The Constitution at Work

We live in constitutionally troubled times. A constitution designed for better times is finding it difficult to cope with the indisciplined free-for-all greed and corruption of the ‘kali yuga’. Parasara’s Dharmasastra asserts that the ‘dharma’ of each yuga is different (yuga rupa anusaritah). Indian jurists, ‘dharmasastris’, have argued that ‘dharma’ is constant – only its interpretation changes. Can we say the same for the Constitution? Will interpretation save and adapt the Constitution to India’s changing needs? Or are we looking for something new? The BJP coalition’s ‘all-purpose’ Constitutional Reform Committee was, and remains, a fraudulent ploy – with an undeclared agenda, a mixture of good and doubtful appointees and pregnant with a rag-bag of dangerous prescriptive possibilities. Between 1946 and 1949, India was lucky to be able to evolve a complicated consensus for a complex ‘civilisation-state’ after protracted negotiations. Pakistan failed to do so. So did Israel. Just because the Constitution has been amended 85 times does not mean that consensus to a major change can be vouchsafed. If the case for a new ‘consensus-Constitution’ is pressed, the present Constitution may collapse without an appropriate replacement. If such a case is not pressed, we have to make what we can of the Constitution we have. This is what makes Noorani’s quest for settled prescriptions of constitutional practice, which will be binding on our rulers, meaningful as an act of necessity.

The Constitution can broadly be classified into its political texts (which are concerned with governance) and the justice texts (which are concerned with its goals and human rights). The political texts are concerned with parliamentary governance, federalism, the broad parameters of ‘judicial’ independence and an assortment of other things including the amendment of the Constitution. Noorani’s book is concerned with the complex working of the parliamentary system with special reference to the relationship between the president, prime minister, the government and their respective cabinets. If the bare text of the Constitution is looked at face value, we have a presidential system in which an indirectly elected president rules the roost on the advice of the cabinet. But, after Justice Mukerjee’s judgment in the Punjab textbook case (1955) and Justice Krishna Iyer’s judgment in Shamsher’s case (1974), there is no room for constitutional error even if presidents have correctly claimed the power to be informed and to encourage and warn. The Indian system is modelled on the British which, in turn, replete with its conventions, had a pervasive influence on Indian thinking, in letter if not spirit, subject to Indian variations in its constitutional texts. This being the situation, how should Indian practice be devised? On the basis of British practice – towards which Noorani has a bias? Or should these issues be treated as open to determination on principle? And, if principles are to be devised, on what should they be based? Should principles of accountability, stability and expediency be non-neutral in their universal application or created ad hoc to meet crisis.