In the recent student-led protests, the Indian Constitution has been a recurring theme. Protesters are loudly reading out the preamble of the Constitution in defiance because they believe that fundamental Constitutional principles are being weakened by the ruling government. This is not the first time that there have been existential fears about India’s Constitution. But so far, it has endured, nearly 70 years after it first came into effect on 26 January 1950.

The longevity of India’s Constitution is remarkable, especially when compared with the global experience of national Constitutions. In their 2009 book, The Endurance of National Constitutions, American scholars Zachary Elkins, Tom Ginsburg and James Melton show that, on an average, Constitutions have lasted only 17 years since 1789. Within this, Constitutions in the post-colonial countries, which gained independence after World War II, have been particularly fragile. Pakistan, for example, has had three different Constitutions and large periods of rule without any Constitution. Among the 12 Asian countries that gained independence soon after World War II and drafted Constitutions, only three Constitutions have survived—India’s, Taiwan’s and South Korea’s.

(Graphic: Ahmed Raza Khan/Mint)
(Graphic: Ahmed Raza Khan/Mint)

Scholars attribute the Indian Constitution’s endurance to its design and the care with which it was crafted. Starting before independence in 1946, an elected constituent assembly of nearly 300 members spent four years debating and defining every aspect of the Constitution—from the idea of India itself to the finer intricacies of federalism. The final product reflected these lengthy deliberations. India’s Constitution is a 146,385-word tome, longer than most novels and comfortably longer than any other Constitution in the world, according to data from the Comparative Constitutions Project (CCP), an international non-profit database on global Constitutions.

Despite its length, India’s Constitution is not the most comprehensive in the world. All Constitutions establish the principles and framework for governance—but they can vary in depth and breadth. Almost all Constitutions, for instance, mention the military or armed forces, but fewer Constitutions refer to artists or the arts. According to CCP, there are 70 major topics that Constitutions around the world typically cover. No Constitution covers all 70 topics, but some Constitutions come close. The Constitutions of Kenya and Zimbabwe, for instance, cover more than 80% of these topics. India’s Constitution is sparser (covering 60% of topics), but in line with the global average in coverage (58%).

A central function of the Constitution is to separate and delegate between the three branches of governance: legislature, executive and judiciary. The way Constitutions do this ultimately defines a country’s politics, society and even economics. For instance, in a 2004 study, economists Torsten Persson and Guido Tabellini found that Constitutional rules which establish a parliamentary form of democracy tend to be associated with better economic performance and better growth-promoting policies compared to Constitutions which establish presidential systems.

In India, the choice between a parliamentary system and presidential system was debated by the constituent assembly. In his book, India After Gandhi: The History of the World’s Largest Democracy, historian Ramachandra Guha suggests that the framers believed that given its diversity, the country needed a strong government. They felt only a parliamentary system could provide this. So, based largely on the UK parliament, India adopted a system where the elected legislature is responsible for enacting laws, the executive serves as the administrative head of the government, and an independent judiciary is responsible for upholding laws.

Many other countries share similar systems, but the amount of power held in each branch can vary significantly. To quantify these differences, CCP has generated composite measures of legislative power, executive power and judicial independence for 190 countries based on their Constitutions. According to this analysis, India’s legislature, for instance, has less power than Pakistan’s and the US’s, but more power than the UK’s. Taken together, India’s legislature has less power than the average across the 190 countries, but its executive has more power and judiciary has greater independence than global averages.

Another basic purpose of any Constitution is the rights it enshrines for citizens. For this, the Indian framers drew inspiration from myriad influences, including the American and French Constitutions. But where the American Constitution grants 35 rights, the Indian Constitution grants 44, as per CCP data. This, though, is still less than the global average of 50 rights.

(Graphic: Ahmed Raza Khan/Mint)
(Graphic: Ahmed Raza Khan/Mint)

A few of these Constitutional rights, such as the right to education, only came after Constitutional amendments. This flexibility in amending the Constitution is considered to be one of the biggest factors for the Indian Constitution’s endurance. Since its inception, the Indian Constitution has been amended 103 times, with the most recent amendment coming in August 2019 (the reorganization of Jammu and Kashmir). In contrast, the American Constitution was last amended in 1992 for only the 27th time.

(Graphic: Ahmed Raza Khan/Mint)
(Graphic: Ahmed Raza Khan/Mint)

India’s Constitutional flexibility was a deliberate strategy by the framers, who were cognizant of both the nascent tryst with Constitutional ideas in the country and the deep cleavages in Indian society, according to researchers. The Supreme Court’s ruling in the famous Kesavananda Bharati case, which held that the basic doctrine of the Constitution cannot be altered has, however, ring-fenced the extent of flexibility the Constitution provides.

In the final analysis, the Indian Constitution’s resilience could be explained by its ability to embody a principle of accommodation, suggest Elkins, Ginsburg and Melton of The Endurance of National Constitutions. “It is Constitutional alchemy when groups with conflicting agendas believe they are better off with existing rules than in overturning them, and therein lies the key to India’s Constitutional endurance," write Elkins, Ginsburg and Melton.

For the protesters on the streets currently, it is this alchemy that is now under threat.

Sriharsha Devulapalli contributed to this story.

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