The question is this – what is the difference that the Constitution of India makes to the lives of citizens of and people living in India? After 76 years of the Constitution, this may seem a bizarre question, but it is not. It is so easy to fall into an idealized view of a constitution as a basic document holding together people of a country, but the harsh truth is that a constitution can divide a people too. Are we expecting, no demanding, too much from our constitution? Are there limits to what constitutions can do? The misgivings about the constitution have accompanied it almost since its inception. Some of these have been given voices by judgements of learned Judges at both High Courts and the Supreme Court of India, during their tenure and later.
The legal system in India by the time of independence in 1947 consisted of a range of Acts from the Hindu Personal Law enacted in 1772, the Indian Penal Code in 1860 to the Civil Procedure Code in 1908, the Payment of Wages Act in 1936 with Marriage, Contract, Registration, Easements, Transfer of Property, Sale of Goods, Indian Partnership, even Power of Attorney, and a system of courts. Even an Aircraft Act and a Petroleum Act, both in 1934. All prevalent before the Constitution of India was framed and effective since January 1950.
The Constitution
What do these various enactments tell us? Simply this – that every piece of law necessary for an orderly individual and social life was in operation long before India drafted its own Constitution. It is therefore a legitimate question to ask – what difference has the Constitution of India made to the lives of ordinary people? This is not an unimportant question.
The Constituent Assembly whose efforts yielded the Constitution spent 2 years 11 months and 18 days debating to draft the Constitution of India. Will a similar exercise yield another constitution today?
It is tempting to ask – could we as a sovereign country have lived without a written Constitution? Quite possibly, because everything needed for a peaceful individual and social life was available in the legal system of laws and courts. And yet we could not have.
For the simple reason that we were, in 1947, (and continue to be) a country deeply divided in every manner thinkable – social, economic, cultural, political, religious. To hold such diverse peoples together as one nation, a virtual impossibility, was what the Indian Constitution sought to do. And since it was made before the first elections in 1952, the framers were not driven by compulsions of electoral fortunes. However, the subsequent history of the amendments to the Constitution tells a different story.
Use and misuse of the Constitution
While enactments other than the Constitution may have loopholes which can be profitably made use of by anyone, the Constitution forever runs the risk of being misused simply because of numbers – majority that the ruling party or coalition enjoys in the Parliament, consisting of two Houses – of the People (Lok Sabha) and of the States (Rajya Sabha). The great Jurist Fali Nariman always emphasized the threat (to the Constitution) from majoritarian governments. He might have added even from coalition governments, depending on the balance of political forces. And this is true of governments anywhere in the world.
Often, the threat to the Constitution comes wrapped up in the garb of ‘national interests’ or ‘social justice’ or any such macro indefinable term so easy to take refuge under. The extent of damage caused in the name of national interests must fill several volumes, if written. One of the (tragic) ironies of modern democracy is that it can be used to subvert itself, as happened in Germany in 1933 and in India in 1976. Democracy is a bizarre system since it is auto-immune: Jacques Derrida has observed more than once how a democratic society uses its own foundational values, legal protection and open institutions to destroy or paralyse itself.
An auto-immune system
Anyone who reads even one newspaper will realise that the threat to a constitution arises from within, whatever be the specific form of ‘democratic’ government. What we have witnessed in the last fifty years and continue to do so is how the threat sometimes comes from one individual strong and dominant to ‘make’ even institutions kow-tow to him or her.
Surprising as it may seem, ‘Constitutional Dictatorship’ is a very real problem identified in 1948(!) in a
book published by Princeton University Press titled ‘Constitutional Dictatorship’ written by Clinton L Rossiter. This study has recently been revisited by many. There is a 2010 study by the University of Minnesota Law School by Sanford Levinson and Jack Balkin on ‘Constitutional Dictatorship: Its Dangers and Its Design’.
Encounter with the Constitution
In every country, there are those who spend an entire lifetime never having to encounter the constitution in their lives. How many? Less than 1%?
To encounter the constitution is to confront the government of the day; the 99% has no choice but to take that path but the real obstacle is that the 99% is not one group but many, not just in India. In 2024, a seven-judge bench of the Supreme Court, in the case of EV Chinaiah Vs State of Andhra Pradesh, in a 6:1 majority, ruled that a sub-classification within scheduled castes and scheduled tribes is constitutionally permissible, effectively leaving underprivileged people to fight one another over meagre resources. Political lives thrive on such segregation! When the social fabric becomes more and more fragile, and fraught with almost internecine quarrels, are we naïve to expect a lot from a constitution?
Who, besides the government of the day and career politicians, have benefitted from the Constitution of India, by way of actual, delivered results? The Honourable Supreme Court of India has delivered many judgements on the right to clean air as a fundamental right under Article 21, but do we enjoy clean air just because of that judgement? Is there a framework within which can be delivered what the Constitution holds as a promise? Is there?
