The way forward

FALI S. NARIMAN

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A written constitution when enacted takes on a life of its own. It moves along under the guidance of its appointed functionaries who sometimes function well, but sometimes they also function badly. So, a written constitution develops its own ethos. It ultimately fulfils the destiny of the country for which it is written – if it lasts!

The Indian Constitution was barely a year old when Sir Ivor Jennings – prolific author of Westminster-type constitutions – was invited by the University of Madras to deliver a lecture on its provisions. Jennings did not think much of our document of governance. ‘Too long, too detailed, too rigid’, was his laconic comment.

By the nineteen sixties, the same Ivor Jennings had been commissioned to write a new constitution – for the Island of Ceylon: the Soulbury Constitution, as it came to be known. But despite all precautions taken in its drafting, it lasted only seven years! The first lesson then about written constitutions is that they do not function on their own. A special effort has to be made by the custodians – those entrusted with their functioning – to work them.

As to how those in charge of the levers of power in India attempted this is set out in detail in Granville Austin’s book published in 1999.1 For his analysis of the working of India’s Constitution in the first fifty years, Austin drew on documentary material and (what historians now call) ‘personal information’ painstakingly acquired through interviews with important functionaries at various levels. In the long and detailed Constitution of India 1950, Granville Austin sees three distinct strands: (i) protecting national unity and integrity, (ii) establishing the institution and spirit of democracy, and (iii) fostering social reforms. The strands are mutually dependent and inextricably intertwined in what he elegantly describes as ‘a seamless web’.

It is under this seamless web of a ‘lawyer’s constitution’ (as Jennings had sneeringly characterized it), that we have regularly held elections every five years on the basis of adult franchise: as many as 650 million people exercised their franchise in May 2004, and more than 700 million citizens voted in the subsequent general elections in April-May 2009. Despite the misgivings of constitutional historians, whenever governments in India, whether at the Centre or in the states, have been voted out, transfer of power has been according to the provisions of our written Constitution, even though occasionally it may not have been consonance with its true spirit.

 

I recall with pride Prime Minister James Callaghan’s tribute when Indira Gandhi was defeated at the polls in March 1977. Callaghan said that the ultimate mark of a true democracy is the willingness of a government defeated at the ballot box to surrender power peacefully to its opponents. This is what had happened when the Janata Party swept the polls. And this is what happened again when those who held power since March 1977 were in turn defeated at the elections of 1980, and Indira Gandhi came back to power.

Truly then, this constitution embodying a parliamentary form of government was not only a compulsion of geography – shaken and divided by the ‘earthquake’ of the Partition in 1947 – it was also a compelling accident of history. Because, in 1947, the British left us, somewhat in pique. Amidst the trauma of Partition, the members of India’s Constituent Assembly, motivated by the urgent need to preserve the political and cultural unity of what was left of British India, valiantly rose to the occasion and forged the document that became the Constitution of India 1950.

The life of a written constitution – like the life of the law – is not logic (or draftsmanship), but experience. And sixty years of experience on this subcontinent has shown us that it is easier to draft a constitution than to work it – Pakistan and Bangladesh have drafted and crafted different written constitutions at different times, but they have been interspersed with long periods of martial law and civil and military dictatorships. We will never be able to piece together a new constitution in this present day and age even if we tried, because innovative ideas however brilliant – howsoever beautifully expressed in consultation papers and reports of commissions – cannot give us a better constitution. There are other forces in the making of a constitution that cannot and must never be ignored – the spirit of persuasion, of accommodation and of tolerance. They bear their indelible imprint on all constitution-making and all three are at a very low ebb today.

 

As for me, I am proud of our Constitution. The most eloquent words in it are: We the people; they are also the opening words of the world’s oldest constitution, that of the United States of America. But what about the overwhelming majority of India’s now overpopulated millions, who were not born before 1950? They were not included in ‘We the People’. How then are they provided for in our written Constitution? A shrewd politician gave an answer to a similar conundrum raised in connection with the USA – many years ago. She said – yes, it was a woman – a Congresswoman:

‘We the people’ is a very eloquent beginning. But, when that document was completed on 17th September, 1787, I was not included in that ‘We the People’. I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake.

But I realize that it is through the process of interpretation and Court decision that I have been finally included in ‘We the People’.

Nicely put.

 

Well that in a nutshell describes what has been the role of our Supreme Court – by interpretation and court decision it has broadened the reach of the Constitution’s provisions; it has included within the range of its beneficent provisions those who were not born when India got independence.

That is why I am proud of our judges, present and past, who have interpreted and sustained this Constitution, which was framed for only 350 million people, most of whom are not alive today. This is one of the ways in which a written constitution is made to grow into a dynamic living document. Another way is through conventions: an amendable constitution like ours has to evolve with experience. Before we think of revisions and amendments we must first establish working norms or conventions. That is how all constitutions are run.

Despite the fact that ours is the longest constitution in the world, there are significant silences in its provisions. They have been explored by enlightened constitutional functionaries from time to time – and when these silences are probed, they help to constitute precedents: Let me give one or two instances:

Though the President is bound by the advice of his Council of Ministers regarding promulgation of ordinances, there is nothing in the Constitution preventing him from drawing attention of the Council of Ministers to the seeming impropriety of a particular ordinance being promulgated at a particular time. At a time when the Tenth Lok Sabha had, all but in name, been dissolved, the Narasimha Rao government placed two ordinances before the then President for promulgation – namely, one for shortening the period of poll campaigns from three weeks to two weeks and the other to extend reservations to Dalit Christians. The proposed ordinances embodied the provisions contained in two Bills, which the government had sought to introduce on 12 March 1996 (the last day of the Tenth Lok Sabha), but was disallowed by the Speaker (Shivraj V. Patil) because he said it could not merely be introduced and left in limbo pending a dissolution.

 

After the dissolution of Parliament, the ordinances were then sent to the President – they were in the same terms as the Bill that was not permitted to be introduced by the Speaker. The President, Shankar Dayal Sharma, to his credit sent the ordinances back to the government of the day with a note dated 19 March 1996 that read:

‘I would like to inform you that independent of the relative intrinsic merits of the Ordinances proposed, promulgating these Ordinances would appear to be inappropriate and contrary to the canons of constitutional propriety in view of circumstances existing at this particular juncture.’

His successor, President K.R. Narayanan, acting under the proviso to Art. 74(1) also, returned for reconsideration the proclamation seeking to introduce President’s Rule in Bihar. As was his practice, Narayanan gave elaborate reasons for his decision. And the Union government under the prime ministership of Inder Gujral wisely refrained from reaffirming its recommendation under the proviso to article 74(1) and so ‘ensured the smooth working of the Constitution.’

The opening words of the Constitution – ‘We the People’ – tell us at the start, who this constitution is for. But in a pluralistic society like ours, in a vast subcontinent like this – in a land of a ‘million mutinies’ (as V.S. Naipaul has described it) – who really are the people? For me, they are all typified in that great cartoonist Laxman’s ‘Common Man’. Not too long ago a former President of India unveiled in Pune a eight-feet high bronze statue which was extolled as the ‘worlds’ tallest metal statue of a cartoon character.’ It typifies – as no other single manifestation does – the quizzical doubts of the common man about whom this great document is for: every generation throws up its common man: a generation being defined as that whole body of individuals born about the same period (a generation as you know is usually computed at 30 years).

 

By this computation there have been two successive generations since 1950 and if we are to show the present generation (typified by the ‘common man’) this document of governance or tell him about it, he is bound to ask, on behalf of the common people he typifies: ‘Tell me, what has it done for us? How are we better off?’

In answer, we can perhaps point to the Chapter on Fundamental Rights (part III), which owed much to the standard setting Charter of the United Nations (1945) and the almost contemporaneous Universal Declaration of Human Rights (1948). But has the Chapter on Fundamental Rights worked as truly intended? A troublesome question best left to be explored by a future constitutional historian of the stature of the late H.M. Seervai.

In his exhilarating Hamlyn Lectures, Justice Stephen Sedley2 has reminded his readers that the rule of law of which we speak so glibly, is a necessary but not a sufficient condition of a decent society. There is more to a decent society than the rule of law (he says) – for instance: judicial enforcement of rights by courts of law do not necessarily guarantee public understanding and support for those rights; such understanding or awareness needs to be inculcated, and this is only achieved by meaningful education.

 

There is another reason why we cannot fashion another constitution. We are living in an age when there is an all-pervading rights culture. The experience of sixty years of working a written constitution has shown that a ‘rights culture’ generates greater dissatisfaction amongst persons propounding different sets of rights. For instance, to what extent should the claim based on merit and on the fundamental right of equality be ignored? How far does the Constitution, truly interpreted, direct us to go? How soon are we to atone for the oppression of centuries? Should we go on equalizing downwards? And (then) for how long? These questions surface periodically.

Yet the under-representation of the underprivileged in public employment continues to remain highly disproportionate and, as Ralph Bunche, the man who was closely involved in drafting the Charter of the United Nations once said, ‘Inalienable rights cannot be enjoyed posthumously.’

Amid all the controversy and vacillation one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain, the ideal of an egalitarian society envisaged in our basic document of governance will remain a dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can providence. Truly, it is not in our stars but in ourselves that we are thus.

It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed (in 1950) to be achievable goals. We have abolished untouchability and outlawed backwardness in the Constitution of India (Article 17). But alas, most of us have not eliminated it from our hearts. We have somehow forgotten our heritage of accommodation and tolerance. It is time we remembered.

 

Writing in the quiet seclusion of a British prison in 1944 (during his ninth term of imprisonment for revolting against the British), Jawaharlal Nehru contemplated ‘the variety and unity’ of India. He wrote:

In ancient and medieval times, the idea of the modern nation was non-existent, and feudal, religious, racial, and cultural bonds had more importance. Yet I think that at almost any time in recorded history an Indian would have felt more or less at home in any part of India, and would have felt as a stranger and alien in any other country. He would certainly have felt less of a stranger in countries which had partly adopted his culture or religion. Those, such as Christians, Jews, Parsees, or Moslems, who professed a religion of non-Indian origin or, coming to India, settled down there, became distinctively Indian in the course of a few generations. Indian converts to some of these religions never ceased to be Indians on account of a change of their faith. They were looked upon in other countries as Indians and foreigners, even though there might have been a community of faith between them.3 

A few years after Panditji wrote his Discovery of India, the Human Rights Commission of the UN carried out an inquiry into the theoretical problems raised by a Universal Declaration of Human Rights. A questionnaire was circulated to various thinkers and writers of member states of UNESCO; they were asked, as individual experts, to give their views. One of the chosen experts was Mohandas Gandhi. He responded in a brief letter to Julian Huxley, the Director General of UNESCO. The letter was written in May 1947, in a moving train (those were troubled times – the days before India’s independence). This is what Gandhiji wrote:

I learnt from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done. The very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of Men and Women and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for.

 

When we gave ourselves a constitution it was certainly good to provide rights enforceable against the state and state agencies. But I believe that it would have made a difference to our attitudes and our national consciousness if we had stressed also the responsibilities of one citizen to another.

The subsequent inclusion in the Constitution of Part IVA (‘Fundamental Duties’) has not inspired much enthusiasm amongst the citizenry, possibly because this part was enacted during the period of the forced Internal Emergency of June 1975. That period of the Internal Emergency was a period when constitutional functionaries failed us – from the President downwards. And it is good to recall this once in a while.

Why did all of them – ministers, parliamentarians fail us? Was it a sense of fear? Some in high places did confess to it. I do not think this is true of persons holding key positions of power. For them, the only explanation is that they were not sufficiently imbued with the spirit of a written constitution. The constitution you see doesn’t work – never works – on its own: it depends on the wisdom and statesmanship of its constitutional functionaries.

 

Constitutional functionaries completely failed us during that June 1975 Emergency: we could perhaps say, in retrospect and in extenuation that this was because times were ‘bad’. But constitutional functionaries have failed us in other times as well, even in the good times. For instance, when the Janata government came to power in March 1977 on a tidal wave of protest against the phoney Emergency (of June 1975).

The Janata Party had always castigated the Congress Party and the Centre on the misuse of Article 356 of the Constitution (imposition of President’s Rule). But gaining power at the Centre for the first time they manipulated that article to suit their political purpose.

In May 1977 a circular was issued by the Home Minister Charan Singh, a constitutional functionary in Morarji Desai’s Council of Ministers. Under its terms, chief ministers of nine state assemblies were asked to recommend dissolution of their respective state legislatures even though in respect of some of them (the state assemblies of Rajasthan, Orissa and Punjab) the constitutional term of five years had not then expired (the Union Law Minister endorsed the circular of the Home Minister saying that a clear case had been made out for the dissolution of assemblies of nine Congress ruled states and there was need for holding fresh elections). All this was a pressure tactic not envisaged by either the text or the spirit of the Constitution. But it worked.

When the circular was challenged by the concerned state governments, regrettably (in retrospect), our Supreme Court endorsed approval (in May 1977) of the Home Minister’s circular – in the case of state of Rajasthan vs. Union of India (by a majority 5:2) paving the way for the imposition of President’s Rule under Article 356 in all the nine states, and rudely shaking the balance of the federal structure under our Constitution.

 

The judgment also exhibited the truth of Justice Benjamin Cardozo’s oft-quoted remark that the hydraulic pressure of great events do not pass judges idly by! Because in March 1994, the Supreme Court of India did say in a larger Bench decision of nine judges (in Bommai’s case) that the view taken in the state of Rajasthan case was erroneous: that the mere defeat of the ruling party at the Centre could not by itself without anything more entitle the newly elected party which assumed power at the Centre to advise the President to dissolve the assemblies of those states where the party in power was other than the one in power at the Centre. But all this was said when it was too late to have any practical effect.

Because when the Janata wave had petered out, and Indira Gandhi’s Congress Party came back to power in 1980, it was the Supreme Court judgment of May 1977 (in the Rajasthan case) that was used to invoke Article 356 and to dissolve all the nine state assemblies composed at this time of a majority of Janata Party members!

President N. Sanjiva Reddy signed the Proclamation – with some hesitation. He is reported to have said: ‘Given the precedent, how could I say No.’ Granville Austin records in his great book, Working a Democratic Constitution, that Sanjiva Reddy also said: ‘I told Indira that Morarji had been wrong in principle and to dissolve again was still wrong.’ But even with this mental reservation, the President went along and signed the proclamation! These are but a few of the glaring instances when political expediency of the moment was made to prevail over adherence to constitutionalism and constitutional norms.

You see there is much pathos in a democracy – in fact a great deal of it. The tragedy of a free people freely participating in electing governments, and then bemoaning their fate, is often seen as the tragedy of freedom squandered. But the alternative, the alluring alternative of a would be autocracy or dictatorship, is a far greater tragedy: the tragedy of freedom denied.

 

I believe that we all must learn to differentiate between constitutional democracy and constitutional liberalism. The British rule in India, for instance, did not provide a ‘constitution’, nor any ‘democracy’ for the people of this vast subcontinent. But with the establishment of an even-handed justice system, it did stimulate a spirit of constitutional liberalism amongst its inhabitants. Constitutional liberalism is about government’s goals rather than the procedures for selecting governments.

Democracy, and a written constitution, is simply not enough. In an age of images and symbols, elections – so essential for every representative democracy – are easy to capture on film, and be transmitted through the media to various parts of the world. In February 1999, and in May 2004 and again in May 2009, the world witnessed on television flashes of six to seven hundred million voters in India going to the polls, once again. It did help to renew one’s faith in the democratic system. But we must ask ourselves this: how does one televise the rule of law? Because the rule of law is the expectation of the electorate after elections, and yet this is hardly ever reported or pictured – when it is, it only reflects a string of broken election promises.

There is little glamour in life after elections! Democracy, without constitutional liberalism, pays only lip-service to the rule of law and in its wake brings with it erosion of liberty, abuse of power, ethnic division, and strife.

 

We must be wary of elected governments wherever they function. And we must strive in ways that are legitimate, and with the assistance of independent and fearless judges, to keep elected governments accountable. In this 60th year of the working of our written Constitution, we must help to revive that spirit of consensus and idealism that inspired its drafting. We must help cultivate a spirit of constitutionalism amongst the people of India. As I see it, these will be the more important concerns of responsible citizens of this vast country in the next decade.

 

Footnotes:

1. Granville Austin, Working a Democratic Constitution: The Indian Experience. Oxford University Press, Delhi, 1999.

2. Right Honourable Lord Justice Sedley, Freedom, Law and Justice. The Hamlyn Lectures, Sweet & Maxwell, London, 1999.

3. Jawaharlal Nehru, The Discovery of India. Signet Press, Calcutta, 1946, pp. 55-57.

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