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India’s enduring document of governance

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The Constitution’s durability arises from the basic commitment and experience its makers showed even in the 1940s

At 69 and stepping into 70, India’s Constitution is one of the world’s oldest and most enduring. At the time of its birth, constitutional experts the world over did not expect our Constitution to survive very long. One of its most incisive critics was Sir Ivor Jennings, the world’s then leading expert on constitutional law.

Premature analysis

In 1951 the University of Madras invited Jennings to deliver a series of lectures on the just born Indian Constitution. Alladi Krishnaswamy Iyer, one of the chief architects of the Constitution, attended them and stayed through all his lectures which Jennings delivered in parts on three successive days. Alladi also made elaborate notes. Jennings began his address by summing up India’s Constitution in one cynical sentence: “Too long, too rigid, too prolix.” Over the course of three lectures, Jennings elaborated on his views. He focused on some primary aspects: The Constitution’s rigidity and its superfluous provisions; fundamental rights and directive principles of state policy; and, finally, key aspects of India’s federalism. Jennings finally handed down a largely unfavourable verdict. India’s Constitution, he declared, was “far too large and therefore far too rigid”, too caged by its history, and too unwieldy to be moulded into something useful through judicious interpretations. Overall, his judgment was that the Constitution would not endure.

Alladi was distressed and distraught. He started writing a series of articles to counter Jennings’ diatribe and to point out why the Constitution of India would be an enduring document of governance. However, destiny snatched away his mortal remains before he could complete the rejoinder. Posterity however proved him right.

In the 1960s, the same Sir Ivor Jennings had been commissioned to write a new Constitution for Sri Lanka then known as “Ceylon”. Despite all precautions taken in its drafting, that Constitution lasted about six years.

Findings of a key study

The endurance, lasting appeal and effectiveness of our Constitution is brought home to us in full force when we peruse a work of the University of Chicago titled “The Lifespan of Written Constitutions, by Thomas Ginsburg, Zachary Elkins, and James Melton” on the longevity of constitutions the world over. The study encompassed the constitutional history of every independent state from 1789 to 2006. The study identified a “Universe of 792 new constitutional systems”, of which 518 have been replaced, 192 still in force, 82 have been formally suspended ultimately to be replaced.

The study discloses that constitutions, in general, do not last very long. The mean lifespan across the world since 1789 is, hold your breath, a mere 17 years.

The estimates show that one half of constitutions are likely to be dead by age 18, and by age 50 only 19% will remain. A large percentage, approximately 7%, do not even make it to their second birthday.

The study also discerns noticeable variations across generations and regions. The mean lifespan in Latin America (the source of almost a third of all constitutions) and Africa is 12.4 and 10.2 years, respectively. And 15% of constitutions from these regions perish in their first year of existence. The study however found that constitutions in western Europe and Asia, on the other hand, typically endure 32 and 19 years, respectively. The Organisation for Economic Co-operation and Development (OECD) countries have constitutions lasting 32 years on an average. Finally, unlike the trend of improving human health, the life expectancy of constitutions does not seem to be increasing over the last 200 years. Through the World War I years, the average lifespan of a constitution was 21 years, as against only 12 years since. Constitutions, are most likely to be replaced around age 10 and age 35. However, the risk of replacement is relatively high during most of this period, and it appears constitutions do not begin to crystallise until almost age 50.

So, what do constitutions the world over generally do? The study finds that their most important function is to ring fence and then to limit the power of the authorities created under the constitution. Constitutions also define a nation and its goals. A third is to define patterns of authority and to set up government institutions.

The study shows that there are primary mechanisms by which constitutional changes occur: formal amendments to the text and informal amendments that result from interpretive changes; that constitutional lifespan will depend on: occurrence of shock and crisis such as war, civil war or the threat of imminent breakup; structural attributes of the constitution, namely its detail, enforceability and its adaptability; structural attributes of the state.

The study also finds that the specificity of the document, the inclusiveness of the constitution’s origins, and the constitution’s ability to adapt to changing conditions will be an important prediction of longevity. Constitutions whose provisions are known and accepted will more likely be self-enforcing, for common language is essential to resolving coordination problems. Constitutions, that are ratified by public reference enjoy higher levels of legitimacy.

Constitutional durability should increase with the level of public inclusion both at the drafting stage and the approval stage.

That the primary mechanism through which a constitution is interpreted is a court empowered with powers of constitutional judicial review.

Explaining India’s stability

It points to India being an example of the fact that fractionalised environments produce constitutional stability precisely because no single group can dominate others. Public ratification produces a more enduring constitution in democracies — but not in autocracies. Longer constitutions are more durable than shorter ones which suggest that specificity matters.

In conclusion the study points out that constitutions work best when they are most like ordinary statutes: relatively detailed and easy to modify.

The drafting committee of the Constitution headed by Dr. B.R. Ambedkar did not have the benefit of such an advanced study to guide its workings. However, one is deeply impressed with the fact that a distinguished group of seven members of the drafting committee and equally eminent members of the Constituent Assembly worked together and applied practically all yardsticks the study now declares as being indispensable to impart durability to a constitution. What is noteworthy is the fact that inclusiveness during the formative years of the Constitution-making debates; specificity of the provisions that produced an excellent balance between redundant verbosity and confounding ambiguity; fundamental rights and judicial review being made sheet anchors of the instrument; a workable scheme for amending the constitutional provisions which the current study found among others important to ensure longevity of Constitutions, were all applied even in the 1940s by our Constitution makers. And all this happened when there was no erudite study to guide them on the path of Constitution-making.

All that our founding fathers and mothers had to guide their work was their strong commitment to the welfare of our nation and their own experience during the long years of the freedom struggle.

Justice Oliver Wendell Holmes was indeed right when he observed: “The life of the law has not been logic. It has been experience.”

N.L. Rajah is Senior Advocate, Madras High Court

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Printable version | Dec 14, 2019 9:44:16 PM | https://www.thehindu.com/opinion/lead/indias-enduring-document-of-governance/article30079476.ece

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