Constitution as a Living Document Notes | Class 11 Political Science
The chapter introduces the need for and the processes of amending the Constitution of India. It explains how the Constitution can be changed, what a special majority means and how these ideas fit into a parliamentary democracy. It also covers a landmark dispute, the Kesavananda Bharati case, and its outcomes. These notes are part of our free One Young India study resources.
Why should constitutions be amended?
It is not unusual for countries to change their constitutions in response to changing circumstances, shifting social ideas or even political upheavals.
The Soviet Union had four constitutions in its life of 74 years. After the break-up of the Soviet federation in 1991, the newly formed Russian Federation adopted a new constitution in 1993.
The Indian Constitution: a living document
The Constitution of India was adopted on 26 November 1949 and came into force on 26 January 1950. Its viability has been questioned many times, but the makers of our Constitution framed a very robust document, and its basic framework still suits our country today.
The Constitution makers were far-sighted and provided many solutions for future situations.
How does the same Constitution continue to serve India?
Our Constitution accepts the need for changes according to the changing needs of society. In its actual working, there has been enough flexibility of interpretation. Political practice and judicial rulings have shown maturity and flexibility in applying it.
These factors have made our Constitution a living document rather than a closed and static rulebook.
Why should the Constitution be modifiable?
The provisions of a constitution naturally reflect efforts to tackle the problems that society faces at the time it is written. But the Constitution must also provide the framework of government for the future, so it has to be able to respond to challenges that may arise later. It will always contain something contemporary and something of more durable importance.
- A constitution is not a frozen and unalterable document. It is a framework for the democratic governance of society.
- The Constitution is a sacred document, yet it is an instrument that may require changes from time to time.
- Our Constitution is not static. It is not the final word about everything, and it is not unalterable.
How to amend the Indian Constitution
The Constitution must be amended when required, but it must also be protected from unnecessary and frequent changes. It is meant to be flexible and rigid at the same time. Flexible means open to change, and rigid means resistant to change.
The framers knew that no document could be completely free of flaws or errors. At the same time, the Constitution was establishing a federal polity, which meant that the rights and powers of the States could not be altered without their assent.
Some parts were felt to be so important to the spirit of the document that the framers were keen to protect them from easy modification. These requirements had to be spelt out in detail. As a result, several different methods of amending the Constitution were provided.
The amending power rests with Parliament. Under Article 368, Parliament may amend the Constitution by way of addition, variation or repeal of any provision, in accordance with the procedure laid down.
What are the different ways of amending the Constitution?
The Constitution can be amended in three basic ways.
1. By a simple majority
Many articles of the Constitution can be amended by an ordinary law of Parliament. No special procedure is required, and there is no real difference between such an amendment and an ordinary law. These parts are very flexible. The wording "by law" indicates that these articles can be changed by Parliament without using the procedure laid down in Article 368.
2. By a simple majority in both Houses separately
Similar to the method above, this route requires the article to be changed by being passed in both Houses by a simple majority.
3. By a special majority
This requires a special majority in Parliament and, for certain provisions, the consent of half of the State legislatures. All amendments to the Constitution are initiated only in Parliament. Besides the special majority, no outside agency such as a constitution commission or a separate body is required for amending the Constitution.
What is the special majority in the amendment procedure?
An amendment to the Constitution requires two different kinds of special majority.
- Those voting in favour of the amendment bill should be at least half of the total strength of that House.
- The supporters of the amendment bill must also be two-thirds of those who actually take part in the voting.
- Both Houses of Parliament must pass the amendment bill separately in this same manner. There is no provision for a joint session, and this special majority is required for every amendment bill.
The basic principle behind the procedure is that an amendment should rest on broad support among the political parties and members of Parliament.
Can the President send an amendment back for reconsideration?
The President has no power to send an amendment bill back for reconsideration. Only the elected representatives of the people are empowered to consider and take the final decision on amendments. Constitutions that are very difficult to amend are described as rigid, and the Indian Constitution combines both flexibility and rigidity. The sovereignty of elected representatives, that is parliamentary sovereignty, is the basis of the amendment procedure.
Ratification by the States
For some articles, a special majority is not enough. When an amendment seeks to change an article dealing with the distribution of powers between the States and the central government, or an article related to representation, the States must be consulted and must give their consent.
The Constitution ensures this by providing that the legislatures of half the States have to pass the amendment bill before the amendment comes into effect. The provisions about fundamental rights are also protected in this way. In this sense, the Constitution of India can be amended through large-scale consensus with limited participation of the States.
Why have there been so many amendments?
There is often criticism about the number of amendments, with many people saying there have been far too many. On the face of it, the fact that ninety-three amendments took place in fifty-five years does seem somewhat odd. Yet amendments are not made only for political reasons.
Barring the first decade after the Constitution came into force, every decade has seen a steady stream of amendments. This means that whatever the nature of politics or the party in power, amendments have been needed from time to time.
Some amendments simply clarified and expanded the scope of reservations in jobs and admissions. Others, such as the anti-defection amendments (the 52nd and 91st), the amendment bringing down the voting age from 21 to 18 years, and the 73rd and 74th amendments on local government, were passed even during periods of political turbulence. After 1992 and 1993 a broad consensus emerged on many of these measures, so amendments like the 77th, 81st and 82nd were passed without much difficulty.
What are some controversial amendments?
In particular, the 38th, 39th and 42nd amendments have been the most controversial so far. All three were made against the background of the internal Emergency declared in the country from June 1975, and they sought to make basic changes in many crucial parts of the Constitution.
What was the 42nd Amendment?
The 42nd Amendment was an attempt to override the Supreme Court ruling in the Kesavananda case. It even extended the duration of the Lok Sabha from five to six years and added the Fundamental Duties to the Constitution. It also placed restrictions on the review powers of the judiciary, and it made changes to the Preamble, to the Seventh Schedule and to 53 articles of the Constitution.
The Kesavananda Bharati case
The Kesavananda Bharati case set clear limits to Parliament's power to amend the Constitution. It held that no amendment can violate the basic structure of the Constitution. It allowed Parliament to amend any and all parts of the Constitution within this limitation, and it placed the judiciary as the final authority in deciding whether an amendment violates the basic structure and what that basic structure is.
The theory of basic structure has three important features.
- There is no mention of this theory in the text of the Constitution.
- It has emerged from judicial interpretation.
- Through this interpretation, the judiciary has practically amended the Constitution without any formal amendment.
Judicial interpretation has changed our understanding of the Constitution in several ways.
- Reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats.
- For reservations for other backward classes, the Supreme Court introduced the idea of a creamy layer and ruled that people in this category are not entitled to the benefits of reservation.
The judiciary has also contributed to informal amendment by interpreting provisions on the right to education, the right to life and liberty, and the right to form and manage minority educational institutions.
What was the Kesavananda Bharati case about?
Kesavananda challenged the Kerala land reforms legislation in 1970, which imposed restrictions on the management of religious property. The case was argued under Article 26, which concerns the right to manage religiously owned property without government interference. One of the largest benches of the Supreme Court, made up of 13 judges, was set up to hear it.
Parliamentary democracy and the balance of institutions
In a parliamentary democracy, Parliament represents the people and is expected to have the upper hand over both the executive and the judiciary. At the same time, the Constitution gives powers to other organs of government, so the supremacy of Parliament has to operate within this framework.
Democracy is not only about votes and representation. It is also about the principle of the rule of law, about building institutions and working through them. All political institutions must be answerable to the people and must maintain a balance with one another.
Why it still matters
The idea that the Constitution is a living document is not just exam theory. It is being tested in real life right now.
Your textbook says there had been about ninety-three amendments. That number has kept growing. In September 2023 Parliament passed the 106th Constitutional Amendment, known as the Nari Shakti Vandan Adhiniyam, which reserves one-third of the seats in the Lok Sabha and in the State legislative assemblies for women. It received the President's assent on 28 September 2023. In a very direct way, this is the living document at work: the same Constitution you are studying is still adding new rules to meet the needs of today. Notice, too, that the reservation does not begin at once. It is tied to a fresh Census and a delimitation exercise, which is exactly the kind of careful, staged change the amendment procedure is designed for.
The Kesavananda Bharati case is also back in the news. The year 2023 marked fifty years since the judgment of 24 April 1973, which was decided by a narrow 7 to 6 verdict and gave us the basic structure doctrine. Around that anniversary a live debate broke out. The Vice President of India, Jagdeep Dhankhar, publicly questioned the doctrine and argued that the sovereignty of Parliament cannot be limited by the judiciary. Judges and legal scholars pushed back, saying the basic structure is what protects democracy, secularism and the rule of law from being amended away. This is the very tug of war between Parliament and the courts that your notes describe, playing out in real time. If you want to see how these institutions connect to the wider world, explore the ideas behind them in the Learnacy Hub.
So when you revise this chapter, remember that you are not learning a dead set of rules. You are learning how a country of more than a billion people keeps arguing, in Parliament and in the courts, about what its founding document should mean. To keep going, work through the rest of your Class 11 Political Science notes.