Jawaharlal Nehru addresses the Constituent Assembly in 1947.(Getty Images)
Jawaharlal Nehru addresses the Constituent Assembly in 1947.(Getty Images)

Republic at 70: Greatest strength of India’s Constitution

The framers of our Constitution displayed remarkable foresight while drafting its amendment provisions.
By Raju Ramachandran and Shankar Narayanan
UPDATED ON JAN 22, 2020 05:44 AM IST

It would be a mistake to think that the dead held the earth more freely than we do, Thomas Jefferson once famously said in defence of every generation’s right to mould the machinery of government to its needs. As our Constitution turns 70, we must not lose sight of one of its greatest strengths: its flexibility.

The framers of our Constitution displayed remarkable foresight while drafting its amendment provisions. They were acutely aware that the Constitution they had drafted should neither be too rigid nor too flexible. The result was that there are three kinds of provisions in the Constitution.

There are a few provisions that can be amended by a simple majority and are not considered constitutional amendments in the proper sense of the term. For example, amendments consequent to the creation of a new state from an existing state can be passed by a simple majority. However, these are exceptional provisions, much like Article 370, which permitted constitutional amendment through a unique mechanism of a Presidential notification. Most provisions of the Constitution can be amended only by a bill passed by a majority of two-thirds in Parliament. A small set of entrenched provisions additionally require ratification by at least half of the states in the Union.

Importantly, no provision of the Constitution was expressly kept out of the reach of Parliament.

And this was essential too. Our Constitution is not one in the mould of the American Constitution. Part III of the Constitution resembles the American Bill of Rights and Part IV has a set of broad principles which guide state policy. The essence of federalism, the basic set-up of an independent judiciary and other checks on executive and legislative action can be narrowed down to a few provisions across the Constitution. But the rest of the Constitution largely concerns itself with intricate details of administration, much of which are borrowed from the Government of India Act, 1935. That was a colonial legislation intended to bring about a semblance of self-rule in India.

The draft Constitution was heavily criticized in the Constituent Assembly for its similarities with the Government of India Act. It was here that Ambedkar drew upon English historian George Grote and the idea of constitutional morality. In the sense that the term was used then, constitutional morality referred to “a paramount reverence for the forms of the Constitution”. A nation unused to democracy, he argued, requires a constitution which specifies the form of administration. Otherwise, a culture of democracy would not take root, he warned the Assembly.

Having worked the details of administration into the Constitution, it was important for the framers to ensure that future Parliaments were not foreclosed from amending provisions of the Constitution that posed genuine difficulties. After all, constitutionalism is a work in progress, and every constitution has to adapt and change with time. This prescriptive nature of our Constitution also explains, to a large extent, the need to have amended it so often. Our Constitution has been amended 103 times in 70 years. Nonetheless, it would be wrong to brand our Constitution unstable by unfairly comparing it with its American counterpart which has seen just 27 amendments in a span of over 200 years.

This is not to say that there have been no far reaching amendments. For example, the right to freedom of expression was restricted by the very first amendment in 1951. In 1978, Parliament, after a long tussle with the Judiciary, moved the right to property from Part III (on fundamental rights) to Part XII of the Constitution. Directive principles have been given priority over fundamental rights in certain circumstances. Even the Preamble of the Constitution has been amended to create a fiction that what the people of India gave themselves in 1950 was a socialist Constitution!

But such amendments must be viewed in the light of the great diversity of political beliefs that exists in our country. In 70 years, our Constitution has seen governments of many shades and hues. Despite divergences in views on socialism, federalism and secularism, each of these Governments has thought of the Constitution as offering them adequate space to pursue their political agendas. No doubt, some of these regimes have left their mark on the Constitution through amendments. But the core of the Constitution has survived largely untouched and in a sense, the Constitution has outwitted Governments, spurred by political beliefs that have transiently gripped the nation. As H.V. Kamath, a member of the Constituent Assembly put it, it is only a constitution that bends to change that can prevent the rise of any urge to break it.

Is some credit due to the doctrine of basic structure? In the turbulent seventies, when the nation was in the throes of a socialist surge, the Supreme Court discovered a basic structure within the Constitution. Contrary to what the framers thought, the Court held that there are some features of the Constitution that are even beyond the vast powers of amendment given to Parliament under the Constitution. The story of the birth of the basic structure doctrine has been told too often and need not be repeated here.

One of us has long been a critic of the basic structure doctrine, which, he has argued is anti-democratic, as it leaves the last word on constitutional amendments to unelected judges. Yet, it is undeniable that the doctrine has, in the past, saved us from the perils of brute-majoritarianism. As the Constitution faces a fresh set of challenges from a Government with a large majority in Parliament, the doctrine which posits that federalism and secularism as they find expression in our Constitution are unalterable, may yet come in handy.

However, to think that the Constitution can be effaced only through large scale amendments would be naïve. As Ambedkar reminded the Constituent Assembly while insisting on putting the nitty-gritties of government in the Constitution itself, “it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.” We must pay heed to these words. Any action, be it legislative or administrative, designed to break the spirit of the Constitution is a threat to constitutionalism.

(Raju Ramachandran is a senior advocate. Shankar Narayanan is an advocate. Both practise in the Supreme Court.)
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