Good Constitution

Constitution is not a piece of paper or set of words, it is a living and lived document. Living in the sense that it evolves with time and ideas, lived because unless implemented and becoming a part of daily citizens it remains a mere sermon with great theoretical but little practical significance.

A visionary like Dr. Ambedkar understood this and hence asserted on critical dependence of Constitution on the people implementing it for its meaningfulness. It can be seen in following terms -

• Ability to interpret the provisions - No constitutional provision can possibly deal with all possible variability of the real world. Thus, arises the need of. interpreting the provisions of the Constitution which have to be done by the people implementing it. In India, this function has been given to the Supreme Court of India and regarding Parliamentary procedures to the Lok Sabha Speaker and Chairman of Rajya Sabha.

Time and again, the questions of interpretation have acquired importance in th e national life.

For example, questions regarding amending power of the Parliament was decided in Kesavananda Bharati case, 1973 and the concept of "basic structure" was introduced. Similarly, reservation for OBCs and the Indira Sawhney judgement was a landmark with its concept of Creamy layer which was a judicial invention to help the benefits reach the deserving.

• Need for amendments with times - Times change and so do the circumstances like technology, ideas, environment, global scenario, etc. Today, Cyber issues, climate change, terrorism, etc loom large over the world. Bringing Environment into concurrent lists, introducing right to education, etc. are some of the steps which have been taken over the years to strengthen the Constitutional framework in line with the times.

Similar amendments have also been pervasive sometimes. Many amendments done under 42nd Constitutional amendment act were later reverted or repealed as they compromised the basic structure of constitution. Therefore, with the same amending powers, the life of the constitution can be widely varied over time.

• Implementing laws - Several provisions of the Constitution need action of the relevant agencies under the constitution. For example, Untouchability, bonded labour, DPSP are not enforceable without a law regarding them. In fact, it is the wisdom of the legislature and executive in drafting the legislation which plays a crucial role whether these remain nominal or become substantive. One good example here is of Land reforms which remain incomplete due to a plethora of loopholes. The land remains unequally distributed despite proof regarding its effect on poverty and productivity.

Similarly, Manual scavenging is banned under the law but it's horrible practice continues due to poor enforcement. In fact, it remains a blot on the right to equality granted under Indian Constitution.

• Abuse and misuse of provisions - Another aspect where Constitution's goodness and badness become contingent on the nature of those implementing it is about the abuse and misuse of its provisions.

For example, the office of profit was initially to ensure the independence of legislature from executive and thus, ensuring the accountability of executive to the Parliament. However, for flexibility, legislatures were empowered to make a law exempting certain positions from its ambit. This provision has been repeatedly used by legislatures to bring more and more positions under the exemption effectively neutralising the concept.

Similarly, the President's rule under Article 356 was expected to remain a dead letter in the words of Dr. BR Ambedkar. However, misuse of this provision is now well documented and has been commented upon by the Supreme Court of India as well as the Sarkaria Commission.

Foremost example is that of Napoleon who transformed democracy established after 1789 French Revolution into a monarchy with powers concentrated into the hands of the emperor.

Similarly, Chinese Communist Party in spite of avowals of democracy, secularism in Chinese constitution has obliterated those values with steps in Xinjiang and earlier Tiananmen Square.

Examples from Indian Constitutional working are also apposite. Indian Constitution is silent on many areas. Till 1976, the President had powers to turn down the decision of council of ministers but high moral quality of likes of Rajendra Prasad, S Radhakrishnan never led to confrontation between the Council of Ministers and the President. The same constitution came under severe crisis when Emergency provisions were used in 1975 to delay elections precipitating a nation-wide crisis.

Thus, there is no doubt that the Constitution, however well drafted, will be bad if those who implement it are bad.