Constitution as a Living Document

2.1 Core concepts

Why is a Constitution adopted nearly three quarters of a century ago still seen as relevant? Because constitutions need not be static. The Soviet Union had four constitutions during its existence (1918, 1924, 1936, 1977); France has had five republics each with a fresh constitution (1793, 1848, 1875, 1946, 1958); Russia adopted a new constitution in 1993 after the break-up of the USSR. India, in striking contrast, has retained the same Constitution since 26 January 1950 (NCERT §"Are Constitutions Static?", pp. 197–198). The reason it endures is not that it has remained unchanged but that "our Constitution accepts the necessity of modifications according to changing needs of the society" and that political practice and judicial rulings have given it flexibility — making it "a living document" rather than "a closed and static rulebook" (NCERT p. 198).

The dual character of the Constitution: it is both sacred and alterable. It is placed above ordinary law — no ordinary statute may contradict it — yet "the makers of our Constitution were also aware that it could not be a static document". They struck a balance between treating the Constitution as "a sacred document" and as an instrument requiring revision when "the perceptions of the community change" (NCERT p. 199). This balance is operationalised through Article 368, which empowers Parliament, in exercise of its constituent power, "to amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down" (NCERT p. 199).

There are three routes by which the Constitution can be amended (NCERT pp. 200–201; diagram p. 200). The first route is similar to ordinary law: certain articles (such as Article 2 on admission of new States, Article 3 on alteration of names and boundaries) can be amended by simple majority "by law" — and these are not even counted as constitutional amendments in the strict sense. The second route, under Article 368, requires a special majority of both Houses of Parliament. The third route, also under Article 368, requires a special majority plus ratification by the legislatures of half the States — invoked when the amendment affects the federal balance, the powers of the States, or the representation of the States in Parliament.

Note that no outside agency — no constitutional commission, no referendum — is involved in amending the Indian Constitution. Even the President has no power to send an amendment bill back to Parliament for reconsideration. Only the elected representatives can finally decide; this is an expression of parliamentary sovereignty at the level of constitutional change (NCERT pp. 201–202).

The special majority under Article 368 is defined precisely: those voting in favour must be at least half of the total strength of that House; and supporters must also be two-thirds of those present and voting. Both conditions must be met simultaneously; both Houses must pass the bill separately; and there is no joint sitting for amendments (NCERT p. 202). For the third route — ratification by States — only legislatures of half the States must pass the amendment; and at the State level a simple majority in the State legislature is sufficient (NCERT p. 204).

Turning to the practice of amendment: as of 26 January 2024, the Constitution had been amended 106 times in 74 years. Two intense bursts of amendment activity stand out: between 1974 and 1976 (10 amendments in three years), reflecting the dominance of the Congress and the Emergency context; and between 2001 and 2003 (10 amendments in three years), under coalition-era politics with intense BJP-versus-others rivalry. This pattern shows that amendments "are not merely a function of single-party majority" — they happen in different political configurations (NCERT pp. 205–207).

Amendments fall into a three-fold classification. The first category is technical or administrative: amendments that "do not involve any controversy" — for instance, the 15th amendment raising the retirement age of High Court judges from 60 to 62, the 54th amendment on judges' salaries, the six amendments extending reservations for SCs and STs in legislatures, and the clarification that the advice of the Council of Ministers under Article 74(1) is binding on the President (NCERT pp. 207–208). The second category arises from differing interpretations of various clauses by the judiciary and the political executive — for instance, the conflicts between Parliament and the Supreme Court on fundamental rights vs directive principles, on the right to property, and on the scope of Parliament's amending power between 1970 and 1975 (NCERT p. 208). The third category arises from political consensus — for instance the 52nd and 91st amendments on anti-defection; the 61st amendment that lowered the voting age from 21 to 18; the 73rd and 74th amendments on Panchayats and Municipalities; and the 77th, 81st and 82nd amendments dealing with reservations (NCERT p. 209).

The controversial amendments — the 38th, 39th and 42nd — were enacted in the background of the internal Emergency declared in June 1975. The 42nd amendment (1976) is "particularly seen as a wide-ranging amendment" — it overrode the Kesavananda Bharati doctrine, extended the term of the Lok Sabha from five to six years, inserted Fundamental Duties into the Constitution, restricted judicial review, and made changes to the Preamble, the Seventh Schedule and 53 articles of the Constitution — "practically a rewriting of many parts of the original Constitution". Once the new government took office after the 1977 elections, it reversed the most controversial changes by the 43rd and 44th amendments (NCERT pp. 209–210).

The basic structure doctrine (Kesavananda Bharati, 1973) is "perhaps the most important development of our constitutional history". The doctrine, formulated by the Supreme Court, had three contributions: (i) it sets specific limits on Parliament's power to amend the Constitution — no amendment can violate the basic structure; (ii) it allows Parliament to amend any and every part within this limit; and (iii) the Judiciary is the final authority on what constitutes the basic structure (NCERT p. 211). The basic structure doctrine has no textual basis in the Constitution itself — it is "a judicial innovation" drawn from "the spirit rather than the letter of the Constitution" (NCERT pp. 214–215). The Minerva Mills (1980) decision reaffirmed Kesavananda after the 42nd amendment had tried to override it; "since then political parties have accepted the basic structure as something that is inviolable" (NCERT p. 215).

The National Commission to Review the Working of the Constitution (Venkatachaliah Commission) was set up by the NDA government in 2000. The Commission was boycotted by the Opposition and others on the ground that it was a precursor to rewriting the Constitution. Even so, this Commission "stuck to the basic structure" and did not recommend its abolition (NCERT p. 212).

Judicial interpretation acts as informal amendment — the meaning of the Constitution has expanded without changing its text. Examples include the 50 per cent cap on reservations, the creamy layer exclusion for OBCs, and the broadened interpretations of the right to education, the right to life and liberty, and minority educational institutions (NCERT p. 212).

A broader theme runs through all this: "the Constitution as a living document". The Constitution responds to experience; it balances letter and spirit; it survives because of political maturity and a shared founding vision. Nehru's "tryst with destiny" speech to the Constituent Assembly is cited as the source of that vision — dignity and freedom of the individual, social and economic equality, well-being, national unity, and India's contribution to world peace (NCERT pp. 213–216).

2.2 Definitions to memorise

2.3 Diagrams / processes to remember

• "How to amend the Constitution" flow diagram (p. 200): three branches — (1) Simple majority similar to ordinary law (for certain articles); (2) Special majority in both Houses separately as per Article 368; (3) Special majority + ratification by legislatures of half the States, per Article 368.
• Graph 1 (p. 206): Number of amendments per decade — shows 1970–1990 as the heaviest amendment period.
• Graph 2 (p. 206): Years taken for every ten amendments — narrowest bars are 1974–76 and 2001–03 (10 amendments in 3 years each).
• Check-your-progress chart (p. 205): matrix of subject of amendment vs whether "Special majority" only or "Ratification by States" also needed — for citizenship, freedom of religion, Union List, State boundaries, Election Commission.
• Process for special-majority amendment: introduce in either House → discussion → voting separately in each House → meet both special-majority conditions (half total + two-thirds of those voting) → if federal subject, ratification by half the States → President's assent (no power to return) → Constitution Amendment Act.

2.4 Common confusions / NTA trap points

• "Half the States" for ratification means simple majority of the State legislatures, not special majority — students often assume special majority is needed at State level too (p. 204).
• Special majority numbers: It is "half of TOTAL strength" + "two-thirds of those PRESENT AND VOTING" — both conditions together. Many students remember only the two-thirds rule (p. 202).
• President's role: For an amendment bill, the President must assent and cannot return it for reconsideration (p. 202).
• No joint sitting for amendment bills — both Houses must pass them separately.
• No referendum is required for ratifying a constitutional amendment in India (p. 202).
• Basic structure is NOT in the Constitution text — it is a judicial doctrine from Kesavananda Bharati (1973), reaffirmed in Minerva Mills (1980) (pp. 214–215).
• 42nd vs 44th amendment confusion: the 42nd (1976) was the controversial one; the 43rd and 44th rolled back its excesses (p. 210).
• Anti-defection corresponds to the 52nd amendment (and later 91st), not 42nd (p. 209).
• Voting age was lowered from 21 to 18 by the 61st amendment (p. 209).
• 42nd amendment changes: extended Lok Sabha term from 5 to 6 years, inserted Fundamental Duties, restricted judicial review, changed Preamble, Seventh Schedule and 53 articles (p. 210).
• There were two intense bursts of amendment: 1974–76 and 2001–03, each producing 10 amendments in three years (p. 206).
• The Venkatachaliah Commission was set up in 2000 to review the working of the Constitution; it did not abandon the basic structure (p. 212).

2.5 Key Articles / Amendments / Cases table