Why constitutions change: rigidity and flexibility

Detail

1. Are constitutions static? Other countries compared

• USSR: four constitutions in 74 years (1918, 1924, 1936, 1977).

• After the USSR broke up, Russia adopted a new constitution in 1993.

• France: five republics (1793, 1848, 1875, 1946, 1958). Each new republic came with a new constitution.

• The present system is the Fifth Republic (1958).

• USA: only 27 amendments in more than 200 years. The Constitution itself has not been replaced.

• Congress has passed only 33 amendment proposals by the required two-thirds vote. Of these, 27 were ratified (approved) by three-fourths of the states [4][5].

• Lesson: some countries replace their constitution when politics changes. Others keep one document and change it bit by bit.

2. India: one Constitution since 1950

• India has worked under one Constitution since 26 January 1950. There are two reasons:
• The text accepts change. Article 368 allows Parliament to amend it.

• It is read flexibly. Political practice (conventions and working habits) and court rulings have applied old words to new situations. This is why it is called a living document (a constitution that grows with time instead of staying frozen).

• Number of amendments: the official, updated text of the Constitution includes all amendments up to the Constitution (One Hundred and Sixth Amendment) Act, 2023 [2].

• The 106th Amendment, 2023 (the women's reservation law, called the Nari Shakti Vandan Adhiniyam) reserves about one-third of seats for women in the Lok Sabha, the state Legislative Assemblies and the Delhi Assembly [6][7].

• The reservation starts only after the first census after the Act is published and delimitation (redrawing constituency boundaries) is done. It lasts 15 years, and Parliament can extend it by law [7].

• Numbering trap: Bills and Acts are numbered separately.

• Example: the GST change was introduced as the Constitution (122nd Amendment) Bill, 2014 [9].
• It was passed as the Constitution (101st Amendment) Act, 2016 [8].
• Count amendments by Act numbers only.

3. The dual question: sacred document or ordinary tool?

• Every constitution has two parts:
• Something of its own time: rules shaped by the problems of the period when it was written.

• Something lasting: basic values that should survive changes in government.

• This gives the dual question:

• If it is sacred, it should almost never change. The risk is that it becomes out of date.

• If it is an ordinary tool, any majority can rewrite it. The risk is that it loses all stability.

• NCERT tests this with four student statements. Each statement is partly wrong. The common mistakes are:

• thinking a constitution must never change;
• thinking the government of the day can change it at will;

• forgetting that courts and political practice also change how it works, even without amendments.

• The right view: a constitution must be stable enough to be respected and flexible enough to stay useful.

4. Rigid and flexible constitutions: definitions

• Flexible constitution: it can be amended through the same process as an ordinary law.

• Example: Britain, which has no single written constitution. Parliament changes constitutional rules by ordinary Acts.

• Rigid constitution: it can be amended only through a special procedure that is harder than ordinary law-making.

• Example: the USA (US Constitution, Article V).

Step	US amendment procedure (Art. V)
1. Proposal, route A	Two-thirds vote of both Houses of Congress
1. Proposal, route B	A convention called by Congress when two-thirds of state legislatures ask for it. This route has never been used [4]
2. Ratification	Three-fourths of the states must approve, either through their legislatures or through state conventions. Congress decides which method [4][5]

5. Two principles used around the world

• Special majority: a majority larger than a simple majority (more than half of those voting).
• Two-thirds in the USA.

• Three-fourths for some amendments in South Africa and Russia.

• People's participation: citizens take part directly.

• In Switzerland, citizens can start an amendment.

• Russia and Italy use referendums (a direct vote by the people on a proposal).

• India uses the first principle but not the second. It has no referendum and no citizens' initiative. Only Parliament can start an amendment (Art. 368(2)) [2].

6. Rigidity and flexibility of the Indian Constitution

• Rigidity and flexibility of the Constitution means that India's Constitution is neither fully rigid nor fully flexible. Different provisions need procedures of different difficulty.
• The framers had three reasons for this mix:
• They expected some errors. These should be easy to correct.
• They wrote temporary provisions. The new Parliament was expected to change these.
• They wanted to protect two things. Federal matters (Centre–state balance) should need the states' consent, and core features should be hard to change.

Category	What it needs	Examples
Simple majority (outside Art. 368)	Passed like an ordinary law. Art. 368 does not treat these as amendments	Forming new states (Art. 4); creating or abolishing Legislative Councils (Art. 169)
Special majority (Art. 368(2))	In each House: a majority of its total membership, and two-thirds of members present and voting [2]	Most provisions, such as Fundamental Rights and DPSPs
Special majority + state ratification (proviso to Art. 368(2))	The special majority, plus approval by at least half of the state legislatures [2]	Election of the President; executive power of the Union and states; Supreme Court and High Courts; distribution of legislative powers (Seventh Schedule) [2]

• The amending power was later strengthened. Article 368 was amended by the 24th Amendment Act, 1971 and the 42nd Amendment Act, 1976 [2].

• The 24th Amendment, 1971 said that Parliament uses constituent power (the power to make or change the Constitution itself, not ordinary law). With it, Parliament can amend any provision by adding to it, changing it or repealing it [3].

• The judiciary set a limit. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court gave the basic structure doctrine:

• Parliament can amend any part of the Constitution.
• But it cannot destroy its core features, such as democracy, federalism and judicial review (the power of courts to strike down unconstitutional laws).
• This added a court-made safeguard on top of the written procedure.

7. Ambedkar's defence of the special majority

• Ambedkar spoke in the Constituent Assembly on 25 November 1949. He answered critics who said the Constitution was too hard to amend.

• He said that if critics "cannot obtain even" a two-thirds majority, then "their dissatisfaction … cannot be deemed to be shared by the general public".

• NCERT reads this as follows:

• The special majority is not a barrier to the people.
• When a change has real public support, it will win two-thirds in Parliament.
• So the special majority acts as a check that public opinion stands behind a change.

Prelims Hooks

• Article 368 covers the power and procedure to amend the Constitution. Its Part XX contains only this one article.
• Special majority under Art. 368(2): a majority of the total membership of each House plus two-thirds of members present and voting. There is no joint sitting for amendment bills.
• State ratification by at least half of the states is needed for: the President's election, Union and state executive power, the Supreme Court and High Courts, and the Seventh Schedule lists [2].
• 24th Amendment, 1971: Parliament's amending power is constituent power, which allows addition, variation or repeal of any provision [3]. 42nd Amendment, 1976 also changed Art. 368 [2].
• Trap: amendments under Art. 4 and Art. 169 pass by simple majority and are not counted as amendments for the purposes of Art. 368.
• US Article V: proposal by two-thirds of both Houses (or a convention called by two-thirds of states). Ratification by three-fourths of the states. 27 of 33 proposals have been ratified [4][5].
• Matching: Switzerland – citizens can start amendments. Russia, Italy – referendums. South Africa, Russia – three-fourths majority for some amendments.
• 106th Amendment Act, 2023: women's reservation (one-third of seats) in the Lok Sabha, state Assemblies and the Delhi Assembly. It begins after the next census and delimitation and lasts 15 years [6][7].
• Trap: Bill numbers are not Act numbers. The 122nd Amendment Bill, 2014 became the 101st Amendment Act, 2016 (GST) [8][9].
• USSR's four constitutions: 1918, 1924, 1936, 1977. France's Fifth Republic: 1958.

Mains Points

• India's mix of procedures. India combines three methods: simple majority, special majority, and special majority plus state ratification. This lets India fix mistakes easily, protects federalism through state consent, and helps a single Constitution last since 1950. Contrast this with the USSR (four constitutions) and France (five republics).
• The democratic case for rigidity. Ambedkar argued (25 November 1949) that a two-thirds majority is a stand-in for public opinion. Critique: when one party has a large majority, the special majority stops being a real check. That is where Kesavananda Bharati (1973) and the basic structure doctrine help, because they add a judicial limit.
• Reform debate. India gives no direct role to citizens in amendments, unlike Swiss initiatives or Italian and Russian referendums. Supporters say this protects minorities and avoids populist (crowd-pleasing) changes. Critics say it limits who has a say in constitution-making. State ratification covers only the federal provisions in the proviso to Art. 368(2) [2].
• Living document. Change happens through amendments (106 Acts by 2023 [2]) and also through judicial interpretation and political practice. A good answer should show both routes.