Jul 16, 2020

As we are aware of the fact that all countries have their constitution, which explains the nation's very own guiding principles and the rights guaranteed to all citizens that's why is also known as law of land. All countries have their unique constitution but our constitution is the lengthiest and handwritten by calligraphy "Prem Behari Narain Raizada" in flowing italic style. Indian constitution was adopted on 26 November 1949 and was fully implemented (remaining provisions) on 26th January 1950. Since it was drafted in the modern era, the difficulties faced by other countries while adopting various provisions have helped our constitution-makers in constituent assembly debate too quickly to conclude to the provision which is best suited for a country like India which has so many diversities and yet united.

So far our Indian constitution is concerned it has never been a frozen document, neither at the time when it was framed. By the living constitution, it meant the constitution is the one that evolves, changes over time, and adapts to new circumstances, without being formally amended. And the major contribution was of the head of drafting committee Baba saheb Ambedkar, the father of our constitution, who had studied the Constitution of many countries while drafting the constitution. Today's existing constitution is the product of struggle faced by people and their freedom fighters.

While drafting the Indian constitution in constituent assembly it was in the minds of founding fathers from the very beginning that resultant constitution should be the long-lasting one and not for just a few decades. And to make it everlasting it has to be a flexible not static or close document. Our constitution makers recognize the necessity of modification according to the changing needs of society. The most basic reason for making a constitution flexible or alterable document is that'what might seem right today, may become wrong tomorrow and what might seems wrong today may become right and constitutional tomorrow'. Since ultimate sovereignty lies with the people of India, their changing needs and demand should be fulfilled and should be the priority of the government. Another reason, which demands flexibility, was that constitution was made by human beings and may need revision, changes and re-examination, which is necessary and essence of the democratic country like India.

But making it static was also required in society but by avoiding excessive rigidity as making constitution permanent will hinder the growth of the nation. By providing greater flexibility, one can easily foresee it being misused by the government; they can mould it as per their requirement, and thus hindering the distribution of equality, justice and fulfilling the demands and needs of the citizens in the society. Further, it was decided that the Indian Constitution must be protected from unnecessary and frequent changes. Our constitution makers were aware of this problem and sort to strike a balance between both i.e. being static and flexible. Thus, they positioned the constitution above ordinary law, from which all ordinary laws derive their authority and expected from the future generation to respect it. Indian constitution is the combination of rigidity and flexibility making it semi-flexible. Our constitution makers were aware of the fact that there may be some flaws and mistakes in the drafted constitution and it isn't free from errors. Apart from that if no such provision were made for the amendment of the constitution, the people would have requested an extra-constitutional method like a revolution to change the existing constitution to one of their need.

But they were also aware that in future this document may require modifications. Considering this, the founding fathers have adopted Article 368 of the Indian constitution, which initially only provides a procedure for amending the laws by empowering the parliament with constituent power for addition, variation or repeal. This article in itself had suffered a lot of amendments and changes made by parliament exercising the constituent power. Later, in clause (1) of Article 368- the power to amend was added and the procedure was shifted to clause (2) of Article 368, through an amendment which was the result of the judgment of  Subha Rao J in the landmark judgment of  I.C. Golaknath Case.

As per quotation of Pandit Jawaharlal Nehru in the Constituent Assembly:

"While we want this Constitution to be as solid and as permanent a structure as we can make it,nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people. Therefore, it has to be flexible. …In any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible…."

As per the constitution of India,parliament has been empowered to amend the constitution through following any of the 3 procedures:

1. Through simple majority in parliament, similar to ordinary law.

2. Special majority in parliament in both houses separately as directed in Article 368

3. Special majority + legislature of half of the state as per Article 368 i.e. ratification by states.

Introduction of amending Bill can be in either House of the parliament; the main point is that it should be passed by special majority by both the houses as prescribed in Article 368. After getting a clean chit from both the houses of the parliament it may go for the ratification by the state if required and lastly must be presented before the president for his assent. Here the President can send the bill back to the Lok Sabha for reconsideration for only one time but when the same bill is presented before him, he is bound to give his assent, irrespective consideration of his recommendation. After the ascent from the president of India, the amendment is considered. Exercising such a complex procedure for the amending the constitution,Parliament is empowered with constituent power, specified in Article 368 which is not that easy to use.

Where the legislature had a duty to make the proper laws as per requirement and its duty of implementation to the ground level had been given to the executive. The most vital role of interpreting the law is of the judiciary. Judiciary which is considered as the third pillar of Indian democracy had a vital role in protecting the identity of the Indian constitution and avoiding any sort of encroachment into life and personal liberty of Indian citizens. To avoid exploitation of the citizens by the state legislature or Parliament while exercising the constituent power to amend the constitution, various guidelines have been provided by numerous case laws. Following the provision of separation of powers between the legislature,executive and judiciary; no one can interfere into the sphere of working of another. But when the laws made by parliament is violative of any of the provisions of Indian constitutions especially of Part III of the constitution which guarantees the fundamental right to citizens, the judiciary must analyze the law whether it's violative or not. If yes, being an independent body Supreme Court can declare the law as unconstitutional. The main question was whether the amendment of a fundamental right which is guaranteed under Part III of the constitution is permeable or not under Article 368. This issue was raised for the first time in 1951 before Supreme Court in the landmark judgement of Shankari Prasad Dev vs Union of India, then in Sajjan Singh vs the State of Rajasthan, I.C. Golaknath vs the State of Punjab and finally in one of the most landmark judgement in the history of Indian judiciary, Keshvanand Bharti vs the State of Kerela. This 13 judges bench overruled, the judgement of 11 judges bench held in, IC Golaknath case by a majority of 7:6 and held that all the provisions could be classified into two parts:

1.   The core of the constitution: also termed as the basic structure of the constitution over which constitution is framed. Any alteration in basic structure would deteriorate the whole of the constitution. So its basic framework should remain intact without any interference through amendments.

2.   Substantial law: which is alterable and falls within the ambit of Article 368. Further, the court held that any petition against the amendment violative of fundamental right guarantee under Part III is not maintainable whereas any petition violative of the basic structure of construction is maintainable and should be held unconstitutional.

The rule laid down by the Supreme Court of India is still being followed and respected by future generations.

The flexibility of Indianconstitution could be easily examined from the case which validatedhomosexuality (Navtej Singh Johar and Ors Vs Union of India) and stuck downsection 377 of Indian penal code which criminalizes sexuality because of beingagainst Indian culture, against nature and science. Five judges bench led by CJDeepak Mishra held that section 377 of Indian penal codeis infringing on a person's life and personal liberty stated under article 21of Indian Constitution. Apart from this, another drastic change in IndianConstitution took place after the abbreviation of article 370, providingspecial status to Jammu and Kashmir.

As of January 2020, there have been 104 amendments in the Indian Constitution which indicate the flexibility of the Indian Constitution. When we talk of amendments in Indian Constitution, the 42nd constitutional Amendment is not unknown to anyone, also commonly known as Mini Constitution, which amended so many provisions of the Indian constitution.  

Even our preamble which is considered a mirror of our constitution had once undergone amendment, which added the word "SOCIALIST", "SECULAR" and "AND INTEGRITY", through the 42nd constitutional amendment, 1976. The semi-flexibility nature of amending constitution had benefited by avoiding the excessive rigidity and excessive flexibility in the constitution.