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 42nd 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.
