Constitution: static or not?

Shreya Srivastav[1]

Introduction

The Constitution is a fundamental law, written or unwritten, establishes the character of government by defining the basic principles to which society must confirm; by describing the organization of government and regulation, distribution and limitations on the functions of different governmental departments; and by prescribing the extent and manner of the exercise of its sovereign power[2]. Thus, constitution provides for the framework to the government. Countries like India have a large territory and great number of population with diversity in terms of religion, language, culture etc., so having a written constitution is a requirement to govern and fulfil the needs of the people.

Indian Constitution was drafted in 1950 as per the requirements of the then society and their societal needs. But this does not mean that our constitution is an age old document which cannot fulfil demands of the present society. While drafting of the constitutional document, the importance of public reasons was emphasized in the mundane procedure of the Assembly. Framers of our Indian Constitution were aware of the circumstances and complications which may arise in the future too, depending upon the fact that India is a land of diversity as well as political scenario. So, the framers of the constitutional document drafted it in such a manner that it fulfils the requirements of the society even today i.e., even after 68years of the constitution. [3]

But, we cannot deny the fact there are a lot many changes which occurred in past years. Times are not static, time changes and therefore with time life of a nation changes. The needs of the nation are dynamic, organic and living; its political, social and economic condition changes with time and advancement in technology.

Though our constitution is not an age old document but, ideas upon which constitution is based in one generation may be different or spurned in another generation. Thus, it is necessary to have an effective machinery by which constitution may be adapted with changing time i.e. in accordance with contemporary national needs.

Amendments in the constitution

It is not uncommon for nations to rewrite their constitutions in response to changed circumstances or change of ideas or need within the society. Although we have inherited a very robust Constitution, the basic framework of our constitution is very much suited to our country. But constitution cannot provide for all eventualities, so the need to bring reform in the constitution arises.

The purpose of adapting constitution as per the contemporary needs and challenges is being made under article 368 of Indian constitution.  This article works as an effective tool in amending the constitutional provisions, that is, this article provides Parliament with a power to amend the Constitution and procedures thereof.[4]

Article 368 reads;

“…Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid in this article…”

Thus, Parliament is empowered to bring on amendments in the constitution as per the contemporary needs.

On 26 January 2018, our constitution completed its 68 years of existence. In these 68 years more than 95 times our constitution has been amended. Does this show inability of our constitution to perform? Or our constitution is not static? Or demands of the nation are transient?  The major amendments and instability can be noticed between years 1970-1990 which brought landmark decisions in the Constitution regarding the functioning and validity.

Since 1955, there have been a lot many questions regarding the constitutional amending process contained in Article 368. The basic question raised has been raised whether the Fundamental Rights are amendable, that is, whether they are absolute or can be taken away through amendments? There were number of amendments which effectuated in the Fundamental Rights. A number of amendments are a product of different interpretations of the Constitution given by the judiciary and the government of the day. When the difference between judiciary and the executive arise then, the Parliament had to insert an amendment underlining one particular interpretation as authentic one which validates the statutes and the laws mentioned under Constitution. [5]

There were many situations where Parliament did not agree with the judicial interpretations as well as vis-a-vis, therefore tried to amend the Constitution to overcome the ruling of the other side. The Fundamental Rights and Directive Principles was bone of contention between the Judiciary and the Government.  These could be seen in:

  • L.C. GolakNath v. State of Punjab,[6]
  • Shankari Prasad Singh v. Union of India[7]

These cases brought the amendment in Article 368 under Twenty-Fourth Amendment to neutralize the effect of GolakNath case, where the difference was brought in Article 368 from “Procedure of amendment of the Constitution” to “Power of Parliament to amend the Constitution and Procedure thereof”.

Further with various contentions and developments under,

  • KesavanandaBharti v. State of Kerala[8], where issue of basic structure of constitution can be amended is being raised.

It was held that no basic structure and the foundation of Indian Constitution can be amended:

  1. Supremacy of the Constitution.
  2. Separation of Powers.
  3. Secular & Federal character of Constitution
  4. Dignity of an individual secured by Fundamental Rights and Directive Principles of State Policy.
  5. Unity & Integrity of the nation.[9]
  6. Indira Nehru Gandhi v. Raj Narain[10], where fundamental rights can be seized during the time of emergency? Also, the position of an individual is favoured under Constitution or not?

The Supreme Court has unequivocally ruled that the Preamble to the Indian Constitution guarantees equality of status and of opportunity and that the Rule of Law is the basic structure of the Constitution.[11]

The basic structure of our Constitution cannot be amended irrespective of the political or social or economic circumstances as it provides the strong foundation and framework.

Conclusion

It is necessary to note that basic feature of constitution is non-amendable under Article 368. It only provides for the procedure of amendment and powers to Parliament to amend but it nowhere empowers Parliament or Judiciary to amend or disturb basic features of Constitution.

The one thing that has had a long lasting effect on the evolution of the Indian Constitution is the theory of the basic structure of the Constitution. It has brought many rulings that have contributed to the evolution of the Constitution in many ways;

  1. It has set specific limits to the Parliament’s power to amend constitution.
  2. It has permitted Parliament to amend all or specific parts of the constitution with certain specific limitations.
  3. It places Judiciary as the final authority in deciding the cases regarding the amendments and the Constitution of basic features.

This basic structure concept and Article 368 has brought balance in functioning of the Constitution. It makes our Constitution flexible enough to bring amendments according to the needs of the nation as well as it makes our Constitution rigid enough to restrain government to overuse or misuse the power of amendment by making basic foundation of the Constitution non-amendable in any circumstance.

There can be still being many debates regarding what can constitute basic structure. These debates, arguments, competitions and practical politics evolved our Indian constitution as living document.


[1] Student, Ballb (Hons.) Amity University Mumbai.

[2] N.D. Arora, Political Science 12.0-12.1 (TATA Mc-GRAW Hill Publishing Company Ltd., 2009)

[3] Arun Soni, Amendment of Indian Constitution-Article 368, LEGALSERVICEINDIA (November 28, 2019), www.legalserviceindia.com/article/170-Article368.html.

[4] Seervai, H.M., Constitution Law of India (Universal Law Publishing Pvt. Ltd., 2015).

[5] NCERT, Indian Constitution at Work 205-206, (2007).

[6] L.C. GolakNath v. State of Punjab, AIR 1967 SC 1643.

[7] Shankari Prasad Singh v. Union of India, AIR 1951 SC 458.

[8] KesavanandaBharti v. State of Kerala, AIR 1973 SC 1461.

[9] M.P. Jain Indian Constitution Law 1692-1694 (LexisNexis, 2014).

[10] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

[11] Dr. J.N. Pandey Constitution Law Of India 292-294, (Central Law Agency, 2006).