India’s Living Constitution
Ronojoy Sen, 23 January 2010, in Times of India
A day before the Indian Constitution was formally adopted on November 26, 1949 after nearly three years of intense deliberations, Bhim Rao delivered one of his finest speech summing up the work of the Constituent Assembly, he said, “However good a constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.” This was the onerous burden that Amebedkar and the framers of the Indian Constitution put on future governments and leaders. There was, however, no doubt in Ambedkar’s mind that along with time the Constitution would be amended. In his concluding speech, Ambedkar pointed out that compared to the American and Australian constitutions, the process for amendment of the Indian Constitution was much simpler. Indeed, the provisions for amendment is what makes a constitution a living document, and successive governments have not been shy of using it. So far the Indian Constitution has been amended 94 times; and there are plenty more on the way. This is in contrast to the US Constitution, ratified over two centuries ago, which has been amended a mere 27 times; the first 10 – or what is known as the Bill of Rights – happening within a few years of the Constitution coming into effect.
Of the several amendments to the Indian Constitution, all are of course not of equal importance. But like the
US Constitution, the First Amendment to the Indian Constitution must rank up there as one of the most critical. It would also set in motion a series of face-offs with the judiciary over who was the final arbiter of the Constitution – Parliament or the courts. It is estimated that of the first 45 amendments to the Constitution, about half were aimed at curbing the judiciary. Indeed, the First Amendment was primarily triggered by adverse court judgments. The Madras high court and subsequently the Supreme Court had struck down a legislation which put in place a quota system in government-run medical and engineering colleges for lower castes. At around the same time the major plank of the socialist policy of the Congress government in the 1950s — land reform — was being short-circuited by high courts across the country. The last straw was when the Supreme Court upheld the right to circulate a Communist journal in Madras against the state government’s wishes. Parliament stepped in by amending the Constitution to ensure that equality before law and provisions for ensuring caste equality did not bar legislation for providing reservation for backward classes. It also amended Article 19 – which guaranteed the fundamental right to freedom of speech among other things – by introducing “reasonable restrictions” on speech in the interests of the state.
Finally, The First Amendment inserted Article 31A in the Constitution which stipulated that nothing in the Fundamental Rights could be used to strike down laws for the appropriation of property. During the parliamentary debate on the First Amendment, Jawaharlal Nehru made the oft-quoted statement on the regressive nature of the judiciary: “Somehow we have found this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers.” He added for good measure that the amendment was meant “to take away, and I say so deliberately, to take away the question of zamindari and land reform from the purview of the courts.” One of the more far-reaching components of the First Amendment was Article 31B, which created the Ninth Schedule into which legislation could be put and made immune from judicial review. Over time, over 280 Acts and Regulations have been put in the Ninth Schedule — a majority related to land reform but others on diverse areas ranging from mining to foreign exchange to monopolies — leading a commentator to label it a constitutional “dustbin”.
Since that first tweaking of the Constitution, amendments have flowed thick and fast. In subsequent years there have been several crucial amendments impacting creation of new states, electoral laws and federalism. But perhaps the one that has scarred, and scared, the nation the most was the infamous Forty-second Amendment rammed through during the Emergency. The amendment building on two earlier ones – the Twenty-fourth and the Twenty-fifth – empowered Parliament to make laws infringing on the Fundamental Rights and put curbs on the courts over the custody of the Constitution.
The Forty-second Amendment had inserted two clauses in Article 368 specifying that amendments made under this article could not be challenged in court and that there would be no limitation on the power of Parliament to amend the Constitution. It also gave the Directive Principles of the Constitution primacy over Fundamental Rights. In keeping with this sentiment, the words ‘secular’ and ‘socialist’ were inserted in the Preamble of the Constitution. When the Forty-second Amendment was introduced in Parliament, law minister H R Gokhale tried to sweeten it by saying, “If at all the powers [of Parliament] have been to a certain extent widened, they are not taken away in all matters in which really judicial action is justified.”
The future course of events would, however, show the resilience of Indian democracy. Once Indira Gandhi was voted out of power, the Janata government undid much of the harm done during the Emerging by bringing in the Forty-third and Forty-fourth amendments. The story of amendments and the turf battle between Parliament and the courts for custody of the Constitution is a continuing one. One of the more recent amendments – the Ninety-third in 2006 – which enforced reservation in unaided educational institutions came in the backdrop of a Supreme Court ruling putting a check on state regulation of admission procedures of private institutions.
The tension over who holds the key to the Constitution is going to remain so long as the power to amend is in the hands of Parliament and the courts have the authority of judicial review. This is true for older democracies such as the US too. Hence, political scientist Rajeev Bhargava points out, “We cannot treat the Constitution with sanctimonious reverence, too sacred to be touched, nor can we allow frivolous attempts to revise the Constitution every time a political deadlock occurs.” The Emergency showed the danger of the government of the day subverting the Constitution and its principles. But its aftermath also showed that reckless tampering would not go unchallenged. That is what makes the Constitution a touchstone for Indian democracy, however mixed the quality of our politics and leadership might have been since 1950.