Constitution: A Living Document

Context:

As we move into the new Parliament building and leave the old one that gave us the Constitution, there is a growing call for amending the Constitution according to the changing realities of our time.

More on News:

• The iconic old building was where 299 members of the Constituent Assembly of India toiled for over 2 years 11 months and 18 days to give us the Constitution.
• Fundamental questions are being raised by important sections like:  
  • Whether India is a nation or just a “Union of States”?
  • Should we continue to call ourselves India or change our name to Bharat?
  • Whether the word “socialist” in the Preamble is still relevant?
  • Whether the “Basic Structure” argument is still tenable?

About Constitution as a Living Document:

• Constitution: It provides the structure of rules and constraints within which political decisions are made. 
• Living Document: Almost like a living being, this document keeps responding to the situations and circumstances arising from time to time. 
• Flexibility: This concept is based on the idea that a constitution should not remain static but should be flexible enough to accommodate societal changes over time.
• • One of the most significant ways the Indian Constitution demonstrates its flexibility is through the amendment process.
• Evolution: In a democracy, practices and ideas keep evolving over time and the society engages in experiments according to these. A constitution, which protects democracy and yet allows for evolution of new practices becomes not only durable but also the object of respect from the citizens.·        
• Significant instances showcasing Constitution as a living document:
  • The 42nd Amendment Act: It is often referred to as the “Mini Constitution” because it made numerous changes to various parts of the Indian Constitution including Preamble, Directive Principles, Judicial Review, Emergency Provision, Anti-Defection Law, Election Commission etc. 

• • Basic structure and evolution of the constitution: It has emerged from judicial interpretation.
    • Judiciary advanced this theory in the famous case of Kesavananda Bharati in 1973.
  • Fundamental Rights: The interpretation of these rights has evolved over time.
    • For example, In the case of K.S. Puttaswamy v. Union of India (2017), the Supreme Court declared the right to privacy as a fundamental right.
  • Reservations: Reservation policies have been modified and expanded to include more communities.
    • For example, The Mandal Commission recommendations led to reservations for Other Backward Classes (OBCs).
• Environmental Protection: In the case of M.C. Mehta v. Union of India (1987), the Supreme Court recognized the right to a clean environment as a fundamental right.
  • Article 370 Abrogation: It granted special autonomous status to the state of Jammu and Kashmir, was abrogated through a constitutional amendment in 2019.

There have been discussions and debates about various aspects of the Indian Constitution and the need for constitutional reforms, the idea of completely replacing the existing constitution with a new one is becoming a widely debated topic.

Arguments in Favour of the Need for a New Constitution:

• Amended so many times: Given the relatively difficult method of amending the Constitution, the number of amendments appears quite high.For instance, ten amendments took place between a short span of three years between 1974 and 1976, in comparison, the Constitution of USA was amended only 27 times in 230 years. 
• Describing India as a Nation: The overall description of India in the constitution signifies the identity as a nation-state with a commitment to democracy, secularism, social justice, and unity in diversity, formally recognising India as a nation can be materialised in the new constitution.
• Socialist word in Preamble: With the LPG reforms of 1991, there has been a dilution of the Socialist ideas in the Indian political spectrum.
  • According to B.R. Ambedkar, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves.
• Largest and Largely Unread: India’s Constitution has the distinction of being the largest in the world and consequently unreadable, and largely unread. It gives the government enormous powers to deliberate political and economic exploitation.
• Colonial Legacy: The Indian Constitution places the government as the master and people as its servants, an essentially colonial government trait. 
  • Like the British government before it, post-1947 Indian governments took on the role of the master and imposed limits on the economic and civic freedoms of Indians.
• Reflecting Contemporary Values and Aspirations: The world has changed significantly since 1950. A new constitution could better reflect contemporary values, social norms, and aspirations. 
  • The Constitution, while progressive in many aspects, may not fully address modern challenges such as technological advancements, climate change, environmental concerns, LGBTQ+ rights, and evolving notions of justice and equality. 

While some may argue for a new constitution for India, there are also strong arguments against it. The existing Constitution of India has endured for decades and has been amended multiple times to accommodate changing needs.

Arguments Against the Need for a New Constitution:

• Judicial Interpretation: The Indian Supreme Court has played a significant role in interpreting and expanding the scope of the existing constitution to meet contemporary challenges. A new constitution would not guarantee better judicial interpretation.
  • For example, in Navtej Singh Johar v. Union of India (2018) case, the Supreme Court decriminalized consensual homosexual activity, emphasizing that the existing constitution can evolve to protect individual rights.
• Constitutional Amendments: The Constitution of India has been amended numerous times to address various concerns, such as reservation policies, anti-defection laws, and the introduction of new fundamental rights. It provides enough flexibility to evolve according to contemporary needs.
• Preserving Basic Structure Doctrine: According to the Chief Justice of India, the basic structure of our Constitution is like the north star, which guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.
• Preservation of Historical Values: The current constitution embodies the historical struggle for independence and reflects the values and ideals of the framers of the Indian Constitution; changing the constitution may risk losing this historical significance.
• Societal Acceptance and Consensus: Drafting and adopting a new constitution would require a high level of societal consensus and debate. Such consensus may be difficult to achieve in a diverse and pluralistic society like India.
• Resource and Time Considerations: These resources could be better utilized for addressing pressing issues facing the country like poverty, education, healthcare, and infrastructure development.

Way Forward:

• India or Bharat: Article 1 of the Constitution sets the tone for the entire constitutional framework starting with both ‘India’ and ‘Bharat.’ If the name of the country is changed, it would require a mere amendment to Article 1.
• Expert Committee: Form a committee of legal scholars, constitutional experts, historians, and representatives from different backgrounds to study the current constitution, and  evaluate its strengths and weaknesses.
  • For instance, the National Commission to Review the Working of the Constitution to examine how best the Constitution can respond to the changing needs and recommend changes that are required.
• Specific Areas of Concern: Identify problematic or outdated constitution provisions that need reform. 
  • For instance, revamping of criminal laws viz. IPC, CrPC, and Evidence Act.
• Strengthening Existing Provisions: Consider strengthening existing constitutional provisions to address contemporary challenges, such as environmental protection, gender equality, and technological advancements.

Conclusion:

Extreme positions may be theoretically very correct and ideologically very attractive, but logic demands that everyone is prepared to moderate their extreme views and reach a common minimum ground.

News Source: The Indian Express

DOWNLOAD PDF