Five life lessons from India’s Constitution

At 70, only Constitutions, tortoises, and whales are dubbed “young.” Though young, the Indian Constitution has undergone tremendous change over these seven decades. Starting with 395 Articles and 8 Schedules, it now stands at over 450 Articles and 12 Schedules—a result of 104 amendments. These amendments have changed essential aspects of the republic, such as fundamental rights, federalism, democratic participation, judicial review, etc.

These amendments were usually not enacted to strengthen constitutional protections. When the courts invalidated the government’s agenda by upholding individual rights and Constitutional guarantees, Parliament responded by removing the constitutional roadblock through a Constitutional amendment. Despite this, the Constitution has also shown remarkable resilience by surviving assaults on it, especially during the Emergency.

In the recent student-led protests against the government, protesters have been carrying copies of the Constitution and have mass recitations of its preamble. At a time the Constitution has become a part of the language of protest, it is worth looking at India’s Constitutional journey over the last seventy years—the loss of our Constitutional rights, the changes made to our democratic fabric, the role played by different institutions in Constitutional erosion, and the fight to protect the Constitutional ethos.

In the beginning

Almost immediately after the Constitution was adopted, various government policies were challenged as unconstitutional. The English weekly Cross Roads published by Romesh Thapar, a communist, was banned in Madras for criticizing the government. Publisher Brij Bhushan’s Organizer was banned in Delhi for potentially invoking anti-Muslim sentiments. When challenged, the Supreme Court upheld Thapar and Bhushan’s right to freedom of expression and held that securing “public order” was not one of the enumerated exceptions to free speech under Article 19(2).

Another problem was executing land reforms. To end the zamindari oppression, some states gave low compensation to richer zamindars for taking their land for redistribution. This was held unconstitutional by some high courts because Article 14 guaranteed equal protection under the law and did not allow discrimination again richer zamindars. But, paying full compensation to landlords like Maharaja of Darbhanga, Kameshhwar Singh, defeated the land reform agenda.

State also ran afoul of the courts while trying to nationalize and create state monopolies on services like bus transport routes, as these encroached on the right to livelihood of private transport providers. The litigious citizens of India, embraced the Constitution with great fervor, but created major problems for the then Prime Minister Jawaharlal Nehru’s government.

The provisional Parliament amended the Constitution in response to the courts strictly enforcing fundamental rights. The first amendment read in exceptions like “public order” to the right to freedom of expression; and exceptions to the right to livelihood.

Zamindari was a bigger problem, and weakening the equal protection guaranteed by Article 14 was considered ill-advised. So, in addition to adding exceptions to Article 31 dealing with land acquisition, the provisional Parliament created a new constitutional vehicle under Article 31B, called the Ninth Schedule.

Any law included in the Ninth Schedule was protected from judicial review, even if it was unconstitutional and violating Fundamental Rights. What started as a list of 13 laws enabling land reform has since expanded to protect 282 unconstitutional laws enabling nationalization, currency controls, price and quantity controls, and even the excesses of the Emergency.

The First Amendment, crafted by the framers of the Constitution, set the tone for the future. It was clear that if intentions were good, it was acceptable to use Constitutional amendments to remove constraints on the government.

So, Fundamental Rights were frequently amended, when these static rights were seen to constrain the government’s dynamic socialist and welfare agenda. And, when socialist planning clashed with individual rights, Parliament amended the Constitution to accommodate it to the policy, instead of the other way around.

The assault

Former Prime Minister Indira Gandhi pursued a socialist agenda aggressively in her Ten-Point Programme. This included nationalization, curbing monopolies, land reforms, urban land ceiling, rural housing, etc. Much of the socialist agenda was furthering the Directive Principles in the Constitution, but was in violation of Fundamental Rights.

In response, the Twenty-Fifth Amendment, which took away the supremacy of Fundamental Rights, was a particularly big blow. Indira Gandhi also made the most additions to the Ninth Schedule— 124 laws to enable nationalization, currency controls, land ceiling, rent control, regulate monopolies, and even protect her Lok Sabha seat. She famously said, “We should be vigilant to see that our march to progress is not hampered in the name of the Constitution.” Her government amended the Constitution so frequently that, in 1967 in the Golak Nath case, the Supreme Court limited the ability of Parliament to amend Fundamental Rights. As a response, the government amended the procedure in Article 368, to regain the authority to amend the Constitution!

When the amendability of the Constitution was challenged once again in 1973, the Supreme Court crafted the now canonical Basic Structure Doctrine in the famous Kesavananda Bharti case, opining that Parliament may amend but cannot change the basic structure of the Constitution. Cleverly, the justices did not clarify exactly what comprised the basic structure and left it to be decided on a case by case basis.

But the worst was yet to come. As Indira Gandhi announced the Emergency, elections and civil liberties were suspended, and she ruled by decree. In August 1975, she passed the Thirty-Ninth Amendment, which among many other provisions withdrew the election of the Prime Minister from judicial review; declared the Allahabad High Court decision invalidating her election, void; and excluded the Supreme Court’s jurisdiction to hear an appeal on the election.

Indira Gandhi then rewrote the Constitution through the Forty-Second Amendment. Starting with the Preamble, this amendment changed the most fundamental aspects of the Indian republic. It changed the relationship between the state and the citizen by adding a chapter on Fundamental Duties of citizens. It curbed the judicial review power of the Supreme Court and high courts and placed the legislature in a higher position. It subverted federalism by increasing the length of President’s Rule, redistributing legislative subjects in the Seventh Schedule. Fundamental Rights took a beating by creating exceptions for anti-national activities.

The Morarji Desai government reversed most of the damage done in the Forty-Second Amendment, but some provisions still remain. The preamble of the Constitution, being read in protests across the country today, is not the original, but the Indira Gandhi version. Fundamental Duties, invoked often by Prime Minister Narendra Modi, have also survived.

The democratic fabric

The framers required that each state receive legislative seats in proportion to its population, mandated constituencies of roughly equal size, and capped the total number of legislative seats. To give effect to this, the framers envisaged the reallocation of seats after every census. The Forty-Second Amendment froze the constituencies per state based on the 1971 census and also suspended the revision of seats until after the 2001 Census.

In 2002, through the Eighty-Fourth Amendment, Parliament once again postponed this problem until the 2031 census. Indians still vote in constituencies based on census figures from almost half a century ago! Members of Parliament from Tamil Nadu have 1.8 million constituents per Lok Sabha seat on average versus 3 million constituents per Lok Sabha seat on average in Uttar Pradesh. This has caused a major asymmetry in political representation in India and will be an important political debate in the future as India’s population grows unevenly across states.

The 1980s provided some respite after the onslaught of the 1970s. But the Fifty-Second Amendment introduced the anti-defection law, severely curbing the ability of individual MPs to effectively represent their constituents’ preferences.

In the 1990s, India saw a different kind of revival of political representation. The 73rd and 74th Amendments created provisions for constitutionally mandated local governments in India. These amendments changed the nature of local political participation in India.

Reinterpreting reservation

Following the Mandal Commission recommendations, reservations also dominated the 1990s. In 1992, the VP Singh government created a 27% quota in all government jobs for the Other Backward Classes (OBCs), in addition to the existing 22.5% reservation for SC/ST candidates. On challenge, the Supreme Court held that the reservation policy was constitutionally valid, but reserved jobs could not exceed 50% of all government jobs.

Subsequent related amendments reversed other constraints imposed by the Supreme Court—allowing promotions in reserved category (Seventy-Seventh Amendment), backlog of unfilled vacant posts as a separate category (Eighty-Second Amendment), and seniority of SC/ST candidates promoted on the rule of reservation (Eighty-Fifth Amendment).

While the concept of reservations for disadvantaged groups was at the core of the equality and anti-discrimination envisaged by the framers, recent amendments have been criticized. They have done little to address the structural causes of discrimination and are narrowly focused on government jobs.

A second trend is of adding groups that are not historically disadvantaged. The Hundred and Third Amendment passed by the Modi government breaches the Mandal limit by adding 10% reservation for Economically Weaker Sections (determined by “family income” and “indicators of economic disadvantage”). The framers created provisions to dismantle the centuries-old caste oppression. But it goes against the spirit of the Constitution to include erstwhile oppressors in the same protected class as Dalits.

Amendment by interpretation

Formally amending the text in Parliament is not the only way to change the Constitution. It is also frequently rewritten by the judiciary through interpretation. For instance, the Supreme Court enlarged Fundamental Rights by reading in the right to a clean environment, livelihood, food, water, clean drinking water, clean air, education, medical care, shelter, and privacy.

But the Court has not always been public spirited. The most egregious case of self interest is the reinterpretation of Articles 124 and 217, which outline judges’ appointment procedure, giving the President the power to appoint judges, in consultation with the judiciary.

In 1993, the Supreme Court reinterpreted ‘consultation’ and established a collegium of the senior-most judges with the power to make a binding recommendation to the President to appoint judges. Some procedural details were added in 1998 in a Presidential reference, clarifying the structure and composition of this all-judge collegium, making the Indian higher judiciary the only self-appointing institution completely excluding elected representatives from the process.

As a solution to problems like nepotism, opacity, and corruption in the collegium process, the Modi government passed the Ninety-Ninth Amendment, creating a National Judicial Appointments Commission (NJAC) to restructure the system of judicial appointment to include elected representatives and other eminent persons. While the NJAC was problematic and poorly fleshed out, the fundamental idea of involving democratically elected members was sound.

But, in its most self-serving move so far, the Supreme Court held both the Ninety-Ninth Amendment and the NJAC Act unconstitutional for violating the basic structure. Currently, a memorandum written by the judiciary outlines the procedure to appoint judges, lacking any constitutional procedure or oversight.

The circumstances that led to 104 formal amendments and hundreds of amendments by interpretation can make one dismal. But Constitution has survived seven decades despite many assaults by Parliament and the judiciary.

Indians may not always know all the procedural details of this lengthy and imperfect document, but they know the core—that they are not governed by the whims of political avarice, but the words of the Constitution. And that is worth celebrating on the Republic Day.

Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US