Indian Constitution’s Course Far From Tranquil: S.N. Misra

By Professor S.N. Misra

It was Justice John Marshall who had observed in 1821 “A Constitution is framed for ages to come and is designed to approach immortality as nearly as human institutions can approach it.  Its course cannot always be tranquil.”  The Indian Constitution is sixty seven year old and its course has been far from tranquil.

It would be useful to recall what K. Santhanam, a leading Constitutional luminary, observed during the debates in India’s Constituent Assembly: “The Constitution must usher in a social revolution which will get India out of medievalism based on birth, religion and community and reconstruct a modern foundation based on rule of law, merit and secular ideas”.  In retrospect, the socio economic revolution that the Constitution sought to achieve through its preamble and directive principles is what makes our journey of the Constitution both fascinating and humbling.

A careful reading of the Indian Constitution brings out messages of clarity, opacity and deferrals. There was complete unanimity amongst the founding father that the fundamental rights would be the conscience of the Constitution.

Influenced by America’s Bill of Rights, there was no prevarication on concepts like rule of law, right to freedom, right to life and abolition of untouchability.

The architects were also clearly wedded to the concept of federalism, a bequest from Government of India Act 1935 where the legislative powers of the Union and the States were clearly delineated. Though not specifically incorporated in the Preamble, India did not opt for a theocratic state like Pakistan, but a secular one where rights of every religious minority community would be protected and respected.

However, there was opacity in areas like separation of powers between the Executive, Legislative and the Judiciary.

Unlike the U.S. Constitution, India’s Constitution did not mandate that the President will be the head of the Executive; Parliament would be supreme in legislation; and judiciary would be the ultimate interpreter of the Constitution.  This has led to a slew of spats between the Supreme Court and the Parliament over its powers to amend.  In the Golaknath Case (1967) the court (6:5) disallowed Parliament’s attempt to amend the fundamental rights like Right to Property.  However, six years later the same Supreme Court with a wafer thin majority (7:6) in Kesavananda Bharati Case (1973) allowed Parliament to amend even the fundamental rights; with a caveat that it cannot emasculate and deface the basic principles like democracy, federalism, secularism and independence of the judiciary.  Right to property, which attracted maximum litigation in various high courts and the Supreme Court because of the plethora of Land Ceiling/Acquisition Acts brought in to end zamindari system, been now consigned to the dustbins of ordinary rights.  The Minerva Mills Case (1980) now clearly asserts that the Constitution and not the Parliament is supreme and the desire to have Parliamentary supremacy on the lines of British Parliament is illusory. It has also settled once for all, that the Supreme Court’s power of judicial review is beyond question.

The other area where the Constitution has provided a window of opacity is the exact relationship between fundamental rights of citizens and socio economic justice, incorporated as Directive Principles. After initial prevarication of the court in the Champakam Dorairajan Case (1951); the court has now clearly mandated that the Part IV is not a “veritable dustbin of sentiments” but in the words of Justice Y.V. Chandrachud: “the rights and goals of a nation are like two wheels of a chariot.”

The issues which were deferred by our Constitutional framers are far more interesting viz. uniform civil code and Hindi an the national language.

On the question of Indian language, the representatives of north central India wanted Hindi to be declared as the national language by replacing English immediately.  They claimed that a multilingual society was incompatible with Indian unity.  On the contrary, representatives from non-Hindi speaking region were of the view that “not uniformity but unity in diversity” should be the motto.  After three years of debate the Assembly overwhelmingly approved a compromise resolution known as Munshi-Ayyangar formula which became Article 434 to 451 of the Indian Constitution.  Instead of declaring Hindi as the national language English was to continue for all official purposes.  It was decided that this arrangement would apply for a period of 15 years, during which time Hindi would be progressively introduced into official use.  In addition, the Constitution recognized 14 other languages for official use in 8^th schedule of the Constitution.  In 1965 when the 15 year period elapsed, the government decided that English would remain the de facto formal language of India.

The other debate was over Uniform Civil Code which generated the most heated debate in the constituent assembly.  K. M. Munshi called for restriction of religion to the private sphere and promotion of unity and societal integration on the basis of civil national identity.  Naziruddin Ahmed warned against any radical constitutional provisions.  He stressed the importance of obtaining consent of community whose religious law would be affected by the new court.  Ultimately in order to pacify India’s Muslim minority, the assembly inserted Article 44 as a non justiciable provision for state to endeavor for a uniform civil code.  In the 1950s the legislature debated the Hindu code that were passed between 1955 and 1961 introducing reforms on issues like marriage, divorce, inheritance laws and adoption.  However, similar provisions do not apply to the Muslims.

There was a section in the congress which favoured Fabian Socialism.  Mr. Nehru wanted the Soviet model of centralized planning to come in and socialism to be part of the preamble.  However, it was left to his daughter to incorporate Socialism as part of the preamble in 1976 through the 42^nd Amendment.  The Planning Commission came up as an executive order of the cabinet.  The NDA government has since supplanted it with a Niti Aayog, dispersed with plan allocation and whittled down the scope of centrally planned schemes.  The era of cooperative federalism seems to be the new syntax of centre-state relationship.

The Constitution has witnessed 122 amendments, including the recent amendment to bring in Goods and Services Tax.  This will change the federal financial architecture significantly and foster a unified national market.  There is also an unwritten political consensus to eschew socialism of the past and opt for free market economics.  The supplanting of the Planning commission with a Niti Aayog, without much of a debate, is symptomatic of this ideological shift.

However, the major change of the Constitution has been constitutionalism, where the judiciary has stolen the march upsetting the concept of separation of powers.

It has flexed its muscles at every attempt to muzzle freedom of speech and expression. In the Shreya Singhal Case (2015) it has upheld free speech in social media.  It has also given an expanded meaning to right to life, by including right to shelter, clean water and environment as fundamental rights. There are suggestions to dispense with Rajya Sabha, as being obstructionist, scrap the special status of J&K (Article 370) and usher in a uniform civil Code.

Democracy is about sober debating and can’t be whisked away by the tyranny of the political majority.

The deferrals at the time of founding our Constitution like the Uniform Civil Code is not a manifestation of weakness of our founding fathers but a realization that responsible dissent is the essence of democracy in a multi religious country.

[The author is a former Joint Secretary to Government of India and now Dean of School of Management, KIIT University Email: misra.sn54@gmail.com, Phone: 7381109899]