Constitution As A Living Document: Chapter Nine
Constitution As A Living Document: Chapter Nine
Constitution As A Living Document: Chapter Nine
Chapter Nine
CONSTITUTION AS A
LIVING DOCUMENT
INTRODUCTION
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In this chapter, you will see how the Constitution has worked in the last fiftyfive years and how India has managed to be governed by the same Constitution.
After studying this chapter you will find out that:
the Indian Constitution can be amended according to the needs of the time;
though many such amendments have already taken place, the Constitution
has remained intact and its basic premises have not changed;
the judiciary has played an important role in protecting the Constitution and
also in interpreting the Constitution; and
the Constitution is a document that keeps evolving and responding to changing
situations.
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It seems to me that
constitutional changes are very
closely linked to political
developments.
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the future generations will respect this document. At the same time,
they recognised that in the future, this document may require
modifications. Even at the time of writing the Constitution, they were
aware that on many matters there were differences of opinion.
Whenever society would veer toward any particular opinion, a change
in the constitutional provisions would be required. Thus, 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. In other
words, our Constitution is not a static document, it is not the final
word about everything; it is not unalterable.
Check your progress
After reading the section above, a number of
students in the class were confused. They made the
following statements. What would you say about
each of these statements?
The Constitution is like any other law. It simply
tells us what are the rules and regulations
governing the government.
The Constitution is the expression of the will of
the people, so there must be a provision to change
the Constitution after every ten or fifteen years.
The Constitution is a statement of the philosophy
of the country. It can never be changed.
The Constitution is a sacred document.
Therefore any talk of changing it is against
democracy.
HOW
TO
AMEND
THE
CONSTITUTION?
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.
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Similar to ordinary
law: simple majority
in Parliament: as
mentioned in some
articles
Special majority in
Parliament in both
Houses separately:
as per article 368
Special majority
+
Legislatures of half
the states: article
368
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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.
For amending the remaining parts of the Constitution,
provision has been made in Article 368 of the Constitution.
In this article, there are two methods of amending the
Constitution and they apply to two different sets of articles
of the Constitution. One method is that amendment can
be made by special majority of the two houses of the
Parliament. The other method is more difficult: it requires
special majority of the Parliament and consent of half of
the State legislatures. Note that all amendments to the
Constitution are initiated only in the Parliament. Besides
the special majority in the Parliament no outside agency
like a constitution commission or a separate bodyis
required for amending the Constitution.
Similarly, after the passage in the Parliament and in
some cases, in State legislatures, no referendum is
required for ratification of the amendment. An amendment
bill, like all other bills, goes to the President for his assent, but in this
case, the President has no powers to send it back for reconsideration.
These details show how rigid and complicated the amending process
could have been. Our Constitution avoids these complications. This
makes the amendment procedure relatively simple. But more
importantly, this process underlines an important principle: only
elected representatives of the people are empowered to consider and
take final decisions on the question of amendments. Thus, sovereignty
of elected representatives (parliamentary sovereignty) is the basis of
the amendment procedure.
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Special Majority
In the chapters on Election, Executive and Judiciary, we have come
across provisions that require special majority. Let us repeat again
what special majority means. Ordinarily, all business of the legislature
requires that a motion or resolution or bill should get the support of
a simple majority of the members voting at that time. Suppose that
at the time of voting on a bill, 247 members were present in the
house and all of them participated in the voting on the bill. Then, the
bill would be passed if at least 124 members voted in favour of the
bill. Not so in the case of an amendment bill. 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-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.
Can you see the significance of this requirement? In the Lok Sabha
there are 545 members. Therefore, any amendment must be
supported by a minimum of 273 members. Even if only 300 members
are present at the time of voting, the amendment bill must get the
support of 273 out of them. But imagine that 400 members of Lok
Sabha have voted on an amendment bill. How many members should
support the bill to get the bill passed?
In addition to this, both the Houses must pass the amendment
bill (with special majorities) separately. This means that unless there
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Dr. Ambedkar
CAD, Vol. XI, p. 976.
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Subject of amendment
Special
majority
Ratification
by States
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Citizenship clause
Right to freedom
of religion
Changes in the
Union List
Changes in State
boundaries
Provision regarding
Election Commission
years between 1974 and 1976. And again, in just three years, from
2001 to 2003, ten amendments took place. In the political history of
our country, these two periods are remarkably different. The first
was a period of Congress domination. Congress party had a vast
majority in the Parliament ( it had 352 seats in the Lok Sabha and a
majority in most State Assemblies). On the other hand, the period
between 2001 and 2003 was a period marked by coalition politics.
It was also a period when different parties were in power in different
States. The bitter rivalry between the BJP and its opponents is another
feature of this period. And yet, this period saw as many as ten
amendments in just three years. So, the incidence of amendments is
not dependent merely on the nature of majority of the ruling party
alone.
Graph 1
Amendments per
decade
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Graph 2
Years taken for every ten
amendments
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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. When these clashed, the
Parliament had to insert an amendment underlining one
particular interpretation as the authentic one. It is part of
the democratic politics that various institutions would
interpret the Constitution and particularly the scope of
their own powers in a different manner. 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. In the period between
1970 and 1975 this situation arose frequently.
In the chapter on the Judiciary, you have already
studied the issues of difference between the Judiciary and
the Parliament: one was the relationship between
fundamental rights and directive principles, the other was
the scope of right to private property and the third was
the scope of Parliaments power to amend the Constitution.
In the period 1970-1975, the Parliament repeatedly made
amendments to overcome the adverse interpretations by
the judiciary.
It may be kept in mind that during this period (197075) many political events were unfolding and thus this
history of our constitutional development can be fully
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Activity
Find out the amendment about the
right to education. What do you
think is the importance of this
amendment?
BASIC STRUCTURE
CONSTITUTION
AND
EVOLUTION
OF THE
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CONSTITUTION
AS A
LIVING DOCUMENT
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invention of the Judiciary. How did it invent such a nonexistent thing? And how is it that all other institutions
have accepted this during the past three decades?
Therein lies the distinction between letter and spirit.
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
Our discussion of the role of Judiciary, in the paragraph
above, brings out one more fact. In the background of the
fierce controversy that raged between 1967 and 1973,
the Parliament and the Executive also realised that a
balanced and long term view was necessary. After the
Supreme Court gave the ruling in the Kesavananda case
some attempts were made to ask the Court to reconsider
its ruling. When these failed, the 42nd amendment was
made and parliamentary supremacy was asserted. But
the Court again repeated its earlier stand in the Minerva
Mills case (1980). Therefore, even three decades after the
ruling in the Kesavananda case, this ruling has dominated
our interpretation of the Constitution. Political parties,
political leaders, the government, and the Parliament,
accepted the idea of inviolable basic structure. Even when
there was talk about review of the Constitution, that
exercise could not cross the limits set by the theory of the
basic structure.
When the Constitution was made, leaders and people
of our country shared a common vision of India. In
Nehrus famous speech at the time of independence, this
vision was described as a tryst with destiny. In the
Constituent Assembly also, all the leaders mentioned this
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Conclusion
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than the others. They will also always fight over what constitutes
the welfare of the people. But in the last instance, the final
authority lies with the people. People, their freedoms and their
well-being constitute the purpose of democracy and also the
outcome of democratic politics.
Exercises
1. Choose the correct statement from the following.
A constitution needs to be amended from time to time because,
Circumstances change and require suitable changes in the
constitution.
A document written at one point of time becomes outdated after
some time.
Every generation should have a constitution of its own liking.
It must reflect the philosophy of the existing government.
2. Write True / False against the following statements.
a. The President cannot send back an amendment bill for
reconsideration of the Parliament.
b. Elected representatives alone have the power to amend the
Constitution.
c. The Judiciary cannot initiate the process of constitutional
amendment but can effectively change the Constitution by
interpreting it differently.
d. The Parliament can amend any section of the Constitution.
3. Which of the following are involved in the amendment of the Indian
Constitution? In what way are they involved?
a. Voters
b. President of India
c. State Legislatures
d. Parliament
e. Governors
f. Judiciary
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4. You have read in this chapter that the 42nd amendment was one of
the most controversial amendments so far. Which of the following
were the reasons for this controversy?
a. It was made during national emergency, and the declaration of
that emergency was itself controversial.
b. It was made without the support of special majority.
c. It was made without ratification by State legislatures.
d. It contained provisions, which were controversial.
5. Which of the following is not a reasonable explanation of the conflict
between the legislature and the judiciary over different
amendments?
a. Different interpretations of the Constitution are possible.
b. In a democracy, debates and differences are natural.
c. Constitution has given higher importance to certain rules and
principles and also allowed for amendment by special majority.
d. Legislature cannot be entrusted to protect the rights of the
citizens.
e. Judiciary can only decide the constitutionality of a particular
law; cannot resolve political debates about its need.
6. Identify the correct statements about the theory of basic structure.
Correct the incorrect statements.
a. Constitution specifies the basic tenets.
b. Legislature can amend all parts of the Constitution except the
basic structure.
c. Judiciary has defined which aspects of the Constitution can be
termed as the basic structure and which cannot.
d. This theory found its first expression in the Kesavananda
Bharati case and has been discussed in subsequent judgments.
e. This theory has increased the powers of the judiciary and has
come to be accepted by different political parties and the
government.
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