circumstances change and require suitable changes in the constitution.

D.

Legislature cannot be entrusted to protect the rights of the citizens.

It is not uncommon for nations to rewrite their constitution in response to changed circumstances or change of ideals within the society or even due to political upheavals. Former Soviet Union (or USSR) and France are good examples in this regard (N.B. students can refer to TB page 197 for more detail).

But as far as India is concerned it did not happen so (i) The Constitution of India was adopted on 26 November, 1949. Its implementation formerly stated from 26 January 1950. More than fifty-eight years after that the same Constitution continues to function as the framework within which the government of our country operates.

Is it an constitution so good that it needs no change? Was it that our Constitution markers were so farsighted and wise that they had foreseen all the changes that would take place in the future?

In some sense both the above answers are correct.

1. It is true that we have inherited a very robust constitution. The basic framework of the constitution is very much suited to our country.

2. It is also true and a hard fact that the constitution framers were very forsighted and intelligent. They provided for several solutions for future situations.

However, it is also a fact that no constitution can provide for all eventualities, no document can be such that it needs no change. Our Constitution is a living document. It accepts the necessity of modification according to changing needs of the society. Secondly, in the actual working of the constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution.