Last week, when the Indian Constitution marked the 75th anniversary of its implementation, there was celebration, pride and satisfaction. Given that the global average lifespan of a constitution is 19 years, this is a significant landmark. But now there’s a need to appraise our Constitution. Let’s start with the questions the last 75 years have thrown up.
Scholars have criticised the Constitution for being colonial. The RSS claims it’s not rooted in an Indian ethos. So, in what sense has it been good for India?
One answer is that it gave us our democracy and conferred universal adult suffrage in one go. But have all Indians benefitted equally? Or could you argue that Muslims and Adivasis and, perhaps, earlier Dalits and women did not?
Over the last 75 years, the Constitution has been amended 106 times. Is that a source of strength, because it’s made the Constitution malleable and dynamic, or proof of weakness? The American constitution has been amended only 27 times since 1789.
It’s said the Constitution has strengthened the executive over the legislature, a tendency that’s been exacerbated by the 10th Schedule and the way the Lok Sabha Speakers have functioned. As a result, MPs have been subordinated to their party leadership and the Speaker doesn’t have the authority he would in the House of Commons. Today, this criticism is largely unchallenged.
It’s what lies behind it that needs greater attention. As the scholar Gautam Bhatia has written: “The Indian constitution … conferred great power on the executive and trusted it to wield that power well, instead of putting structural constraints upon it.” Did the Constitution assume our rulers would be good men who would always act within both the letter and the spirit of the Constitution? They clearly have not.
One example is Indira Gandhi’s Emergency. It happened not by suspending the Constitution or acting outside of it, but by imposing the Constitution’s own mechanisms. Surely that exposed a weakness or flaw?
It certainly highlighted the absence of constitutional morality. This determines whether institutions function in keeping with the spirit of the Constitution. We know that governors and election commissioners often breach this but, beyond commenting on it, we can’t do anything. It continues despite our concerns and criticism. Is that another lacuna?
The Constitution also created a federal structure but, again, gave the Centre overriding authority over the states, both financially and administratively, as well as the power to re-arrange the federal map. Even if this was necessary at independence, because India was weak and fragile with an uncertain future, surely three-quarters of a century later it’s unnecessary?
The Constitution conferred several fundamental rights on Indian citizens but stopped short of an absolute right of freedom of speech and expression. In fact, free speech can be restricted on grounds of morality, defamation and, even, friendly relations with foreign states. Don’t those restrictions go too far?
In 1973, the Supreme Court created the basic structure doctrine to protect the core of the Constitution. It was a historic decision. On the other hand, with ADM Jabalpur the court buckled under executive pressure during the Emergency and, some would say, once again with the Ayodhya judgment. It certainly failed to protect the statehood of Jammu and Kashmir. So, at best, the court’s effectiveness as a guardian of our Constitution is inconsistent and insufficient.
The Constitution created several fourth-branch institutions, like the Election Commission, the Comptroller and Auditor General and the Information Commission. But has the Constitution failed to adequately guarantee their separation from the executive, especially in the matter of appointments? Many would say yes.
Finally, how well has the Constitution been served by politicians and institutions, whose job is to honour it, and by judges, whose duty is to defend it? When I put this question to a former Supreme Court judge, Madan Lokur, his response was revealing. India has a good Constitution which, at critical moments, has been let down by politicians and judges. Not just the executive, he emphasised, but Parliament as well. I wouldn’t disagree.
