How is Indian Constitution a Living Document?

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How is Indian Constitution a Living Document?
06 Aug 2020

Introduction

The Preamble of the Constitution says “We the people of India”. But the question is who these people are. Are these the people who were present in 1949 only, or do they include every citizen of India, irrespective of time.

Yes! We the people of India, is every that person living in India who is governed by Indian Constitution. But when we determine that all the people in all times will be said to be the people of India, we cannot make this constitution in a way that it will only live up to the aspirations of people in 1949.

As the time changes, the people also change and so does their needs and aspirations. The Constitution must be prepared in a way that it can be changed time to time as per the demands and nature of its people. This is the reason, why we call India Constitution, a Living Document.

Article 368 of the Indian Constitution contains specific procedure of amendments in this Constitution, which makes it a living document. Today we’ll learn, what was the thinking of constitution makers behind introducing this procedure.

Rationale behind the Amendments

The very basic and explicit reason behind the incorporation of amending procedure is that no document can be made perfect at a time. It was clear that the future administration may encounter some problems in the upcoming time, and to resolve those problems, it will be the need of the hour to change the relevant constitutional provision.

In the case of Keshavanada Bharti v. State of Kerala, AIR 1973 the Supreme Courts clearly said that “No generation has monopoly of wisdom nor has it right to place fetters on future generations to mould the machinery of government according to their requirements. If no provisions were made for the amendment of the Constitution, the people would have moved to extra constitutional method like revolution to change constitution”.

The Indian Constitution provides for two types of amendment, one which is done by simple majority and one with the special majority.

  • By Simple Majority- There are some articles in the Constitution which can be amended if the parliament signifies its willingness by a simple majority. Simple Majority means, the half strength of the house +1 (50%+1). These articles are – Article 5 (Citizenship), Article 169 (Abolition or creation of Legislative Council in States
    ) and Article 239 A (Creation of local legislatures or Council of Ministers or both for certain Union Territories). These provisions only require simple majority to be amended.
  • By Special Majority- We have two bifurcations in this category. The very first is, those provisions which are amended by special majority (there must be a majority of each house and a majority of 2/3 rd member of that house present and voting). All the articles, except those referred above fall under this category and are amended by special majority.
  • And the second bifurcation is, when the special majority is followed by Ratification by State Legislatures as well. Apart from the special majority of Parliament, these amendments require the assent of half the State Legislatures to be amended. The states are given participation in these amendments. Following are the amendments which require this ratification-
    • 54 and 55 - Election of the President
    • 73,162,241 and 279 A- Executive powers of State and Union
    • 124 to 147, 214 to 231 and 241- Judiciary, Supreme Courts and High courts in states and UTs.
    • 245 to 255- Distribution of Legislative powers between States and Union
    • 279 A - GST Council
    • Article 368 itself
    • Representation of states in IVth schedule
    • Any list of VII Schedule

What did Constitution Makers think about it?

Indian Constitution has been referred to as “Quasi Federal” by many political scientists. The most important basic feature of federal constitution is that, the amending process is very rigid. But in Indian Constitution we have a blend of rigidity and flexibility in the process of amending the Constitution.

The framers of the Constitution had a thought that, the Constitution must be a document which would be able to grow with the growing nation. It must be able to adapt itself with the changing need and circumstances of the nation. Pt. J.N. Nehru even said that “where should be a certain flexibility in the Constitution. If we make anything rigid and permanent, we stop the nations’ growth”.

But it was also a matter of importance that, if Constitution becomes so flexible, it would become a play in the hand of government. Therefore to avoid this, certain rigidity is also required.

Hence, the Constitution makers adopted a middle road. It is neither too rigid nor too flexible.

“One can therefore; safely say that the Indian federation will not suffer from the faults of rigidity of federation, its distinguishing feature is that it is a flexible document”.

- Dr. B. R. Ambedkar

Conclusion

In the end we conclude that, Indian Constitution is indeed a living document. The Constitution is flexible enough to be amended in certain parts and rigid in certain parts. This blend stops it from being misused and the amending feature keeps the soul of the Constitution alive. We have basic structure in the constitution, which the legislature cannot amend and hence it prevents the basic spirit of this Constitution from being destroyed. The amending process also requires the participation of states in certain matters, which makes our Constitution perfect.