Constitution as a living document

Published on 14 Jan 2025

Article 368 of the constitution lays down the procedure to be followed by the Parliament to amend the constitution and this power to amend the constitution ensures that changes are accommodated which reflects the socio-political scenario of the nation. The procedure for amenability is neither too rigid nor too flexible thus ensuring some degree of balance.

How a living constitution benefited India

• Expand the scope of fundamental rights: Certain rights could be recognized as fundamental only with changing times when the state is at an advanced level to preserve the same.

• Example: The 84th constitutional amendment called for free and compulsory elementary education under Article 21A.

• Reducing the status of certain rights: The change in socio-economic conditions demands the state to offer less value to certain rights to protect some superior ideas.

• Example: The 44th Amendment which made the Right to property a legal right enabled the state to take measures to bring social justice.

• Make changes to DPSPs: DPSPs guide the actions of the state in serving the public and amending them makes the state focus on certain priorities.

• Example: The 42nd Amendment included Article 48A which called for state action to protect the environment which resulted in many legislations in the following years regarding environmental protection. 

• Preserve social justice: Affirmative actions are to be interpreted on different levels based on changing circumstances to ensure their benefit is reasonable.

• Example: The 103rd amendment which mandates EWS reservation extended affirmative action on economic grounds.

• Change in governance: India required a more centralised system during independence but later evolved into a more decentralised system to meet the changing needs of time.

• Example: The 73rd and 74th amendment which gave constitutional backing for devolving powers to local bodies.

• Ensure public trust in governance: The political procedures must evolve to reduce loopholes in governance and protect public trust in the institutions.

• Example: The 52nd amendment incorporated 10th schedule to prevent defection.

• Facilitate economic reforms: The change in the economic profile of the nation calls for changes in the economic system of the country.

• Example: The 101st amendment which revolutionised taxation with the introduction of GST.

Criticisms for amending provision of the constitution

• Misuse of power: A majoritarian government can bring changes that suit their political ideology by using amenability power.

• Example: The changes brought under the 42nd Amendment were so huge that it is often referred to as mini-constitution.

• Threat to the independence of the judiciary: Parliament may use the provision to curtail the powers of the judiciary.

• Example: The 99th amendment created NJAC which affected judicial independence.

• Effect on federalism: The consultation required from the state legislatures for amending the constitution is only limited to certain provisions. Also, the state government cannot demand an amendment.

• Example: Supreme Court striking down certain provisions of the 97th amendment as it lacked approval from half of the state legislature.

• No public participation: Amendments passed by the Parliament may not be as per public demand and this questions the legitimacy of the amendment.

Thus, the Indian constitution has been a living document by evolving over the years to strengthen itself and make itself more relevant. But the powers of the Parliament to amend the constitution shall not be misused and on this, the Supreme Court should play an important role in preventing the misuse of power.

Tags:
Polity

Keywords:
Constitution as a living document article 368 expanding scope of fundamental right DPSP criticism federalism

Syllabus:
General Studies Paper 2

Topics:
Indian Constitution