Ch 9 Constitution as a Living Document

Chapter 9, “Constitution as a Living Document,” examines how the Indian Constitution has remained relevant and functional for over seven decades while many other constitutions have been rewritten or discarded. The chapter opens by contrasting India’s experience with countries like the Soviet Union (which had four constitutions in 74 years), France (which has had five republics with different constitutions), and Russia (which adopted a new constitution in 1993 after the Soviet collapse). The Indian Constitution, adopted on 26 November 1949 and implemented on 26 January 1950, continues to function as the framework for governance.

The chapter explains that this durability stems from two factors: first, the Constitution accepts the necessity of modifications according to changing societal needs; second, there has been sufficient flexibility in interpretations through both political practice and judicial rulings. The makers of the Constitution struck a balance between rigidity and flexibility:they wanted the Constitution to be flexible enough to be amended when required, but rigid enough to protect it from unnecessary and frequent changes. This dual approach has made the Constitution a living document rather than a closed and static rulebook.

The chapter explains the amendment procedure under Article 368. Unlike ordinary laws that require only a simple majority of members present and voting, constitutional amendments require a special majority in both Houses of Parliament separately (no joint session is allowed): first, those voting in favour must constitute at least half of the total strength of that House; second, the supporters must also constitute two-thirds of those who actually take part in voting.

For amendments affecting the federal structure (distribution of powers between Centre and States, representation of States, etc.), ratification by legislatures of at least half of the States is also required (by a simple majority of the State legislature). The President has no power to send an amendment bill back for reconsideration. The procedure is relatively simple compared to some other constitutions, and importantly, only elected representatives are empowered to consider and decide on amendments:no referendum is required. This underlines the principle of parliamentary sovereignty as the basis of the amendment procedure.

The chapter then traces the history of amendments. As of the text, 106 amendments have been made in 74 years, which are classified into three groups: technical/administrative amendments (like extending reservation periods for SC/ST every ten years, increasing retirement age of judges, clarifying that the President must act on the advice of the Council of Ministers); amendments arising from differing interpretations between the judiciary and Parliament (particularly during 1970-1975, where Parliament repeatedly amended the Constitution to overcome adverse judicial interpretations regarding the relationship between Fundamental Rights and Directive Principles, the scope of right to property, and Parliament’s power to amend the Constitution); and amendments through political consensus (like the anti-defection amendment (52nd and 91st), lowering voting age from 21 to 18 (61st amendment), and the 73rd and 74th amendments on local governments). The most controversial amendments were the 38th, 39th, and 42nd amendments, made during the internal emergency (1975-77).

The 42nd amendment was seen as a wide-ranging attempt to rewrite many parts of the Constitution:it changed the Preamble, the Seventh Schedule, and 53 articles, added Fundamental Duties, extended the Lok Sabha term from five to six years, and restricted judicial review. Many opposition MPs were in jail when it was passed. After the emergency, the new government passed the 43rd and 44th amendments to cancel most of these changes and restore constitutional balance.

The chapter concludes with the basic structure doctrine and the concept of the Constitution as a living document. In the Kesavananda Bharati case (1973), the Supreme Court ruled that there is a basic structure of the Constitution that cannot be violated even by Parliament through amendment. This doctrine:nowhere mentioned in the Constitution:emerged from judicial interpretation of the spirit behind the document.

It has set specific limits on Parliament’s amending power while allowing amendments to all other parts; it places the Judiciary as the final authority in deciding whether an amendment violates basic structure and what constitutes the basic structure. Since 1973, all institutions have accepted this theory, and it has further consolidated the balance between rigidity and flexibility.

The Court has elaborated on what constitutes basic structure (democracy, secularism, federalism, judicial review, etc.) through subsequent cases. The chapter emphasizes that the Constitution is a living document because it keeps responding to situations and circumstances:through formal amendments, judicial interpretations, and political practices.

The success of India’s constitutional democracy lies in resolving tensions between different organs of government, with the judiciary finding a way out by turning to the spirit rather than merely the letter of the Constitution, and with political leadership showing maturity in accepting the basic structure doctrine. The common vision of dignity and freedom of the individual, social and economic equality, and national integrity that inspired the Constitution continues to hold, making the Constitution an object of respect and authority even after seven decades.