Constitution as a Living Document — Practice

Question 1

For each of the following provisions, identify which type of amendment procedure would be required to change it, and explain why:
(a) Article 368 itself (the amendment procedure)
(b) The salary of judges of the Supreme Court
(c) The distribution of powers between Centre and States

Accepted Answer

(a) **Article 368 (amendment procedure itself) → Type 3 (Special Majority + State Ratification)**:
Article 368 is in the list of provisions that require state ratification because it determines the POWER TO CHANGE the Constitution. If Parliament could easily modify 368 by a simple majority, it could then use the weakened procedure to change everything. State ratification ensures states have a say in how their federal partner (Parliament) can change the fundamental document.

(b) **Salary of SC judges → Type 1 (Simple Majority)**:
Salaries of judges are mentioned in a Schedule but are procedural/administrative matters. They don't affect the constitutional structure. A simple majority in Parliament (like any ordinary legislation) suffices. This is an example of the Constitution's 'flexible' dimension.

(c) **Distribution of powers (Union List, State List, Concurrent List → 7th Schedule) → Type 3 (Special Majority + State Ratification)**:
The distribution of legislative powers between Centre and States is the core of India's federal structure. If Parliament alone could change it (even by 2/3 majority), it could incrementally centralise all power. State ratification (by at least half of state legislatures) ensures states consent to changes that affect their own powers.

Question 2

What is the Basic Structure Doctrine? Explain its origin in the Kesavananda Bharati case (1973). Why is it considered the most important judicial contribution to Indian constitutional law?

Accepted Answer

**The Basic Structure Doctrine**: A constitutional doctrine that holds that Parliament's power to amend the Constitution under Article 368 is not UNLIMITED — it cannot amend away the 'basic structure' or essential features of the Constitution. Any amendment that destroys the basic structure is invalid and can be struck down by the Supreme Court.

**Origin — Kesavananda Bharati v. State of Kerala (1973)**:
The case arose from Kerala government's acquisition of lands belonging to a religious trust (Kesavananda Bharati was the head of the trust). The trust challenged land reform laws, which Parliament had protected from judicial review through the 24th, 25th, and 29th Amendments.

Key question before the Supreme Court's 13-judge bench: Can Parliament amend ANYTHING in the Constitution, including Fundamental Rights, using Article 368?

The Court ruled (7–6 majority) that Parliament CAN amend any provision, including Fundamental Rights, BUT it CANNOT alter the 'basic structure' of the Constitution. Elements identified as basic structure: Constitutional supremacy, republican/democratic form, secular character, separation of powers, federal character, judicial review.

**Why it is the most important judicial contribution**:
(i) It prevented authoritarian overreach: The Emergency (1975–77) showed that Parliament could, by 2/3 majority, drastically curtail rights. The Basic Structure Doctrine is the judicial firewall against constitutional authoritarianism.
(ii) It maintains judicial independence: By holding that judicial review is itself basic structure, the Court ensured Parliament cannot abolish the courts' power to strike down unconstitutional laws.
(iii) Living constitution: It allows the Constitution to evolve through amendment while protecting its foundational values — the balance India's drafters intended.

Question 3

Compare the 42nd Constitutional Amendment (1976) and the 44th Constitutional Amendment (1978). What did each change, why were these changes made, and what does the comparison reveal about how constitutional amendments can both threaten and restore constitutional values?

Accepted Answer

**42nd Constitutional Amendment (1976) — 'The Mini Constitution'**:

Context: Passed during Emergency (1975–77) when opposition leaders were in jail, press was censored, and Parliament was under Indira Gandhi's complete control.

Key changes:
(i) Added 'Socialist' and 'Secular' to Preamble (words not in original 1950 Preamble)
(ii) Added Fundamental Duties (Part IVA) — 10 duties for citizens (now 11)
(iii) Curtailed Fundamental Rights: amended Article 31C to give DPSP primacy over ALL Fundamental Rights (not just Art 14, 19)
(iv) Made constitutional amendments immune from judicial review (attempted to override Kesavananda Bharati)
(v) Extended Emergency provisions and made it harder to challenge Emergency declaration
(vi) Curtailed judiciary's powers: prohibited courts from questioning parliamentary proceedings; reduced Supreme Court's jurisdiction

Purpose: Concentrate power in Parliament (controlled by ruling party); reduce judicial oversight; make constitutional changes permanent and unchallengeable.

**44th Constitutional Amendment (1978) — 'Restoring the Constitution'**:

Context: Passed by Janata Party government after Indira Gandhi's defeat in 1977 elections — the first transfer of power in India.

Key changes:
(i) Reversed 42nd Amendment's judicial restrictions: restored judicial review of constitutional amendments
(ii) Removed right to property from Fundamental Rights (Article 19(1)(f) and Article 31) — became Legal Right under Article 300A
(iii) Restricted Emergency declaration: President must now receive advice in WRITING from Cabinet (not just PM); Lok Sabha can revoke Emergency by simple majority
(iv) Restored freedom of press to pre-Emergency position
(v) Made fundamental rights of life and liberty (Articles 20, 21) non-suspendable even during Emergency

**What the comparison reveals**:

1. **Amendments can be anti-constitutional**: The 42nd Amendment used the constitutional procedure to subvert constitutional values — concentrating power, reducing rights, attacking judicial independence. This shows that formal compliance with Article 368 is not sufficient; amendments can destroy the constitutional spirit.

2. **Democratic resilience**: The 44th Amendment shows democracy's self-correcting mechanism — voters punished the Emergency government in 1977, and the new government restored constitutional norms. The Constitution was resilient enough to survive 21 months of authoritarianism.

3. **Judiciary's role**: Courts that struck down Emergency-era excesses (even partially) and the Basic Structure Doctrine created by judges (not Parliament) ultimately protected the Constitution more than Parliament could itself.

4. **'Living document' requires vigilance**: Constitutions need both formal protections (Basic Structure Doctrine, amendment procedures) AND active citizens, independent judiciary, and free press to survive authoritarian governments.

Practice — Constitution as a Living Document

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