The Future of India’s Constitution – The New Indian Express

Recently, the Chief Justice of India (CJI) lamented the lack of adequate space for the opposition in the political scenario of the country. He also expressed concern about the lack of democratic discourse in parliament. Although at first glance the observations appear to be political, they are essentially constitutional concerns.

The CJI is not an isolated voice. Many citizens, including those who support dispensation to power at the Center, are unhappy with the erosion of political morality. The parliamentary system itself is based on adult suffrage and the will of the people is expressed through free and fair elections. It is essentially multi-party based. Therefore, “buying” elected officials is like buying democracy. Poaching has become a fine art, where indefensible dishonesty is not only defended but even glorified with new hashtags. This poses serious credibility problems for the fundamental values ​​of electoral democracy.

Constitutional charges are no longer conventional. Often governors play a political role rather than an official or administrative one, and they are rewarded for doing what they shouldn’t have done. They openly encourage and appreciate defectors and convey the message that seizing power by any means is laudable and that the end justifies the means. Often, power is also a commodity in the supermarket of democracy.

The Constitution is essentially a check on majoritarianism, because majoritarianism can become tyrannical at any time. The Constitution establishes clear boundaries between the government as an entity on the one hand and the political party leading the government on the other. Pandit Nehru, on the eve of the formation of the first Cabinet, declared that the Congress government would not be totally “a government of members of Congress”.

But thereafter, the nation witnessed rampant abuses of power by Congress. The misuse of Section 356 of the Constitution has resulted in the dismantling of elected state governments. Nehru, too, had a blatant part in this. Indira Gandhi invoked Article 352 to declare national emergency solely for political reasons and to safeguard power. The rest is history. The slogan “India is Indira and Indira is India” has inflicted a deep wound on the Constitution.

The saga does not end there. As jurist Tarunabh Khaitan put it, the current regime has inflicted “a thousand cuts” to the nation’s Constitution. When a political party or its indisputable leader identifies with the state, it is essentially a negation of democracy. When religion merges with the state, there is no secular constitution at work. When the Union interferes in the division of power between the Center and the State guaranteed by the Constitution, there is no federal Constitution. When religious difference, instead of socio-economic inequality, is at the head of political discourse, there is no constitutional brotherhood. When the executive can create and perpetuate committed justice, there is no longer an independent arbiter to safeguard the system. As hate speech and hate crimes are encouraged by the state, “we the people of India” are disappearing. Let’s face the reality: many fear that we are turning into an electoral and ethnic autocracy.

This, in turn, raises questions about the future of the country’s constitution. You can’t be euphoric about it. Constitutions are not eternal. Scholars Thomas Ginsburg, Zachary Elkins, and James Melton found in a study that “national constitutions have lasted an average of only seventeen years since 1789” (The Lifespan of Written Constitutions, University of Chicago, 2009). According to them, factors that destabilize constitutions include military subjugation and the merger or secession of states and incidents such as regime or leadership change and institutional crises.

The Constitution is not a set of sterile provisions or brutal prescriptions. It is based on the debates of the Constituent Assembly, which began before Independence, on December 9, 1946. The Assembly approved the Constitution on November 26, 1949, after massive deliberations reflecting multiple and even opposing opinions. The beauty and richness of India’s basic law lies in its fundamental discursive character. It was not a mechanical adoption of the Government of India Act 1935. The Constitution is a document of compassion and understanding. It is the negation of hatred in black on white. It is a unifying force, not a divisive weapon. It is a “living tree”. Deviating from the originalist view of the Constitution, Indian courts have adopted a “living tree” approach, meaning that its provisions are not subject to textual reading but rather to imaginative, pragmatic and contextual interpretation.

Even in the past, when the nation was confronted with the excesses of power, it was the political metabolism facilitated by the Constitution and its institutions that kept us in democracy. It happened through people. “The little man, entering the little cabin, with a little pencil, making a little cross on a little piece of paper”, as Winston Churchill said, protected the system and its fundamental law against the misdeeds of power. Therefore, opposition matters. Within the Constituent Assembly itself, members like Ramnarayan Singh of Bihar have emphasized the political and constitutional role of the opposition. The new norm in India’s resort politics negates the idea of ​​electoral democracy with the opposition as an integral part. This is an additional threat to the nation’s fundamental outlook. We cannot imagine our Constitution as an electoral manifesto as has happened elsewhere.

Advocate, Supreme Court of India

Recently, the Chief Justice of India (CJI) lamented the lack of adequate space for the opposition in the political scenario of the country. He also expressed concern about the lack of democratic discourse in parliament. Although at first glance the observations appear to be political, they are essentially constitutional concerns. The CJI is not an isolated voice. Many citizens, including those who support dispensation to power at the Center, are unhappy with the erosion of political morality. The parliamentary system itself is based on adult suffrage and the will of the people is expressed through free and fair elections. It is essentially multi-party based. Therefore, “buying” elected officials is like buying democracy. Poaching has become a fine art, where indefensible dishonesty is not only defended but even glorified with new hashtags. This poses serious credibility problems for the fundamental values ​​of electoral democracy. Constitutional charges are no longer conventional. Often governors play a political role rather than an official or administrative one, and they are rewarded for doing what they shouldn’t have done. They openly encourage and appreciate defectors and convey the message that seizing power by any means is laudable and that the end justifies the means. Often, power is also a commodity in the supermarket of democracy. The Constitution is essentially a check on majoritarianism, because majoritarianism can become tyrannical at any time. The Constitution establishes clear boundaries between the government as an entity on the one hand and the political party leading the government on the other. Pandit Nehru, on the eve of the formation of the first Cabinet, declared that the Congress government would not be totally “a government of members of Congress”. But thereafter, the nation witnessed rampant abuses of power by Congress. The misuse of Section 356 of the Constitution has resulted in the dismantling of elected state governments. Nehru, too, had a blatant part in this. Indira Gandhi invoked Article 352 to declare national emergency solely for political reasons and to safeguard power. The rest is history. The slogan “India is Indira and Indira is India” has inflicted a deep wound on the Constitution. The saga does not end there. As jurist Tarunabh Khaitan put it, the current regime has inflicted “a thousand cuts” to the nation’s Constitution. When a political party or its indisputable leader identifies with the state, it is essentially a negation of democracy. When religion merges with the state, there is no secular constitution at work. When the Union interferes in the division of power between the Center and the State guaranteed by the Constitution, there is no federal Constitution. When religious difference, instead of socio-economic inequality, is at the head of political discourse, there is no constitutional brotherhood. When the executive can create and perpetuate committed justice, there is no longer an independent arbiter to safeguard the system. As hate speech and hate crimes are encouraged by the state, “we the people of India” are disappearing. Let’s face the reality: many fear that we are turning into an electoral and ethnic autocracy. This, in turn, raises questions about the future of the country’s constitution. You can’t be euphoric about it. Constitutions are not eternal. Scholars Thomas Ginsburg, Zachary Elkins and James Melton found in a study that “national constitutions have lasted on average only seventeen years since 1789” (The Lifespan of Written Constitutions, the University of Chicago, 2009). According to them, factors that destabilize constitutions include military subjugation and the merger or secession of states and incidents such as regime or leadership change and institutional crises. The Constitution is not a set of sterile provisions or brutal prescriptions. It is based on the debates of the Constituent Assembly, which began before Independence, on December 9, 1946. The Assembly approved the Constitution on November 26, 1949, after massive deliberations reflecting multiple and even opposing opinions. The beauty and richness of India’s basic law lies in its fundamental discursive character. It was not a mechanical adoption of the Government of India Act 1935. The Constitution is a document of compassion and understanding. It is the negation of hatred in black on white. It is a unifying force, not a divisive weapon. It is a “living tree”. Deviating from the originalist view of the Constitution, Indian courts have adopted a “living tree” approach, meaning that its provisions are not subject to textual reading but rather to imaginative, pragmatic and contextual interpretation. Even in the past, when the nation was confronted with the excesses of power, it was the political metabolism facilitated by the Constitution and its institutions that kept us in democracy. It happened through people. “The little man, entering the little cabin, with a little pencil, making a little cross on a little piece of paper”, as Winston Churchill said, protected the system and its fundamental law against the misdeeds of power. Therefore, opposition matters. Within the Constituent Assembly itself, members like Ramnarayan Singh of Bihar have emphasized the political and constitutional role of the opposition. The new norm in India’s resort politics negates the idea of ​​electoral democracy with the opposition as an integral part. This is an additional threat to the nation’s fundamental outlook. We cannot imagine our Constitution as an electoral manifesto as has happened elsewhere. Advocate, Supreme Court of India