CONSTITUTION AS A LIVING DOCUMENT

ARE CONSTITUTIONS STATIC?

• The Soviet Union had four constitutions in its life of 74 years (1918, 1924, 1936 and 1977).The Constitution of India was adopted on 26 November 1949.
• More than fifty-five years after that, the same constitution continues to function as the framework within which the government of our country operates. How does the same Constitution continue to serve the country?
• One of the answers to such questions is that our Constitution accepts the necessity of modifications 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. These factors have made our Constitution a living document rather than a closed and static rulebook.
• The Indian Constitution is a combination of both the approaches mentioned above: that the constitution is a sacred document and that it is an instrument that may require changes from time to time.

HOW TO AMEND THE CONSTITUTION?

            Simple Majority

• There are many articles in the Constitution, which mention that these articles can be amended by a simple law of the Parliament. No special procedure for amendment is required in such cases and there is no difference at all between an amendment and an ordinary law.
• Read carefully the following text of some articles of the Constitution. In both these articles, the wording ‘by law’ indicates that these articles can be modified by the Parliament without recourse to the procedure laid down in Article 368. Many

other articles of the Constitution can be modified by the Parliament in this simple manner.

Article 2: Parliament may by law admit into the union …..new states….

Article 3: Parliament may by law… b) increase the area of any state….

Special Majority

• Amendment to the Constitution requires two different kinds of special majorities
• Firstly, 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-thirds of those who actually take part in voting.
•  Both Houses of the Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session). For every amendment bill, this special majority is required.

Ratification by States

• When an amendment aims to modify an article related to distribution of powers between the States and the central government, or articles related to representation, it is necessary that the States must be consulted and that they give their consent.
• Care is taken to keep this procedure somewhat flexible even in its more rigid format: consent of only half the States is required and simple majority of the State legislature is sufficient.

Contents of Amendments made so far

Amendments made so far may be classified in three groups.

• In the first group there are amendments, which are of a technical or administrative nature and were only clarifications, explanations, and minor modifications etc.of the original provisions. They are amendments only in the legal sense, but in matter of fact, they made no substantial difference to the provisions.

Differing Interpretations

• A number of amendments are a product of different interpretations of the Constitution given by the judiciary and the government of the day. Many times, the Parliament did not agree with the judicial interpretation and therefore, sought to amend the Constitution to overcome the ruling of the judiciary.

Amendments through Political Consensus

• Thirdly, there is another large group of amendments that have been made as a result of the consensus among the political parties. Apart from the anti-defection amendments (52nd and 91st) these amendments include the amendment bringing down the minimum age for voting from 21 to 18 years, the 73rd and the 74th amendments, etc. In this same period, there were some amendments clarifying and expanding the scope of reservations in jobs and admissions. After1992-93, an overall consensus emerged in the country about these measures and therefore, amendments regarding these measures were passed without much difficulty (77th, 81st, and 82nd amendments).

Controversial Amendments

• 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 particular, the 38th, 39th and 42^nd amendments have been the most controversial amendments so far. These three amendments were made in the background of internal emergency declared in the country from June 1975. They sought to make basic changes in many crucial parts of the Constitution.
• The 42nd amendment was particularly seen as 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 Kesavananda case. Even the duration of the Lok Sabha was extended from five to six years. this amendment made changes to the Preamble, to the seventh schedule of the Constitution and to 53 articles of the Constitution?

BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION

Judiciary advanced this theory in the famous case of Kesavananda Bharati. This ruling has contributed to the

evolution of the Constitution in the following ways:

• It has set specific limits to the Parliament’s power to amend the Constitution. It says that no amendment can violate the basic structure of the Constitution;
• It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and
• It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.

There are many other examples of how judicial interpretation changed our understanding of the Constitution. In many decisions the Supreme Court had held that reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats. This has now become an accepted principle. Similarly, in the case involving reservations for other backward classes, the

Supreme Court introduced the idea of creamy layer and ruled that persons belonging to this category were not entitled to benefits under reservations. In the same manner, the Judiciary has contributed to an informal amendment by interpreting various provisions concerningn right to education, right to life and liberty and the right to form and manage minority educational institutions. These are instances of how rulings by the Court contribute to the evolution of the Constitution.

Review of the Constitution

In the late nineties, efforts were made toreview the entire Constitution. In the year2000 a commission to review the working of the Constitution was appointed by the overnment of India under the chairmanship f a retired Chief Justice of the Supreme Court, Justice Venkatachaliah. Opposition parties and many other organizations boycotted the commission. While a lot of political controversy surrounded this commission, the commission stuck to the theory of basic structure and did not suggest any measures that would endanger the basic structure of the Constitution. This shows the significance of the basic structure doctrine in our constitutional practice.

CONSTITUTION AS A LIVING DOCUMENT

In a democracy, practices and ideas keep evolving over time and the society engages in experiments according to these. constitution, which protects democracy and yet allows for evolution of new practices becomes not only durable but also the object of respect from the citizens.

Contribution of the Judiciary

The success of the working of the Indian Constitution lies in resolving these tensions. The Judiciary, in its famous Kesavananda ruling found a way out of the existing complications by turning to the spirit of the

Constitution rather than its letter. If The Court came to the conclusion that in reading a text or document, we must respect the intent behind that document. A mere text of the law is less important than the social circumstances and aspirations that have produced that law or document. The Court was looking at the basic structure as something without which the Constitution cannot be imagined at all. This is an instance of trying to balance the letter and the spirit of the Constitution.

Maturity of the Political Leadership

In the background of the fierce controversy that raged between 1967 and 1973, the Parliament and the Executive also realize that balanced and long term view was necessary.