Constitution’s 68th Anniversary

Sacrosanct, flexible & survived


By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)

India celebrated the 68th anniversary of adoption of its Constitution this 26th November with reason to be proud and optimistic about the future of its democracy. Among nations freed from colonial rule and also new democracies, it has displayed remarkable resilience against undemocratic forces within and from outside the country and has earned a name as the largest parliamentary democracy conducting periodical elections democratically in a federal set up.
The Constitution has undergone 101 amendments so far without violating the main framework. It has faced hundreds of court cases requiring judicial decision on the validity of some government actions or judicial interpretation of Constitutional position relating to some issues and/or events. A total review of the Constitution was done by a Commission set up for the purpose in 2000.
The Commission made about 250 recommendations of which 58 involved amendments to the Constitution, 86 required legislative measures, and the rest executive action. It means that there are some inadequacies or drawbacks in the Constitution, brought to light in the course of working, which need to be removed for achieving its objectives. These are being removed from time to time.
No Constitutional document anywhere in the world is perfect and suitable for all times. James Madison, who earned the nickname of father of the US Constitution, had said: “I am not one of the number who think that the Constitution lately adopted a faultless one”. He was instrumental in drafting some ten amendments including the Bill of Rights.
At the time of framing the Indian Constitution, Jawaharlal Nehru observed: “While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitutions”. However, it is possible to amend any number of articles in the Constitution, but almost impossible to write a new one and bring a wholesale change in one stroke in a democracy in democratic manner.
India is fortunate to have adopted a Constitution when national spirit and enthusiasm in the newly-acquired independence and prospects of working the country’s own Constitution drafted by people’s representatives was at its height and petty party politics had not taken roots. The spirit has survived and the attempt to subvert the Constitution by the 42nd amendment in 1976 by striking at its core principles — the Fundamental Rights — and placing them as subservient to the Directive Principles was short lived and reversed by the Supreme Court in 1980.
The Constitution has undergone amendments from its first year. Some of these are very crucial like insertion of “socialist” and “secular” as adjectives of the Indian Republic in the Preamble as the objectives of the Constitution, validating laws relating to abolition of zamindari system, insertion of Right to Education until the age of 14 years as a Fundamental Right, addition of Fundamental Duties, provision for special provisions for advancement of any socially and economically backward classes and for Scheduled Castes and Scheduled Tribes, reduction of voting age from 21 to 18 years, addition of a Schedule to deal with political party defections, introduction of Panchayati Raj, and setting up of the National Judicial Appointments Commission for selection of judges.
It is unfair to compare the Indian experience in working the Constitution with other countries. To unify the country with one Constitution where plurality of systems, laws, and practices prevailed earlier is no easy task. That job is well done is undisputable. Out of about 35 constitutional polities born after World War II, India is the sole survivor with its Constitution intact. All others have undergone radical political and constitutional crisis.
The credit must go to the flexibility of the system and tolerance and understanding prevailing in the body politic. Rigidity leads to break up and splits and blocks smooth changes as and when required. Judicial decisions are no less important in shaping our Constitution. These have removed scope for arbitrary dismissal of State Governments and establishment of President’s rule, and has introduced the concept of “basic structure of the Constitution” putting it beyond any amendment. Floor test for determining majority in the legislative body is a vital judicial contribution to prevent hasty dismissal of State governments in a fluid situation. Rights covered under Fundamental Rights listed in the Constitution like the right to food, education, employment are being delineated in court judgements.
For the common man, the Constitution has no place in his daily life and struggles. While this is understandable, ignorance of some of the aspiring politicians of even the salient features of this important document is appalling. Granville Austin, an authority on Indian Constitution, has said a number of times that Constitutions do not work, these are worked by citizens and Governments. For this, some elementary knowledge of the Constitution is required for every citizen.
In dealing with controversial Constitutional issues, reference is invariably made to the Constituent Assembly debates to ascertain the varying viewpoints expressed before the decision was taken, and the intention of the authors. It means that the text of the Constitution is not sufficient and does not guarantee its following in the absence of cultivation of practices and conventions in conformity with the spirit and intention of the text.
A short Constitution backed by strong conventions may prove effectively workable than a lengthy one depending on court interpretations and Constitutional amendments for corrections. Political awareness spreading fast and taste of power intensifying bitterness of the struggle for power, a tendency to manipulate the Constitution becomes open causing clashes between the text and the way the Constitution is worked. The unwritten British Constitution is unassailable and the strongest in the world as it rests on practices and conventions.
Whether the Constitution should move with times and keep in tune with changing times or times should keep in tune with the Constitution is no longer a good question in the fast moving world. Any Constitutional provision is sacrosanct until it is deleted or amended. Amendments are required, but not to suit political convenience of the dominant majority, but to adjust our system for better performance in public interest. The issue arose even in the US where only 33 amendments have been made to the Constitution some of which are yet to be ratified by some States.
Constitutions derive their binding authority from the fact that it is an act of the people acting in “solemn and authoritative” manner. It is expressed in the Indian Constitution as “We, the people of India… give ourselves this Constitution”.
A useful suggestion on this anniversary is to ponder over the feasibility of introducing legislations and developing conventions in the place of amending the Constitution wherever possible. Name change for a State, for instance, may be converted as a statutory change from being a Constitutional change.
Recall the profound observation of Dr Ambedkar while adopting the Constitution: “It is workable, it is flexible, and it is strong enough to hold the country together both in peace time and war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man is Vile”. INFA