Ram Madhav
September 9, 2023

A living document

(The article was originally published in Indian Express on September 9, 2023 as a part of Dr Madhav’s column titled ‘Ram Rajya’. Views expressed are personal.)

Soon we are going to move into the new Parliament building. The iconic old building was where 299 members of the Constituent Assembly of India toiled for over two years and 293 days to give us an excellent Constitution.

It may be an ironic coincidence that as we vacate the building that gave us the Constitution, a debate is raging over the future of the Constitution too. Fundamental questions like whether we should continue to call ourselves India or change our name to Bharat, whether the word “socialist” in the Preamble is still relevant, whether India is a nation or just a “Union of States” and whether the so-called “Basic Structure” argument is still tenable are being raised by important sections.

Our Constitution, the world’s largest with 448 articles and 12 schedules, has served our country in an efficient manner for the last seven decades. It is a sacred document, a product of great diligence and discussion. Those who were involved in its making, like B R Ambedkar, Alladi Krishnaswami Ayyar, K M Munshi, Gopalaswami Ayyangar, and others, were political stalwarts. B N Rau, advisor of the drafting committee, and S N Mukherjee, its chief draftsman deserve a mention for their extraordinary contributions. Leaders like Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad and Syama Prasad Mookerjee too made significant contributions. There were great debaters like H V Kamath, P S Deshmukh, R K Sidhva, Shibban Lal Saxena, Thakur Das Bhargava, K T Shah and Hriday Nath Kunzru who enriched its content. Ambedkar paid tribute to all of them while presenting the final draft of the Constitution in November 1949.

The saga of our Constitution, including the debates, is most inspiring. The suggestion to junk it is premature. Countries do not replace constitutions at the drop of the hat. However, for a large and diverse country like Bharat, a reexamination of various facets of the Constitution from time to time is important. Talking about it doesn’t make one anti-Ambedkar, as the Opposition says. Except for the Canadian constitution, all constitutions in the world allow amendments. The Indian Constitution has already been amended 106 times.

Quoting the great American statesman Thomas Jefferson, Ambedkar himself argued that no generation has the right to impose its will on future generations. Jefferson had said that “we may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation.” Endorsing Jefferson, Ambedkar stated that he was not “putting a seal of finality and infallibility upon this Constitution”.

In fact, participating in a debate in the Rajya Sabha in 1953 over an amendment to the Constitution, Ambedkar said that he would be the first person to “burn” it. “I was a hack. What I was asked to do, I did much against my will,” he said indignantly to the members who pointed out that he was the author.

During the golden jubilee of our Republic, in February 2000, the Atal Bihari Vajpayee government constituted a commission led by the eminent jurist M N Venkatachaliah to look into the functioning of the Constitution. At the time of the appointment, the government talked about a fixed term for Parliament and legislatures, the abolition of the no-confidence motion and the introduction of “constructive vote of confidence”. However, the “Basic Structure” argument came in the way of implementing the commission’s recommendations at that time. In the famous Kesavananda Bharati judgment in 1973, the Supreme Court ruled that the basic features of the Constitution cannot be altered through amendments. This opinion was reiterated time and again by different benches subsequently.
As the Republic reaches its platinum jubilee, a relook into aspects of the Constitution, including the “Basic Structure” argument, is natural.

So far there is no clear definition about what constitutes Basic Structure. In general, it is argued that the Preamble, Article 1 and Part 3, which deals with Fundamental Rights, are inviolate parts of the Constitution. Unfortunately, it is these parts that face major scrutiny today.

The Preamble begins with the statement, “We, the people of India”. India is thus defined as the “people”. Article 1 calls India a “Union of States”. In both cases, and for that matter, in the entire Constitution, India is not described as a nation. Some leaders of the Opposition argue on that basis that India is only a Union of States.

Ambedkar had argued against calling India a nation because Indians were more caste-conscious than nation-conscious. After seven decades, that argument can certainly be revisited. But on the “Union of States” question, Ambedkar was categorical that the “federal” nature of the Constitution was limited to the independence of the Legislature and Executive of the Union and the States. They are not two equal power centres. For that matter, the Indian Constitution doesn’t even use the word “federal”.

No constitution in the world is perfect. Although the US constitution came into existence in 1789, it took 130 years for women to get voting rights and 175 years for the Black Americans to get full civil rights. At least five times in the past, candidates who secured the highest votes were denied presidency due to the electoral college system. The Upper House in the American Congress, the Senate, is technically an undemocratic body in which Wyoming, with a population of half a million, has the same representation as California, which is 90 times bigger.

Yet, the country runs on a constitution that has just seven articles and 21 sections. In 230 years, it was amended only 27 times. Countries like the UK and Israel do not have a constitution at all. They function on rules and conventions.

Ultimately, the Constitution is only a statement of intent. The constitutionalism — acting in its spirit — of those who manage it is critical. We must always remember the American Supreme Court Justice Joseph Story’s caution: “Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded.”

Published by Ram Madhav

Member, Board of Governors, India Foundation

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