Notes of Ch 9 Constitution as a Living Document| Class 11th Political Science

Are Constitutions Static?

• The Soviet Union had four constitutions in its life of 74 years In 1991, the rule of the Communist
Party of Soviet Union came to an end and soon the Soviet federation disintegrated. After this political upheaval, the newly formed Russian federation adopted a new constitution in 1993.

• The Constitution of India was adopted on 26 November 1949. Its implementation formally started from 26 January 1950. More than fifty-five years after that, the same constitution continues to function as the framework within which the government of our country operates.

• Lot of questions will came in our mind that is it that our Constitution is so good that it needs no change? Was it that our Constitution makers were so farsighted and wise that they had foreseen all the changes that would take place in the future?

• The answer to the above questions is yes we have inherited a very robust Constitution.

• The basic framework of the Constitution is very much suited to our country.

• The Constitution makers were very farsighted and provided for many solutions for future

Situations Yes our constitution provides the solution for many problems but can it provide for all
eventualities?

Then how does the same Constitution continue to serve the country? The answer to this question is:

• Our Constitution accepts the necessity of modifications according to changing needs of the society.

• 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 above factors have made our Constitution a living document rather than a closed and static rulebook.

Challenging Issue of Constitution and Solutions

• 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.

• The constitution must be a document that provides the framework of the government for the future as well.
• The constitution has to be able to respond to the challenges that may arise in the future.

• The constitution will always have something that is contemporary and something that has a more durable importance.

• A constitution is not a frozen and unalterable document.

• The constitution is a framework for the democratic governance of the society.

• Thus from the above 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 or we can say that; our Constitution is not a static document, it is not the final word about everything, it is not unalterable.

How to Amend the Constitution?

• Article 368 deals with the amending power of the parliament i.e. 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.

Balancing approach of our Constitution

• The Constitution must be amended if so required. But it must be protected from unnecessary
and frequent changes.

• In other words, the Constitution to be flexible and at the same time rigid'.

• Flexible means open to changes and rigid means resistant to changes. A constitution that can be very easily changed or modified is often called flexible.

• In the case of constitutions, which are very difficult to amend, they are described as rigid.

• The Indian Constitution combines both these characteristics.

If Faults or Mistake in our Constitution?

• Whenever such mistakes would come to light, the Constitution to be easily amended and to be
able to get rid of these mistakes.

• Then there were some provisions in the Constitution that were of temporary nature and it was decided that these could be altered later on once the new Parliament was elected.

• But at the same time, the Constitution was framing a federal polity and therefore, the rights and powers of the States could not be changed without the consent of the States.

• 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 body is required for amending the Constitution.

• 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.

• 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.

Special Majority

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.

• The basic principle behind the amending procedure is that it should be based on broad support among the political parties and parliamentarians.

Ratification by States

• For some articles of the Constitution, special majority is not sufficient.

• 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.

• The Constitution has ensured this by providing that legislatures of half the States have to pass the amendment bill before the amendment comes into effect.

• Apart from the provisions related to federal structure, provisions about fundamental rights are also protected in this way.

• The Constitution of India can be amended through large-scale consensus and limited participation of the States.

Why have there been so many Amendments?

• There is always a criticism about the number of amendments. It is said that there have been far too many amendments to the Constitution of India.

• On the face of it, the fact that ninety-three amendments took place in fifty-five years does seem to be somewhat odd. Amendments are not only due to political considerations.

• Barring the first decade after the commencement of the Constitution, every decade has witnessed a steady stream of amendments.

• This means that irrespective of the nature of politics and the party in power, amendments were required to be made from time to time.

Was this because of the inadequacies of the original Constitution? Is the Constitution too flexible?

• 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 919) 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.

• 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).

Controversial Amendments

• In particular, the 38th, 39th and 42 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.

42nd Amendment: An Overview

• 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. In the chapter on Rights, you have read about fundamental duties.

• They were included in the Constitution by this amendment act. The 42nd amendment also put restrictions on the review powers of the Judiciary.

• 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 Consitution

Most famous case: Kesavananda Bharati

• 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).

• It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.

The theory of basic structure

• There is no mention of this theory in the Constitution.

• It has emerged from judicial interpretation.

• The Judiciary and its interpretation have practically amended the Constitution without a formal amendment.

Examples of how judicial interpretation changed our understanding of the Constitution.

• Reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats.

• 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.

• The Judiciary has contributed to an informal amendment by interpreting various provisions concerning right to education, right to life and liberty and the right to form and manage minority educational institutions.

Parliamentary Democracy

• In a parliamentary democracy, the Parliament represents the people and therefore, it is expected
to have an upper hand over both Executive and Judiciary.

• At the same time, there is the text of the Constitution and it has given powers to other organs of
the government.

• Therefore, the supremacy of the Parliament has to operate within this framework.

• Democracy is not only about votes and people's representation.

• It is also about the principle of rule of law.

• Democracy is also about developing institutions and working through these institutions.

All the political institutions must be responsible to the people and maintain a balance with each other.
Previous Post Next Post
X
Free Study Rankers App Download Now