It would be a mistake to think that the dead held the earth more freely than we do, Thomas Jefferson once famously said in defence of every generation’s right to mould the machinery of government to its needs. As our Constitution turns 70, we must not lose sight of one of its greatest strengths: its flexibility.
The framers of our Constitution displayed remarkable foresight while drafting its amendment provisions. They were acutely aware that the Constitution they had drafted should neither be too rigid nor too flexible. The result was that there are three kinds of provisions in the Constitution.
There are a few provisions that can be amended by a simple majority and are not considered constitutional amendments in the proper sense of the term. For example, amendments consequent to the creation of a new state from an existing state can be passed by a simple majority. However, these are exceptional provisions, much like Article 370, which permitted constitutional amendment through a unique mechanism of a Presidential notification. Most provisions of the Constitution can be amended only by a bill passed by a majority of two-thirds in Parliament. A small set of entrenched provisions additionally require ratification by at least half of the states in the Union.
Importantly, no provision of the Constitution was expressly kept out of the reach of Parliament.
And this was essential too. Our Constitution is not one in the mould of the American Constitution. Part III of the Constitution resembles the American Bill of Rights and Part IV has a set of broad principles which guide state policy. The essence of federalism, the basic set-up of an independent judiciary and other checks on executive and legislative action can be narrowed down to a few provisions across the Constitution. But the rest of the Constitution largely concerns itself with intricate details of administration, much of which are borrowed from the Government of India Act, 1935. That was a colonial legislation intended to bring about a semblance of self-rule in India.
The draft Constitution was heavily criticized in the Constituent Assembly for its similarities with the Government of India Act. It was here that Ambedkar drew upon English historian George Grote and the idea of constitutional morality. In the sense that the term was used then, constitutional morality referred to “a paramount reverence for the forms of the Constitution”. A nation unused to democracy, he argued, requires a constitution which specifies the form of administration. Otherwise, a culture of democracy would not take root, he warned the Assembly.
Having worked the details of administration into the Constitution, it was important for the framers to ensure that future Parliaments were not foreclosed from amending provisions of the Constitution that posed genuine difficulties. After all, constitutionalism is a work in progress, and every constitution has to adapt and change with time. This prescriptive nature of our Constitution also explains, to a large extent, the need to have amended it so often. Our Constitution has been amended 103 times in 70 years. Nonetheless, it would be wrong to brand our Constitution unstable by unfairly comparing it with its American counterpart which has seen just 27 amendments in a span of over 200 years.