Opinion Who gets to rewrite the Constitution?
As India strengthens its position globally and, given the changes which have taken place domestically, we must look at and embrace new constitutional ideas. But these can be incorporated into the existing manuscript. Why the insistence to re-write it?
Our Constitution is a document for “we, the people of India”.
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The Indian Constitution is the world’s largest written constitution. Divided into 22 parts with several sub-chapters, it consists of 12 schedules and several appendices. It has survived the test of time in upholding the rule of law and keeping intact the unity within our diversity. It is a living document in as much as it can be, and has been amended several times to adapt to the changing needs of society. The legislature, judiciary and executive all derive their powers from it. In fact, our elected representatives and judges affirm their oath to office by bearing faith and allegiance to our Constitution. Does this make it worthy of worship?
On November, 25, 2021, the eve of Constitution Day, the speaker of Lok Sabha, Om Birla, published a newspaper article where he commends the framers of our Constitution for having incorporated “the cardinal values of liberty, equality, fraternity, and justice” and lauds the timeless ideals enshrined in our Constitution which have helped us establish a social, economic and political democracy. He notes that, as a nation, we have faced numerous challenges, but our Constitution has helped us successfully surmount these, that “our Constitution is a sacred document and everyone should be fully committed to its ideals.” The Speaker emphasises how the “Constitution lays down the road map for the process of nation-building” and how he has “no doubt that the Constitution of India will be our guide, friend and philosopher in this task.” Does this make the Constitution inviolable?
Our Constitution has been described as “too long, too rigid, and too prolix” and has also been critiqued for being written in legalese, given the predominance of lawyer-politicians in the Constituent Assembly. Is that enough for a relook? Ram Madhav, an RSS idealogue, recently wrote (‘A Living Document’, IE, September 9 ) that “the saga of our Constitution, including the debates, is most inspiring” and goes on to write that “the suggestion to junk it is premature” and states that “countries do not replace constitutions at the drop of the hat.” He is correct, although he goes on to say that “a re-examination of various facets of the Constitution from time to time” may be required.
Do our courts not do this regularly? As India strengthens its position globally and, given the changes which have taken place domestically, we must look at and embrace new constitutional ideas. But these can be incorporated into the existing manuscript. Why the insistence to re-write it?
As noted jurist Fali Nariman states in his latest treatise, You Must Know Your Constitution, “We will never be able to piece together a new Constitution in the present day and age simply because innovative ideas however brilliant and howsoever encouragingly expressed in consultation papers and reports of commissions, can never give us an ideal Constitution. In constitution-making, there are hidden forces that must not be ignored, viz., the spirit of persuasion, of accommodation, and of tolerance.” It is worth highlighting that a total of 7,635 amendments were tabled before the Constituent Assembly out of which 2,473 were moved and debated during the nearly three years it took to draft our Constitution. During this time, many members did not yield to the rule of party discipline and went beyond by raising ideological issues. Do we have the resilience today to replicate all of the above?
Nariman adds: “The life of a written Constitution — like the life of law — is not logic (or draftsmanship) but experience.” The US also has a written constitution, although not as detailed as ours, which has lasted over 200 years. Contrastingly, the original constitution of Sri Lanka was much shorter than ours and lasted only 14 years.
The US Supreme Court lauds its unprecedented determination to preserve and protect its written constitution. It acknowledges that the “power of ‘judicial review’ has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a ‘living Constitution’ whose broad provisions are continually applied to complicated new situations.”
James Madison, who played a pivotal role in drafting the American Constitution and served as the fourth President, wrote, “Constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining… the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.” Do similar challenges confront us?
B R Ambedkar, chairman of the Drafting Committee, in the final discussion before the adoption of the Constitution stated that he would not enter into the merits of the Constitution as “however good a Constitution may be, it is sure to turn out 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.” Resultantly, the “working of a Constitution does not wholly depend upon the nature of the Constitution.” Ambedkar felt it is “therefore futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play.”
After all, our Constitution is a document for “we, the people of India”. For some people, the Constitution is sacred. For others, it may not be. Fair, given that individuals are free to be convinced of their own version of truth. But at some point, people have to choose between reality and historical negationism.
The writer is a Senior Advocate in New Delhi
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