Skip to content
Skip to page content
soylai.com

Constitution as a Living Document: Notes

7 sections 6 min readBeta

1. Why a constitution is amended

A constitution is written at one time but has to serve later times, so it needs a way of changing. A rigid constitution is hard to change; a flexible constitution can be changed as easily as an ordinary law. The Indian Constitution is a balance of the two: some parts are changed easily, most need a special majority, and some need the states as well.

Rigid and flexible constitutions on a scale.
Table on why constitutions change: society and needs change so a constitution must adapt; a rigid constitution is difficult to change; a flexible constitution can be changed easily like an ordinary law; the Indian Constitution strikes a balance, with some parts changed easily, most needing a special majority, and some also needing the states
IdeaMeaning
Why a constitution changesSociety, needs and knowledge change, so a constitution must be able to adapt
Rigid constitutionOne that is difficult to change, because change needs a demanding procedure
Flexible constitutionOne that can be changed easily, in the way an ordinary law is changed
The Indian balanceSome parts can be changed easily, most need a special majority, and some also need the states

Key terms

Amendment

A formal change in the text of the Constitution, made by the procedure that the Constitution itself provides.

Rigid constitution

A constitution that is difficult to change, because change needs a demanding procedure.

Flexible constitution

A constitution that can be changed easily, in the way an ordinary law is changed.

2. Article 368: the three ways

Article 368 gives Parliament the power to amend the Constitution and lays down the procedure. As commonly taught, there are three ways:

  • Simple majority: ordinary laws, such as Article 3 (new states) and Article 169 (Legislative Councils), technically not amendments under Article 368.
  • Special majority in each House: for most provisions, including the Fundamental Rights.
  • Special majority plus ratification by at least half of the state legislatures: for federal matters.
The three ways of changing the Constitution.
Table on the simple majority: such a change is passed as an ordinary law by a simple majority of members present and voting; examples are Article 3 on forming new states and changing boundaries or names, and Article 169 on creating or abolishing a Legislative Council after a resolution of the state Assembly; technically these are not counted as amendments under Article 368
MatterDetail
How it is passedAs an ordinary law, by a simple majority of members present and voting
Article 3Forming new states, and changing the area, boundaries or names of states
Article 169Creating or abolishing a Legislative Council in a state, after a resolution of the state Assembly
StatusTechnically not counted as amendments under Article 368
Table on the special majority: a majority of the total membership of the House, and two thirds of the members present and voting; both are needed, and a bill meeting only one fails; it is used for most provisions including the Fundamental Rights
PointSpecial majority
Condition 1A majority of the total membership of the House
Condition 2Two thirds of the members present and voting
Both neededA bill that meets only one of the two conditions fails
Used forMost provisions of the Constitution, including the Fundamental Rights

Key terms

Simple majority

More than half of the members present and voting.

Special majority

A majority of the total membership of a House together with two thirds of the members present and voting.

Ratification

Formal approval of an amendment by the legislatures of the states, where the Constitution requires it.

3. Federal matters and the rules of the procedure

The matters that need ratification include the election of the President, the executive power of the Union and the states, the Supreme Court and the High Courts, the lists of the Seventh Schedule, the representation of states in Parliament and Article 368 itself.

A bill can start in either House; there is no joint sitting; the President must assent (24th Amendment, 1971). More than a hundred amendments have been made; the 106th, in 2023, is the latest as of 2024.

The path of an amendment bill.
Table of the matters needing ratification by at least half of the state legislatures: the election of the President, the executive power of the Union and the states, the Supreme Court and the High Courts, the lists of the Seventh Schedule, the representation of states in Parliament, and Article 368 itself, each affecting the federal structure
Matter affectedWhy states are involved
Election of the PresidentThe states take part in the election
Executive power of the Union and the statesIt concerns the division of power between the two levels
The Supreme Court and the High CourtsThe courts serve the Union and the states
Lists of the Seventh ScheduleThey divide subjects between the Union and the states
Representation of states in ParliamentIt concerns how states are heard at the centre
Article 368 itselfThe way of amending must not be changed without the states
The bill, the House and all numbers are imagined.
StepImagined House with 540 members in total
The imagined billThe 140th Amendment Bill, to widen a Fundamental Right
Condition 1More than half of 540 means at least 271 votes for the bill
Condition 2With 360 present and voting, two thirds is 240 votes
Case A: 300 vote for300 is at least 271 and at least 240: the bill passes in this House
Case B: 270 vote for270 is above 240 but below 271: the bill fails
All the bills and the state are imagined.
Imagined billMethod and reason
A law forming the imagined state of Tarnia from districts of MeriviaSimple majority under Article 3; not an amendment under Article 368
The 140th Amendment Bill: widen a Fundamental RightSpecial majority in each House; no ratification by the states
The 141st Amendment Bill: move a subject from the State List to the Union ListSpecial majority plus ratification by at least half of the states
The 142nd Amendment Bill: change the way the President is electedSpecial majority plus ratification; the election of the President is a federal matter
Table of rules on amendment bills: a bill starts in either House and a state legislature cannot begin it; there is no joint sitting; the President must give assent, made obligatory by the 24th Amendment of 1971; more than one hundred amendments have been made and the 106th, in 2023, is the latest as of 2024
RuleDetail
Where it startsIn either House of Parliament; a state legislature cannot begin it
Joint sittingNone for amendment bills: each House must pass the bill on its own
AssentThe President must give assent; the 24th Amendment (1971) made this obligatory
How many amendmentsMore than one hundred; the 106th, in 2023, is the latest as of 2024

Key terms

Federal provision

A provision that affects the division of power between the Union and the states; amending it needs ratification by the states.

4. Kinds of amendments and the 1970s

Amendments are commonly grouped as technical or administrative (15th, 1963: retirement age of High Court judges from 60 to 62), those from differing interpretations of the judiciary and Parliament, those through political consensus (52nd, 1985; 61st, 1988; 73rd and 74th, 1992) and the controversial amendments of the 1970s.

The 42nd Amendment (1976) was passed during the national Emergency (1975 to 1977); it changed many parts of the Constitution, added socialist, secular and integrity to the Preamble and added the Fundamental Duties. The 44th Amendment (1978) restored several provisions.

Timeline, 1950 to 1992.
Table of kinds of amendments: technical or administrative, such as the 15th Amendment of 1963 raising the retirement age of High Court judges from 60 to 62; differing interpretations between the judiciary and Parliament, for example over property and the Fundamental Rights; political consensus, such as the 52nd, 61st, 73rd and 74th; and the controversial amendments of the 1970s, the 42nd and 44th
KindExample
Technical or administrativeThe 15th Amendment (1963) raised the retirement age of High Court judges from 60 to 62
Differing interpretationsA disagreement between the judiciary and Parliament, for example over property and the Fundamental Rights
Political consensusThe 52nd (1985), the 61st (1988), and the 73rd and 74th (1992)
Controversial amendments of the 1970sThe 42nd Amendment (1976) and the 44th Amendment (1978)
Table on technical amendments and differing interpretations: technical amendments change a detail such as an age or a date without altering policy; when the judiciary and Parliament read a provision differently, Parliament may amend the text; a test question is whether the change adjusts a detail, answers a court reading or reflects wide agreement
KindWhat it shows
Technical or administrativeA change of detail, such as an age or a date, that does not alter any policy
Differing interpretationsWhen the judiciary and Parliament read a provision differently, Parliament may amend the text
A test questionDoes the change adjust a detail, answer a court reading, or reflect wide agreement?
Table of amendments made through political consensus: the 52nd of 1985 on anti-defection; the 61st of 1988 lowering the voting age to 18; the 73rd and 74th of 1992 on rural and urban local government
AmendmentYearSubject
52nd1985Defection by elected members (anti-defection)
61st1988Voting age lowered to 18
73rd and 74th1992Local government, rural and urban
Table on the 42nd Amendment of 1976: passed during the national Emergency of 1975 to 1977; it changed many parts of the Constitution in a single amendment; it added the words socialist, secular and integrity to the Preamble; and it added the Fundamental Duties
PointThe 42nd Amendment, 1976
WhenPassed during the national Emergency (1975 to 1977)
ScopeChanged many parts of the Constitution in a single amendment
PreambleAdded the words socialist, secular and integrity
DutiesAdded the Fundamental Duties
Table on the 44th Amendment of 1978: passed after the Emergency had ended; it restored several provisions that the 42nd Amendment had changed; the two are studied together because one amendment changed many parts and a later one restored several; the lesson is that the amending power is wide and its use is a matter for study and judgement
PointThe 44th Amendment, 1978
WhenPassed in 1978, after the Emergency had ended
What it didRestored several provisions that the 42nd Amendment had changed
Why they are studied togetherOne amendment changed many parts and a later one restored several of them
LessonThe amending power is wide, and its use is a matter for study and judgement

Key terms

Anti-defection law

The rule, made by the 52nd Amendment in 1985, on the disqualification of elected members who defect from their party.

5. The basic structure doctrine

Golaknath (1967): Parliament cannot amend the Fundamental Rights. 24th Amendment (1971): Parliament asserted its power over every part. Kesavananda Bharati (1973): Parliament can amend any part but cannot alter the basic structure. Minerva Mills (1980): the doctrine was reaffirmed, with the balance between the Fundamental Rights and the Directive Principles.

The courts have identified features over time, for example: supremacy of the Constitution, the republican and democratic form of government, the secular character, separation of powers, the federal character, judicial review and the rule of law.

From Golaknath to Minerva Mills
Table on the Golaknath case of 1967: the question was whether Parliament can amend the Fundamental Rights; the Supreme Court held that it cannot; it limited the amending power and set Parliament and the Court at odds
PointGolaknath case, 1967
QuestionCan Parliament amend the Fundamental Rights?
HeldThe Supreme Court held that Parliament cannot amend the Fundamental Rights
Why it mattersIt limited the amending power and set Parliament and the Court at odds
Table on the 24th Amendment of 1971: Parliament asserted its power to amend any part of the Constitution; it made the assent of the President obligatory; it was a response to the position in the Golaknath case
Point24th Amendment, 1971
AssertionParliament asserted its power to amend any part of the Constitution
AssentThe President must give assent to a duly passed amendment bill
Place in the storyA response to the position taken in the Golaknath case
Table on the Kesavananda Bharati case of 1973: Parliament can amend any part of the Constitution but cannot alter its basic structure; a bench of thirteen judges heard it; the result was the basic structure doctrine, the main limit on amendments
PointKesavananda Bharati case, 1973
The principleParliament can amend any part of the Constitution but cannot alter its basic structure
The benchA bench of thirteen judges heard the case, the largest in the history of the Court
The resultThe basic structure doctrine, which became the main limit on amendments
Table of features commonly listed as part of the basic structure, as identified by the courts over time, for example: the supremacy of the Constitution, the republican and democratic form of government, the secular character, the separation of powers, the federal character, judicial review and the rule of law, each with a short meaning
Feature, as identified by the courts over time, for exampleMeaning
Supremacy of the ConstitutionAll laws and all organs of government are bound by the Constitution
Republican and democratic form of governmentRule by elected representatives and a head of state who is not hereditary
Secular characterThe state has no official religion and treats all faiths with respect
Separation of powersThe legislature, executive and judiciary have their own roles
Federal characterPower is shared between the Union and the states
Judicial reviewCourts can examine whether laws and amendments follow the Constitution
The rule of lawEveryone, including the government, is subject to the law
Table on the Minerva Mills case of 1980: it reaffirmed the basic structure doctrine and stressed the balance between the Fundamental Rights, rights in Part III enforceable in courts, and the Directive Principles, guidelines in Part IV for governments not enforced by courts
PointMinerva Mills case, 1980
DoctrineReaffirmed the basic structure doctrine
BalanceStressed the balance between the Fundamental Rights and the Directive Principles
Fundamental RightsRights in Part III that citizens can enforce in the courts
Directive PrinciplesGuidelines in Part IV for governments, not enforced by the courts
The Act and the petition are imagined.
Question about the imagined 143rd Amendment ActApplying the doctrine
The Act says no court may examine laws for accord with the ConstitutionIt touches judicial review, a feature of the basic structure
It was passed by the special majority and ratified by the statesProcedure alone does not settle whether it is valid
A petition challenges itThe Court may test whether the Act alters the basic structure
If it does alter itThe Court may strike the Act down; Parliament cannot alter that core

Key terms

Basic structure

The core features of the Constitution that Parliament cannot alter by amendment, as identified by the courts.

Judicial review

The power of the courts to examine whether laws and amendments follow the Constitution and to strike down those that do not.

Fundamental Rights

The rights in Part III of the Constitution that citizens can enforce in the courts.

Directive Principles

Guidelines in Part IV of the Constitution for governments in making policy, which the courts do not enforce.

6. Significance of the doctrine

The doctrine balances rigidity and flexibility: the wide amending power gives flexibility, and the protection of the core gives stability. It limits the amending power.

Some argue that it gives judges too much power over an elected Parliament. Others argue that it protects the core of the Constitution from a passing majority. A good answer presents both and gives reasons.

Students should weigh both views with reasons.
Some argueOthers argue
Judges are not elected, so the doctrine gives them too much power over ParliamentThe doctrine protects the core of the Constitution from a passing majority
The list of features is not fixed, so judges decide what is basicA fixed list would not meet new situations, and the courts give reasons case by case
Elected representatives should have the last word on amendmentsSome features are so central that no majority should change them
One mark for each step.
Step in planning a five mark answerImagined question: examine the significance of the doctrine
Define The doctrine: Parliament can amend any part but cannot alter the basic structure
Flexibility The wide power to amend lets the Constitution adapt
Stability The protection of core features keeps it stable
View one Some argue that judges gain too much power
View two Others argue that the core is protected

7. The Constitution as a living document

A living document grows with society and keeps its core. It changes through amendments by Parliament, through judicial interpretation (courts have read the right to livelihood and the right to privacy into Article 21) and through political practice and conventions. Parliament and the judiciary contribute together.

How the Constitution stays alive
Table on judicial interpretation: courts explain what a provision means and can read a wider meaning into it; Article 21 is the right to life and personal liberty; courts have read the right to livelihood and the right to privacy into it; rights widen without any change in the wording
PointJudicial interpretation
MeaningCourts explain what a provision means and, over time, can read a wider meaning into it
Article 21The right to life and personal liberty
ExamplesCourts have read the right to livelihood and the right to privacy into Article 21
EffectRights widen without any change in the wording of the text
Table on political practice and conventions: a convention is an accepted practice not written in a law that guides political actors; in imagined Pellara the head of state always invites the leader of the largest group to form a government; the practice fills a silence in the text; a convention cannot override what the written text clearly provides
PointPolitical practice and conventions
ConventionAn accepted practice, not written in a law, that guides how political actors behave
Imagined exampleIn Pellara the head of state always invites the leader of the largest group to form a government
EffectThe practice fills a silence in the text and changes how the constitution works
LimitA convention cannot override what the written text clearly provides

Key terms

Living document

A constitution that keeps growing and adapting, through amendment, interpretation and practice, while keeping its core.

Convention

An accepted practice, not written in a law, that guides how political actors behave and fills a silence in the text.

Exam tips

Common mistakes

  • Saying every change needs a special majority: Article 3 and Article 169 changes need only a simple majority.
  • Defining the special majority as two thirds of the total membership: it is a majority of the total membership and two thirds of those present and voting.
  • Saying a joint sitting settles a deadlock on an amendment bill: there is no joint sitting for amendment bills.
  • Saying Kesavananda Bharati stopped all amendments: Parliament can amend any part but cannot alter the basic structure.
  • Taking a side on the doctrine without reasons: present both views.

Tips: put the cases in order with years (1967, 1971, 1973, 1980); give one example for each method; use imagined bills and countries for examples; date facts (the 106th Amendment, 2023, as of 2024).