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Is Constitution A Living Document?

The Constitution is the expression of the will of the people . It is an instrument that societies create for themselves. It is basically a statement of the philosophy of the country. It is incarnation of dreams and aspirations of the concerned society. It contains rules and regulations that provide a framework for democratic governance of a country.

The Constitution is neither a frozen document nor merely a lengthy legal document but a charter of values and principles; basically a dream of a free, just, and equal society. A dream which is not static or unvarying but is subject to constant renewal as each generation discovers its new founding principles. Almost like a living being, the constitution keeps responding to various situations, circumstances and experiences arising from time to time.

Constitution is also seen as evolving over time as a matter of social necessity. That is very explicit rationale behind the incorporation of amending procedure in the constitution. Moreover, no document can be made perfect at a time, it is always implied that the future generations will encounter some problems in the upcoming time, and to resolve that , it will be the need of the hour to modify the relevant constitutional provision. Therefore, the Constitution is called as the living law of the land as itneed revisions, changes and reexamination according to necessities of the time.

Origin:
The earliest mentions of the Constitution as "living document" comes from Wilson's book Constitutional Government in the United States in which he wrote: 'Living political constitutions must be Darwinian in structure and in practice.' Therefore, Constitution should be viewed not merely as law but also as a source of foundational concepts for the governing of society.

The Constitution of India came into force on 26 January 1950 , and India declared itself a Republic on this auspicious day. However, November 26 is celebrated as the Samvidhan Divas or Constitution Day of India since 2015 to mark the day when our Constituent Assembly formally adopted the Constitution of India. More than seventy two years has passed and the same constitution continues to function as the configuration within which the government of our nation operates.

The Constitution of India is considered to be a breathing document as it accepts necessity of modifications according to varying needs of the society. Both political practice and judicial rulings have shown maturity and flexibility in implementing and interpreting the Constitution. These factors have made our Constitution aevergreen document rather than a closed and static rulebook.

Law and institution must go hand in hand with the progress of the human mind. [1]As that becomes more enlightened, new truths are disclosed, and opinions are changed, institutions and law must also advance.

The arguments for the Living Constitution can generally be broken into two categories:

  1. Pragmatist view contends interpreting the Constitution in accordance with its original meaning.
  2. The second view, relating to intent, contends that the constitutional framers specifically framed the Constitution in broader and flexible terms soas to create a dynamic, "living document'.

Challenge while drafting the constitution:

The heavy-sounding word 'Constitution' is often labelled as 'lawyer's paradise' with complicated jargon not easily understood by simpletons . So, to understand what the Constitution really is, we must go back to the age when the newly acquired independence posed challenges to our country; Challenges which not only filled us with hope for a better future but also posed a question as to what means we must use to achieve the ends of a flourishing nation.

It was then that our Constituent assembly framed the Constitution in a way that aimed to change the colonial structure , where Indians were mere unheard and exploited subjectsinto a democratic republic. The constitutional assembly had to ensure that the Constitution not only amends the mistakes of the past but also creates a shield that saves the nation from any tragedy in the future.

There werefour elements that informed the making of the constitution - existing administrative provisions such as those embodied in the Government of India Act 1935, internationally accepted constitutional principles, the ideals of the freedom struggle, and the events that were taking place in a country slowly emerging out of World War II, and above all, Partition.[2]

Various role-played by the constitution always lead to difficult questions about the status of the constitution:

Is it so sacred that nobody ever can change it? Alternatively, is it so common that it can be modified just like any other law?

The makers of the Indian Constitution placed the Constitution above ordinary law so that the future generations shall admire this document. At the same time, they realised that in the upcoming time, whenever any society would veer toward any particular opinion, a modification in the constitutional provisions would be needed. Thus, the Indian Constitution is perfect blend of both the approaches i.ethe constitution is a sacred document and at the same time it is not the final word about everything; it is not unalterable.[3]

Is it that our Constitution is so good that it needs no change? Was it that our Constitution makers were so farsighted that they had anticipated all the modification that would take place in the future?

In some sense both are right.In the futile exercise of labeling and painting Constitution into a colour of our own understanding, we often fail to respect the genius of our forefathers who gave us an instrument which assures that with changing times and spirit, our nation too does not remain obsolete , it would still strive towards the path of development. No doubt we have inherited a very robust Constitution.

The basic framework of the Constitution is very much suited to our country.[4] But no constitution can forseen all eventualities.
Also this fact can further be inferred from following sayings by our forefather's:
  • Constitution is not a mere lawyer's document; it is a vehicle of life and its spirit is always the spirit of the age - Dr. B. R. Ambedkar[5]
  • There should be a certain flexibility in the Constitution. If we make anything rigid and permanent, we stop the nations'development' - Pt. J.N. Nehru[6]
  • 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[7]


No doubt, the Constitution must be amended if so required. But at the same time , it must be protected from unnecessary and frequent changes. In other words, the framers of our constitution wanted our Constitution to be 'flexible' and at the same time 'rigid' also. A constitution that can be easily modified is often called flexible and the constitutions, which are very difficult to amend, they are described as rigid.

The Indian Constitution combines both these characteristics. The makers of the Constitution were aware of the fact that there may be some faults in the Constitution as it could not be totally free of errors. Whenever such faults would come to light, they wanted the Constitution to be easily amended.

Therefore, the constituent assembly kept some provisions of our constitution as of temporary nature, so that those could be altered later on once the new Parliament was elected. But at the same time, some other features were so central to the spirit of the Constitution that the Constitution makers were anxious to protect these from change. That provisions had to be made immutable.

All these considerations led to three different ways of amending the Constitution:

  1. Similar to ordinary law: simple majority in Parliament;
  2. Special majority in Parliament in both Houses separately: as per article 368 Special majority;
  3. Legislatures of half the states: article 368[8];

Therefore, there are many articles in the Constitution, which can be amended by a simple law of the Parliament. No special procedure is required. These parts of the Constitution are very flexible. For amending the remaining parts of the Constitution, provision has been made in Article 368 which includes two methods of amendment as mentioned above.

Special majority:

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

Ratification by States:

When an amendment aims to modify an article related to separation of powers between the States and the central government, or articles related to representation, it is must that the States must be consulted and give their consent.

It must also be noted here that the amendment process underlines an important principle that Only elected representatives of the people are empowered to consider and take final decisions on the question of amendments. Ultimately, the only thing that is unnegotiable in the constitution is the hope for justice, equality, liberty and fraternity. Thus, sovereignty of elected representatives (parliamentary sovereignty) is the basis of the amendment procedure.[9]

Amendment in the Indian constitution:

On 26 January 2022, the Constitution of India will complete 73 years of its existence. In these years, it was amended 105 times. Given the relatively challenging method of amending the Constitution, the number of amendments are quite high. Contents of 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. It includes only clarifications, explanations, and minor modifications etc. of the original provisions. These are amendments only in the legal sense, because in matter of fact, they made no substantial difference to the provisions. For example -15th amendment increasing the age of retirement of High Court judges from 60 to 62 years.
     
  • Differing Interpretations:
    A number of amendments are a product of different elucidation of the Constitution put forward by the judiciary and the government of the day. When these expositions clashed, the legislature had to insert an amendment underlining one particular interpretation as the authentic one.
     
  • Thirdly, there is another large group of amendments that have been made as a result of the consensus among the political parties in order to reflect the prevailing political philosophy.
    These were mainly based on an evolving agreement on certain issues. For instance 61st amendment bringing down the minimum age for voting from 21 to 18 years etc.
     
  • Controversial Amendments:
    Amendments during the period 1970 to 1980i.ethe 38th, 39th and 42nd amendments generated a lot of legal and political controversy. These three amendments were made in the background of internal emergency declared in the country from June 1975. They sought to make fundamental changes in many parts of the Constitution. The 42nd amendment was particularly seen as a wide-ranging amendment affecting large parts of the Constitution and it was also an attempt to put restrictions on the review powers of the Judiciary. It was said at that time that this amendment was practically a rewriting of many crucial parts of the original Constitution.

Thus, the provisions related to Amending Article 370 , triple talaq or the NOTA judgment, show that 'it is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change'.

Basic Structure And Evolution Of The Constitution

The constitution had multiple authors. Notwithstanding the sterling role played by the constitution drafting committee, the constitution as it is today, is a product of interactions between three components: the text, the courts and the people.

One thing that has had a long lasting effect on the Indian Constitution is the theory of the basic structure of the Constitution. The Judiciary advanced this theory in the famous case of Kesavananda-Bharati.[10] In the past three decades, this ruling has governed all interpretations of the Constitution. This theory of basic structure is itself an example of a living constitution emergingout from judicial interpretation. Thus, the Judiciaryhave practically amended the Constitution without a formal amendment and has contributed to the evolution of the Constitution in the following ways:

  • It has set specific limits to the Parliament's power to amend the Constitution by laying down 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 override the basic structure and what account for basic structure.


The basic structure doctrine has further amalgamated the balance between rigidity and flexibility by saying that certain parts cannot be amended underlying the rigid nature and by allowing amendments to all others , it has underlined the flexible nature of the amending process.

The people -India is a democratic country that means government of the people, for the people, and by the people. Moreover, the Preamble of our Constitution says 'We the people of India'i.e every person living in India. Even people adopt a more progressive approach with each passing day, our Constitution continues to work effectively because of its ability to respond to the dynamic situation and be open to interpretations.

The role of 'the people' in preserving the constitution, goes far beyond bringing cases to courts and electing representatives every five years. The constitution, which allows evolution of new practices becomes not only durable but also the object of respect from the citizens.This is a hallmark of our constitution.

International aspect:
Constitution is a living document; no strict constructionism.' - Barack Obama[11]

  • The Constitution of the US came into existence more than 200 years ago and so far it has been amended only 27 times. [12]
     
  • France had numerous constitutions in the last two centuries. During the Napoleonic period, France underwent continuous experimentation about a constitution. The post-revolution constitution of 1793(the period of first French republic), the second French republic in 1848 , the third French republic with formation of a new constitution in 1875, then the fourth French republic in 1946 and finally, in 1958, the fifth French republic came into being with another constitution.
     
  • United Kingdom - The British constitution requires only a simple majority vote to amend. It is also important to note that the British constitution has its dependence on the important role of statute law and the influence of its own version of the Supreme Court makes it a living constitution.[13]
     
  • In Canada, the living constitution is described under the living tree doctrine[14].


Two principles dominate the various procedures of amending the constitutions in most modern constitutions.

  • First is the principle of special majority. For instance- In the case of constitution of US, it is two-thirds majority required for amendment , while in South Africa and Russia, for some amendments, three-fourths majority is required.
     
  • The 2nd principle is that of people's participation in the process of amending the constitution. In Switzerland, people can even put in place an amendment. Other examples includes Russia and Italy.


Conclusion:

In the end it can be concluded that, Constitution is indeed a living document. It must be flexible enough to be amended in certain parts and rigid in certain parts. This blend stops it from being misused and this amendment feature keeps the soul of the Constitution alive.

References:

  1. https://samuellalrozama.blogspot.com/2010/
  2. https://thewire.in/government/constitution-living-document
  3. http://parliamentofindia.nic.in/
  4. https://www.philoid.com/epub/ncert/11/242/keps209
  5. https://timesofindia.indiatimes.com/readersblog/advocateofmountains/the-constitution-of-india-a-living-document-39156/
  6. https://www.civilserviceindia.com/subject/Law/notes/necessity-of-amending-constitution.html
  7. https://en.wikipedia.org/wiki/Constitution_of_India#The_constitution_%E2%80%93_a_living_document
  8. Article 368: Parliament may in exercise of its constituent power amend by way of addition, modification or repeal any provision of this Constitution in accordance with the process laid down in this article.
  9. https://www.ncertbooks.solutions/wp-content/uploads/2020/01/keps209.pdf
  10. https://indiankanoon.org/doc/257876/
  11. https://www.theatlantic.com/politics/archive/2012/03/obamacare-and-the-living-breathing-constitution/255145/
  12. https://books.google.com/books?id=gh9AAAAAYAAJ&pg=PA57
  13. https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/writev/mapping/cde05.htm
  14. https://en.wikipedia.org/wiki/Living_tree_doctrine {A Constitutional interpretation that says constitution is organic and it must be read in progressive manner so that it can accommodate to changing times.}
  15. http://timesofindia.indiatimes.com/india/Indias-Living-Constitution/articleshow/5490343.cms
  16. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf

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