Ideation of a Living Constitution or a Dead constitution

Status of the constitution: Is it so sacred that nobody can ever change it or is it so

ordinary an instrument that can be modified just like any other ordinary law?

Our Constitution was drafted on the backdrop of a long struggle of freedom so the composers
were so circumspect about each and every provision that it took them 2years, 11months and
17days to frame the Constitution. But even after being so meticulous and prudent is it that our
constitution is so good that it requires no change? Was it that our Constitution makers were
so farsighted and knowledgeable that they had foreseen all the changes that would take place
in the future? By answering these basic questions through this essay I’ll gradually be able to
construct a viewpoint on the idea or status of our Constitution as a living one or dead.

Heraclitus, a Greek philosopher, is quoted as saying “change is the only constant in life”.
Change is not only necessary, it is inevitable and, truly, our only constant. This applies aptly
to every person on this planet and every document of valuation and quality just as our
Constitution. It is true that the Constitution makers were very farsighted and provided for
many solutions for future situations, but no Constitutions can provide for all eventualities. No
document can be such that it needs no change. Similarly, 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 judicature 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.

In any society, those responsible for drafting the constitution at a particular time would face
one common challenge: the provisions of the constitution would naturally reflect efforts to
tackle the problems that the society is facing at the time of making of the constitution. At the
same time, the constitution must be a document that provides the framework of the
government for the future as well. Therefore, the constitution has to be able to respond to the
challenges that may arise in the future. In this sense, the constitution will always have
something that is contemporary and something that has a more durable importance. Thus it
indeed isn’t a frozen or unalterable document. It is a document made by human beings and
may require revisions, changes and re-examination.

The makers of the Constitution wanted to strike a balance between the status of the
Constitution so they placed it above ordinary law and expected that the future generations
will respect this document. Simultaneously, they recognised that in the future, this document
may require modifications. 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.
To say that whatever have been incorporated in the Constitution initially must not be touched
and changed even with the change of time is to make the Constitution a dead document.
The Constitution has stood the test of time, even if it has to undergo repeated surgery in the
process-112 Amendments. The Constitution, of course, created itself as a self- generating and
self-correcting entity, a living document that allowed for its own amendment to meet the
changes of the times. The preamble of the Constitution states “we” have adopted, enacted and
given ourselves this constitution. In a way, this reflected the Founders’ confidence in the
people of this land to make the necessary adjustments and rise to meet every new challenge to
society. The small-minded may consider the large number of amendments as a sign of
constitutional weakness, but those with a broader vision would understand that it was actually
a sign of its inherent strength— a strength that derives from the Constitution’s ability to be
flexible without the risk of self-destruction. It must also be kept in mind that the constitution
is a framework for the democratic governance of the society. In this sense, it is an instrument
that societies create for themselves. Societies are ever-changing and evolving and the
adaptability of the Constitution to these ever-changing societies has made it a vehicle of
social change.

A day before the Indian Constitution was formally adopted on November 26, 1949 after
nearly three years of intense deliberations, Bhim Rao Ambedkar delivered one of his finest
speeches. Summing up the work of the Constituent Assembly, he said, "However good a
constitution may be, it is sure to turn out to be bad because those who are called to work it
happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those
who are called to work it happen to be a good lot." This was the onerous burden that
Amebedkar and the framers of the Indian Constitution put on future governments and leaders.
There was, however, no doubt in Ambedkar's mind that along with time the Constitution
would be amended.

The makers of the Constitution were aware of the fact that there may be some faults or
mistakes in the Constitution; they knew that the Constitution could not be totally free of
errors. Whenever such mistakes would come to light, they wanted the Constitution to be
easily amended and to be able to get rid of these mistakes. Classification of amendment
procedures can if classified in two heads as rigid and flexible. Rigid, procedures means
difficult to amend the constitution like that of U.S., Australia, Canada and Switzerland and
flexible procedure means in which procedure to amend is easy, and can be done even by
passing a normal legislation like that of United Kingdom. But in Indian constitution though
the procedure is classified as Rigid but it has practically proved to a flexible one.
In India Article 368 provides the power of amendment. The procedure to be followed in India
in not strictly rigid or flexible, and further there is a difference in procedure when it affects
the federal character of the Union. 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. 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. The clause 2 of Art 368 also
specifies certain situations in which apart from above mentioned special majority ratification
by more than half of the number of States is required, they are:
# Election of the President.
# Extent of executive power of the Union & State.
# Provisions dealing with the Supreme Court.
# Provisions dealing with High Courts in the States & Union territories
# Distribution of legislative power between Centre and State
# Representation of States in Parliament.
# Seventh schedule
# Article 368 itself.

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. This is true of the amendment that increased the age of retirement of High Court
judges from 60 to 62 years (15th amendment). Similarly, salaries of judges of High Courts
and the Supreme Court were increased by an amendment (55th amendment). We may also
take the example of the provision regarding reserved seats in the legislatures for scheduled
castes and scheduled tribes. The original provision said that these reservations were for a
period of ten years. However, in order to ensure fair representation of these sections, it was
necessary to extend this period by ten years. Thus, after every ten years an amendment is
made to extend the period by another ten years. This has led to five amendments so far. But
these amendments have not made any difference to the original provision.

Differing Interpretations - According to Constitution, parliament and state legislature in India

have the power to make the laws within their respective jurisdiction. This power is not
absolute in nature. The constitution vests in judiciary, the power to adjudicate upon the
constitutional validity of all the laws. If a laws made by parliament or state legislature
violates any provision of the constitution, the Supreme Court has power to declare such a law
invalid or ultra-virus. So the process of judicial scrutiny of legislative acts is called Judicial
Review. Article 368 of the Constitution gives the impression that Parliament's amending
powers are absolute and encompass all parts of the document. But the Supreme Court has
acted as a brake to the legislative enthusiasm of Parliament ever since independence. With
the intention of preserving the original ideals envisioned by the constitution-makers. To
Abraham Lincoln, democracy meant a Government of the people, by the people and for the
people. So in democratic nation whenever any law passed by parliament violates any
provision of constitution or takes away any fundamental rights of the person, the Supreme
Court has right and power to strike down that law or act.

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.
These changes were necessary and were made in order to reflect the prevailing political
philosophy and aspirations of the society. In fact, many of the amendments of the post-1984
period are instances of this trend. Starting with the anti-defection amendment (52nd
amendment), this period saw a series of amendments in spite of the political turbulence.
Apart from the anti-defection amendments (52nd and 91st), these amendments include the
61st 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. After 1992-93, 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).

Our judiciary has time and again crafted remedies to various disputes between the legislatures
responsibility towards its citizens ranging from human rights to environmental practices. PIL
or Public interest litigation is a momentous development under which people with no locus
standi on an issue can file a petition in the court to highlight or recognize the matters of
public policy that is generally the task of the Legislature and Executive. The Supreme Court
has also evolved the concept of the ‘basic structure’ of the Constitution which cannot be
altered even by constitutional amendment, a far-reaching doctrine whose full implications we
are yet to discover. Our Constitution has been written for a heterogeneous society and has
protected and empowered various minority groups such as religious minorities, Dalit’s and
women, as a result it not a sectarian one and is in the interest of the greater masses of the
society. The 24th Amendment is the proof to the latter in which the Parliament of India has no
right to curtail or take away fundamental rights that are guaranteed in Part III of the
Constitution from its citizens. An iconic move in 1988 led to the voting rights being lowered
from age 21 to age 18, allowing the much younger lot to have a say on the affairs of the
country (61st Amendment). Today, there are about 52 lakh voters’ 18 year old voters in India
bringing about a change every time they vote. To hear the voices of people situated in the
remote areas of India; Nagarpalikas, Municipalities and Panchayati Raj were introduced
through the 73rd and 74th Amendment. Since then it has made the condition of the village
administration far better than what it was earlier.

Now coming to the most cardinal issue; women safety! We protest lackof women safety only
after a rape. This exactly happened after the nirbhaya rape case, the appointed judicial
committee received 80,000 petitions and suggestions from the public in general and
particularly from NGO’s, lawyers, jurists and women’s groups. The committee’s report
indicated the failures on the part of the government and police, later on a bill was passed by
the Lok Sabha on 19th March 2013 which incorporated certain offences such as acid attack,
sexual harassment, voyeurism, stalking in Section 370 of Indian Penal Code and changed the
definition of rape by adding more meaning to it.

These were the some of the most important amendments as per the change in social and
political issues. But taking you back to the most important aspect of the Constitution i.e. the
Basic Structure of the Constitution. One thing that has had a long lasting effect on the
evolution of the Indian Constitution is the theory of the basic structure of the Constitution.
The Supreme Court recognized Basic structure concept for the first time in the historic
Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of
the Constitution and the arbiter of all amendments made by parliament. In this case validity
of the 25th Amendment act was challenged along with the 24th and 25th Amendments. The
court by majority overruled the Golak Nath case which denied parliament the power to
amend fundamental rights of the citizens. The majority held that article 368 even before the
24th Amendment contained the power as well as the procedure of amendment. The Supreme
Court declared that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'weaken', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the constitution. This decision is not just a landmark in the evolution of
constitutional law, but a turning point in constitutional history.

Kesavananda Bharti v. State of Kerala[5]: It is a landmark of the Supreme Court of India, and
is the basis in Indian law for the exercise by the Indian judiciary of the power to judicially
review, and strike down, amendments to the Constitution of India passed by the Indian
Parliament which conflict with or seek to alter the Constitution's basic structure. The
judgment also defined the extent to which the Indian Parliament could restrict the right to
property, in pursuit of land reform and the redistribution of large landholdings to cultivators,
overruling previous decisions that suggested that the right to property could not be restricted.
According to the learned Chief Justice, fundamental rights conferred by Part III of the
Constitution cannot be abrogated, though a reasonable abridgement of those rights could be
effected in public interest. There is a limitation on the power of amendment by necessary
implication which was apparent from a reading of the preamble and therefore, according to
the learned Chief Justice, the expression "amendment of this Constitution", in Article 368
means any addition or 'change in any of the provisions of the Constitution within the broad
contours of the preamble, made in order to carry out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open to amendment provided the basic
foundation or structure of the Constitution was not damaged or destroyed.

Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social
rather than a political document is founded on a social philosophy and as such has two main
features basic and circumstantial. The basic constituent remained constant; the circumstantial
was subject to change. According to the learned Judges, the broad contours of the basic
elements and the fundamental features of the Constitution are delineated in the preamble and
the Parliament has no power to abrogate or emasculate those basic elements of fundamental
features. The building of a welfare State, the learned Judges said, the ultimate goal of every
Government .but that does not mean that in order to build a welfare State, human freedoms
have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article
31C even in its un-amended form. In the past four decades, this decision has governed all
interpretations of the Constitution and all institutions in the country have accepted the theory
of basic structure. In fact, the theory of basic structure is itself an example of a living
constitution. There is no mention of this theory in the Constitution. It has emerged from
judicial interpretation. Thus, the Judiciary and its interpretation have practically amended the
Constitution without a formal amendment. All living documents evolve in this manner
through debates, arguments, competition and practical politics. Since 1973, the Court has, in
many cases, elaborated upon this theory of basic structure and given instances of what
constitutes the basic structure of the Constitution of India. In a sense, the basic structure
doctrine has further consolidated the balance between rigidity and flexibility: by saying that
certain parts cannot be amended, it has underlined the rigid nature while by allowing
amendments to all others it has underlined the flexible nature of amending process. 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.

By and large if all these amendments would not have taken place in our constitution then we
would have said our constitution is a mere relic cast in stone. If no amendments had ever
been added, it would be just the rule of the one who hold position of power. Almost like a
living being, this document keeps responding to the situations and circumstances arising from
time to time. Like a living being, the Constitution responds to experience. In fact that is the
answer to the riddle we mentioned at the beginning about the durability of the Constitution.
Even after so many changes in the society, the Constitution continues to work effectively
because of this ability to be dynamic, to be open to interpretations and the ability to respond
to the changing situation. This is a hallmark of a democratic constitution. If not for the way
our Constitution was drafted, this country might have had dictators or genocide. It’s amazing
what just a few changes can do to the history of a nation. The Constitution will remain a
living document for as long as this nation’s citizens and government call for changes to the
original text.