A Constitution provides the broad outlines of the administration of a country and concerns itself with the problems of the Government. This is so whether the Government originates in a forcible seizure of power or comes into being as the result of a legal transfer of power. At the time of the framing of the Constitution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compromise between conflicting views.

Provision for Constitutional Amendment is necessary

Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution so as to make it a vehicle of a nation’s progress.

Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was contemplated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-Constitutional methods of changing the Constitution. The extra-Constitutional methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness.

Example of Unchangeable Constitution

A State without the means of some change, as was said by Burke in his Reflections on Revolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence.

Louis Phillipe’s monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its violent subversion.

The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid Constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign.

Example of Flexible Constitution

If the inflexibility of French Constitutions has provoked revolution, the flexibility of English Constitutions has, once at least, saved them from violent overthrow. The above observations were amplified by Dicey in the following words:

To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform. The rigidity in short, of a Constitution tends to check gradual innovation; but, just because it impedes change, may under unfavourable circumstances occasion or provoke revolution.

According to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself (see The Theory and Practice of Modern Government, p. 156-157). The amending clause, it has been said, is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution.

A Constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organized in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137).

Burgess further expressed himself in the following words:

It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged.

The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign. (ibid p. 152) Justifying the amendment of the Constitution to meet the present conditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.

According to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J.W. Garner p. 536, 537).

Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words: Why should change and growth in Constitutional law stop with the present? We have always had change and growth, we have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past.

The Fathers in the Constitutional Convention expected changes in the future: otherwise they would not have provided for amendment. They wanted permanency or our Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present.

Caution against too easy method of amendment

Pleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, Willis wrote: If no provision for amendment were provided, there would be a constant danger of revolution. If the method of amendment were made too easy, there would be the danger of too hasty action all of the time.

In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the Constitution is to make it possible gradually to change the Constitution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental law to correspond with such social change.

We may also recall in this connection the words of Harold Laski in his tribute to Justice Holmes and the latter’s approach to the provision of the US Constitution. Said Laski: The American Constitution was not made to compel the twentieth-century American to move in the swaddling clothes of his ancestors’ ideas.

The American Constitution must be moulded by reason to fit new needs and new necessities…. The law must recognize change and growth even where the lawyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish.

According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A Constitution has to work not only in the environments it was drafted, but also centuries later (see Some Characteristics of Indian Constitution, p. 14-15).

It has consequently been observed by Jennings: The real difficulty is that the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly. He cannot know what problems will arise in ten, twenty, fifty or a hundred years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen.

The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisites of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Science and Government by J.W. Garner, p. 538).

Another circumstance which must not be lost sight of is that no generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them.

The guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than Constitutional. It would be nothing short of a presumptuous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui juris.

The reasons for power of amendment

The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said:

“Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute neither in the individual nor in the humanity…” (see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in “Mr. Justice Holmes” 931 Ed. page 117).

What is true of transcendal philosophy is equally true in the mundane sphere of a Constitutional provision. An unamendable Constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres (see Political Science and Government by J.W. Garner pages 537, 538).

According to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation sets before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all. Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, this principle of liberty, that there must be the freest right and opportunity of adjustment.

Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen (see Constitutional Government in the United States by Woodrow Wilson, p. 4-6).

Constitution should not be unamendable

Each generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revision or opportunity for revision of Constitution every nineteen years. Said the great American statesman:

The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their and, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself.

Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs to the dead and not the living. The above words were quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975)

Thomas Paine gave expression to the same view in the following words: There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the ‘end of time’, or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right not the power to do, nor take power to execute, are in themselves null and void.

Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. We may also reproduce the words of Pt. Nehru in His speech to the Constituent Assembly on November 11, 1948:

And remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent you stop a Nation’s growth, the growth of living vital organic people. Therefore it has to be flexible.