Constitution as a Living Document

After listening to the topic “Constitution as a Living Document,” the first question that strikes our mind is how a constitution can be a living document. The reasoning behind this question is hidden in the word “living”, which means something that evolves over time to adapt to new surroundings, much like other living organisms do. 

Similarly, the Constitution is also an evolving document. Our Indian constitution evolves from time to time in order to improve it and benefit society. Now another question arises: how did the constitution evolve? The evolution of the constitution takes place by amendment, and this power of amendment is under Article 368 of the Indian Constitution, which helps us to add new laws or change existing ones. 

The Constitution also evolves in the way we interpret the meaning of the text present in our Constitution. Even without amending it, the Constitution can be evolved as the Constitution has a dynamic meaning that evolves and adapts to new circumstances. 

[1]In the [2]Kapila Hingorani vs. State of Bihar case, the Supreme Court observed that the interpretation of the constitution or the statutes would change from time to time. Being a living organ, it is ongoing and, with the passage of time, the law must change. 

One of the most well-known Supreme Court judgements on decriminalising Section 377 of the Indian Penal Code can aid us in comprehending the evolution of the constitution. In this judgement, the judiciary interpretations the meaning of “right to equality” ([3]Article 14)”, “right to privacy” ([4]Article 21)”, and “prohibits discrimination on the ground of religion, race, caste, sex, or place of birth ([5]Article 15″)” in a broader perspective. In light of societal development, the court considers the dynamic meaning of these articles. 

Section 377 of the Indian Penal Code criminalises unnatural sex between two individuals, and this offence is punishable with imprisonment up to life. This section clearly violated Articles 14, 15, and 21 of the Indian Constitution. So, on September 6, 2018, the judiciary decriminalised Section 377 of the IPC and allowed gay sex among consenting adults in private. 

There were several attempts to decriminalise Section 377 of the IPC, but all were dismissed by the court. The court recognised that society was not ready at the moment, but when they realised that society’s thinking was evolving, they realised that the law needed to evolve as well. In the abovementioned judgement, the constitution evolves as a result of a broader interpretation of the Articles. 

The existing law can also be changed or eliminated through amendments, like the right to property, which is no longer a fundamental right but a legal right. The evolution of the constitution is necessary because society changes or modifies sporadically, and if the evolution of the constitution stops, then it will become static and no longer be a living document.

Many people ask a question about amendments: is there any problem with our previous constitution that we have to amend it? The answer to the above question is NO. We don’t have any problems with our previous constitution. Our Indian constitution came into force on January 26, 1950. 

This constitution was designed according to the time period of society, but now there is a drastic change in Indian society, economy, and thinking. So, the current laws are designed for the conditions prevailing in India in the current scenario. From 1970 to 1990, there was a significant change in Indian society, which is the main cause of the maximum number of amendments during that time period. 

After listening to the amendment, a general question that can come to our mind is: is our constitution so weak that anyone can amend it so easily? Our constitution is neither weak nor easy to amend. 

The founding fathers of the Constitution took care that the Constitution would not be open to easy tampering. Our Indian constitution is neither too rigid like the USA nor too flexible like the UK. 

The ultimate power to amend the constitution is under [6]Article 368, which grants power to the parliament for the amendment of the constitution. An amendment can be made by following the due procedure prescribed in the Constitution. 

An amendment can be initiated by introducing a bill in either house of parliament and should be passed by both. There are three main ways to amend the Indian constitution. 

First, by a simple majority of parliament, in which a majority of more than 50% of members present and voting in the house. By a simple majority, there are a number of provisions that can be amended in the Indian constitution, like rules of procedure in parliament, salaries and allowances to members of parliament, abolition or creation of legislative councils in states and many more. 

Second, by a special majority of parliament, with a two-thirds majority of members present and voting in support of half of the house’s total strength. A special majority is mostly used for amending the Indian constitution. There are various provisions that can be altered by a special majority, including the removal of the Supreme Court and High Court judges, a resolution by the state legislature to eliminate or create a legislative council, modifying the directive principle of state policy, and so on. 

Third, by a two-thirds majority in parliament and state consent. It’s a hybrid of special majority and simple majority voting. The federal structure enshrined in the constitution can only be changed by a special majority of parliament and the consent of states. It requires state ratification. 

The distribution of legislative power between the Union and the States, the election of the President, the Supreme Court and the High Courts, state representation in parliament, and the extent of executive power of the Union and the States are among the provisions that can be amended by this majority.

We know that amending the constitution is a difficult undertaking after reading about the procedure, but there are some things in the constitution that cannot be changed, and those items are known as the basic structure of the Indian constitution. In the [7]Kesavananda Bharati case of 1973, the Supreme Court ruled that parliament has the power to amend any part of the constitution except the basic structure of the constitution. 

The basic structure is a judicial innovation to ensure that the power of amendment is not misused by parliament. The constituents of the basic structure are not clearly defined by the court. However, it has been interpreted to include provisions like federalism, separation of powers, and values enshrined in the preamble like secularism, equality, etc., an independent judiciary, the rule of law, etc. 

The basic structure helps our constitution from being too flexible and curtails the power of amendment from the parliament. Through judicial review, the Judiciary helps us to find out about any amendment that is contrary to the basic structure of the Constitution. 

So, amendments are not something that shakes the structure of the Constitution but are an integral part of it. All of these procedures make our Indian constitution robust enough to avoid mistakes and aid in the evolution of the constitution. 

Our Indian constitution is so unique and well-designed that it’s difficult to make a mistake, yet procedures take time. On November 26, 1949, India’s constitution was ratified. Its formal implementation began on January 26, 1950. It has been 73 years since our constitution was first enacted, and the same constitution has served as the framework under which our country’s government has operated for so long. 

The basis for our Indian constitution’s stability resides in its nature, and our constitution’s nature is to evolve, making it a living document. As a result, both political practice and judicial judgements have demonstrated maturity and suppleness in putting the Constitution into effect. 

The Constitution’s core framework is perfectly suited to our country. It’s also true that the framers of the Constitution were foresighted and included several answers to future problems. However, no constitution can cover all eventualities. No document can be so perfect that it never has to be altered. 

The Supreme Court of India has given the ‘living Constitution’ a moral dimension. If one examines the various Supreme Court decisions holding that our Constitution is an organic document, one will see a common thread that runs through all of them. The notion of a “living constitution” aids in the realisation of rights. 

As a result, whenever the Court declares that our Constitution is a living document, it does so in order to advance citizens’ rights. Our Constitution is not only a living document, but it also serves as a guide for progress. The provisions relating to the right to education, amending Article 370, NCBC, GST, or judgments relating to the right to privacy, triple talaq, section 377, or the NOTA judgement, demonstrate that our democracy can only survive through change and adaptation. 

The constitution is the supreme law, and it aids in the preservation of society’s integrity and the promotion of citizen unity in order to develop a great nation. The main objective of the Indian constitution is to promote the evolving nature of society throughout the nation.

Footnotes

[1]Sudhanva S Bedekar, The Problem with India’s Living Constitution, National Law School of Indian Review, (Dec. 10, 2020), https://nlsir.com/the-problem-with-indias-living-constitution/

[2] Kapila Hingorani v. State of Bihar, (2003)

[3]INDIA CONST. art. 14

[4]INDIA CONST. art. 21

[5]INDIA CONST. art. 15

[6]INDIA CONST. art. 368

[7]Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

This article has been contributed by Harsh Ranjan Singh, a student at Bharati Vidyapeeth New Law College, Pune.