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. 

Constitution: It provides the structure of rules and constraints within which political decisions are made. 

• Living Document: 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. 
• Evolution: The constitution 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 the Preamble, Directive Principles, Judicial Review, Emergency Provisions, 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 vs. 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. 
• Environmental Protection: In the case of M.C. Mehta vs. 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. 

Arguments in Favour of the Need For a New Constitution: 

• Amended so many times: In India, ten amendments took place over a short span of three years between 1974 and 1976, in comparison, the Constitution of the 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 materialized 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. 
• 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. 
• Reflecting Contemporary Values and Aspirations: The world has changed significantly since 1950, such as technological advancements, climate change, environmental concerns, LGBTQ+ rights, and evolving notions of justice and equality. 

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.
• 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. 
• 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:

• 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.
• 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.

News Source: The Indian Express

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