Chapter 9. Constitution as a Living Document

Amending Constitution
• Article 368: Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with procedure laid down in this article.
• Constitution can be amended if required. But it must be protected from unnecessary and frequent changes.
• In other words, Constitution is to be ‘flexible’ and at 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 known as flexible.
• In case of Constitutions, which are very difficult to amend, they are described as rigid. Indian Constitution combines both of these characteristics.
• makers of Constitution were aware of fact that there may be some faults or mistakes in Constitution; they knew that Constitution could not be free of errors. Whenever such mistakes would come to light, they wanted Constitution to be easily amended and to be able to get rid of these mistakes.
• This led to different ways of amending Constitution.
• There are many articles in Constitution which mention that these articles can be amended by a simple law of Parliament. No special procedure for amendment is required in such cases, and there is no difference at all between an amendment and an ordinary law. These parts of Constitution are very flexible.
• word ‘by law’ in articles indicates that these articles can be modified by Parliament without recourse to procedure laid down in Article 368. For example, Article 2: Parliament may by law admit into union new states.
• For amending remaining parts of Constitution, a provision has been made in Article 368 of Constitution.
• In this article, there are two methods of amending Constitution, and they apply to two different sets of articles of Constitution.
• One method is that amendment can be made by a special majority of two houses of Parliament while other method is more difficult: it requires a special majority of Parliament and consent of half of State legislatures.
• Note that all amendments to Constitution are initiated only in Parliament.
• Besides special majority in Parliament, no outside agency like a Constitution Commission or a separate body is required for amending Constitution.
• An amendment bill, like all other bills, goes to President for his assent, but in this case, President has no power to send it back for reconsideration.
• Only elected representatives of people are empowered to consider and take final decisions on question of amendments.

Special Majority
• Ordinarily, all business of legislature requires that a motion or resolution or bill should get support of a simple majority of members voting at that time.
• A simple majority means [50% + 1] number of members present and voting.
• Amendment to Constitution requires two different kinds of special majorities:
(1) First, those voting in favour of amendment bill should constitute at least half of total strength of that House.
(2) Secondly, supporters of amendment bill must constitute two-thirds of those who actually take part in voting.
• Both Houses of Parliament must pass amendment bill separately in same manner [there is no provision for a joint session].
• For every amendment bill, this special majority is required.
• For example, in Lok Sabha, there are 545 members. Therefore, any amendment must be supported by a minimum of 273 members. Even if only 300 members are present at time of voting, amendment bill must get support of 273 [first provision] and at least 200 members should vote in favour of bill [second provision].

Ratification by States
• When an amendment aims to modify an article related to distribution of powers between States and Central Government, or articles related to representation, it is necessary that States must be consulted and that they give their consent.
• Constitution has provided that legislature of half States has to pass amendment bill before amendment comes into effect.

Basic Structure Theory
• This ruling has contributed to evolution of Constitution in following ways:
(1) It has set specific limits to Parliament’s power to amend Constitution. It says that no amendment can violate basic structure of Constitution.
(2) It allows Parliament to amend any and all parts of Constitution [within this limitation]; and
(3) It places Judiciary as final authority in deciding if an amendment violates basic structure and what constitutes basic structure.
• basic structure doctrine has further consolidated balance between rigidity and flexibility by saying that certain parts cannot be amended.
• basic structure is not mentioned in Constitution. Nowhere does Constitution say that such and such are part of basic structure. This is an invention of Judiciary.

Important Amendments
• The 15th Amendment increased age of retirement of High Court judges from 60 to 62 years.
• The 54th Amendment increased salaries of judges of High Courts and Supreme Court.
• Article 74 [1] was amended to clarify that advice of Council of Ministers will be binding on President [President shall act in accordance with advice of Council of Ministers].
• The 61st Amendment brought down minimum age for voting from 21 to 18 years.
• The 42nd Amendment was particularly seen as a wide-ranging amendment affecting large parts of Constitution. It was an attempt to override ruling of Supreme Court given in Kesavananda case. Fundamental Duties were included in Constitution by this Amendment Act.

Constitution as a Living Document
• Almost like a living being, this document keeps responding to situations and circumstances arising from time to time. Like a living being, Constitution responds to experience.
• Even after so many changes in society, Constitution continues to work effectively because of its ability to be dynamic, to be open to interpretations and ability to respond to changing situation.

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