Review of the Working of the Indian Constitution

Introduction

The review of the working of the Indian Constitution involves examining how effectively its provisions, institutions and principles operate in practice. The purpose is to identify problems in governance, protect constitutional values and consider reforms that respond to changing social, economic and political conditions. Such a review must preserve the basic structure of the Constitution while improving democracy, accountability, justice and public administration.

Meaning of Review of the Working of the Constitution

A review of the working of the Constitution is a systematic examination of how the Constitution functions in practice and whether its institutions and provisions achieve their intended purposes.

The review may examine the functioning of Parliament, State Legislatures, the executive, the judiciary, election-related institutions and public administration. It may also consider whether constitutional promises of justice, liberty, equality and fraternity are being realised.

A constitutional review does not necessarily mean replacing the Constitution or rewriting all its provisions. It may recommend changes to constitutional provisions, ordinary laws, administrative procedures or institutional practices.

Any constitutional amendment must follow the procedure prescribed by Article 368 or the relevant constitutional provision. It must also respect the basic structure doctrine established by the Supreme Court in Kesavananda Bharati v. State of Kerala (1973).

Need for Reviewing the Working of the Constitution

The Constitution was designed to guide India for generations. However, changing circumstances and practical difficulties may require its provisions and institutions to be examined periodically.

Improving the Quality of Democracy

Democracy requires more than holding elections. Elected representatives must remain accountable to the people, respect constitutional limits and work for public welfare.

A review can examine whether Parliament, State Legislatures and political parties function effectively and whether democratic institutions are responsive to public needs.

Strengthening Electoral Reforms

The influence of money and criminal activity in elections can weaken public confidence in the democratic process.

A review may consider measures relating to election expenditure, political funding, transparency, candidate disclosures and the internal functioning of political parties.

Reducing Corruption and Improving Administration

Corruption, administrative delays and poor public service delivery can prevent people from receiving the benefits and protections promised by the Constitution.

A review can identify ways to strengthen accountability, improve transparency and make public administration more efficient and responsive.

Addressing Political Defections and Government Instability

Frequent changes in political allegiance may affect the stability of governments and public confidence in elected representatives.

The constitutional framework, including the Tenth Schedule, may be examined to determine whether existing safeguards are achieving their intended purpose.

Improving Access to Justice

Delays, high legal costs and the large number of pending cases can make justice difficult to obtain.

A review may examine judicial appointments, court administration, alternative dispute resolution and other reforms that improve access to timely and effective justice, while protecting judicial independence.

Promoting Social and Economic Justice

The Constitution seeks to secure justice, liberty, equality and fraternity. However, poverty, unequal opportunities, discrimination and gaps in access to education and public services can prevent these goals from being fully realised.

A review can assess how effectively constitutional institutions and public policies advance these objectives.

Maintaining Relevance in Changing Conditions

Social values, technology, economic structures and public expectations change over time. A Constitution must remain capable of responding to new challenges without losing its essential principles.

Jawaharlal Nehru emphasised the need to balance constitutional stability with flexibility. A Constitution should be durable, but it should not prevent the progress of society.

Major Issues Examined in a Constitutional Review

Political and Electoral System

A review may examine:

• Election expenditure and transparency in political funding.
• Criminalisation of politics and the participation of candidates facing criminal charges.
• Internal democracy and accountability within political parties.
• Political defections and the stability of elected governments.
• The accountability of elected representatives to voters.

Executive and Public Administration

The review may consider:

• Accountability of ministers and public officials.
• Administrative efficiency and transparency.
• Corruption and misuse of public power.
• The relationship between politicians and civil servants.
• The independence and effectiveness of constitutional bodies.

Judiciary and Access to Justice

Relevant issues include:

• Delays in deciding cases.
• High costs of litigation.
• Judicial independence and accountability.
• Access to legal aid and effective remedies.
• The proper balance between judicial review and the powers of elected institutions.

Centre-State Relations

India's federal system divides powers between the Union and the States. A review may examine whether these arrangements support effective governance, cooperation and the protection of State interests.

The Sarkaria Commission, established in 1983, examined Centre-State relations and recommended measures to improve the functioning of India's federal system.

Fundamental Rights and Directive Principles

The review may assess whether Fundamental Rights are effectively protected and whether government policies advance the Directive Principles of State Policy.

Fundamental Rights are generally enforceable through courts, while Directive Principles guide the State in making laws and policies but are not directly enforceable by courts under Article 37.

The constitutional objective is to protect individual freedoms while promoting social and economic welfare.

Historical Background of Constitutional Review in India

The debate over how the Constitution should function began during the Constituent Assembly discussions and continued after the Constitution came into force on 26 January 1950.

Concerns Raised in the Constituent Assembly

Some members of the Constituent Assembly questioned whether the proposed constitutional arrangements would adequately reflect India's social conditions and the needs of ordinary people.

Damodar Swaroop Seth, speaking during the Constituent Assembly debates on 5 November 1948, expressed concern that the Constitution was being built from the top down rather than growing from the needs and participation of local communities.

H. V. Kamath raised a related question about the purpose of the State, asking whether the individual existed for the State or the State existed for the individual.

These debates reflected broader questions about public participation, social welfare and the practical effectiveness of constitutional government.

Jawaharlal Nehru's View on Constitutional Flexibility

Jawaharlal Nehru argued that the Constitution should provide a stable framework while allowing enough flexibility for the nation to grow.

His view highlighted an important principle: constitutional provisions should not become obstacles to social progress. At the same time, changes must preserve the essential constitutional framework.

Early Constitutional Amendments

The Constitution was amended for the first time in 1951 through the First Constitutional Amendment Act.

The early amendments showed that constitutional interpretation, judicial decisions and changing policy needs could create demands for changes to the constitutional text.

However, the need for amendments does not by itself prove that the Constitution is unsuitable. Amendments are one way of adapting the constitutional framework to changing circumstances.

Important Committees and Commissions on Constitutional Review

Y. B. Chavan Committee on Political Defections

After the 1967 general elections, political defections became a major concern because changes in party allegiance contributed to instability in several State governments.

On 8 December 1967, the Lok Sabha adopted a resolution supporting the establishment of a high-level committee to examine the problem of legislators changing political parties.

A committee headed by Y. B. Chavan examined political defections and related issues.

The debate eventually contributed to the development of constitutional safeguards against defection. The Fifty-Second Constitutional Amendment Act, 1985, inserted the Tenth Schedule, which provides for disqualification of legislators on specified grounds of defection.

Swaran Singh Committee

In 1976, the Congress leadership appointed a committee headed by Sardar Swaran Singh to examine questions concerning constitutional amendments.

The committee considered several matters, including:

• The Preamble.
• Directive Principles of State Policy.
• Parliament's power to amend the Constitution.
• Elections and disqualification of legislators.
• The relationship between Fundamental Rights and Directive Principles.

Its recommendations formed part of the background to the Forty-Second Constitutional Amendment Act, 1976.

Forty-Second Constitutional Amendment Act, 1976

The Forty-Second Amendment made wide-ranging changes to the Constitution. It was passed during the National Emergency of 1975–1977.

Among its major changes were:

• Adding the words Socialist, Secular and Integrity to the Preamble.
• Adding Fundamental Duties in Part IVA.
• Expanding the role of Directive Principles in certain areas.
• Attempting to restrict judicial review of constitutional amendments.
• Attempting to expand Parliament's amending power by declaring it unlimited.

Some of the changes affecting Parliament's amending power and judicial review were later struck down by the Supreme Court in Minerva Mills Ltd. v. Union of India (1980).

The experience of the Forty-Second Amendment demonstrated why constitutional reforms must preserve the basic structure and cannot be used to remove essential constitutional safeguards.

Post-Emergency Corrective Measures

After the change of government in 1977, the Forty-Fourth Constitutional Amendment Act, 1978, reversed or modified several Emergency-era changes.

It strengthened safeguards relating to the declaration of a National Emergency, restored important protections for Fundamental Rights and helped reinforce constitutional limits on executive power.

These developments illustrated that reviewing the working of the Constitution may involve correcting changes that weaken democratic safeguards.

Sarkaria Commission

The Sarkaria Commission was established in 1983 under the chairmanship of Justice R. S. Sarkaria to examine Centre-State relations.

Its work focused on improving cooperation between the Union and the States within the existing constitutional framework.

The Commission recommended measures concerning matters such as the use of Article 356, the role of Governors, and consultation and cooperation between different levels of government.

Its recommendations remain important in discussions on federalism and constitutional governance.

National Commission to Review the Working of the Constitution

In 2000, the Union Government established the National Commission to Review the Working of the Constitution (NCRWC), chaired by Justice M. N. Venkatachaliah, a former Chief Justice of India.

The Commission was established to examine the experience of approximately fifty years of constitutional functioning and recommend changes, where necessary, to improve governance and socio-economic development within the framework of parliamentary democracy.

Its terms of reference specifically required that recommendations should not interfere with the basic structure or features of the Constitution.

The Commission submitted its report in 2002.

Its work examined a broad range of subjects, including:

• Strengthening parliamentary democracy.
• Improving electoral processes.
• Reforming the political and administrative systems.
• Improving the functioning of the judiciary.
• Strengthening Centre-State relations.
• Making constitutional institutions more effective.
• Improving the protection and implementation of constitutional rights.

The Commission's approach was to recommend improvements within the existing constitutional framework rather than replace the Constitution.

Important Case Law Relating to Constitutional Review

Kesavananda Bharati v. State of Kerala (1973)

The Supreme Court held that Parliament may amend any part of the Constitution under Article 368 but cannot destroy or damage its basic structure.

This judgment established a fundamental limit on Parliament's amending power. Any constitutional review that proposes amendments must take this doctrine into account.

Minerva Mills Ltd. v. Union of India (1980)

The Supreme Court struck down constitutional changes that attempted to make Parliament's amending power unlimited and remove judicial review of constitutional amendments.

The Court held that limited amending power and judicial review are part of the basic structure. It also emphasised the importance of maintaining harmony between Fundamental Rights and Directive Principles.

S. R. Bommai v. Union of India (1994)

The Supreme Court held that the exercise of power under Article 356 is subject to judicial review and recognised secularism as a basic feature of the Constitution.

The judgment strengthened constitutional safeguards against the improper use of emergency powers in States.

Constitutional Review and Constitutional Amendment

Reviewing the working of the Constitution and amending the Constitution are related but different processes.

Review of the Working of the Constitution

A constitutional review examines how the constitutional system operates in practice. It may identify problems, assess institutions and recommend changes to laws, procedures, policies or constitutional provisions.

A review does not automatically change the Constitution.

Constitutional Amendment

A constitutional amendment formally changes the text of the Constitution. It must follow the procedure prescribed by Article 368 or another applicable constitutional provision.

A constitutional amendment remains subject to the basic structure doctrine.

Challenges in Reviewing the Working of the Constitution

A constitutional review must balance different interests and constitutional principles.

Preserving Constitutional Stability

Frequent changes may create uncertainty, but refusing to adapt can make constitutional arrangements ineffective. A review should distinguish between necessary reforms and changes that are merely politically convenient.

Protecting the Basic Structure

Any proposed constitutional amendment must respect the essential features of the Constitution, including democracy, secularism, federalism, judicial review and the rule of law.

Ensuring Public Participation

Constitutional reform should consider the needs and experiences of citizens, including communities whose interests may not receive sufficient attention in political decision-making.

Avoiding Partisan Use

Constitutional review should not become a means for a ruling party to strengthen its own position or weaken institutions that provide checks on government power.

Translating Constitutional Promises into Practice

Constitutional principles alone cannot ensure effective governance. Proper implementation, accountable institutions, sound public policies and access to justice are also necessary.

Practical Example

Suppose a commission examining the working of the Constitution finds that election expenditure is insufficiently transparent, courts face long delays and public authorities are not adequately accountable.

The commission may recommend stronger disclosure rules for political funding, improvements to court administration and more effective mechanisms for public accountability.

Some recommendations may be implemented through ordinary legislation or administrative reform. Others may require constitutional amendments, which must follow the prescribed procedure and respect the basic structure doctrine.

The example shows that constitutional review is a process of identifying problems and proposing solutions, not an automatic rewriting of the Constitution.

Summary

• Review of the working of the Constitution means examining how effectively constitutional provisions and institutions function in practice.
• Its purpose is to improve governance, strengthen democratic accountability, protect rights and promote social and economic justice.
• Important areas of review include electoral reforms, political defections, public administration, access to justice and Centre-State relations.
• The Constituent Assembly debates reflected early concerns about public participation, social welfare and the relationship between the State and the individual.
• The Swaran Singh Committee examined constitutional amendments in 1976, contributing to the background of the Forty-Second Amendment.
• The Sarkaria Commission examined Centre-State relations, while the National Commission to Review the Working of the Constitution was established in 2000 under Justice M. N. Venkatachaliah and submitted its report in 2002.
• The Forty-Second Amendment attempted to expand Parliament's amending power, but important provisions were later struck down in Minerva Mills (1980).
• In Kesavananda Bharati (1973), the Supreme Court held that Parliament cannot destroy or damage the basic structure of the Constitution.
• Constitutional review does not automatically amend the Constitution. Any formal amendment must follow the applicable constitutional procedure.
• A successful review should balance constitutional stability with the need for reform while preserving democracy, the rule of law and the Constitution's basic structure.