Informal amendment, constitutional review and the living document

Detail

1. Two ways the Constitution changes

• Formal amendment means changing the written text under Article 368. Only Parliament can start one, by bringing an amendment bill in either House.
• Informal amendment means the working meaning of the Constitution changes but its text stays the same. This happens in three ways:
• judicial interpretation: the courts read new meaning into existing words;
• conventions: unwritten practices that leaders follow as if they were rules;

• political practice: how institutions actually behave over time.

• The latest formal amendment is the Constitution (106th Amendment) Act, 2023, called the Nari Shakti Vandan Adhiniyam. It reserves one-third of seats for women in the Lok Sabha and in state assemblies, including the Delhi assembly [7].

• This reservation starts only after a fresh delimitation (redrawing of constituency boundaries). That delimitation must use the first census taken after the Act began [7].

Route	Who drives it	Text changes?	Example
Formal amendment (Art. 368)	Parliament, sometimes with state ratification	Yes	86th Amendment, 2002 (Art. 21A)
Informal amendment	Courts, conventions, practice	No	Maneka Gandhi (1978) widening Art. 21

How a formal amendment is passed (Art. 368), for comparison:

1. A bill is introduced in either House. It needs no prior permission of the President.
2. Each House passes it separately by a special majority. This means a majority of the House's total membership and two-thirds of the members present and voting. There is no joint sitting if the two Houses disagree.
3. If the bill changes federal provisions (for example, the election of the President, the Seventh Schedule, or representation of states in Parliament), at least half of the state legislatures must also approve it, by simple majority.
4. The President must give assent. This is compulsory under the 24th Amendment, 1971. - Some provisions can be changed by a simple majority of Parliament outside Art. 368, such as creating new states under Art. 4 or creating or abolishing a Legislative Council under Art. 169. These do not count as amendments under Art. 368.

2. Informal amendment through the courts: the main cases

• The judiciary cannot start an amendment, but it can change the Constitution through interpretation (Class 11 Exercise 2(c)).

(a) The basic structure itself

• No article contains the words "basic structure". The Supreme Court created the idea in Kesavananda Bharati (1973).
• Basic structure means the core features of the Constitution, such as democracy, federalism, secularism and judicial review. Parliament can amend any article, but it cannot destroy these features.
• This is the biggest informal amendment of all, because it puts a limit on Art. 368 that the text never wrote.

(b) Reservations: the 50% ceiling and the creamy layer

• M.R. Balaji v. State of Mysore (1962): reservations should generally stay below 50% of seats.
• Indra Sawhney v. Union of India (1992), known as the Mandal case:
• it confirmed the 50% ceiling;

• it brought in the creamy layer test. The creamy layer means the better-off people within the backward classes, who are left out of OBC reservation.

• Art. 15(4) and Art. 16(4) mention neither rule. Both came from judges.

(c) Right to education

• Mohini Jain v. State of Karnataka (1992): the right to education comes from the right to life under Art. 21.
• Unni Krishnan v. State of Andhra Pradesh (1993): every child has a fundamental right to free education up to age 14.
• Parliament later wrote this into the text with the 86th Amendment, 2002:
• it added Art. 21A (free and compulsory education for children aged 6–14);
• it changed Art. 45 (early childhood care for children below 6);

• it added Art. 51A(k) (a duty of parents to send their children to school).

• Lesson: an informal change made by the courts can later become a formal amendment.

(d) Life and personal liberty (Art. 21)

• Maneka Gandhi v. Union of India (1978):
• the "procedure established by law" in Art. 21 must be just, fair and reasonable, not just any procedure;

• this brought in the spirit of "due process", which the framers had deliberately left out.

• Justice K.S. Puttaswamy v. Union of India (2017): a nine-judge bench held privacy to be a fundamental right under Art. 21 and Part III.

(e) Minority educational institutions

• T.M.A. Pai Foundation v. State of Karnataka (2002), decided by an 11-judge bench, explained what Art. 30 means:
• who counts as a minority (decided state by state);
• how far the government can regulate admissions and fees in minority institutions.

(f) The national flag case (Class 7)

• Union of India v. Naveen Jindal (2004): flying the national flag with respect is part of freedom of speech and expression under Art. 19(1)(a).
• Before this case, private citizens could fly the flag only on certain days.
• The right is not absolute. It is limited by laws that protect the flag's dignity.

(g) Conventions and practice

• Some examples:
• the President appoints the leader of the majority party as Prime Minister;
• the President acts on the advice of ministers (later written into the 42nd Amendment, 1976 and the 44th Amendment, 1978);

• the Speaker acts as a neutral, non-party officer.

• These shape how the Constitution works without any text being changed.

3. National Commission to Review the Working of the Constitution (NCRWC)

• NCRWC: a body the Union government set up to look at how the Constitution had worked in its first 50 years and to suggest changes.
• Set up: 22 February 2000, by a government resolution.
• Chair: former Chief Justice of India M.N. Venkatachaliah.

• Terms of reference: to suggest changes within the framework of parliamentary democracy, without touching the basic structure.

• Report: submitted on 31 March 2002 (NCERT: 249 recommendations).

• 58 recommendations needed constitutional amendments. 86 needed new laws. The rest needed executive action (government orders) [3].

• It covered eight areas [2][3]: 1. Fundamental Rights, Directive Principles and Fundamental Duties 2. electoral processes and political parties 3. Parliament and state legislatures 4. the executive and public administration 5. the judiciary 6. Union–state relations 7. decentralisation and devolution 8. the pace of socio-economic change and development

• Some members wrote separate notes (dissents) on the higher judiciary, state liability in torts, Fundamental Rights, Directive Principles, Fundamental Duties, electoral reform and citizenship [2].

• The Law Ministry sent the report to all ministries and departments to examine the parts that concerned them [3].
• Controversy: opposition parties and many organisations boycotted it. They feared it was a backdoor attempt to rewrite the Constitution, for example to move to a presidential system.

• Outcome: it stayed within the basic structure. It "reviewed" the Constitution; it did not replace it.

• On defection: it recommended that the President (for MPs) or the Governor (for MLAs) should decide disqualification cases, on the Election Commission's advice, instead of the Presiding Officer [5].

Recommendation later adopted: the 91st Amendment, 2003

• Cap on the size of the ministry:
• the Union Council of Ministers, including the PM, cannot be larger than 15% of the Lok Sabha's total membership (Art. 75(1A)) [4];

• in the states, the cap is 15% of the assembly's strength, with a minimum of 12 ministers (Art. 164(1A)).

• Defectors barred from office: an MP disqualified for defection under paragraph 2 of the Tenth Schedule cannot be appointed a minister [4]. The Tenth Schedule is the anti-defection law: it removes from the House members who leave their party or vote against its instructions.

• Split exception removed:
• earlier, a split by one-third of a party's legislators was protected from disqualification;
• the amendment deleted this. Now only a merger backed by at least two-thirds of the party's legislators is protected [5].

4. The Constitution as a living document

• Living document: a constitution that works like a living being. It responds to experience, can be read in new ways, and adapts to change while keeping its core. This is why India's Constitution has lasted since 1950.
• It has two supports:

(a) The judiciary's contribution

• The courts insisted that even pro-poor measures (land reform, nationalisation, reservations) must stay inside the constitutional framework.

• If the government bypasses the law, even with good intentions → the door opens to arbitrary power → rights can then be taken away for any reason.

• Kesavananda (1973) and Minerva Mills (1980) balanced Parliament's power to amend against the protection of the Constitution's core.

(b) Maturity of the political leadership

• How parties came to accept the basic structure:
• there were early clashes over the 24th, 25th, 39th and 42nd (1976) Amendments;
• attempts at review failed, and Minerva Mills struck down parts of the 42nd Amendment;

• in the end, all parties accepted that the basic structure cannot be changed.

• Even the 2000–02 "review" (NCRWC) respected that limit.

The shared vision

• The Constitution still carries the vision of the freedom struggle, from Nehru's "tryst with destiny" speech: dignity, equality, well-being and national unity.

The Sahu prediction

• Lakshminarayan Sahu (Constituent Assembly, 17 November 1949) said the Constitution would "break down soon". He was proved wrong.
• Debate about the basic structure is healthy. Final authority rests with the people.

5. Class 7 view: amendment as a democratic process

• Part IVA (Fundamental Duties, Art. 51A) was added by the 42nd Amendment, 1976.
• The 73rd Amendment, 1992 gave panchayats constitutional status (Part IX, Eleventh Schedule).
• Amendments are debated carefully in Parliament. Some need approval from state legislatures.
• Public opinion is sought through the Pre-Legislative Consultation Policy, 2014 and the MyGov portal.
• Under the 2014 policy, a ministry should put a draft bill online for 30 days for comments before sending it to the Cabinet [6].
• The draft should come with its justification, its financial cost and an estimate of its impact. The ministry should publish the comments it receives [6].

• Weakness: the policy is not binding. According to PRS, 227 of 301 bills were introduced without any prior consultation. Of the 74 bills put out for comment, at least 40 did not give the full 30 days [6].

• Popular movements can start changes. For example, campaigns for the right to education and for women's reservation came before the 86th (2002) and 106th (2023) Amendments.

Prelims Hooks

• Informal amendment = the meaning changes, the text does not. The judiciary cannot start a formal amendment. Only Parliament can, under Art. 368.
• M.R. Balaji (1962) → 50% ceiling on reservations; Indra Sawhney (1992) → confirmed the 50% ceiling and added the creamy layer.
• Mohini Jain (1992) and Unni Krishnan (1993) → right to education from Art. 21 → 86th Amendment (2002) added Art. 21A (ages 6–14) and Art. 51A(k).
• Maneka Gandhi (1978) → procedure under Art. 21 must be "just, fair and reasonable"; Puttaswamy (2017, 9 judges) → privacy is a fundamental right.
• Union of India v. Naveen Jindal (2004) → flying the national flag is part of Art. 19(1)(a), not Art. 21 (a common trap).
• NCRWC: set up 22 February 2000; chair M.N. Venkatachaliah; report 31 March 2002; 58 constitutional and 86 legislative recommendations [3].
• 91st Amendment (2003): ministry capped at 15% of the Lok Sabha (Art. 75(1A)); disqualified defectors barred from being ministers; split exception removed [4][5].
• Pre-Legislative Consultation Policy (2014): draft bills online for 30 days; it is not binding [6].
• Lakshminarayan Sahu (CAD, 17 November 1949) predicted the Constitution would "break down soon".
• 106th Amendment (2023): one-third of Lok Sabha and assembly seats reserved for women, starting only after delimitation based on the next census [7].

Mains Points

• Is judicial "informal amendment" legitimate?
• For: it keeps an old text in step with new needs, as with privacy, education and due process.
• Against: unelected judges create rules that no one voted for, such as the 50% ceiling and the basic structure. This raises a counter-majoritarian concern (judges overruling the elected majority).

• Balance: Parliament later wrote some judge-made rights into the text (Art. 21A). This shows the courts and Parliament working together, not against each other.

• NCRWC as a model of review:

• It worked inside the basic structure, and some of its proposals became law (the 91st Amendment).
• But the opposition boycott shows that constitutional reform needs all-party agreement, not just executive initiative.

• Many of its proposals were never acted on, such as the Election Commission advising on defection cases [5].

• Living document vs stability:

• The Constitution has survived because of flexible amendment under Art. 368, judicial limits, and political maturity after 1976–80.

• Sahu's 1949 prediction failed because the people remained the final authority.

• Making amendment more participatory:

• Pre-legislative consultation is weak: 227 of 301 bills were introduced without it [6].
• Reform idea: make the 30-day public consultation compulsory by law, at least for Constitution amendment bills.