Amazingly, since the inception of our Constitution in 1949, there have been as many as 120 amendments in it. The number is obviously alarming and unbelievable.
No Constitution known to us has undergone so many changes after its enactment, but we have done so within a brief period of time. It is, however, true that the Constitution, like a child’s garment, needs to be changed with the march of time. But the frequent and major amendments suggest, at least covertly, that the original document is inadequate, ill-conceived, defective and unworkable.
In such a case, some people may think that Parliament is sure to remain busy in mending the loopholes of the Constitution which the Founding Fathers enacted either in a hurry or with ineptness.
But in reality the people of India created a highly efficient institution in order to draft an ideal Constitution. Dr BR Ambedkar, the Chairman of the Drafting Committee, was a legal luminary with special knowledge of Constitutional affairs.
There were also some able men like Dr KM Munshi, Alladi Krishnaswami Aiyar and TT Krishnamachari in the Drafting Committee. Above all, Sir BN Rau, the Constitutional Adviser to the Constituent Assembly, immensely helped in the drafting the Constitution with his ‘encyclopedic knowledge’ of Constitutional affairs. On several occasions, he even went abroad in order to consult with eminent jurists of his time.
Besides, the Constituent Assembly consisted of a galaxy of legal talents who, in various ways, made their valuable contribution to the making of the Constitution. Thus, it has been a brilliant product of the combined genius of some eminent persons. Moreover, it was a laborious work of some years.
While the American Constitutional Convention took four months to frame the Constitution and Canada took little more than two years, our Constituent Assembly required nearly three years to do its job. It should also to be remembered that our Constitution was the product of prolonged debates and mature deliberations.
Dr Rajendra Prasad, the President of the Constituent Assembly, adopted a truly liberal and democratic method for its enactment and eventually every provision of the Constitution was incorporated after sufficient discussion, compromise and debate. As a matter of fact, 7,635 amendments were tabled and actually 2,474 of them were moved, discussed and disposed of.
No doubt, great effort was made so that the Articles could be finally shaped by general consensus. This is why Dr Ambedkar emphatically claimed, while piloting the Draft through the Constituent Assembly, that it was ‘good and workable’. But now that 120 amendments have been made within seven decades, it suggests that there were too many drafting anomalies in it. It can be argued that if the Constitution was really ‘good and workable’, we should not logically have made so many amendments at such hectic speed.
Truly speaking, the series of amendments actually began when the ink of the Constitution was hardly dry. It may suggest that popular representatives have now been duty-bound to bring about a silent revolution by making it a flexible document.
However, Sir Ivor Jennings, the celebrated British expert, observed that the Indian Constitution was very rigid. To quote him, “What makes the Indian Constitution very rigid is that, in addition to a somewhat complicated process of amendment, it is so detailed and covers so vast a field of law that the problem of Constitutional validity must often arise.” In one sense, no doubt, he is correct.
Though Art. 368 suggests that the Constitution is a queer blending of flexibility and rigidly, there is a prominent emphasis upon the latter aspect. Thus, the Constitutional provisions may be classified into three groups – (a) some of them may be changed by simple majority of both the Houses of Parliament; (b) some provisions are to be changed at first by the support of 2/3rds majority in both Houses of Parliament and then by the consent of at least half of the states; and (c) the remaining portion can be amended by 2/3rds majority of the Houses of Parliament.
In other words, it has attached different degrees of rigidity to different provisions of the Constitution making the procedure of amendment most difficult in the case of federal affairs.
But, in reality, the Constitution has long worked as the most flexible legal document of the world. While America has made only 26 amendments after the enactment of the Constitution of 1787, we have introduced more than hundred amendments within 66 years.
More significantly, though the British have the most flexible Constitution of the world, they have hardly brought about any formal amendment within some centuries.
Truly speaking, our Constitution has become more flexible than any other Constitution known to us. It thus proves that the nature of a Constitution does not always depend upon the procedure of amendment expressly prescribed in it; much really depends upon the attitude of the Government and its rivals in the Parliament. In reality however, such a legal question ultimately transforms itself into a political one.
Theoretically of course our Constitution is more rigid than flexible. But if the ruling party secures an overwhelming majority in both Houses of Parliament and also occupies power in half of the states, then it can change the Constitution as it likes. In such times, it practically becomes a flexible document.
But in a fluid condition like that of 1977- 1979, it becomes almost static.
Flexibility of the Constitution is not however an evil in itself. The Constitution should rather be sufficiently flexible so that it can adjust itself to the changing needs of the people. National life is always dynamic and hence the Constitution must be changed with the change of time. Otherwise, there would remain the danger of a revolution which is sure to ignore the prevailing legal arrangements.
Moreover, it is claimed that the Constitution is a product of the chosen people of a particular time. So the people of the subsequent epoch must have the legal right to change the provisions which seem, in a changed perspective, to be useless or obsolete.
\In this sense, PB Gajendragadkar, the former Chief Justice has claimed that frequent amendment in India has established the doctrine of ‘popular sovereignty’.
No doubt, there is some logic in such contention, but too frequent changes of the Constitution tend to impair its essential sanctity and disrupt social stability. The Constitution is, moreover, the ‘Permanent Will’ of the nation and, this is why it is often argued that it should not be rapidly altered by the shifting majority of Parliament. Above all, our Constitution is the outcome of multifarious compromises and delicate consensus.
Frequent amendments are sure to disrupt the balance so carefully attained by the makers belonging to different religions, philosophies, regions and tastes. For this reason, it is rightly claimed by Harold J Laski that “amendments should be reasonably accessible without being too easy of access.” In other words, an ideal Constitution must contain some element of stability in its flexible structure.
But, unfortunately, our Constitution has sometimes been amended four and even five times in the same year. More significantly, no ruling party at the Centre has shown any reluctance in this matter. Even some short-lived Governments have amended the Constitution several times.
Thus, whatever may be the theoretical arguments in favour of flexibility, now it is high time to ask whether or not we actually needed so many amendments within such a brief period. Some of the amendments such as those concerning the increases of Judges’ salaries, composition of Parliament, inclusion of new states, expansion of the Supreme Court Bench, insertion of duties in the Rights-chapter and so on were really necessary. But often the amendments have been necessitated by the rulers’ lust for power.
Sometimes, the Fundamental Rights have in this process been unwisely infringed and often the judiciary has suffered from the pangs of amputation. It is also felt that some amendments have been chosen in order to surmount adverse judicial verdicts.
Even the Directive Principles have been placed above the Fundamental Rights, though it could hardly been contemplated by the makers who inserted Art. 37 in the Constitution in order to express their intention. On some occasions, the amendment was so comprehensive that it was actually a re-making of the Constitution. The 42nd amendment intendent to defile the Constitution and verily we needed two massive amendments (43rd and 44th) in order to rectify its evils.
Similarly, Art 74 (1) was twice changed by the 42nd and 44th amendments in order to reduce the President to a mere nominal Head. But no legal document can exhaustively do so in written terms.
Thus it can be stoutly claimed that most of the amendments could have been avoided and some of them should have more carefully been made.
But the ease with which Parliament has amended the Constitution sufficiently proves that the ruling party has always sought to use Parliament as the supreme repository of power.
It has never realised that such frequent amendments are sure to undermine the sanctity of the Constitution as on organic document. In this connection, however, one misunderstanding needs to be corrected. It is often contended that as the people are sovereign, so the Parliament, representing them is also a sovereign body and hence it is legally competent to amend any portion of the Constitution. But herein lies a fundamental folly.
The people are really sovereign, but Parliament is not. ‘Parliamentary sovereignty,’ as a concept, was popularised by AV Dicey, the eminent British expert, to mean that it can pass or repeal any law and amend the Constitution as it likes.
But our Parliament is a product of the written Constitution which has expressly determined and restricted its authority. So it cannot claim to amend the Constitution according to its free will.
Moreover, it must also be remembered that the apex court ruled in the Kesavananda Bharati case that an amendment cannot, by any means, destroy the ‘basic structure’ of the Constitution and that an attempt to do so would be unconstitutional and void.
The writer is an Author, Griffith Scholar and Reader, New Alipore College