CHAPTER 1

CONSTITUTION:WHY AND HOW?

One Mark Questions:

1.​ List out TWO provisions which we have taken from the Constitution of the USA.
2.​ List out TWO provisions which we have taken from the Constitution of the UK.
3.​ List out TWO provisions which we have taken from the Constitution of Canada.
4.​ List out one provision each which we have taken from the Constitution of Australia &
Ireland.
5.​ List out one provisions each which we have taken from the Constitution of Erstwhile
Soviet Union & France
6.​ Explain the various kinds of diversities that exist in India.
7.​ Name two women members in the Constituent Assembly of India.​ ​ ​
8.​ What is a referendum?
9.​ When was the constitution adopted and enforced?​
10.​State which function of the constitution is reflected in the following instances:
i.​ The government cannot order any citizen to follow or not to follow any religion.
ii.​ The government must try to reduce inequalities in income and wealth.
iii.​ The President has the power to appoint the Prime Minister.
iv.​ The constitution is the supreme law that everyone has to obey.
v.​ Indian citizenship is not limited to people of any race, caste or religion.

Sample Answer:

What is a Referendum?
A referendum is a direct vote in which an entire electorate is asked to either accept or reject
a particular proposal. This may result in the adoption of a new constitution, a constitutional
amendment, or a law.

Two Mark Questions:

11.​What is a constitution?​ ​ ​ ​ ​ ​ ​ ​
12.​Explain two differences between enacted and evolved constitution.
13.​What do you understand about the political identity and moral identity of the people?
14.​Suggest two important aspects / methods of intelligent institutional design.
15.​Give two arguments in favor of the constitution makers which negate the accusation that
the Indian constitution is a patch work.
16.​Give two examples of the Enabling provisions given in various democratic constitutions.

Sample Answer:

Give two examples of the Enabling provisions given in various democratic constitutions.
1.​ The Constitution of South Africa assigns many responsibilities to the government: it
wants the government to take measures to promote conservation of nature, make
efforts to protect persons or groups subjected to unfair discrimination, and provides
that the government must progressively ensure adequate housing to all, health care,
etc. “
2.​ In the case of Indonesia also, the government is enjoined to establish and conduct a
national education system. The Indonesian Constitution ensures that the poor and
destitute children will be looked after by the government.
Four Mark Questions:
1.​ What were the various provisions of the Objective Resolution?
2.​ “Mode of promulgation gives effectiveness to the constitution”. Comment.
3.​ What do you understand about the “Principle of Deliberation”? Explain it with
reference to the making of the Indian Constitution.
4.​ “Balanced institutional design safeguards against subversion of the constitution”.
Comment.
5.​ Discuss the procedures adopted in the making of the Indian Constitution.
6.​ What was the Cabinet Mission Plan?​​ ​ ​ ​ ​
7.​ “The Constituent Assembly was highly representative in character”. Comment
8.​ Why should we accept a constitution made by the Constituent Assembly almost 60
years ago?
9.​ Explain the making of the constitution in Nepal.

Sample Answer:

How was the Indian Constitution made? OR Discuss the Cabinet Mission Plan.
Formally, the Constitution was made by the Constituent Assembly which had been elected for
undivided India. It held its first sitting on 9 December 1946 and reassembled as Constituent
Assembly for divided India on 14 August 1947. Its members were chosen by indirect election
by the members of the Provincial Legislative Assemblies that had been established under the
Government of India Act, 1935. The Constituent Assembly was composed roughly along the
lines suggested by the plan proposed by the committee of the British cabinet, known as the
Cabinet Mission. According to this plan:
± Each Province and each Princely State or group of States were allotted seats proportional
to their respective population roughly in the ratio of 1:10,00,000. As a result the Provinces
(that were under direct British rule) were to elect 292 members while the Princely States were
allotted a minimum of 93 seats.
± The seats in each Province were distributed among the three main communities, Muslims,
Sikhs and general, in proportion to their respective populations.
± Members of each community in the Provincial Legislative Assembly elected their own
representatives by the method of proportional representation with a single transferable vote.
± The method of selection in the case of representatives of Princely States was to be
determined by consultation.

What were the various provisions of the Objective Resolution?

The best summary of the principles that the nationalist movement brought to the Constituent
Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly)
moved by Nehru in 1946. This resolution encapsulated the aspirations and values behind the
Constitution. What the previous section terms as substantive provisions of the constitution is
inspired by and summed up by the values incorporated in the Objectives Resolution. Based
on this resolution, our Constitution gave institutional expression to these fundamental
commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.

Its Provisions are:

√ India is an independent, sovereign, republic;
√ India shall be a Union of erstwhile British Indian territories, Indian States, and other parts
outside British India and Indian States as are willing to be a part of the Union;
√ Territories forming the Union shall be autonomous units and exercise all powers and
functions of the Government and administration, except those assigned to or vested in the
Union;
√ All powers and authority of sovereign and independent India and its constitution shall flow
from the people;
√ All people of India shall be guaranteed and secured social, economic and political justice;
equality of status and opportunities and equality before law; and fundamental freedoms - of
speech, expression, belief, faith, worship, vocation, association and action subject to law and
public morality;
√ The minorities, backward and tribal areas, depressed and other backward classes shall be
provided adequate safeguards;
√ The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be
maintained according to justice and law of civilized nations;
√ The land would make a full and willing contribution to the promotion of world peace and
welfare of mankind.

“Our Constituent Assembly was representative in character”. Comment.

The Indian Constituent Assembly was truly representative in character. There was an
adequate mechanism of representation in place. The following members represented
varied interests in the Assembly:
1. ​ There were legal luminaries and constitutional experts such as B. R.
Ambedkar, [Link], [Link] Ayyanagar, Alladi Krishnaswami
Ayyar, K.M. Munshi, Saiyid Mohd Saadulla, [Link] Rao and D.P. Khaitan.
2. ​ Rajkumari Amrit Kaur, G. Durgabai Deshmukh, Sarojini Naidu were among
the foremost women representatives in the Assembly.
3. ​ H. P. Modi represented the interests of the Parsi Community
4. ​ Frank Anthony was an Anglo – Indian member of the Assembly.
5. ​ There were 30 Scheduled Caste representatives and 5 tribals in the Constituent
Assembly of India.
6. ​ There was also representation from the minority religions. There were 5 Sikh,
5 Indian Christian and 4 Muslim members in the Assembly.

Why should we accept a Constitution made by the Constituent Assembly almost 60

years ago?​ (1+3)
1. The drafting of the document called the Constitution was done by an assembly of elected
representatives called the Constituent Assembly.
2. The Constitution does not reflect the views of its members alone. It expresses a broad
consensus of its time. Many countries of the world have had to rewrite their Constitution
afresh because the basic rules were not accepted to all major social groups or political parties.
In some other countries, the Constitution exists as a mere piece of paper. No one actually
follows it. The experience of our Constitution is different. Over the last half a century, several
groups have questioned some provisions of the Constitution. But no large social group or
political party has ever questioned the legitimacy of the Constitution itself. This is an unusual
achievement for any constitution.
3. The third reason for accepting the Constitution is that the Constituent Assembly
represented the people of India. There was no universal adult franchise at that time. So the
Constituent Assembly could not have been chosen directly by all the people of India. It was
elected mainly by the members of the existing Provincial Legislatures that we mentioned
above. This ensured a fair geographical share of members from all the regions of the country.
The Assembly was dominated by the Indian National Congress, but the party itself was a
social coalition which included a variety of political groups and opinions, members from
different language groups, castes, classes, religions and occupations.
4. Finally, the manner in which the Constituent Assembly worked gives sanctity to the
Constitution. The Constituent Assembly worked in a systematic, open and consensual
manner. First some basic principles were decided and agreed upon. Then a Drafting
Committee chaired by Dr. B.R. Ambedkar prepared a draft constitution for discussion.
Several rounds of thorough discussion took place on the Draft Constitution, clause by clause.
More than two thousand amendments were considered. The members deliberated for 114
days spread over three years. Every document presented and every word spoken in the
Constituent Assembly has been recorded and preserved. These debates provide the rationale
behind every provision of the Constitution. These are used to interpret the meaning of the
Constitution.

Explain the making of the constitution in Nepal.

1.​ Making a constitution is not always an easy and smooth affair. Nepal is an example of
the complicated nature of constitution making.
2.​ Since 1948, Nepal has had five constitutions, in 1948, 1951, 1959, 1962 and 1990.
But all these constitutions were ‘granted’ by the King of Nepal. The 1990 constitution
introduced a multiparty competition, though the King continued to hold final powers
in many respects. For the last ten years Nepal was faced with militant political
agitations for restructuring the government of the country.
3.​ The main issue was the role of the monarchy in the constitution of Nepal. Some
groups in Nepal wanted to abolish the institution of monarchy and establish a
republican form of government in Nepal. Others believed that it may be useful to shift
to limited monarchy with a reduced role for the King. The King himself was not ready
to give up powers. He took over all powers in October 2002.
4.​ Many political parties and organizations were demanding the formation of a new
constituent assembly. The Communist Party of Nepal (Maoist) was in the forefront of
the struggle for a popularly elected constituent assembly. Finally, under pressure of
popular agitation, the King had to install a government acceptable to the agitating
parties. This government has stripped the King of almost all powers. Now, all the
parties are trying to decide the manner in which a constituent assembly will be
formed.

Six Mark Questions:

1.​ Why is the Constitution considered a very significant document in a democracy?
2.​ What are the factors which give legitimacy or effectiveness to a constitution?
3.​ “The Indian Constitution is a patchwork”. Comment

Sample Answer:
Why is the Constitution considered a very significant document in a democracy? OR
Why do we need a Constitution?
A constitution is a body of fundamental principles according to which a state is constituted or
governed.

Significance of the Constitution:

I Constitution allows coordination and assurance

The first function of a constitution is to provide a set of basic rules that allow for
minimal coordination amongst members of a society. In a diverse society, members have
different allegiances based on their religion; professions, abilities & income, there are likely
to have disputes over various aspects of life. But, for all their diversity, the groups have to
live together. Any group will need some basic rules to achieve a minimal degree of
coordination. If the rules are legally enforceable, it gives an assurance to everybody that
others will follow these, for if they do not do so, they will be punished. These rules are stated
in the constitution.

II Specification of decision making powers

The second function of a constitution is to specify who has the power to make decisions
in a society. It decides how the government will be constituted. A constitution is a body of
fundamental principles according to which a state is constituted or governed. It specifies the
basic allocation of power in a society. It decides who gets to decide what the laws will be. In
democratic constitutions, broadly speaking, the people get to decide for their elected
representatives. The Indian Constitution specifies that in most instances, Parliament gets to
decide laws and policies and that it itself be organized in a particular manner.

III a) Limitations on the powers of government

So the third function of a constitution is to set some limits on what a government can
impose on its citizens. These limits are fundamental in the sense that the government
may never trespass them. Constitutions limit the power of government in many ways. The
most common way of limiting the power of government is through fundamental rights that all
of us possess as citizens and which no government can violate. For eg. Citizens will be
protected from being arrested arbitrarily and for no reason. This is one basic limitation upon
the power of government. Citizens will normally have the right to some basic liberties:
freedom of speech, freedom of conscience, freedom of association, freedom to conduct a
trade or business etc.

b) Limitations on the powers of government through the system of Checks and

Balances
A constitution divides the power between the three organs of the government to ensure that
no single institution acquires monopoly of power. This fragmentation of power across
different institutions with a system of checks and balances ensures that people are protected
against the arbitrary use of governmental power.

IV Reflects Aspirations and goals of a society

Many twentieth century constitutions, of which the Indian Constitution is the finest example,
provide an enabling framework for the government to do certain positive things, to express
the aspirations and goals of society. The framers of the Indian Constitution, for example,
thought that each individual in society should have all that is necessary for them to lead a life
of minimal dignity and social self-respect - minimum material well being, education etc. The
Indian Constitution enables the government to take positive welfare measures some of which
are legally enforceable. Such enabling provisions have the support of the Preamble to our
Constitution, and these provisions are found in the section on Fundamental Rights. The
Directive Principles of State of Policy also enjoin government to fulfill certain aspirations of
the people.
The fourth function of a constitution is to enable the government to fulfill the
aspirations of a society and create conditions for a just society.
V Fundamental identity of a People
Finally, a constitution expresses the fundamental identity of a people. This means the people
as a collective entity come into being only through the basic constitution. It is by agreeing to
a basic set of norms about how one should be governed, and who should be governed that one
forms a collective identity. One has many sets of identities that exist prior to a constitution.
Political identity: Political identity is the most fundamental identity which the people enjoy
as members of a sovereign nation. This identity grants the status of being a citizen of the
country and also grants them political rights to participate in the democratic processes.
Moral identity: One pursues individual aspirations, goals and freedoms within the limits set
by the constitution.. The constitution sets authoritative constraints upon what one may or may
not do. It defines the fundamental values that we may not trespass.
National identity: Constitution also lays down certain provisions which bind the various
regional groups together by subordinating their regional identities to their national identity ie.
The idea of single citizenship is an apt example for this.

THE AUTHORITY OF A CONSTITUTION

What is it that gives effectiveness or legitimacy to the constitution?

A constitution is a body of fundamental principles according to which a state is constituted or
governed. These are certain basic rules that the citizens and the government have to follow.
All such rules together are called the constitution. As the supreme law of the country, the
constitution determines the rights of citizens, the powers of the government and how the
government should function.

Making a constitution effective depends upon many factors.

1.​ Mode of promulgation
This refers to how a constitution comes into being. Who crafted the constitution and how
much authority did they have? Has it been crafted by military leaders or leaders who are
not popular and do not have the ability to carry the people with them.
Inspired by our history of the nationalist movements:
The constitution of India was created in the aftermath of popular national movements.
Although India’s Constitution was formally created by a Constituent Assembly between
December 1946 and November 1949, it drew upon a long history of the nationalist
movement that had a remarkable ability to take different sections of Indian society
together.
Immense public credibility:
The Constitution drew enormous legitimacy from the fact that it was drawn up by people
who enjoyed immense public credibility and were very popular.
Reflected broad national consensus & consent of the Indian People:
The final document reflected the broad national consensus at the time. The Indian
Constitution carried enormous public authority, because it had the consensus and backing
of leaders who were themselves popular.
2.​ The substantive provisions of a constitution
A successful constitution gives everyone in society some reason to go along with its
provisions. A constitution that, for instance, allowed permanent majorities to oppress
minority groups within society would give minorities no reason to go along with the
provision of the constitution. No constitution by itself achieves perfect justice. But it has
to convince people that it provides the framework for pursuing basic justice. The more a
constitution preserves the freedom and equality of all its members, the more likely it is to
succeed.

Balanced institutional design/ important aspects/ methods of intelligent institutional

design:
Well crafted constitutions fragment power in society intelligently so that no single group
can subvert the constitution.
a. System of Checks and Balances
A balanced constitution ensures that no single institution acquires monopoly of power.
This is often done by fragmenting power across different institutions with a system of
checks and balances. The Indian Constitution intelligently fragments power between the
three organs of the government- legislature, Executive and Judiciary.
b. Balance between Flexibility and Rigidity
Another important aspect of intelligent institutional design is to allow enough flexibility
in its operations to adapt to changing needs and circumstances. Too rigid a constitution is
likely to break under the weight of change; a constitution that is, on the other hand, too
flexible, will give no security, predictability or identity to a people. Successful
constitutions strike the right balance between preserving core values and adapting them to
new circumstances. The Indian Constitution has been evolving according to the needs of
the time and thus has been described as ‘a living’ document.

3.​ The Principle of Deliberation

Debates, discussions & democratic procedures:
The authority of the Constituent Assembly also comes from the procedures it adopted to
frame the constitution. In the Indian Constituent Assembly, each member deliberated
upon the Constitution with the interests of the whole nation in mind. There were often
disagreements amongst members, but few of these disagreements could be traced to
members protecting their own interests. There were legitimate differences of principle.

Consensus only on ONE issue, differences of ideas respected:

Only one provision of the Constitution was passed without virtually any debate: the
introduction of universal suffrage (meaning that all citizens reaching a certain age, would
be entitled to be voters irrespective of religion, caste, education, gender or income). Every
other matter was seriously discussed and debated.
Public reason vs. Individual interests the guiding force:
The Constitution drew its authority from the fact that members of the Constituent
Assembly engaged in what one might call public reason. The members of the Assembly
did not simply advance their own interests, but gave principled reasons to other members
for their positions.
 Democratic Procedures:
The importance of public reason was emphasized in the mundane procedures of the
Assembly as well.
The Constituent Assembly had eight major Committees on different subjects. Usually,
Jawaharlal Nehru, Rajendra Prasad, Sardar Patel or Ambedkar chaired these Committees,
who did not agree with each other on many things. Nevertheless, they all worked
together. Each Committee usually drafted particular provisions of the Constitution which
were then subjected to debate by the entire Assembly. Some provisions were subject to
the vote. But in each instance every single argument, query or concern was responded to
with great care and in writing. The Assembly met for one hundred and sixty six days,
spread over two years and eleven months. Its sessions were open to the press and the
public alike.

Participation of the people:

People could sit in the public galleries and watch the proceedings. They could express
their opinions freely through the newspapers and these were considered during the
debates.

4.​ Inheritance of the nationalist movement

The main principles that the Constitution enshrined were forged during the long struggle
for freedom. Perhaps the best summary of the principles that the nationalist movement
brought to the Constituent Assembly is the Objectives Resolution (the resolution that
defined the aims of the Assembly) moved by Nehru in 1946. This resolution summarized
the aspirations and values behind the Constitution. Based on this resolution, our
Constitution gave institutional expression to these fundamental commitments: equality,
liberty, democracy, sovereignty and a cosmopolitan identity.

“The Indian Constitution is a patchwork”. Comment

FOLLOWING ARE SOME OF THE SOURCES OF THE INDIAN CONSTITUTION:

The Government of India Act 1935 was the biggest source for the Constitution because
about two thirds of the provisions are similar. The Constitution makers also tried to adopt the
best features from the various constitutions of the world.

The British Constitution:

The following features have been borrowed from the Constitution of the U.K.
​ Parliamentary form of Government

​ The law making procedure

​ The institution of the Speaker

​ The idea of Single Citizenship

The American Constitution:

The following features have been borrowed from the American Constitution.
​ Elected Head of the State & the procedure of impeachment of the President
 ​ Charter of Fundamental Rights

​ Written Constitution & Supremacy of the Constitution

​ Federal system of Government

​ Independent Judiciary & Power of Judicial Review

​ The post of the Vice President

The Constitution of Ireland:

The following features have been borrowed from the Irish Constitution.
​ Directive Principles of State Policy

​ The method of the election of the President

​ Nomination of members in the Upper House of the Central Legislature ie. Rajya Sabha.

The Constitution of Canada:

The following features have been borrowed from the Constitution of Canada.
​ Definition of Indian Federation as ‘A Union of States”

​ Residuary powers are vested with the Central Legislature

The Constitution of Australia:

The following feature has been borrowed from the Constitution of Australia.
​ The idea of Concurrent list

The Constitution of Japan:

The following feature has been borrowed from the Constitution of Japan.
​ ‘Procedure established by law”

Erstwhile Soviet Constitution:

The following feature has been borrowed from the Constitution of the Erstwhile Soviet
Union.
​ Fundamental Duties

The French Constitution:

The following feature has been borrowed from the Constitution of the Erstwhile Soviet
Union.
​ Principles of Liberty, Equality and Fraternity

Is the Constitution a slavish imitation of the west? Arguments to defend the patch work
nature of the Constitution.
●​ The framers of the constitution were interested in making a fine and workable
constitution rather than a unique or original one which would prove to be a living document
 for the development of India Thus, the members of the Constituent Assembly were not averse
to borrowing from other constitutional traditions. But borrowing these ideas was not slavish
imitation.
●​ Each provision of the Constitution had to be defended on grounds that it was suited to
Indian problems and aspirations. By doing so we could take the best available everywhere in
the world and make it our own.

GLOSSARY

a.​ Constitution
A constitution is a body of fundamental principles according to which a state is constituted or
governed. These are certain basic rules that the citizens and the government have to follow.
All such rules together are called the constitution. As the supreme law of the country, the
constitution determines the rights of citizens, the powers of the government and how the
government should function.

b.​ Evolved Constitution

Evolved constitution is the product of a slow & gradual historical evolution. It is made
largely of usages, judicial decisions, treaties, conventions and a number of laws made by the
legislature. It is unwritten and flexible in nature. Eg. Constitution of UK.

c.​ Enacted Constitution

Enacted constitution is that which is deliberately made by a specially constituted constituent
assembly. It is a written constitution and it lays down the basic framework of the structure of
the different organs of the government and their power and jurisdiction. Eg. USA, India

d.​ Constituent Assembly

It is an assembly of persons who are either directly or indirectly elected and are entrusted
with the task of framing the constitution for the country. Eg. The constituent assembly of
India set up as per the provisions of the Cabinet Mission Plan.

e.​ Substantive Provisions

These are certain provisions in the constitution which are based on the basic idea of
preserving the core values of freedom and equality and give every member a reason to have
faith in their constitution.

f.​ Political Identity

Political identity is the most fundamental identity which the people enjoy as members of a
sovereign nation. This identity grants them the status of being a citizen of the country and
also grants them political rights to participate in the democratic processes.

g.​ Principle of Deliberation

Principle of deliberation refers to the idea of participation and discussion, thrashing out the
differences of opinion and reaching a consensus guided by the spirit of public reason.

h.​ Division of powers

 This is fragmentation of powers between the organs of the government both horizontally and
vertically. Horizontally between the executive, the legislature and the judiciary – the powers
and jurisdiction of each is clearly demarcated and preferably stated in the constitution to
avoid any ambiguity. Vertically, it implies division of power among the different levels of
government ie. Central, State and the Local self government.

i.​ System of Checks & Balances

When checks are exercised by one organ over the organ of government so that no organ
becomes very powerful or exceeds its jurisdiction and balance of power can be maintained, it
is called a system of checks and balances. For eg. The Executive [Link] PM & his Council of
Ministers in India are collectively and individually responsible to the legislature. If a vote of
no confidence is passed in the Lok Sabha, the PM & his Council has to resign.

j.​ Single Citizenship

When a person enjoys the citizenship of only his COUNTRY and not also of the state in
which he resides it is called single citizenship. For eg. In India and UK. In India, a person
living in Kerala is only a citizen of India.

k.​ Rule of law

Rule of Law is a concept of the British judicial System. Rule of law is based on the following
ideas:
●​ No one is punished except for breach of law.
●​ It implies equality before law and equal protection of the law.
●​ A set of rights to be safeguarded by the courts.
●​ Universal application of laws

l.​ Parliamentary system of government

A system of government where there is fusion of powers between the Executive and the
Legislature. The executive is collectively and individually responsible to the Legislature.

m.​ Federal system of government

A system of government in which political power is divided between the two levels of
government i.e. Central government and state government and both derive their powers from
a single source i.e. the constitution and both the governments enjoy co equal status it is called
a federal system of government.

n.​ Power of Judicial Review

Power of the judiciary to review a law passed by the legislature or a policy of the executive
and declare it unconstitutional, ultra virus or null & void if it is against the provisions of the
Constitution is called the power of judicial review.

o.​ Independence of judiciary

Simply stated independence of judiciary means that:
●​ The other organs of the government like the executive and legislature must not
restrain the functioning of the judiciary in such a way that it is unable to do justice.
●​ The other organs of the government should not interfere with the decision of the
judiciary.
●​ Judges must be able to perform their functions without fear or favour.

p.​ Residuary Powers

Those powers which are not mentioned in any of the three lists and may emerge from time to
time are known as residuary subjects. The Parliament has the power to legislate over them.
These are called the residuary powers of the Parliament.

Quote Based Questions:

1.“One likes to ask whether there can be anything new in a constitution framed at this
hour in the history of the world… The only new thing, if there can be any, in a constitution
framed so late in the day are the variations, made to remove the failures and accommodate
it to the needs of the country.”

1.​ Who stated the above lines? (1)

Ans. Dr. [Link]

2.​ Why does he say that the Indian Constitution has been framed so late in the
day? (2)
Ans. The Indian Constitution was adopted on 26th November 1949 and enforced on
26th January 1950. By that time almost all the 1st world countries had gained enough
experience in the implementation of democratic constitutions.
These countries (mostly western) had evolved the most balanced governmental
arrangements and all that was left for the makers was to learn from experiments
and experiences of other countries.

3.​ Is the Constitution a slavish imitation of the west? Give arguments to defend
the patch work nature of the Constitution. (2)
●​ The framers of the constitution were interested in making a fine and workable
constitution rather than a unique or original one which would prove to be a living
document for the development of India Thus, the members of the Constituent
Assembly were not averse to borrowing from other constitutional traditions. But
borrowing these ideas was not slavish imitation.
●​ Each provision of the Constitution had to be defended on grounds that it was
suited to Indian problems and aspirations. By doing so we could take the best
available everywhere in the world and make it our own.

[Link] article of faith

Much before the Constituent Assembly finally came into being, the demand for such an
assembly had already been made. This was echoed by Dr. Rajendra Prasad in his first
address as the Chairman of the Constituent Assembly of India on 9 December 1946.
Rajendra Prasad quotes Mahatma Gandhi that swaraj would mean wishes of the people as
expressed through their freely chosen representatives. He said “………..the idea of a
Constituent Assembly had come to prevail largely as an article of faith in almost all the
politically-minded classes in the country.”

Q1. Which position Dr. Rajendra Prasad held in the Constituent Assembly? (1)
Ans. Chairman of the Constituent Assembly.
 Q2. The Constituent Assembly functioned for how many years? (1)
Ans. Two years, eleven months and seventeen days.

Q3. Why does he call the idea of a Constituent Assembly as an article of faith? (3)

a.​ An Assembly as diverse as the Constituent Assembly of India could not have
functioned if there was no background consensus on the main principles the
Constitution should enshrine. These principles were forged during the long struggle for
freedom. In a way, the Constituent Assembly was giving concrete shape and form to the
principles it had inherited from the nationalist movement. For decades preceding the
promulgation of the Constitution, the nationalist movement had debated many questions
that were relevant to the making of the constitution — the shape and form of
government India should have, the values it should uphold, the inequalities it should
overcome. Answers forged in those debates were given their final form in the
Constitution.
b.​ Its members were elected by indirect election by the members of the Provisional
Legislative Assemblies that had been established in 1935.
c.​ Although India’s Constitution was formally created by a Constituent Assembly between
December 1946 and November 1949, it drew upon a long history of the nationalist
movement that had a remarkable ability to take different sections of Indian society
together. The Constitution drew enormous legitimacy from the fact that it was drawn up
by people who enjoyed immense public credibility, who had the capacity to negotiate
and command the respect of a wide cross-section of society, and who were able to
convince the people that the constitution was not an instrument for the aggrandizement
of their personal power. The final document reflected the broad national consensus at
the time.

Picture based questions

1.

Q1. What does the cartoon depict?

Ans. Countries of the European Union tried to create a European Constitution. The attempt
failed. Here is a cartoonists’ impression of this attempt.
Q2. Does this always happen in any constitution making?
Ans. No, this does not always happen in constitution making. In this case, the attempt failed
because of the following reasons-
1.​ The European Union was not a nation state but a supranational organization that
required the member countries to give up some of their sovereign rights which they
were not comfortable with.
2.​ There was deep seated Euro skepticism among the members.
3.​ Some members doubted the integrationist agenda of the EU.

2.

Q1. What does the cartoon depict?

The constitution makers have to address themselves to very different aspirations.

Q2. Who is trying to balance between different visions and ideologies?

Ans. Jawaharlal Nehru

Q3. Can you identify what these different groups stand for?
Ans. The two groups stand for Indian values/traditions and Western values.

Q4. Who do you think prevailed in this balancing act?

Ans. Both ideas or values prevailed. The Indian culture continues to grow, at the same time,
ideas like Democracy, First Past the Post System of election taken from the West prevails.

Q5. What role does the constitution play in reflecting the aspirations of the society?
Ans. Many twentieth century constitutions, of which the Indian Constitution is one of the
finest examples, provide an enabling framework for the government to do certain positive
things, to express the aspirations and goals of society. The framers of the Indian Constitution,
for example, thought that each individual in the society should have all that is necessary for
them to lead a life of minimal dignity, social self respect, minimum material, well being,
education, etc. The Indian Constitution enables the government to take positive welfare
measures some of which are legally enforceable. Such enabling provisions have the support
of the Preamble to our Constitution, and these provisions are found in the section on
Fundamental Rights. The Directive Principles of State Policy also enjoin government to fulfil
certain aspirations of the people.
3.

Q1. What does the cartoon depict?

Ans. The writing of the new Iraqi Constitution after the collapse of Saddam Hussain’s regime
saw a lot of conflict between different ethnic groups in the country.

Q2. What do these different people stand for?

Ans. The people shown in the cartoon represent the various sects of a religious community.

Q3. Compare the conflict depicted here with that depicted in earlier cartoons for the
European Union and India.

Iraqi Constitution European Union Indian Constitution

Constitution

[Link] different groups were The Nation States were The Indian Constitution
not given a platform to insecure in giving up certain gave all the groups,
express their ideas in the sovereign rights. communities and sections of
form of proper procedure society a reason to get along
required to claim a with the provisions of the
democratic Constitution Constitution

[Link] Iraqi Constitution Every member state had Each member of the
allowed permanent majority their own agenda and it Constituent Assembly
to oppress minority groups became difficult to deliberated upon the
within societies. coordinate. Constitution keeping in
mind all sections of the
society.
4.

Q1. Why does the cartoonist describe the new Iraqi Constitution as the castle of cards?
Ans. The cartoonist uses a caste of cards to describe the new Iraqi Constitution to depict a
constitution that is-
1.​ Weak
2.​ Does not give minorities a reason to go along with its provisions
3.​ Not legitimate or effective
4.​ Does not reflect a broad national consensus

Q2. Would this description apply to the Indian Constitution?

Ans. No, this description does not apply to the Indian Constitution as it is:
1.​ A strong Constitution
2.​ It provides minorities a reason to go along its provisions
3.​ It is legitimate and effective
4.​ It reflects a broad national consensus.

CHAPTER 9
CONSTITUTION AS A LIVING DOCUMENT

One Mark Questions:

1.​ When was the constitution of India adopted and enforced?
2.​ What do you understand about flexibility & rigidity of the constitution?
3.​ What are amendments?
4.​ What are the provisions of Article 368?
5.​ With the help of a tabular diagram state the different methods of amending the
constitution of India.
6.​ Define simple majority with the help of an example.
7.​ Define special majority.
8.​ List out issues of difference between the Judiciary & Parliament.
9.​ As of 2019, how many amendments have there been of the Constitution of India?
Sample Answer:

Define Special majority with reference to the Amendment procedure.

Amendment to the Constitution requires two different kinds of special majorities:
●​ Firstly, those voting in favor of the amendment bill should constitute at least half of
the total strength of that House.
●​ Secondly, the supporters of the amendment bill must also constitute two-thirds of
those who actually take part in voting.
Both Houses of the Parliament must pass the amendment bill separately in this same
manner (there is no provision for a joint session). For every amendment bill, this special
majority is required.

As of 2019, how many amendments have there been of the Constitution of India?
As of 2019, there have been a total 103 amendments of the Constitution of India.

Two Mark Questions:

1.​ What are the two principles which dominate the various procedures of amending
the constitutions in the world?
2.​ State two amendments which are the result of amendments by political consensus.
3.​ What are technical amendments? /List out two amendments which were of
administrative and technical nature.
4.​ Why have so many amendments been made to the Indian Constitution as a result
of differing interpretations?
5.​ What do you understand about the basic structure of the Indian constitution?
6.​ List out two amendments which have been highly controversial & why?
7.​ “France has undergone continuous experimentation in the area of constitution”.
Comment.

Sample Answer:

What are the two principles which dominate the various procedures of amending
the constitutions in the world?
Two principles dominate the various procedures of amending the constitutions in most
modern constitutions. “
One is the principle of special majority. For instance, the constitutions of U.S, South
Africa, Russia, etc. have employed this principle: In the case of the constitution of the
US, it is two-thirds majority, while in South Africa and Russia, for some amendments,
three-fourths majority is required. “
The other principle that is popular among many modern constitutions is that of
people’s participation in the process of amending the constitution. In Switzerland,
people can even initiate an amendment. Other examples of countries where people
initiate or approve amendment to the constitution are Russia and Italy, among others.

State two amendments which were the result of amendments though political consensus.
There are a large group of amendments that have been made as a result of the consensus
among the political parties reflecting the prevailing political philosophy and aspirations of the
society. In fact, many of the amendments of the post-1984 period are instances of this trend.
●​ Starting with the anti-defection amendment (52nd amendment, 1985), this period saw
a series of amendments in spite of the political turbulence.
●​ Amendment bringing down the minimum age for voting from 21 to 18 years
(61st Amendment Act, 1989)

What are technical amendments? List out two amendments which were of
administrative and technical nature.
These are amendments, which are of a technical or administrative nature and are only
clarifications, explanations, and minor modifications etc. of the original provisions. They are
amendments only in the legal sense, but in matter of fact, they made no substantial difference
to the provisions.
This is true of the amendment that increased the age of retirement of High Court judges from
60 to 62 years (15th amendment). Similarly, salaries of judges of High Courts and the Supreme
Court were increased by an amendment (54th amendment).

Why have so many amendments been made to the Indian Constitution as a result of
differing interpretations?
A number of amendments are a product of different interpretations of the Constitution given
by the judiciary and the government of the day. When these clashed, the Parliament had to
insert an amendment underlining one particular interpretation as the authentic one. It is part
of the democratic politics that various institutions would interpret the Constitution and
particularly the scope of their own powers in a different manner. Many times, the Parliament
did not agree with the judicial interpretation and therefore, sought to amend the Constitution
to overcome the ruling of the judiciary. In the period between 1970 and 1975 this situation
arose frequently.

“France has undergone continuous experimentation in the area of constitution”.

Comment.
France had numerous constitutions in the last two centuries. After the revolution and
during the Napoleonic period, France underwent continuous experimentation about a
constitution: The post revolution constitution of 1793 is called the period of the first
French republic. Then commenced the second French republic in 1848. The third
French republic was formed with a new constitution in 1875. In 1946, with a new
constitution, the fourth French republic came into being. Finally, in 1958, the fifth
French republic came into being with yet another constitution.

Four Mark Questions:

1.​ “The Constitution is a living document”. Comment
2.​ “A Constitution is not a static document, it can be rewritten”. Substantiate the
statement with the help of the working of the Indian Constitution.
3.​ How has the ruling in the Kesavananda Bharati case contributed to the evolution
of the Constitution?
4.​ Explain four significant facts concerning Constitutional amendment procedure to
the Indian Constitution.
5.​ Discuss some of the important amendments to the Indian Constitution.
Sample Answer:
Q1. “The Constitution is a living document”. Comment
The Constitution as a living document is based on the assumption that it has properties of
humans in the sense that it changes and evolves over a period of time.
The idea of living document is divided into two main categories:-
1. Pragmatist View:-
It contends the interpreting of the constitution in accordance with the wrong outdated views
which is often unacceptable as a policy matter and thus an evolving interpretation is
necessary. ​
2. Relating to intent:-
This view contends that the constitution framers specially wrote down the constitution in
broad and flexible terms to create such a dynamic living document.

The following factors have contributed to making India’s Constitution a living

document
a)​ A blend of rigidity and flexibility whereby certain aspects of the constitution can’t be
amended while amendments may be made to other aspects keeping in mind that the
basic structure of the constitution can’t be changed. Thus the Constitution permits
flexibility to amend it however it follows a rigid method of amendment.
b)​ The role of the Judiciary as the watchdog of the Constitution. During the controversy
between the Judiciary and the Parliament, the Parliament thought that it had the power
and responsibility to make laws (and amendments) for furthering the interests of the
poor, backward and the needy. The Judiciary insisted that all this has to take place
within the framework provided by the Constitution and pro-people measures should
not bypass legal procedures, because, once you bypass laws even with good
intentions, that can give an excuse to the power holders to use their power arbitrarily.
And democracy is as much about checks on arbitrary use of power as it is about the
well-being of the people.
The success of the working of the Indian Constitution lies in resolving these tensions.

The Judiciary, in its famous Kesavananda ruling found a way out of the existing ​
complications by turning to the spirit of the Constitution rather than its letter. If one reads the
Constitution, one will not find any mention of the ‘basic structure’ of the Constitution.
Nowhere does the Constitution say that such and such are part of the basic structure. In this
sense, the ‘basic structure’ theory is the invention of the ​ Judiciary. The Court was looking
at the basic structure as something without which the Constitution cannot be imagined at all.
This is an instance of trying to balance the letter and the spirit of the Constitution.
​
c) Political maturity of leadership. In the background of the fierce controversy that ​
raged between 1967 and 1973, the Parliament and the Executive also realized that a ​ a
balanced and long term view was necessary. After the Supreme Court gave the ruling ​ in
the Kesavananda case some attempts were made to ask the Court to reconsider its ​ruling.
When these failed, the 42nd amendment was made and parliamentary ​ supremacy was
asserted. But the Court again repeated its earlier stand in the Minerva ​ Mills case (1980).
Therefore, even three decades after the ruling in the Kesavananda ​ This ruling has dominated
our interpretation of the Constitution. Political parties, ​ political leaders, the government,
and the Parliament, accepted the idea of inviolable basic structure. Even when there was talk
about ‘review’ of the Constitution, that ​ exercise could not cross the limits set by the
theory of the basic structure.
 “A Constitution is not a static document, it can be rewritten”. Substantiate
the statement with the help of the working of the Indian Constitution.
1. The Constitution of India was adopted on 26 November 1949. Its implementation formally
started from 26 January 1950. More than sixty years after that, the same constitution
continues to function as the framework within which the government of our country operates.
2. Is it that our Constitution is so good that it needs no change? Was it that our Constitution
makers were so farsighted and wise that they had foreseen all the changes that would take
place in the future? In some sense both the answers are correct. It is true that we have
inherited a very robust Constitution. The basic framework of the Constitution is very much
suited to our country. It is also true that the Constitution makers were very farsighted and
provided for many solutions for future situations.
3. But no constitution can provide for all eventualities. No document can be such that it needs
no change. The makers of our Constitution wanted to strike a balance. The Constitution must
be amended if so required. But it must be protected from unnecessary and frequent changes.
4. In other words, they wanted the Constitution to be ‘flexible’ and at the same time ‘rigid’.
Flexible means open to changes and rigid means resistant to changes. A constitution that can
be very easily changed or modified is often called flexible. In the case of constitutions, which
are very difficult to amend, they are described as rigid. The Indian Constitution combines
both these characteristics.

Explain four significant facts concerning Constitutional amendment

procedure to the Indian Constitution.
1. All amendments to the Constitution are initiated only in the Parliament. Besides the special
majority in the Parliament no outside agency— —like a constitution commission or a
separate body—is required for amending the Constitution. Amendment process underlines an
important principle: only elected representatives of the people are empowered to consider and
take final decisions on the question of amendments. Thus, sovereignty of elected
representatives (parliamentary sovereignty) is the basis of the amendment procedure.

2. Both the Houses must pass the amendment bill (with special majorities) separately. This
means that unless there is sufficient consensus over the proposed amendment, it cannot be
passed. If the party in power enjoys a very thin majority, it can pass legislation of its choice
and can get the budget approved even if the opposition does not agree. But it would need to
take at least some opposition parties into confidence, if it wanted to amend the Constitution.
So, the basic principle behind the amending procedure is that it should be based on broad
support among the political parties and parliamentarians.

3. Similarly, after the passage in the Parliament and in some cases, in State legislatures, no
referendum is required for ratification of the amendment.

4. An amendment bill, like all other bills, goes to the President for his assent, but in this case,
the President has no powers to send it back for reconsideration.

Important Amendments to the Indian Constitution

(Learn any six)
●​ 21st Amendment Act, 1967 – By this amendment, Sindhi was included in the Eighth
schedule.
●​ 36th Amendment Act, 1975 – Sikkim made a full fledged state.
●​ 42nd Amendment Act, 1976 –
 ​ Preamble to the Constitution amended. Socialist, Secular added & unity of the nation
changed to unity and integrity of the nation.
​ DPSP given precedence over Fundamental Rights.

​ Part IV A added on Fundamental Duties.

​ The duration of Lok Sabha and Vidhan Sabha increased from 5 to 6 years.
●​ 44th Amendment Act, 1978 – Right to property deleted.
●​ 52nd Amendment Act, 1985 – Anti defection law passed.
●​ 56th Amendment Act, 1987 – State of Goa created. Size of the Legislative Assembly fixed
at 30.
●​ 61st Amendment Act, 1989 – Voting age lowered from 21 to 18.
●​ 71st Amendment Act, 1992 – Konkani, Manipuri and Nepali added to the Eighth Schedule.
●​ 73rd Amendment Act, 1993 – Panchayati Raj Act
●​ 74th Amendment Act, 1993 – Nagarpalika Act
●​ 79th Amendment Act, 1999 – Extension of the reservation of seats for SC & ST as well as
for Anglo Indians in the Vidhan Sabha & the Rajya Sabha to continue for another 10
years.
●​ 86th Amendment Act, 2002 –Insertion of a new Article 21A in the Right to freedom. It
deals with the Right to education. Substitution to Art. 45 “ The state shall endeavor to
provide early childhood care and education for all children until they complete the age of
six years.” Also, under Art. 51 A Clause K has been added under Fundamental Duties. “
Who is a parent or guardian to provide opportunities for education to his child or, as the
case may be , ward between the age of six and fourteen years”.
●​ 89th Amendment Act, 2003 – Provision for the constitution of a Separate National
Commission for Scheduled Castes and Scheduled Tribes.
●​ 91st Amendment Act, 2003 – The strength of the Council of Ministers, both at the Central
and in the States, to be fixed at 15 % of the total membership of the lower house. Where
the strength is 40, the maximum number shall be 12.
●​ 92nd Amendment Act, 2003 – Inclusion of Maithili, Bodo, Dogri and Santhali in the
Eighth Schedule.
●​ 122nd Amendment Act introduced the Goods and Services tax (GST)

Picture based question:

Look at the Graphs below and answer the following questions:

​​
Graph 1 - Amendments per decade ​ Graph 2 - Years taken for every ten
amendments

a. When was the Constitution of India adopted and enforced?

b. What are amendments?
c. What do the graphs depict?
c. Why have there been so many amendments to the Indian Constitution?

Sample Answer:
a. The Indian Constitution was adopted on 26th November, 1949. It was enforced on 26th
January, 1950.
b. Amendments are changes to the constitution.

c. The same information is presented in two different ways. The first graph depicts the
number of constitution amendments made every ten years; the bar indicates the number of
amendments in that period. The second graph depicts the time taken for every ten
amendments; the bar depicts the years taken for ten amendments. You will notice that the two
decades from 1970 to 1990 saw a large number of amendments.
On the other hand, the second graph tells one more story: ten amendments took place
between a short span of three years between 1974 and 1976. And again, in just three years,
from 2001 to 2003, ten amendments took place.

d. In the political history of our country, these two periods are remarkably different. The first
was a period of Congress domination. Congress party had a vast majority in the Parliament (
it had 352 seats in the Lok Sabha and a majority in most State Assemblies). On the other
hand, the period between 2001 and 2003 was a period marked by coalition politics.
It was also a period when different parties were in power in different States. The bitter rivalry
between the BJP and its opponents is another feature of this period. And yet, this period saw
as many as ten amendments in just three years. So, the incidence of amendments is not
dependent merely on the nature of the majority of the ruling party alone.
There is always criticism about the number of amendments. It is said that there have been far
too many amendments to the Constitution of India. On the face of it, the fact that ninety-three
amendments took place in fifty-five years does seem to be somewhat odd. But the two graphs
above suggest that amendments are not only due to political considerations. Barring the first
decade after the commencement of the Constitution, every decade has witnessed a steady
stream of amendments. This means that irrespective of the nature of politics and the party in
power, amendments were required to be made from time to time.

Six Mark Questions:

1. Discuss the method of amending the Indian Constitution as stated in Article 368 of
the constitution.
2. “42nd Amendment Act has been rightly referred to as a mini constitution”.
Comment

Sample Answer:
1. Discuss the method of amending the Indian Constitution as stated in Article
368 of the constitution.
Article 368:
…Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in accordance
with the procedure laid down in this article.

1. There are many articles in the Constitution, which mention that these articles can be
amended by a simple law of the Parliament. No special procedure for amendment is required
in such cases and there is no difference at all between an amendment and an ordinary law.
These parts of the Constitution are very flexible. In both the articles given below, the wording
‘by law’ indicates that these articles can be modified by the Parliament without recourse to
the procedure laid down in Article 368. Many other articles of the Constitution can be
modified by the Parliament in this simple manner.

Article 2: Parliament may by law admit into the union …..new states….

Article 3: Parliament may by law… b) increase the area of any state….

2. Special Majority:
For amending the remaining parts of the Constitution, provision has been made in Article 368
of the Constitution. In this article, there are two methods of amending the
Constitution and they apply to two different sets of articles of the Constitution.
One method is that an amendment can be made by a special majority of the two houses of the
Parliament. The other method is more difficult: it requires a special majority of the
Parliament and consent of half of the State legislatures.
Amendment to the Constitution requires two different kinds of special majorities: in the first
place, those voting in favor of the amendment bill should constitute at least half of the total
strength of that House. Secondly, the supporters of the amendment bill must also constitute
two-thirds of those who actually take part in voting. Both Houses of the Parliament must pass
the amendment bill separately in this same manner (there is no provision for a joint session).
For every amendment bill, this special majority is required. In addition to this, both the
Houses must pass the amendment bill (with special majorities) separately. This means that
unless there is sufficient consensus over the proposed amendment, it cannot be passed.

3. Ratification by States:
For some articles of the Constitution, special majority is not sufficient. When an amendment
aims to modify an article related to distribution of powers between the States and the central
government, or articles related to representation, it is necessary that the States must be
consulted and that they give their consent. We have studied the federal nature of the
Constitution. Federalism means that powers of the States must not be at the mercy of the
central government. The Constitution has ensured this by providing that legislatures of half
the States have to pass the amendment bill before the amendment comes into effect. We can
say that for some parts of the Constitution, greater or wider consensus in the polity is
expected. This provision also respects the States and gives them participation in the process
of amendment. At the same time, care is taken to keep this procedure somewhat flexible even
in its more rigid format: consent of only half the States is required and simple majority of the
State legislature is sufficient. Thus, the amendment process is not impracticable even after
taking into consideration this more stringent condition.

2. “42nd Amendment Act has been rightly referred to as a mini constitution”.

Comment.
Amendments during the period 1970 to 1980 generated a lot of legal and political
controversy. The parties that were in opposition during the period 1971-1976, saw many of
these amendments as attempts by the ruling party to subvert the Constitution. In particular,
the 38th, 39th and 42 amendments have been the most controversial amendments so far. These
nd

three amendments were made in the background of an internal emergency declared in the
country from June 1975. They sought to make basic changes in many crucial parts of the
Constitution.
The 42nd amendment was particularly seen as a wide ranging amendment affecting large parts
of the Constitution. It was also an attempt to override the ruling of the Supreme Court given
in the Kesavananda case. Even the duration of the Lok Sabha was extended from five to six
years. The 42nd amendment also put restrictions on the review powers of the Judiciary. Many
MPs belonging to the opposition parties were in jail when this amendment was passed in the
Parliament. It was said at that time that this amendment was practically a rewriting of many
parts of the original Constitution. Following are some of the provisions of the 42nd
amendment act:
THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976 [18th
December, 1976.]

●​ Amendment of the Preamble.- In the Preamble to the Constitution,-

(a) for the words "SOVEREIGN DEMOCRATIC REPUBLIC" the words
"SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC" shall be
substituted; and
(b) for the words "unity of the Nation", the words "unity and integrity of
the Nation" shall be substituted.

●​ Amendment of article 356.- In article 356 of the Constitution, in clause (4), for
the words "six months", wherever they occur, the words "one year" shall be
substituted.

●​ Amendment of article 74.-In article 74 of the Constitution, for clause (1), the
following clause shall be substituted, namely:-
"(1) There shall be a Council of Ministers with the Prime Minister at the head to
aid and advise the President who shall, in the exercise of his functions, act in
accordance with such advice."

●​ Insertion of new article 257A. - After article 257 of the Constitution, the
following article shall be inserted, namely: - "257A. Assistance to States by
deployment of armed forces or other forces of the Union.-(1) The Government
of India may deploy any armed force of the Union or any other force subject to
the control of the Union for dealing with any grave situation of law and
order in any State.

●​ Insertion of new article 48A.-After article 48 of the Constitution, the

following article shall be inserted, namely:---
"48A. Protection and improvement of environment and safeguarding of forests
and wild life.-The State shall endeavor to protect and improve the
environment and to safeguard the forests and wildlife of the country.".

●​ Insertion of new Part IVA - After Part IV of the Constitution, the​

following Part shall be inserted, namely:-"PART IVA FUNDAMENTAL
 DUTIES 51A. Fundamental duties.-It shall be the duty of every citizen of​
India---
(a) to abide by the Constitution and respect its ideals and institutions,
the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle
for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all​
the people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavor and
achievement.".

●​ Amendment of article 39.-In article 39 of the Constitution, for clause (f), the
following clause shall be substituted, namely:- "(f) that children are given
opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.".

●​ Insertion of new article 39A.-After article 39 of the Constitution, the following

article shall be inserted, namely:---
"39A. Equal justice and free legal aid.-The State shall secure that​the operation
of the legal system promotes justice, on a basis of​ equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other
way, to ensure that opportunities for securing justice are not denied to any citizen by​
reason of economic or other disabilities.".

●​ Insertion of new article 43A.-After article 43 of the Constitution, the following

article shall be inserted, namely:---
"43A. Participation of workers in management of industries.-The State shall take
steps, by suitable legislation or in any other way, to secure the participation of
workers in the management of undertakings, establishments or other organizations
engaged in any industry."

●​ Amendment of article 217.-In article 217 of the Constitution, in clause (2),- (a) in
sub-clause (b), the word "or" shall be inserted at the end; (b) after sub-clause (b), the
following sub-clause shall be inserted, namely:-
"(c) is, in the opinion of the President, a distinguished jurist."; (c) in the
Explanation, in clause (a), for the words "has held judicial office", the words "has
held judicial office or the office of a member of a tribunal or any post, under the
Union or a State, requiring special knowledge of law" shall be substituted.
 ●​ Amendment of the Seventh Schedule.-In the Seventh Schedule to the Constitution,-
(c) in List III.-Concurrent List,-
(i) after entry 11, the following entry shall be inserted, namely:-
"11A. Administration of justice; constitution and organization of all courts, except
the Supreme Court and the High Courts.;
(ii) after entry 17, the following entries shall be inserted, namely:-
"17A. Forests.
17B. Protection of wild animals and birds.”
(iii) after entry 20, the following entry shall be inserted, namely:-
"20A. Population control and family planning.";
(iv) for entry 25, the following entry shall be substituted, namely:-
"25. Education, including technical education, medical education and universities,
subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and
technical training of labor.";
(v) after entry 33, the following entry shall be inserted, namely:-
"33A. Weights and measures except establishment of standards.”
(Note: learn any six)

Key Questions:

Q. Discuss the attempt to review the Constitution.

In the late nineties, efforts were made to review the entire Constitution. In the year 2000 a
commission to review the working of the Constitution was appointed by the Government of
India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice
Venkatachaliah. Opposition parties and many other organizations boycotted the commission.
While a lot of political controversy surrounded this commission, the commission stuck to the
theory of basic structure and did not suggest any measures that would endanger the basic
structure of the Constitution. This shows the significance of the basic structure doctrine in our
constitutional practice.

Q. Explain the reason for requiring a special majority for amending the Constitution.
Special majority is required for the following reasons:
a. To distinguish between ordinary law and constitutional law.
b. Special majority is required so that no one single party can change the constitution easily.
The majority party can’t use the constitution to further its own interests. It takes at least some
opposition parties into confidence, if the ruling party wants to amend the Constitution. So, the
basic principle behind the amending procedure is that it should be based on broad support
among the political parties and parliamentarians.
c. When an amendment aims to modify an article related to distribution of powers between
the States and the central government, or articles related to representation, it is necessary that
the States must be consulted and that they give their consent. Therefore the need for a special
majority.
d. To prevent the misuse of Power by the government and protection of Fundamental rights of
the citizens.

Q. Many amendments to the Constitution of India have been made due to different
interpretations upheld by the Judiciary and the Parliament. Explain with examples.
a. Golaknath v. State Of Punjab case was a 1967 Indian Supreme Court case, in which the
Court ruled that Parliament could not curtail any of the Fundamental Rights in the
Constitution.
Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court judgment. It
amended the Constitution to provide expressly that Parliament has the power to amend any
part of the Constitution including the provisions relating to Fundamental Rights. This was
done by amending articles 13 and 368 to exclude amendments made under article 368, from
article 13's prohibition of any law abridging or taking away any of the Fundamental Rights.

b. The Supreme Court in the landmark Kesavananda Bharati Case (1973) Kesavananda
Bharati v. State of Keralaheld that the Parliament is not supreme, in that it cannot change
the basic structure of the constitution. It also declared that in certain circumstances, the
amendment of fundamental rights would affect the basic structure and therefore, would be
void. Thus, one can see that this case is drawn on a larger canvas as compared to that
of Golaknath. It also overruled Golaknath and thus, all the previous amendments which were
held valid are now open to be reviewed. They can also be sustained on the ground that they
do not affect the basic structure of the constitution or on the fact that there are reasonable
restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear
the same practical effects. What Golaknath said was that the Parliament cannot amend so as
to take away the fundamental rights enshrined in Part III, whereas in Keshavananda, it was
held that it cannot amend so as to affect the basic structure.

c. The Supreme Court in the Minerva Mills Case (1980) applied and evolved the Basic
Structure doctrine. It stated that the power of the Parliament to amend the constitution is
limited by the constitution. Power to amend did not mean power to destroy. The Supreme
Court struck down Sections 4 and 55 of the 42nd amendment act.

Q. If amending power is with the elected representatives, judiciary should NOT have
the power to decide the validity of amendments. Do you agree? Give your reasons in 100
words.
No, I do not agree for the following reasons:
a. Amendments during the 1970s generated a lot of legal and political controversy. In the 42nd
Amendment, most parts of the constitution were amended. If the judiciary would have stayed
silent, then the elected representatives would have destroyed the basic structure of the
constitution. Thus the role of the Judiciary as a watchdog of the constitution is essential.
b. In the debate over Parliamentary supremacy too, it was expected that in a parliamentary
democracy, representatives of the people and the parliament would be more powerful than the
other two organs of the government. However, the constitution has given the judiciary the
power to check the constitutional validity of the laws and amendments through its power of
Judicial review as a final interpreter of the Constitution. This feature comes under the system
of Checks and Balances.

Q. Explain the Basic Structure of the constitution?

1. If one reads the Constitution, one will not find any mention of the ‘basic structure’ of the
Constitution. Nowhere does the Constitution say that such and such are part of the basic
structure. In this sense, the ‘basic structure’ theory is the invention of the Judiciary. How did
it invent such a nonexistent thing? And how is it that all other institutions have accepted this
during the past three decades? Therein lies the distinction between letter and spirit. The Court
came to the conclusion that in reading a text or document, we must respect the intent behind
that document. A mere text of the law is less important than the social circumstances and
aspirations that have produced that law or document. The Court was looking at the basic
structure as something without which the Constitution cannot be imagined at all. This is an
instance of trying to balance the letter and the spirit of the Constitution.
2. One thing that has had a long lasting effect on the evolution of the Indian Constitution is
the theory of the basic structure of the Constitution. Judiciary advanced this theory in the
famous case of Kesavananda Bharati. This ruling has contributed to the evolution of the
Constitution in the following ways:
a. It has set specific limits to the Parliament’s power to amend the Constitution. It says that no
amendment can violate the basic structure of the Constitution;
b. It allows the Parliament to amend any and all parts of the Constitution (within this
limitation); and
c. It places the Judiciary as the final authority in deciding if an amendment violates basic
structure and what constitutes the basic structure.

3. The Supreme Court gave the Kesavananda ruling in 1973. In the past three decades, this
decision has governed all interpretations of the Constitution and all institutions in the country
have accepted the theory of basic structure. In fact, the theory of basic structure is itself an
example of a living constitution. There is no mention of this theory in the Constitution. It has
emerged from judicial interpretation. Thus, the Judiciary and its interpretation have
practically amended the Constitution without a formal amendment.
a. There are many other examples of how judicial interpretation changed our understanding
of the Constitution. In many decisions the Supreme Court had held that reservations in jobs
and educational institutions cannot exceed fifty per cent of the total seats. This has now
become an accepted principle.
b. Similarly, in the case involving reservations for other backward classes, the Supreme Court
introduced the idea of creamy layer and ruled that persons belonging to this category were
not entitled to benefits under reservations. In the same manner
c. The Judiciary has contributed to an informal amendment by interpreting various provisions
concerning right to education, right to life and liberty and the right to form and manage
minority educational institutions. These are instances of how rulings by the Court contribute
to the evolution of the Constitution

4. All living documents evolve in this manner through debates, arguments, competition and
practical politics. Since 1973, the Court has, in many cases, elaborated upon this theory of
basic structure and given instances of what constitutes the basic structure of the Constitution
of India. In a sense, the basic structure doctrine has further consolidated the balance between
rigidity and flexibility: by saying that certain parts cannot be amended, it has underlined the
rigid nature while by allowing amendments to all others it has underlined the flexible nature
of the amending process.

Q. What are the values which have been shown by our Constitution makers?
The makers of the Indian Constitution, who had the farsightedness, flexibility based on the
acceptance of others/ consensus, were aware of this problem and sought to strike a balance.
They placed the Constitution above ordinary law and expected that the future generations will
respect this document. At the same time, they recognised that in the future, this document
may require modifications. Thus, the Indian Constitution is a combination of both the
approaches mentioned above: that the constitution is a sacred document and that it is an
instrument that may require changes from time to time. In other words, our Constitution is
not a static document, it is not the final word about everything; it is not unalterable.

Quote based Question:

“Those who are dissatisfied with the constitution need only two-third majority. If they are
not able to obtain even that their dissatisfaction with the constitution cannot be deemed to
be shared by the general public.”

Q1. Who stated the above lines?

A1. Dr. B. R. Ambedkar

Q2. Is the writer only referring to Parliamentary majority?

A2. He is talking here not only of parliamentary majority. He refers to ‘sharing (of the views)
by the general public’.

Q3. What does it indicate?

A3. This indicates that behind the majority there is the principle of public opinion that
governs decision making.
This also means that unless there is sufficient consensus over the proposed amendment, it
cannot be passed. If the party in power enjoys a very thin majority, it can pass legislation of
its choice and can get the budget approved even if the opposition does not agree. But it would
need to take at least some opposition parties into confidence, if it wanted to amend the
Constitution.
So, the basic principle behind the amending procedure is that it should be based on broad
support among the political parties, parliamentarians and public in general.

Map List
(World – Political)

Chapter 1 –

The 1990 constitution introduced a multiparty competition, though the King continued to hold
final powers in many respects – Nepal

The British Constitution:

The following features have been borrowed from the Constitution of the U.K.
Parliamentary form of Government
The law making procedure
The institution of the Speaker
The idea of Single Citizenship

The American Constitution:

The following features have been borrowed from the American Constitution.
Elected Head of the State & the procedure of impeachment of the President
Charter of Fundamental Rights
Written Constitution & Supremacy of the Constitution
Federal system of Government
Independent Judiciary & Power of Judicial Review
The post of the Vice President
The Constitution of Ireland:
The following features have been borrowed from the Irish Constitution.
Directive Principles of State Policy
The method of the election of the President
Nomination of members in the Upper House of the Central Legislature ie. Rajya Sabha.

The Constitution of Canada:

The following features have been borrowed from the Constitution of Canada.
Definition of Indian Federation as ‘A Union of States”
Residuary powers are vested with the Central Legislature

The Constitution of Australia:

The following feature has been borrowed from the Constitution of Australia.
The idea of Concurrent list

The Constitution of Japan:

The following feature has been borrowed from the Constitution of Japan.
‘Procedure established by law”

Erstwhile Soviet Constitution: ( to be marked as Russia)

The following feature has been borrowed from the Constitution of Erstwhile Soviet Union.
Fundamental Duties

The Constitution of South Africa assigns many responsibilities to the government: it wants
the government to take measures to promote conservation of nature, make efforts to protect
persons or groups subjected to unfair discrimination (Racial Discrimination), and provides
that the government must progressively ensure adequate housing to all, health care, etc.

In the case of Indonesia also, the government is enjoined to establish and conduct a
national education system. The Indonesian Constitution ensures that the poor and destitute
children will be looked after by the government.

Nepal became a Constitutional Monarchy in 1990. King took all powers in his own hands in
2002. Popular struggle in 2006. Monarchy abolished in 2008. New Constitution for
democratic Nepal adopted in 2015.
German Identity constituted by being ethnically German. The constitution gave expression to
this identity.
The UK has no single document that can be called the Constitution.
The most successful constitutions like India, South Africa and USA were created in the
aftermath of popular national movements.

Chapter 9 -

One is the principle of special majority. For instance, the constitutions of U.S.A, South Africa,
Russia, etc. have employed this principle: In the case of the constitution of the US, it is
two-thirds majority, while in South Africa and Russia, for some amendments, three-fourths
majority is required. “

The other principle that is popular among many modern constitutions is that of people’s
participation in the process of amending the constitution. In Switzerland, people can even
initiate an amendment. Other examples of countries where people initiate or approve
amendment to the constitution are Russia and Italy, among others.

France had numerous constitutions in the last two centuries.