One of the oldest democracies in the world has a Sovereign (king or queen) but not a written Constitution, yet it is considered a model for other constitutional democracies. Britain’s governance according to the ‘Constitution’ is superior to countries that have a written Constitution. Contrast countries like Denmark, Sweden, Norway, Switzerland, etc on the one hand and countries like China, Iran, Myanmar, etc on the other. The V-Dem Institute placed the countries first mentioned at the top of the list of liberal democracies and the countries mentioned later were classified as closed autocracies.

I think India falls in between. It has a written Constitution, a long one. Dr Ambedkar, his colleagues in the Drafting Committee and the Constituent Assembly took 2 years, 11 months and 17 days to complete the draft and adopt the Constitution. The Constituent Assembly debates are a model of democratic debate, dissent and decision-making.

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We stumbled, recovered

We have worked the Constitution for 73 years. When Parliament found shortcomings — and sometimes even when it did not — Parliament amended the Constitution. There have been 105 Constitution Amendment Acts so far. Many legal scholars believe that the Constitution faced an overt and grave challenge when the Emergency was in force. There have been other instances when the Constitution faced covert challenges: the Constitution was dented, but it survived. When such occasions involved the Supreme Court of India, the Court may have stumbled, but recovered in due course. The Court proved that it possessed the humility to admit it was wrong. Examples when the Court stumbled are AK Gopalan, IC Golak Nath and ADM Jabalpur. Examples when the Court corrected itself and asserted the fundamental principles of a liberal democratic Constitution are Maneka Gandhi, SR Bommai, Keshavananda Bharati and KS Puttaswamy.

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Covert assault

Some recent events have caused concern. In my view, they are covert assaults on the Constitution:

  • On August 5, 2019, among other steps whose legality has been questioned, the State of Jammu & Kashmir was dismembered and two Union Territories were created. In a bizarre interpretation of the Constitution, Parliament consulted Parliament and after ‘obtaining’ the latter’s ‘views’, Parliament reduced the State to two Union Territories. There is no guarantee that it will not happen to any other State in the future.

On two occasions, the central government passed laws intended to deprive the Union Territory of Delhi (GNCTD) of the powers that it had enjoyed since 1992. On both occasions, the Supreme Court rebuffed the central government. In the monsoon session of Parliament, government enacted a law taking away the control of the elected ministers over government employees and vesting the control in the appointed Lieutenant Governor. The ministers have been placed at the mercy of the civil servants and the LG.

  • The Election Commission of India (ECI) is a Constitutional body vested with vast powers. It holds the key to free and fair elections and to the renewal of our commitment to democracy every five years. In Anoop Baranwal, the Supreme Court created a mechanism that would ensure that a non-partisan body (Prime Minister, Chief Justice of India and Leader of the Opposition) selected the election commissioners. In a crude move, the central government set the judgement at nought and passed a law replacing the CJI by a Minister nominated by the prime minister. If the law will survive a legal challenge, it could alter the course of democracy in India.
  • State legislatures pass Bills. Under Article 200 of the Constitution, the Governor may give assent to a Bill or withhold assent or reserve it for the consideration of the President. Some Governors do none of the above; they simply sit on the Bills. Likewise, on proposals to nominate persons to the Legislative Council, Governors sit on them. On petitions for disqualification of a member for violating the Tenth Schedule of the Constitution, Speakers sit on the cases without deciding them. Does sitting on Bills or cases without exercising powers amount to working the Constitution?
  • The latest assault on the Constitution is the situation in Manipur. The State has suffered a de facto division. No Kuki can enter the Imphal valley and no Meitei can enter the Kuki-dominated districts. The chief minister and his ministers cannot venture out of the neighborhood of their residences. After stalling initially, the Governor has summoned the legislative assembly to meet at Imphal, but the 10 Kuki members (out of 60 members) may not be able to attend the session. If this situation is not a ‘breakdown’ of the Constitution (and the chief minister is allowed to continue in office), Article 356 deserves to be erased from the Constitution.

Ambedkar’s caution

On November 25, 1949, Dr B R Ambedkar made his closing speech before the voting on the next day. He said, “However good a Constitution may be, it is sure to turn out to be bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of the Constitution does not depend wholly upon the nature of the Constitution.”

Please ask yourself, are we working the Constitution or wrecking the Constitution?