CHAPTER 9: CONSTITUTION AS A LIVING DOCUMENT

Introduction

• The Constitution is the supreme law of the country.
• It provides a framework within which the government functions and citizens enjoy rights.
• The Indian Constitution, adopted on 26 November 1949 and enforced on 26 January 1950, is one of the longest and most detailed constitutions in the world.
• It was designed to guide India, a diverse and changing society, through the challenges of democracy and development.
• However, society is not static — values, technology, economy, and politics all change.
• Therefore, a Constitution must also evolve to meet the new demands of the people.
• A “living document” means a constitution that adapts and grows over time through amendments, judicial interpretation, and political practice.
• India’s Constitution is rightly called a living document, as it continues to change with the needs of time.

ARE CONSTITUTIONS STATIC?

• A static constitution is one that remains unchanged regardless of societal evolution.
• But societies are dynamic, and political, economic, and social conditions change constantly.
• Therefore, a constitution must not be frozen in time. It must grow and adapt.

1. Changing Society

• India has transformed since 1950 — economically, socially, technologically, and politically.
• Issues like environmental protection, women’s rights, digital privacy, and globalization were not major concerns in 1950.
• These require new interpretations and sometimes amendments to the Constitution.

2. Purpose of a Constitution

• The Constitution provides a framework for governance, not a detailed code for every situation.
• Hence, its principles must be interpreted in light of changing circumstances.
• The framers intentionally made it flexible enough to allow adaptation.

3. Ambiguity by Design

• The Constitution uses broad and general terms like “reasonable restrictions”, “equality before law”, or “freedom of speech”.
• Such flexibility allows future generations to apply these principles differently according to new realities.

4. Democratic Flexibility

• Democracy thrives only when the Constitution allows space for change.
• The Indian Constitution, while detailed, also contains mechanisms for amendment and judicial review, which help it evolve.

5. Continuity and Change

• A balance is necessary:
  • Continuity ensures stability and respect for rule of law.
  • Change ensures relevance and responsiveness.
• India’s Constitution maintains this balance successfully.

HOW TO AMEND THE CONSTITUTION?

• The procedure for amending the Indian Constitution is given in Article 368.
• This ensures that the Constitution is neither too rigid nor too flexible.
• Amendments can be made by Parliament and, in some cases, also require ratification by States.

1. Purpose of Amendment

• To update the Constitution according to new needs.
• To clarify ambiguities or improve the functioning of institutions.
• To incorporate social and economic reforms.
• To remove inconsistencies or modernize provisions.

2. Methods of Amendment in India

The Indian Constitution provides three types of amendment procedures:

A. Amendment by Simple Majority

• Some provisions can be amended like ordinary laws.
• Passed by a simple majority of the members present and voting in both Houses of Parliament.
• These changes are not considered amendments under Article 368.

Examples include:

• Creation of new states and alteration of boundaries (Article 3)
• Abolition or creation of Legislative Councils in states
• Changes in the Second, Fifth, and Sixth Schedules

B. Amendment by Special Majority (Article 368)

• Most important provisions are amended by special majority.
• Requires:
  1. Two-thirds majority of members present and voting, and
  2. Majority of the total membership of each House.
• This ensures a broad consensus before changing key features.

Examples:

• Fundamental Rights
• Directive Principles of State Policy
• Powers of the President, Parliament, and Judiciary
• Union-State relations

C. Amendment by Special Majority with Ratification by States

• Some provisions affect both the Centre and the States, so States must also agree.
• In such cases, after Parliament passes the amendment, it must be ratified by at least half of the State Legislatures.
• No minimum time limit is given for state ratification.

Examples:

• Election of the President
• Distribution of legislative powers between Centre and States
• Representation of States in Parliament
• The Supreme Court and High Courts

3. Amendment Process in Practice

• A Constitution (Amendment) Bill can be introduced in either House of Parliament.
• It must be passed by the required majority.
• After passage, it is sent to the President for assent.
• The President must give assent — he cannot return it.
• After assent, the amendment becomes part of the Constitution.

SPECIAL MAJORITY

• The special majority ensures that important constitutional changes are not made casually or by a temporary majority.
• It requires:
  • Two-thirds of members present and voting, and
  • Majority of the total membership of the House.
• This double requirement strengthens constitutional stability while allowing democratic flexibility.
• Most major amendments, including those related to Fundamental Rights or Directive Principles, need this majority.

RATIFICATION BY STATES

• Federal provisions require the consent of States.
• This ensures that India’s federal character is respected.
• At least half of the State Legislatures must approve the amendment before it can be implemented.
• This process preserves cooperative federalism and balance of power between Centre and States.

Examples:

• 7th Amendment (1956) — Reorganization of States
• 42nd Amendment (1976) — Constitutional changes during Emergency
• 73rd and 74th Amendments (1992) — Local self-government

WHY HAVE THERE BEEN SO MANY AMENDMENTS?

India has had over 100 constitutional amendments since 1950.
This is due to the following reasons:

1. Dynamic Society

• India is a rapidly changing society — politically, economically, and socially.
• Amendments were needed to meet the new challenges of development, equality, and technology.

2. Experimentation and Adaptation

• The Constitution’s founders anticipated change, allowing flexibility.
• Amendments help the Constitution adapt without losing its spirit.

3. Political Developments

• Different governments introduced amendments to implement their policies and ideologies.
• For example, during the 1970s, several amendments were passed to strengthen the executive.

4. Social and Economic Reforms

• To promote social justice and implement the Directive Principles, many amendments were made, such as:
  • 1st Amendment (1951) — Restricted Freedom of Speech to protect public order.
  • 24th & 25th Amendments — Empowered Parliament to amend Fundamental Rights for land reforms.

5. Judicial Interpretations

• The Supreme Court’s judgments sometimes led Parliament to amend the Constitution to clarify intent or override decisions.
  • Example: 24th Amendment after the Golaknath case.

6. Political Compromises

• In a diverse and large democracy, amendments help accommodate regional and political demands.
• Example: 73rd and 74th Amendments introduced local self-governments (Panchayats and Municipalities).

7. Federal Adjustments

• As relations between the Centre and States evolve, amendments ensure a balance of power.

8. Globalization and Modernization

• Economic reforms and new global realities require constitutional adaptation.
• Example: 101st Amendment (2016) introducing the Goods and Services Tax (GST).

BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION

1. What is the Basic Structure Doctrine?

• Introduced by the Supreme Court in the Kesavananda Bharati case (1973).
• The Court ruled that Parliament can amend any part of the Constitution, but cannot alter its basic structure.
• This doctrine ensures that the Constitution’s core principles remain protected.

2. Elements of Basic Structure

The Court did not give a complete list but mentioned key features such as:

• Supremacy of the Constitution
• Sovereign, democratic, and republican form of government
• Secularism
• Separation of powers
• Federal character of the Constitution
• Judicial review
• Rule of law
• Unity and integrity of the nation
• Independence of judiciary
• Parliamentary system

3. Evolution through Judicial Interpretation

• The Judiciary has played a vital role in interpreting and protecting the Constitution.
• Through various judgments, it has expanded the meaning of Fundamental Rights and clarified constitutional principles.

Examples:

• Maneka Gandhi Case (1978) — Expanded the meaning of Article 21 (Right to Life and Personal Liberty).
• Indira Gandhi v. Raj Narain (1975) — Asserted that free and fair elections are part of the basic structure.
• Minerva Mills Case (1980) — Limited Parliament’s power to amend the Constitution.

4. Balance Between Flexibility and Permanence

• The basic structure doctrine ensures that while Parliament can change the Constitution, it cannot destroy its fundamental identity.
• This maintains both stability and growth.

CONTRIBUTION OF THE JUDICIARY

• The Judiciary, especially the Supreme Court, acts as the guardian and interpreter of the Constitution.
• It ensures that constitutional amendments and laws do not violate fundamental principles.

1. Judicial Review

• The power to review the constitutionality of laws and amendments.
• Prevents misuse of power by the Legislature or Executive.
• Protects citizens’ rights and the balance of power.

2. Expanding Fundamental Rights

• The Supreme Court has interpreted Fundamental Rights liberally to protect human dignity.
• Example: Right to Privacy, Right to Education, Right to Clean Environment have all evolved through judicial interpretation.

3. Balancing Directive Principles and Fundamental Rights

• The Court ensures harmony between Fundamental Rights (Part III) and Directive Principles (Part IV).
• Both are essential for achieving justice and welfare.

4. Safeguarding Federalism

• Judiciary ensures that Centre and States operate within their constitutional limits.
• Example: Striking down unconstitutional central laws that infringe on state powers.

MATURITY OF THE POLITICAL LEADERSHIP

• India’s political leadership has shown the capacity to respect constitutional values and work through democratic institutions.
• Although there have been challenges, India’s leaders have generally preferred constitutional solutions over authoritarian methods.

1. Respect for Rule of Law

• Despite political differences, leaders have largely respected the Constitution and Judiciary.

2. Learning from Experience

• Over the decades, India’s leadership has learned from past mistakes, such as the Emergency (1975–77).
• Post-Emergency amendments restored checks and balances (e.g., 44th Amendment).

3. Political Consensus

• Important amendments like GST and Panchayati Raj were passed with broad consensus, showing political maturity.

4. Democratic Continuity

• Even during political crises, India has maintained free elections and peaceful transfer of power, reflecting faith in the Constitution.

CONCLUSION

• The Indian Constitution is a living document because it continues to evolve through amendments, judicial interpretations, and democratic practice.
• It combines stability with flexibility, tradition with progress, and unity with diversity.
• The framers’ foresight, judicial wisdom, and political maturity of leaders have helped the Constitution survive and thrive.
• It stands as a symbol of India’s democratic spirit and the collective will of its people.
• The adaptability of the Constitution ensures that it will continue to guide India in the future, as a living instrument of governance and justice.