Editorial Articles


volume 34, 23-29, November 2019

The Strengths of Indian Constitution

Shivaji Sarkar

The Constitution protects individual freedom, places power in the hands of citizens, limits the power of the government and establishes a system of checks and balances. It also allows to amend it, as the people like, through parliamentary process.

That is the Constitution of India. It is one of the bulkiest Constitutions of the world. It is rigid as its basic structure cannot be changed. It is flexible as it can be interpreted and amended. It ensures federal system with a unitary bias, gives fundamental rights and enshrines duties too, have directive principles of state policy, and parliamentary system of government.

Most importantly, it gives to the people independent judiciary, which can interpret the Constitution, its amendments and accept or reject any new law or amendment.

Parliament and state legislatures have the power to make laws within their respective jurisdictions. However, this is not absolute in nature and subjected to judicial review. If a law violates any provision of the Constitution, the Supreme Court (SC) has the power to declare such a law invalid or ultra vires.

Article 368 gives parliament powers to amend the document. But since parliament or any legislative body may act under political compulsions and enthusiasm, founding fathers entrusted with the Supreme Court the powers to review.

The basic structure doctrine is concerned with preserving the sanctity of the Constitution as a higher law. It was developed by the Supreme Court (SC) in Kesavanand Bharati vs State of Kerala (1973), where the SC held that the Constitutional amending power was subject to implied limitations - basic features of the Constitution.

However, this was not the first time the SC did so. The most significant judgment came in 1950 itself when it extended Article 19, freedom of expression and speech, to include freedom of the press.

The Constitution formally commenced 70 years ago on January 26, 1950. The date was chosen to commemorate the declaration of "Purna Swaraj" at the Lahore session of the Congress in 1929. This day was celebrated as independence day by the Congress. Since 1950, it became the Republic Day as the country bestowed the people of India the statute.

Indeed it has been a unique document prepared by the Constituent Assembly (CA) that was formed as per the provisions of Cabinet Mission Plan of May 1946 for formulating the Constitution for facilitating transfer of power from British authorities to Indians. Dr Rajendra Prasad was elected President of the CA, while VT Krishnamachari and HC Mookerji were vice-presidents. Its secretary general was HVR Iyengar and chief draftsman was SN Mukherji.

After authentication of copies of the Constitution, the CA was dissolved and its chairperson was elected the President of India.

The CA as per records had maximum membership of 307 at the end of its tenure. It had taken help of non-members as well in committees to give the nation an effective document.

Interestingly, Parliament since mid 1990s under the then Speaker Shivraj V Patil reintroduced the committee system, of members of parliament, for discussing the central budget and other bills in detail as the full house was not able to go into the depth.

This was a major reform of the parliamentary proceedings. It has since been an effective system of discussing the bills and budget threadbare.

The CA itself had gone through difficult phases during the draft preparation. KM Munshi played a crucial role of regular link between the Drafting Committee and the Congress Assembly Party. Overall the debates and discussions were of an incomparable standard and intensity. The last voting for adopting the document took place on November 26, 1949.

The final calligraphed document was signed on January 24, 1950 in English and Hindi. Pt Jawaharalal Nehru, prime minister, was the first and Dr Rajendra Prasad, President, was the last to sign these documents. Two days later it was formally bestowed to the 36 crore people of the country.

The founders had the vision to look at different social aspects. Directive principles of state policy aim at establishment of welfare state by securing social and economic justice. Fundamental rights guided by this policy have in principle been trying to establish a classless, casteless and exploitation and discrimination free society.

Various programmes including MNREGA or the recent pension for farmers and other classes of workers or small business people or OBC and EBC reservations have been possible because of these guiding principles.

The making of the Indian Constitution is unparalleled. It takes care of magnificent diversity of languages, faiths, customs and differences.  Drafting such a document in post-partition surcharged social milieu was not easy. Despite whip, many spoke against the tenets of the Congress party in CA.

The document often criticised for its bulkiness has stood the test of time despite some attempts during emergency to change it. Attempt for having an autocratic regime by late prime minister Indira Gandhi could not succeed except for the 19 months.

But post-colonial era, such attempts failed across the world in Africa, Latin America and even in the Indian sub-continent. Constitution of Pakistan was declared in 1956 but succumbed to a military dictatorship of Ayub Khan in 1958. Sri Lanka, Burma, Nepal, Maldives and even Bangladesh went into Constitutional turmoil.

Indian Constitution became the 'cornerstone' as it allowed free discussion, allowed flexibility though remained firm on its structure. It has been amended 104 times and still maintains its character.

That is its magic. The founding fathers took its essence from the Bill of Rights, British government of India Act 1935 as also drew finer points from American, English, French statutes and Russian revolutions.

Possibly, it is for this reason that several attempts to redraft or change the statute did not succeed. During Indira Gandhi's time some leaders screamed for a presidential system a number of times. She altered through the 42nd Amendent Act, 1976 the basics. It was corrected by 44th amendment Act during Janata Party rule in 1978.There were some discussions for having a relook through national commission to review the working of the Constitution in 2002. It was abandoned.

 Some rumblings take place from time to time. But the bulky book has not been found easy to handle. It amends itself. Even the preamble was amended to include two words socialist and secular. But it has not been found easy to tinker with.  That is possibly what the SC says its basic structure.

It combines strong centre with union of states and UTs, accommodates linguistic varieties with 22 recognised languages and other socio-cultural diversities.

It goes into detail on conduct of elections in Article 324.

It maintains balance between judiciary and the executive. Occasional barbs by either of the institutions at each other, it has ensured that none could resort to highhandedness. Without the justice texts there could have been tyranny.

The Indian Constitution gives the supreme authority to the people and certainly not the people in power. It establishes rule of law and not men. The people brought down autocratic rule in 1977.

In September 1931 issue of Young India,  Mahatma Gandhi said, " I shall strive for Constitution, which will release India from all thralldom, patronage...”.

As the jurist Nani Palkhivala has said the Constitution is meant to impart  momentum to the living spirit of the rule of law, democracy and civil liberty.

(The author is a Senior journalist and academician. email: shivajisarkar@ yahoo.com

Views expressed are personal.

(Image Courtesy : Google)