Day 7 – Q 1.Would you agree to the assertion that the Indian Constitution is a flexible document that gives too much power to the legislature to bring in amendments? Substantiate your views.

1. Would you agree to the assertion that the Indian Constitution is a flexible document that gives too much power to the legislature to bring in amendments? Substantiate your views.   

क्या आप इस दावे से सहमत होंगे कि भारतीय संविधान एक लचीला दस्तावेज है जो विधायिका को संशोधन लाने के लिए बहुत अधिक शक्ति देता है? अपने विचारों को सारगर्भित करें।

Introduction:

Indian constitution, in the words of Ivor Jennings is a perfect blend of Rigidity and flexibility. The amendment procedure provided under Article 368 has certain provisions to be amended by simple majority, some by special majority and also requiring state approval.

Body

The assertion that the Indian Constitution gives too much power to legislature is not an objective analysis for the following reasons:

• Basic structure doctrine: Legislature is bound to the doctrine as established under Keshavanand Bharathi case. Judicial review act as a check on too much power used by the legislature. For instance, 
  • certain provisions of 39th constitutional amendment was declared null and void.
  • 99th constitutional amendment was declared unconstitutional.
• Special majority: Procedure under article 368 requiring special majority itself act as a check on too flexible power to the legislature to amend the constitution. For instance, it took many decades for the legislature to form panchayat raj system as 3rd tier of government.
• State approval: Requirement of approval by half of the states on structural changes keep the parliament power in check. E.g. the amendment to introduce GST took more than a decade to get the approval of states.

However, a view of flexibility in constitutional amendment is due to

• The very fact that there are over 100 amendments demonstrate the flexibility in amendment procedure. In comparison, US constitution is amended 27 times in over 2 centuries.
• Majority driven: when the ruling government has majority in parliament and state governments, the amendment procedure becomes too flexible. E.g. 
  • 42nd constitutional amendment amended almost every major section without much opposition as the central government had majority in parliament as well as in several states.
  •  Some of the recent amendments like Economically weaker section reservation passed without deliberations shows that the rigidity is issue specific.
• Several specified constitutional provisions can be amended by the Parliament by an ordinary law of Parliament passed by a simple majority. For instance, constitutional amendment for reservations, insertion of schedules in the constitution etc.,
• Amendments involving the creation of new states in the Indian Union, administration of Union Territories, creation or abolition of State legislative bodies, etc… require only a simple majority of the members present and voting in the Union Parliament. The state views may not be even considered. E.g. Jammu and Kashmir was made a union territory in spite of opposition from the state political leaders.

Conclusion

Thus, the constitutional amendment procedure is said to be flexible vis a vis amending ordinary provisions. But the Basic structure doctrine limit the power of legislature to exert too much power to make flexible amendments.