NOTE 59
cabinet directs him. What grew into a convention has received the imprimatur of the supreme court in Shamser Singh v. State ofPunjab ^ where Chief Justice Ray held., contrary to what he himself had held in Sardarilal v. Union of India2, that the president as well as the governor acts on the aid and advice of the council of ministers in executive action and is not required by the constitution to act personally without, or against, the aid and advice of the council of ministers.
Section 13 of the Constitution (44th Amendment) Bill introduced on 1 September 1976 turns what was a convention into a statutory obligation and substitutes the following clause for the existing clause 1 of article 74: ^There shall be a council of ministers with the prime minister at the head to aid and advise the president who shall, in the exercise of his functions, act in accordance with such advice.5'
Rigid or Flexible?
The distinction more fruitful for the present discussion is that between rigid and flexible constitutions. To take once again the definition from Strong, ^the constitution which can be altered or amended without any special machinery is a flexible constitutition. The constitution which requires special procedure for its alteration or amendment is a rigid constitution". Written constitutions are not necessarily rigid. Thus, the Sardinian constitution of 1848, which was adopted by Italy after her unification, was constantly amended to suit the specific requirements of age and progress. The danger of too much flexibility became apparent when Mussolini violated the spirit of the constitution to establish his dictatorship. It also happened with the Weimar constitution of Germany after the First World War. The German parliament, Reichstag, abdicated its powers and handed them over to a dictator. Hitler could do this by excluding from the Reichstag many Socialists and all Communists. The terror unleashed by the Brown Shirts in league with the Steel Helmets, the private armies of the Nazis, intimidated the remaining deputies into voting for Hitler in the notoriously rigged session of 21 March 1935. It could be argued that the easy amending process provided for in the Weimar constitution contributed to the rise of fascism in Germany, similar to the experience of Italy.
Perhaps due to that experience, the constitutions of the countries in Europe have been made rigid. Both in the constitution of the Fifth Republic in France and the Italian Constitution of 1948, the republican form of government was placed beyond the amending power. In the constitution of the Federal Republic of Germany, not only the form of government but the basic aspects of the federal system as also the principle of the basic rights have been exempted from amendment.
The Indian constitution, which was enforced in January 1950, has also the postwar feature of being rigid in the sense that the amending process is made conditional and does not depend on a mere majority in