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Events & Issues
New
Delhi, 30 November 2017
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”.
(Copyright, India
News & Feature Alliance)
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