ABSTRACT
The amendment to the constitution of any nation around the world is a sacrosanct procedure which is done in order to change the constitutional jurisprudence of the country and to meet the demands of the changing times. Whenever a constitution is amended many factors are taken into consideration to pass an amendment.
These factors can be the will of the people or the need to incorporate the interpretation of the constitution by the constitutional courts; but, many a times these factors can also be political appeasement. This phenomenon is not seen in most countries, because most tend to amend the constitution for virtuous purposes to provide stability, whereas some choose not to because it is already stable.
Constitutions should be amended, yes, but not hastily and frequently; it should be amended for the right purposes. At the same time its original identity, text, and intent are not be changed to give it an altered look.
ANALYSIS
The Constitution is the “grundnorm” for the laws of any country in the sense that it is the law of the land. It has to be studied and examined in detail to have a proper understanding of its working. When the discussion pertaining to the working and understating of the constitution ensures the most debated and discussed facet is that of the amendments to the constitution.
According to Black’s Law Dictionary, “amendment” means “…a change made by addition, deletion, correction or alteration to a statute, constitution…”. Amendments are generally seen as mechanisms to ensure the satisfaction of the will of the general public as well as the people in power.
This brings us to an important observation and question as to why are there several constitutional amendments in some countries, but in some countries, the amendments are limited. An ancillary question which emanates from this is whether the constitutions that were made years ago have stayed the same after the numerous amendments, or if fewer amendments are required to cater to the need of ever-transforming law.
The moot point of discussion here revolves around the analysis of constitutional amendments through the lens of a very interesting thought experiment. In the world of identity metaphysics, “Ship of Theseus” or the Theseus’ Paradox is a thought experiment that poses an important question: if all components of an object are replaced with new components, does it remain the same object which it was at the start?
The puzzle of the Ship of Theseus has been around since ancient times and is seen in the print of ‘Life of Theseus’ by Plutarch in Vita Thesei, 22-23 [1]. The original story or the puzzle is that: there existed a great ship of the conqueror Theseus of Athens. It was kept in the harbour as a memorial, after the war. Over the course of time, Athenians changed each decaying plank in the ship to keep it in good condition.
In the end, after replacing all the old planks with new ones, there were no planks left of the original ship. The moot question now was that was the ship in possession of Athenians still the same old ship that belonged to Theseus? This gives us two important assumptions as laid down by Irving Copi, who defined this identity problem through time, by noting the following two statements [2]:
- If a thing, which is changing, truly changes, it cannot theoretically be one and the same after the occurrence of the change.
- However, if it is truly the same thing before and after the occurrence of the change, then it’s fair to say that it has truly not suffered any change.
Interlinking the amendments to the Constitution of India with Theseus’ Paradox, we can derive a preliminary conclusion that the original ship (original constitution) has had its planks (provisions) changed (amended) slowly and gradually and is not the same ship anymore.
When we take the example of certain constitutional amendments such as the First Constitutional Amendment or Amendment to Article 15 and Article 16, they were made in order to nullify the interpretation laid down by the Supreme Court.
This inadvertently changed the meaning and intention of the framers of the constitution and their reasoning behind the incorporation of those provisions in the constitution. The first case wherein the paradox of the Ship of Theseus was mentioned in the Indian jurisprudential concept was in Indian Medical Association v. Union of India and Others.
The Supreme Court therein referred to the said paradox in the context of the Amendments of the Constitution. The Court observed that the Ship of Theseus did not consist of any mechanism of self-preserving itself by changing the rotting planks, but, on the contrary, the Constitution within itself is given necessary tools and mechanisms to change the old planks with new ones with the liberty to make those changes whenever required.
When answering the question about maintaining the original state of the Constitution, the court concurred and affirmed the ratio laid down in Kesavananda Bharati and M. Nagaraj whereby the doctrine of basic structure foils the annihilation of the original and core identity of the Constitution by way of amendments[6].
Hence, what can be inferred is that, until the doctrine of basic structure exists, the identity of the constitution will remain intact. However, while holding that, the Court laid down a narrow view of the identity of the Constitution but also failed to appreciate the impact of larger questions involving the constitutional identity namely –
- Is the basic structure doctrine adequate enough to shield the identity of the Constitution?
- Are there other parts in the Constitution to be protected against illogical amendments so as to safeguard the identity of the constitution?
- Will the original constitution and its original identity survive if all the Articles are amended or new Articles are added?
Taking into account the frequent changes to the constitution made by every government exercising the power given to it capriciously, would make the constitution a hotch-potch [7].
One school of thought proposes that the amendments are necessary because the Constitution is a living document responsive to the will and ideas of people, and hence it must be changed and varied as and when required [8]. This school of thought in its space is true.
The other school of thought, on the other hand, says that the amendments have truly changed the nature of the original text and it is our duty to uphold and respect the intention of the framers of the constitution when amending it.
Apart from the basic structure doctrine, just like the Ship of Theseus, there exists no safeguard against an attack on the original identity of the constitution. In future, a scenario may arise where the amendment has not harmed the basic structure but has defeated the intention of the framers of the Constitution.
Therefore, the original intent and identity must be protected against such arbitrary amendments. If this thoughtless practice of amending the Constitution carries on to meet the necessities of time and to fulfil the aspirations of the government in power, we will soon be going down an erroneous path.
The path of constitutional amendments can be a road to success in order to define the character of the constitution, but at the same time, it could carve a lot of difficulties in the future. Hence, in my humble opinion, the amendments have worked partially; that is, they have deterred the hands of the government from taking risks and the Supreme Court to the extent that whatever interpretation they give to the provisions of the Constitution, it is going to be negated by the way of constitutional amendments.
It can be opined that even a flawless constitution cannot give a guarantee as to whether everything will fall into its place without any impediments. Surely constitutions are needed to keep democracy intact but changes are also required to keep the constitutions intact.
This does not mean though that the changes should be made in a reckless manner; that there is no turning back to the original position. Taking inspiration from the German Constitution, India has to see how the political landscape and legal jurisprudence can remain intact even after numerous amendments.
CONCLUSION & SUGGESTION
Interlinking Theseus’ Paradox with the question of amenability, one question that can be explored is whether or not a frequently amended constitution is bad or a less amended constitution is good. There exists, in my humble opinion, no definite answer to the aforementioned question because it can be either.
There exist several reasons for amending any constitution. The amendments allow constitutions to evolve along with an evolving reality. The amendments respond to the imperfections in the constitution which did not respond to evolving reality.
Just like the Ship of Theseus, the maintenance of the Constitution and updating it through the process of amendment ensures that existing inefficiencies and non-workability of the national constitutions are addressed and that they are made workable and proficient.
But notably, the amendments enable people to revisit the philosophy behind the constitution through the application of the process of amendment. Constitutions draw rightfulness from amendments, which in turn allows them to serve their functions in a much better way.
The answer to the moot question interlinked with the paradox mentioned herein is that no constitution is bad. Every constitution is good in its own sphere, but at the same time, it would reflect poorly on the country that its own designed constitution has to be changed frequently or is so rigid (in the case of the U.S.A.) that it cannot be changed at all.
Hence, to conclude, changes are required, but hasty, illogical changes without due reflection or consideration are counter-productive.
In India, the law and jurisprudence are ever-evolving; hence changes are mandated and required, but at the same time all the changes shall not be incorporated as they can promote instability rather than stability. India should take a cue from Germany where, though changes are made frequently, they are made without due consideration for promoting stability.
In contrast, the USA has perfected their constitution which, in the opinion of some jurists, is stable in all regards, but on another hand is seen to have called for some changes to cater for the need of changing times. Just like the Ship of Theseus, the people of a country have given the constitution to themselves and in that regard, it being the will of the people, it shall change as the will of the people changes.
By Manan Pandya, Advocate, High Court of Gujarat.
