Balram K Gupta: ‘Constitutions are meant to have only the birthdays; no death days’

The CA deputed Rau to visit Britain, Canada, Ireland and US to study their Constitutional systems. In US, Rau met President Harry Truman, SC Judges, Charles Evans Huges, Felix Frankfurter and the judge and judicial philosopher, Learned Hand. Based upon their feedback, Rau made different revisions of the draft Constitution. CA studied the Canadian and Australian Constitutions as well and borrowed some provisions from these. The Directive Principles were borrowed from the Irish Constitution. The draft Constitution was circulated for public response and a large number of individuals, academics, societies, groups and government agencies sent comments on it. The feedback was also received from CJ of Federal Court, H.J.Kania. The framers did not introduce the British Parliamentary model, they introduced constitutional parliamentary democracy. In sum, the CA gave us a made-in-India Constitution.

The drafting and crafting of the Constitution is a serious exercise. But working out the Constitution is a more challenging exercise. The Indian Constitution is running the 74th year of its journey.

The US constitution is as old as 1789. The French Constitution of 1791 was followed by the French Constitution of October 4, 1958. The Australian Constitution is from 1900. The Canadian Constitution harks back to 1867. It was consolidated by the Canada Act, 1982 and the Constitution Act, 1982.

The Indian judiciary has made the Constitution a vibrant and robust document.

Now we are being told that our Constitution is largely based on a GoI Act, 1935, and it is also a colonial legacy. I have already referred to the concerted and meaningful efforts made by the CA in giving us the Constitution which belongs to the Independent India. We are also told that we no longer possess the Constitution which we gave to ourselves in 1950. This is true. Obviously, the Constitution is not a fossil. It is a plant that grows with time. The Parliament, which is under the Constitution, has amended it from time to time. The constitutional democracies survive only because the Constitution is supreme. We tend to forget that the Indian Parliament is not supreme like the British Parliament. This is the Constitution which the framers gave to us.

Justice AK Sikri’s book ‘Constitutionalism and the Rule of Law’, released on August 9, 2023, tells us what encompasses constitutionalism. Rule of law. Separation of powers. Checks and balances. Human and Fundamental Rights based on the notion of human dignity. Public trust. Restriction on exercise of arbitrary powers. The reasonable classification. Reasonable, just and fair procedures. The Indian Supreme Court has played a significant role in achieving these values of constitutionalism.

Constitutionalism is a set of limitations which make the Constitution endurable. The Indian judiciary is the shield of constitutionalism in the theatre of constitutional democracy.

The Constitution is a precious heritage. Therefore, its identity and essentials cannot be destroyed. In the Keshvananda Bharti (1973) case, the Constitution Bench of 13 judges laid down that the basics of the Constitution cannot be changed or destroyed. The Preamble and Article 368 itself enumerate the essentials of the Constitution.

The basic structure must be strong. It must also be protected. The last 50 years since Keshvananda Bharti, the basic structure has not come in the way of the Parliament in introducing economic and social reforms. Even the judiciary has supported them. An independent judiciary is the corner stone of constitutional democracy. The Parliament owes a constitutional responsibility to keep the Constitution in shape. The judiciary ensures that the Constitution is not defaced. The goal is common: To make the Constitution endurable.

Constitutionalism is an evolving process. Additions can be made. This precisely is the story of the Indian Constitution. There is no need to embrace a new Constitution. If you wish to have a new Constitution, the Parliament cannot think of having absolute power to amend the Constitution in any manner it so desires. The new Constitution will have to be based upon the experience of almost 75 years. The elements of constitutionalism, including basic structure, will be part of the new Indian Constitution. Therefore, why have a new Constitution? Without the constitutionalism and the independent judiciary, the new Constitution will not survive even for 17 years.
In the year of Presidency of G20, let us acknowledge the contribution of Indian judiciary in protecting the Constitutional Parliamentary Democracy.

(The writer is Professor Emeritus and former director of the National Judicial Academy)