The Constitution tries to do too much. It needs to be made to do less
TCA Srinivasa Raghavan | 25 Aug, 2016
‘SI AINT FREGIT, noli id reficere’. That, according to Wikipedia, is Latin for the wise American advice, ‘If it ain’t broke, don’t fix it.’
But what if it is broke? That’s perhaps why the Indian Constitution has been amended a hundred times in 69 years with more amendments in the offing. It is a clear outlier because, in contrast, the US Constitution has been amended only 33 times in 227 years.
The Australian Constitution has been amended eight times in 116 years. (There it takes a referendum to get it done). The Irish Constitution, from which ours borrowed quite a lot, has been amended 33 times in about 75 years. The French have made about 30 amendments in 56 years, but most of these are about their colonies and elections, etcetera, not about administrative problems.
Surely, then, this must force us to ask an obvious question: if we have had to ‘fix’ it so many times, the original couldn’t have been all that great, could it?
And the simple truth is that although it is a fine document from an aspirations point of view, it is simply not a practical one for a politically independent India. It suffers from two flaws. One is that its design and purpose is a colonial one: that is, of a very strong central government that the British had prescribed via the Government of India Act, 1935. That Act was not designed for change or even managing change; it was prescribed for maintaining the status quo. The other problem is that it gets into too much detail of the administrative kind.
As a Chief Justice of the Supreme Court pointed out back in the late 1960s while speaking about tensions between the Executive and the provisions of the Constitution, the constitutional design does not support the kind of pace that free India’s governments wanted, not least because unlike the British in India, they had to win elections.
This has made conflict between the Executive and the Judiciary inevitable, even on matters that do not have any bearing on individual rights and freedoms.
ASK ME FIRST
The 1935 Act had sought to ensure that after very limited administrative and legislative power was handed over to the elected provincial governments formed by Indian political parties, they were not free to use those powers without permission from Delhi. That was okay for the British to do. They were our lords and masters who only wanted to make a token genuflection towards democracy and self-rule.
Our Founding Fathers made many changes to that disk operating system, as it existed in 1947. But they failed to change this important aspect, of prior permission, that formed the backbone of the governance principle. This major warp in the weave has had a devastating impact on how we are governed. Its history is not very well known, so let me digress briefly.
When Victorian priests began to arrive here in large numbers in the 1870s, they found the ‘native Hindoo and Mohammedan’ practices abominable and the people ‘shifty, untrustworthy and generally dishonest’. They also had a huge influence on the rulers, and persuaded them to frame laws— many of which persist to date—based on the overall principle that almost everything required permission from some designated authority at different tiers of the government.
The irony was that this was the exact opposite of the practice in Britain where citizens can do anything that is not specifically forbidden by law. In India, they stood this on its head: citizens can only do those things that are specifically permitted. The Constitution reflects that underlying principle. That is one reason why it is so enormous and obsessed with what is basically administrative procedure.
That, and the fact that more than half the members of the Constituent Assembly were lawyers, ensured that they got bogged down in too much detail. This has made change well nigh impossible because of the differing interpretations and the strict conditions that have been laid down. For example, anyone in India can take the plea of something being ‘ultra vires’ at the drop of a hat and the courts will entertain it because they must.
WHEN IN DOUBT, AMEND
Then there were the exigencies. These, naturally, had not been anticipated fully because it would have been simply impossible to think of all the problems that could arise. Little wonder then that the very first amendment—moved by none other than Jawaharlal Nehru—came as early as 1951, a mere year after the Constitution was adopted.
It arose out of a ban imposed in 1950 by the Madras Government on a critique of Nehru’s policies. A Leftist magazine was forbidden by the state’s Congress government from criticising Nehru. The author was Romesh Thapar who later became a great supporter of Indira Gandhi when she started relying on the Left for support in 1969. Such are the ironies of history.
The Constitution is a fine document from an aspirations point of view, but it is simply not a practical one for a politically independent India
Amongst other things, the first amendment abridged the right to free speech that is guaranteed in Article 19. It also empowered the Government to make discriminatory laws that favoured special groups. The idea of ‘reasonable’ restrictions, without defining reasonable in whose eyes, was thus introduced into logic.
With constitutional amendments legitimised in this fashion, we have lurched from one amendment to the next, including amendments to amendments. The Constitution of 2016 can be likened to a house that has been modified from time to time to meet current needs of the family and now bears little resemblance to the original.
Nehru meant well. But by failing to appreciate that a constitutional amendment had to be the last, rather than the first response, he failed to anticipate the waywardness of his successors, including his own daughter. During Emergency in 1976, she brought in an amendment that placed her, as Prime Minister, above the law—including for crimes! The President and the Vice- President were also exempted.
The irony or the tragedy, depending on your point of view, is that most of these amendments have been necessary, which strongly suggests that the Founding Fathers should have been content with a much smaller document that refrained from wandering off into procedure, which actually, was a neat little British ploy to constrain rather than empower.
The makers of our Constitution loved the idea of micro-management by process. Instead of making India a country governed by principles, they made it one governed by rules. Only the bureaucrats who were entrusted with rule-making benefitted, but only before they retired; everyone else was left worse off.
There was another difficulty. Taken by itself, each provision in the Constitution is reasonable. But when viewed in whole, the same provisions often turn the Constitution into a ball and chain. Not every provision, not every group of provisions, but enough of them to make us ask: is it broke? Is there a need to fix it?
CONFUSION BY CONSTITUTION
What are we, a real federation or a unitary state with federal features, as the Supreme Court called it back in 1962? Whatever we are, the question to ask is who and what caused the confusion that led to this compromise? That interpretation left no one any wiser about the real nature of the Indian state; nor did it solve any problems. It was just a play on words, a jumla, if you will.
But the Union of States thing wasn’t the only grey area. There are a whole lot of other vexatious provisions in the Constitution. Let us look at a few.
One of the biggest problems that the Constitution has created for India is by preparing those three lists called the Central List that contains subjects on which only the Centre can legislate; the States list that contains subjects on which only the states can legislate; and the real zinger, the Concurrent list, on which both can legislate. And then there is Entry 97 of the Seventh Schedule which says the Centre can legislate on any matter that is not contained in the other three lists, including taxes.
Instead of making India a country governed by principles, the makers of our Constitution made it one governed by rules
Ideally, there should be only two lists and many of the matters in the Central list should be moved to the States list. The Concurrent list should be abolished. It is too Soviet in design and intent.
Another example of Central intent is Article 74 which says that the President is bound by the advice of the Council of Ministers which in practice means the Prime Minister. This amendment was introduced by Indira Gandhi who liked to have her own way. She did this during Emergency via the 42nd Amendment. While most of the amendments made during the Emergency have been repealed, no government has thought it fit to repeal this one because it has reduced the President to a rubber stamp.
Then there is Article 356, which allows the Centre to dismiss a state government if the Governor of the state writes to it saying that the constitutional machinery has failed. This is another pure British device which has been retained. The Supreme Court has defanged it somewhat since 1992 but it’s there, as the Modi Government reminded us twice in a year, first in Uttarakhand and then in Arunachal.
Nor must we forget the notorious Article 370, which, as it happens, is not the only one of its kind. Article 371 also confers special status on a host of states. Eight of its nine sub-clauses are more complicated than even quantum physics. The problem is that they are necessary, which alas, cannot be said of Article 311. This terrible Article has an interesting provenance. This article protects government employees from being sacked unless it can be proved that they are mad or morally challenged.
It owes its existence to a grievance of White ICS officers after the Montagu-Chelmsford reforms of 1919. They could not countenance the idea of their jobs being at the mercy of natives who were to practice limited self-governance after the Montagu- Chelmsford reforms.
So the practice was introduced that only the appointing authority could dismiss them. This meant the Viceroy or the Governor. This was formalised in the 1935 Act and adopted by our Founding Fathers to apply to all government employees. They thus gave a lifelong licence, of more than 35 years, to government employees to not work but yet draw pay and allowances. We can see the consequences all around us, on a daily basis, at every level of government employment.
The Constitution also mandates cow protection and prohibition in the Directive Principles; reservation for certain groups of citizens, thus overtly introducing discrimination; and complete confusion of taxation as to who can tax what. Incomes can only be taxed by the Centre and agricultural incomes not at all by anyone. The last has been used to their own advantage by politicians.
We need to have a good hard relook at the dear old thing with a view to simplifying it. The Constitution is just too complicated at present
Another major set of problems with the Constitution has been that it has allowed political considerations to initiate and conclude major amendments. This was in abundant evidence during the Emergency when all sorts of repugnant amendments were passed by a cowed-down Parliament. But that was not the only time. As late as 2006, in the office-of-profit case, the Constitution was amended for the benefit of one person: Sonia Gandhi. It was found that, contrary to the law under Article 102, she was holding an office of profit: that is, one where she received ‘financial benefit’ while being an MP. This is forbidden not just in India but in many countries. The law was amended by the Government to exempt as many as 56 posts from the definition of office-of-profit. But had it not been for the Sonia case, nothing would probably have been done.
REVIEWED, RECOMMENDED, REJECTED
It is possible to enumerate a whole host of other confusions in the Constitution that make it harder to govern India than it already is. But the point is clear: we need to have a good hard relook at the dear old thing with a view to simplifying it. At present, it is just too complicated.
The first NDA Government under Atal Bihari Vajpayee had initiated precisely such an exercise under Justice MN Venkatachaliah in 2000. It was asked to ‘examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of Parliamentary democracy, and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features’. It submitted a report with detailed and comprehensive recommendations in 2002. These have not been accepted or even considered by any government since then. No reasons have been given either.
It is unlikely that there will be another Constituent Assembly to construct a new Constitution. We will have to plod along with this one, trying to make it work in ever-changing circumstances and needs. All that we can do as amendments become necessary is to keep a sharp lookout to ensure that the basic structure guaranteeing the freedom of citizens is not changed.
As the poet said, the price of freedom is eternal vigilance.