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CONSTITUTION Ain't Broke So Why Fix it ? More than review the Constitution, implement it. The document has often been accused of failures that cannot reasonably be attributed to it. By Granville Austin As a student of India, for which I have great affection, and of its fascinating constitutional history, I have returned to Delhi at a moment when talk of "reviewing" the Constitution again is in the air.
The topics, I find, are not new: the role and independence of the judiciary, powers of the President and governors, stability of governments, role of political parties and the working of the party system, reservation of seats for various groups, the use of Article 356 and so on. Neither is "reviewing" the Constitution new. Depending upon how one counts them, there have been five major "reviews" since 1950. I have discussed these in my history of the working of the Constitution since 1950. The first review began in 1950, concluded in 1951 and produced the Ninth Schedule -- where government-selected laws were to be beyond judicial review. The second, by a sub-committee of the Congress Working Committee in 1954, produced such anti-judiciary sentiments that the then prime minister, Jawaharlal Nehru, blocked them from entering the Constitution. The third review, beginning with the Golak Nath decision of 1967, extending through the Nath Pai Bill and producing the 24th Amendment's declaration that Parliament could amend the Constitution by way of addition, variation or repeal, concluded with the apex court's "basic structure doctrine" in the Kesavananda Bharati case. The fourth review, by the Swaran Singh Committee in 1976, followed by the 42nd Amendment would have destroyed the country's democracy had it not been for the fifth review -- the Janata Party government's restorative 43rd and 44th amendments. The next review was in the 1980s: Justice Ranjit Singh Sarkaria's report on Centre-state relations -- excellent and largely ignored. The abiding lesson from these previous reviews should be -- if reviewing the Constitution at all, proceed with caution. There are very important reasons for proceeding cautiously. Constitutions in any country:
Politics in any country arises predominantly from its conditions and its culture. This being the case, would the politics of this country today be different tomorrow were the Constitution to be amended during the night? The Constitution has been accused of failures and weaknesses -- in recent articles and discussions -- that cannot reasonably be attributed to it. It would be absurd, as some individuals have suggested, to amend the Constitution in an attempt to meet the needs of those below the poverty line or to outline the obligations of foreign investors. The latter is best done by law -- ways to help the poor are amply described in the Constitution already. They remain unmet because of the enormity of the problems and the indifference of the haves to the conditions of the have nots. Proponents of the American presidential system and "directly elected prime ministers" seem unaware of the difficulties with each. Governments will become stable not through constitutional amendment, but when factionalism -- and its causes -- declines. As any mali knows, pulling up a plant to check the health of its roots may kill it. Past reviews of the Constitution of India have done it more harm than good in terms of the founding fathers' and mothers' intentions. Even Jawaharlal Nehru went wrong with the Ninth Schedule, as is now widely acknowledged. So the idea of "reviewing the Constitution" raises critical questions. One, what national aims or goals would be served by a review, and would amending the Constitution take the nation closer to the noble aims already there expressed? Two, what are citizens' reactions to the very idea of a review of the Constitution, for the Constitution belongs to them? Three, who has the moral and political authority to initiate a review -- as opposed to an amendment -- and to establish the modalities for conducting one, including deciding who are to be the reviewers? Four, what are the ramifications, nationally, of initiating a review and do they outweigh any recommendations for constitutional changes that might be forthcoming? Five, is it intended that any review process would be public? In my personal view, the Constitution needs less to be reviewed than to be implemented -- in letter and in spirit. The author is a historian whose Working a Democratic Constitution: The Indian Experience (Oxford) has just been released.
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