The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. [1963] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important countries in the world, especially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what Constitutions were regarded as “Flexible” Constitutions and what Constitutions were regarded as “rigid” Constitutions.

They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935 this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal Constitution with distribution of powers between the centre and in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi – Federal Constitution which adopted the Parliamentary System of Government based on adult franchise both at the centre and in the States.

Flexible and Rigid Constitution

The two words mentioned above ‘flexible’ and ‘rigid’ were first coined by Lord Bryce to describe the English Constitution and the American Constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the Constitution became familiar with these words.

A ‘flexible’ Constitution is one under which every law of every description (including one relating to the Constitution) can legally be changed with the same ease and in same manner by one and the same body. A ‘rigid’ Constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). It will be noted that the emphasis is on the word ‘change’ in denoting the distinction between the two types Constitutions.

Controlled and Uncontrolled Constitutions

Lord Birkanhead in delivering the judgment of the judicial Committee of the Privy Council in McCawley v. The King [1920] A.C. 691 used the words ‘uncontrolled’ and ‘controlled’ for the words ‘flexible’ and ‘rigid’ respectively which were current then. He had to examine the type of Constitution Queensland possessed, whether it was a ‘flexible’ Constitution or a ‘rigid’ one in order to decide the point in controversy.

He observed at page 703 The first point which requires consideration depends upon the distinction between Constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality and in some cases by a specially convened assembly.’

He had to do that because the distinction between the two types of Constitutions was vital to the decision of the controversy before the privy Council. At page 704 he further said ‘Many different terms have been employed in the text-books to distinguish these two contrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by oiling the one a ‘controlled’ and the other an ‘uncontrolled’ Constitution as by any other nomenclature’. Perhaps this was an apology for not using the words ‘rigid’ and ‘flexible’ which were current when he delivered the judgment.

In fact, sic John Simon in the course of his argument in that case had used the words ‘rigid’ and ‘flexible’ and he had specifically referred to ‘Dicey’s Law of the Constitution’ Strong in his text-book on Modern Political Constitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 “The sole criterion of a rigid Constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are no such directions, or if the directions, explicitly leave the Legislature a free hand, then the Constitution is ‘flexible’.

The Nature of Indian Constitution

The above short disquisition into the nature of Constitutions was necessary in order to show that when our Constitution was framed in 1949 the framers of the Constitution knew that there were two contrasted types of democratic Constitutions in vogue in the world-one the ‘flexible’ type which could be amended by the ordinary procedure governing the making of a law and the other the ‘rigid’ type which cannot be so amended but required a special procedure for its amendment.

Which one of these did our framers adopt the ‘flexible’ or the ‘rigid’? On an answer to the above question some important consequences will follow which are relevant to our enquiry.

Scheme of Indian Constitution

Our Constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council.

Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters contained in List I of the Seventh Schedule and the State Legislatures with regard to those in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws.

This power to make laws is given to these bodies by Articles 245 to 248 and the law making procedure for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the ‘Amendment of the Constitution’ as one of the subject matters of legislation for either the Parliament or the State Legislatures.

On the other hand, after dealing with all important matters of permanent interest to the Constitution in the first XIX parts covering 367 Articles, the Constitution makes special provision for the ‘Amendment of the Constitution’ in Part XX in one single Article, namely, Article 368. A special procedure is provided for amendment which is not the same as the one provided for making ordinary laws under Articles 245 to 248.

The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, and in case of an impasse between the two Houses of Parliament, by a majority vote at a joint sitting.

All that is necessary is that there should be a coram which we understand is 10% of the strength of the House and if such a coram is available the two houses separately or at a joint meeting, as the case may be, may make the law in accordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other.

Under Articles 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible.

In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent.

The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution.

It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a ‘rigid’ or ‘controlled’ Constitution because the Constituent Assembly has “left a special direction as to how the Constitution is to be changed.”

The above discussion will show that the two separate procedures one for law making and the other for amending the Constitution were not just an accident of drafting. The two procedures have been deliberately provided to conform to well-known Constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure.


Kesavananda Bharthi v. Union of India