Indian Constitution – A Blend of Flexibility & Rigidity – Indian Polity Notes

Introduction:

The idea of rigidity and flexibility of constitution is based on amendability of constitution. This forms basis for constitutions to be considered as either rigid or flexible.

Those constitutions which allows changes being made into it as per changing circumstances by an authority (mostly parliaments) in fairly easier manner are considered as ‘flexible constitution’. Rigid constitution are known by rigid amending procedure.

Concept of Rigidity & Flexibility of the Constitution of India:

Though India adopted Westminster style democracy as practiced in most commonwealth nations. The amending procedure was point of heated discussion in the constituent assembly.

To safeguard nascent democracy with federal polity it was necessary to make sure its not changed easily. On the other hand, the constituent assembly was mindful of constraints posed by rigid constitution in future, so they had to add flexibility to constitution.

Upon discussion, the assembly arrived at amending procedure in which certain provisions were allowed to be easily amended while other provisions where made somewhat rigid in nature. Which made, the Indian Constitution a blend of rigidity and flexibility.

Is Constitution more Rigid than Flexible or more Flexible than Rigid?

Constitution provides amendment in three manners:

1. With simple majority:

Those provisions which aren’t pertaining to federal nature of Indian state are allowed to be amended by Parliament by the simple majority. It needs to 50%+1 of members present and voting. Like:

• Admission and creation of new states(Art 2,3)
• Creation and abolition of legislative council (Article 169)
• Quorum in parliament etc.

These provisions represent flexible nature of constitution, which can be amended easily.

2. With special majority with consent of states:

Provisions pertaining to federal polity are amended using special majority – 2/3rd of members present and voting (which is more than 50% of total membership of house) and needs consent of half of the state legislatures by simple majority. Like:

• Election of President and its manner
• Supreme Court & High Court.
• Changes in any list of Seventh Schedule etc.

3. With special majority:

Those areas that aren’t covered in the above-mentioned categories are amended using a special majority – 2/3rd of members present and voting (which is more than 50% of the total membership of the house).

E.g.: Amending Fundamental Rights & DPSP etc.

After the Basic structure doctrine propounded by Supreme Court in the landmark Kesavananda Bharati Case 1973.

Supreme Court effectively prohibited parliament from amending certain provisions which are considered part of the basic structure. Like the federal nature of the constitution, separation of powers, integrated judiciary etc.

In summary, the Indian constitution is bending neither towards more rigidity nor more flexibility. It’s synthesis of both.

Doctrine of Basic Structure (DSB) and its influence:

The doctrine of Basic Structure is a doctrine of judicial review invented by the Supreme Court of India, it is applied to examine the constitutional validity of the constitutional amendments.

• The amending power of the parliament was first challenged by Shankari Prasad Case, 1951. Then Supreme Court held that the law as mentioned in article 13(2) did not include amendments made under article 368.
• The apex court held the same position even in the Sajjan Singh Case of 1964 which challenged the 17th constitutional amendment.
• In the famous Golak Nath Case of 1967, Supreme Court reversed its position and held that law as defined in article 13(2) even included amendments to the constitution.

The full bench(13 judges bench) of the Supreme Court sat to hear appeal against constitutional validity of 24th and 25th constitutional amendments. Upon hearing court held validity of both amendments.

While upholding 24th amendment act, Supreme Court held that there is no limitations on amending power of parliament except that it cannot amend ‘the basic structure’.

It doesn’t extend to damaging or destroying essential features of the constitution. As an effect of majority judgement, parliament cannot amend constitution in a way which alters basic structure of the constitution.

Then CJI Justice Sikri added a few features to the basic structure:

• Supremacy of the constitution
• Secular character of the constitution
• Separation of powers etc.

In subsequent judgements like Raj Narain Case, Minerva Mills Case, Indra Sawhney Case, S R Bommai Case etc., the Supreme Court added several features to the list of basic structure doctrine.

• Post-Kesavananda Bharati Verdict, the features considered as part of the basic structure have turned ‘absolutely rigid’.
• The doctrine represents an effort to distinguish between constitutional amendment and revolutionary action.

Why the Doctrine of Basic Structure became Controversial?

• It is an extreme example of judicial creativity.
• Instead of limiting itself to written provisions, the judiciary is trying to establish the ‘metaphysical elements of the constitution’
• Judiciary has not given an exhaustive list of the basic structure components, which means the judiciary enjoys discretionary power.
• “The unelected judges have assumed vast political powers not given to them by the Constitution”.
• Critics called the application of the doctrine an example of judicial overreach eg. The 99th constitutional amendment act 2014(NJAC Bill).
• It is also believed that by using the doctrine, the judiciary is trying to impose its philosophy upon a democratically elected government.

Conclusion:

Though the doctrine of basic structure is criticized for an inexhaustible list of its components this very doctrine has acted as a ‘necessary evil’ or ‘safety valve’ which has kept the very nature of the constitution intact.

The judiciary hasn’t nullified every constitutional amendment passed by parliament but acted as an effective check to make sure, the constitution does lose its soul due to the revolutionary zeal of parliamentarians. Moreover, it has helped the survival of democracy.

Prelims Practice Questions:

Q1. In which of the following verdicts did, Supreme Court for the first time hold that constitutional amendments also come under law as defined in article 13(2)?

(a) Shankari Prasad Case
(b) Sajjan Singh Case
(c) Golak Nath Case
(d) Raj Narain Case

Q2. Which of the following features were held as part of basic structure by Supreme Court in Kesavananda Bharati Verdict of 1973?

(1) Supremacy of the constitution
(2) Separation of power
(3) Directive Principles of the State Policy
(4) Judiciary Review

Select the correct codes:

(a) 1,2,3
(b) 2,4
(c) 1,3,4
(d) All of the above

Mains Practice Questions:

Question – Indian Constitution balances procedural norms and flexibility in adapting to changing needs of society. Discuss. (250 words) [GS-2 UPSC 2020]

To complete UPSC Polity Notes, Click Here