class -11 political chapter -9

 Constitution as a living document 

Are constitutions static?

• The Soviet Union head four constitutions in its life of 74 years 1918 1924 1936 and 1977.
•  In 1991 ,the rule of the Communist Party of Soviet Union came to an end and soon the Soviet Federation  disintegrated.
•  After this political upheaval the newly formed Russian Federation adopted a new constitution in 1993 .
• The constitution of India was adopted on 26 November 1949.
•  Its implementation formerly started from 26 January 1950.
•  More than 69 year after that, the same constitution continue to function as the Framework within which the government of our country operates .
• The basic framework of the Constitution is very much suited  to our country .
• The constitution makers were very farsighted and provided for many solution for future situations. but no constitution can provide for all eventualities 
• Both political practice and judicial ruling have sown maturity and flexibility in implementing the constitution
•  In any society, those responsible for drafting the constitution at a particular time would face on one common challenge: the provision of the Constitution would naturally reflect efforts to tackle the problems that the society is facing at the time of making of the Constitution .
• At the same time,the constitution much be a document that provides the framework of the government for the future as well.
• At the same time a constitution is not a frozen and  unalterable document.
•  It is document made by human being and main need revisions, change and re examination.
•  It is true that the constitution reflect the dream and aspiration of the concerned society.
•  The maker of the India constitution were aware of this problem and short to strike a balance .
• At the same time they recognised that in the future, this document may require modification.

How to amend the constitution

•  The constitution must be amended if so required.
•  But it must be protected from unnecessary and frequent changes.
• A Constitution that can be very easily changed or modified is often called flexible.
• In the case of constitution which are very difficult to amend they are described as a rigid.
•  The Indian Constitution combines both these characterized.
•  There are many articles in the constitution,  which mention that these articles can be amended by a simple law of the 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
•  In both these articles, the wording 'by law' indicate that these article can be modified by the Parliament without recourse to the procedure laid down in Article 368 .
• For amending the remaining parts of the Constitution provision has been made in Article 368 of the constitution.
• There are two methods of amending the constitution and they applied to two different set of articles of the Constitution .
• One method is that amendment can be made by special majority of the two houses of the Parliament.
•  The Other method is more difficult: it requires special majority of the Parliament and consent of half of the state legislatures .
• An amendment bill like all other bills, goes to the president for his assent, but in this case ,the president has no power to send it back for reconsideration.

Special majority

• Executive and Judiciary, we have come across provisions that require 'special majority' .
• At the time of voting on a bill,  247 members were present in the house and all of them participated in the voting on the bill.
• Amendment to the constitution requires two different kind of a special majorities: in the first place, those voting in favour of the Amendment Bill should constitution at least half of the total strength of that house.
• Secondly, the supporters of the Amendment Bill must also consitute two thirds of those who actually take part in voting.
•  Both houses of the Parliament must pass the Amendment Bill separately in this same manner.
•  In the Loksabha there are 545 members.
• Any amendment must be supported by a minimum of 273 members.

Ratification by States

•  For some articles of the Constitution, special majority is not sufficient .
• When an amendment aims to modify an article related to the distribution of powers between the states and the central government, or articles related to representation.
• Federalism mean that power of the states must not be at the mercy of the central government.
• The constitution has ensured this by providing that legislatures of half the states have to pass the Amendment Bill before the amendment come into effect. 
• At the same time, care is taken to keep this procedure somewhat flexible  even in its more receipt format consent of only half the states is required and simple majority of the state legislature is sufficient.
• The amendment procedure is not impracticable even after taking into consideration this most racing Gent condition.

Why have there been so many amendments ?

• On 26 January 2019 the constitution of India completed 69 years of its existence.
•  In these year it was amendment 103 Times.
• The same information is presented in two different way.
•  The First graph depicts the number of Constitution Amendment made every 10 years the bar indicates the number of amendment in that period .
• The second graph depicts the time taken for every 10 amendments :the bar depicts the years taken for 10 amendments.
•  The two decades from 1970 to 1990 se large number of amendments.
•  On the other hand, the second graph tell one more story 10 amendment took place between a short span of 3 year between 1974 and 9076 content of amendments made.

Content of amendment made so far 

• Amendment made so far may be classified into three groups .
• In first group there are , amendmentswhich are of a technical or administrative nature and were onley classification explanation and minor modification etc.
• This is a true of the Amendment that increase from 60 to 62 years 15th amendment and similarly  salary of High Court and the supreme court were increased by an amendment 54 amendment.

 The the amendment was only by way of explanation .

Differing interpretations 

• A number of amendments are a product of different interpretations of the Constitution given by the Judiciary and the Government of the day .
• The  Parliament had to insert an amendment underlining one particular inter stations as authentic one. 
• In the period 1970 and 1975, the Parliament repeatedly made amendment to overcome the adverse interpretations by the judiciary.

 Amendment through political consensus

•  Thirdly, there is another large group of amendments that have been made as a result of the constants among the political parties.
•  In fact, many of the amendment of the post 9084 period are in sentence of this Trend .
• The reason is because many of these amendments were based on an evolving conference on certain issues .
• Starting with the anti-defection amendment this period saw a series of the political turbulence.
•  Apart from the anti-defection amendment these amendment include the 61st amendment bringimg down the minimum age for voting from 21 to 18 years, the 73rd and 74th Amendment, etc.

 Controversial amendments

•  Our discussion so far should not create an impression that there has never been any controversy over amending the constitution.
•  The parties that were in a 0pposition during the period 1971- 1976, saw many of these amendments as attempts bythe ruling party to subvert the constitution the constitution.
•  The 42nd amendment was particularly seen as a wide-ranging amendment affecting last part of the constitution.
•  The 42nd amendment also put restrictions on the review power of the judiciary .
• Many MPS belonging to the opposition party were in jail when this amendment was passed in the Parliament.
•  The new government thought it necessary to reconsider these controversial amendments and through the 43rd and 44th Amendment cancelled most of the change that were affected by the 38th and 39th and the 42nd amendments.

Basic Structure and Evolution of the Constitution 

• The Supreme court gave the Kesavananda ruling in 1973.
• In the Past four decades , this decision has governed all interpretations of the constitution and all institutions inthe country have accepted the theory of basic structure.
• All living documents evolve in this manner through debates, arguments, comprtition and practical politics.
• In a sense  the basic structure Doctrine has further consolidate the balance between rigid duty and flexibility.
• In many decisions the supreme court had held that reservation in jobs and educational institution cannot exceed 50% of the total seats.
• In the same manner the Judiciary has contributed to an informal amendment by interpreting various provisions concerning right to education right to life and liberty and the right to form and manage minority educational institutions.

Contribution of the judiciary

• During the controversy between the Judiciary and the Parliament the Parliament thought that it had the power and responsibility to make law for the interest of the poor backward and the needy..
• The Judiciary initiated that all this has to take place within the Fame work provided by the constitution and Pro people measures should not by pass legal procedures, and democracy is as much about check and laboratory use of power as it is about the well-being of the people.
• The success of the working of the Indian Constitution lies in resolving these tensions. 
• The judiciary in its famous Keshav Nand ruling found a way out of the existing complications by turning to the spirit of the Constitution rather than its letter.

Maturity of the political leadership

•  After the supreme court gave the ruling in the kesavananda case  in the case some attempts were made to ask the court to reconsider its ruling.
•  when these failed the 42 and amendment was made and parliamentary Supremacy was assisted but the court again repeated its earlier  Stand In The Minerva Mills case 1980 .
• Political parties  political leaders the government, and Parliament, accepted the idea of inviolable available basic structure .
• In the constituent assembly also, all the leaders mentioned this reasons  dignity and freedom of the individual, social and economic equality well-being of all people Unity based on national integrity.