India at 75: The Constitution hasn't worked well in at least 105 ways

While the Constitution has worked well to preserve our rights and institutions, it hasn't worked well at all in at least 105 ways because it has been amended that many times

This is the first in a six-part series on how institutions—Constitution, Legislature, Executive, Judiciary, RBI and Concluding article—have worked since independence. This series will appear on Mondays, Wednesdays and Fridays in the run-up to 75th Independence Day on August 15.

There are two ways of looking at the Constitution over the last 75 years. The uncritical way is to say that it has worked well. The critical way is to say it has been amended 105 times, so how can you say it has worked well? 

As always, the answer lies in the middle. It has worked well in at least two ways: the preservation of rights and the functioning of our institutions. But it hasn’t worked well at all in at least 105 ways because it has been amended that many times. 

In contrast, the US Constitution has been amended only 33 times in 227 years. The Australian Constitution has been amended eight times in 116 years. The Irish Constitution has been amended 33 times in about seventy-five years. The French Constitution has been amended 30 times in fifty-six years, but most of these are about their colonies. 

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Clearly, although it is a fine document from an aspirations point of view, it is not a very practical one because its design and purpose is a colonial one, providing for a powerful central government. In that sense, it is like the Government of India Act, 1935, which was not designed for managing change. Hence the need for so many amendments in such a short time. 

Simultaneously, it gets into too much administrative detail. It is what, in modern parlance, is called a governance playbook. But because approaches to governance change, its design has not supported the pace of change that free India’s governments have wanted. 

Good management and good governance both require the capability to deal with exigencies that, by definition, are sudden and new. Little wonder then that the very first amendment—moved by Jawaharlal Nehru—came as early as 1951, a mere year after the Constitution was adopted.

It abridged the right to free speech that is guaranteed in Article 19. It also empowered the government to make discriminatory laws that favoured special groups. 

The idea of ‘reasonable’ restrictions, without defining reasonable in whose eyes, was thus introduced into the constitutional logic. Amendments, as a kind of aspirin, were legitimised in this fashion, so much so that we have even had amendments to amendments! 

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Mostly, political considerations have led to many of the major amendments. Even as late as 2006, in the ‘office of profit’ case, the Constitution was amended for the benefit of just one person—Sonia Gandhi, who, contrary to the law under Article 102, was holding an office of profit, i.e. one where she received ‘financial benefit’ while being an MP. 

This is forbidden not just in India but in many countries. So the Constitution was amended by the government to exempt as many as fifty-six posts from the definition of office of profit. 

The ability to amend so easily led to an amendment in 1976 that placed Indira Gandhi, as prime minister, above the law—including for crimes. The President and the Vice-President were also similarly exempted. In the same year, the terms socialist and secular were also inserted into the Preamble.  

The Constitution has also complicated governance by preparing the three lists called the Central List, which contains subjects on which only the Centre can legislate; the States list, which contains subjects on which only the states can legislate; and the Concurrent list, on which both can legislate. Ideally, there should have been only two lists, a small central list and an extensive state list.   

The Constitution also says India must strive towards cow protection, prohibition, and uniform civil code; reservation for certain groups of citizens, thus overtly introducing discrimination; and complete confusion in taxation as to who can tax what. Incomes can only be taxed by the Centre, but the states can tax agricultural incomes.​

It is possible to enumerate a whole host of other confusions in the Constitution that make it harder to govern India than it already is. 

The NDA government of Atal Behari Vajpayee had asked Justice Venkatachaliah in 2000 to “examine, in the light of the experience of the past fifty years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of Parliamentary democracy, and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.”

In 2002 Justice Venkatachelliah submitted a report with detailed and comprehensive recommendations. These have not been accepted or even considered by any government since then. 

The reason is our Constitution, reflecting the priorities of the Government of India Act of 1935, favours the Executive. This bias exists in many other Acts, such as the penal code. 

But, while it may be an ill-favoured thing, it is still our own. We will have to plod along with it trying to make it work in ever-changing circumstances and needs. So far, we have done a great job of it. 

But we need to keep a sharp lookout to ensure that its basic structure, comprising the freedoms of the citizens, is not changed.