Members of the Central Cabinet sign copies of the Constitution 1950

Biblio: May-June 2000, p. 9-10
Cover and Table of Contents

--: POLITICS :--

A seamless web
Working a Democratic Constitution:
The Indian Experience

By Granville Austin

Oxford University Press, New Delhi, 2000, 771 pp., Rs 995
ISBN 01-9564-888-9

Reviewed by Neeraja Jayal

The 50th birthday of the Indian Constitution was symbolically marked in many ways, of which two are notable: the one a ceremonial official celebration, the other a quieter reflection in a scholarly mode. The first was the special joints session of Parliament, at which the Prime Minister announced that a commission would be established to review the Constitution. The second was the appearance of a book reviewing India's experience of working that Constitution from 1950 to 1985. If there is a singular lesson to be gleaned from Granville Austin's meticulously researched and detailed biography of our Constitution, it is that this has never been anything but an intensely contested document. For the past fifty years, it has been pulled this way and that, tossed about in the rough and tumble of parliament-judiciary rugby, and frequently stretched beyond recognition to fit the demands of whichever political shibboleths happened to be currently fashionable. Indeed, so dramatically has political practice deviated from its principles that the gentlemen (and token lady) currently contemplating its fate may only be taking the restless career of this ill-served and rather scarred document to its logical conclusion.
Just as his first book remains an indispensable guide to the deliberations of the Constituent Assembly, this volume too will endure as an encyclopaedic work of reference. The timing of its release confers on it an additional value, as a reminder that the flimsy, and even fatuous, reasons being offered today to review the Constitution have been offered before, and are potentially dangerous. No more today than yesterday is the Constitution inhibiting the achievement of either stability or socio-economic progress, however these are defined

It would be only too easy to sensationalise some of the evidence that Granville Austin offers, to present it in a then and now' pastiche, where the past and the present appear as grotesque mirror-images of each other. For instance, the indecent haste recently displayed by the BJP in the matter of constitutional review recalls Nehru's words to the chief ministers in 1951, that "if the Constitution itself comes in our way, then surely it is time to change that Constitution". Similarly, a quicker pace of socioeconomic progress was one of the two reasons offered by Prime Minister Vajpayee for the review. Austin shows us the Congress Working Committee arguing, in 1954, that "it will not be proper to slow down the pace of social and economic progress ...simply because certain provisions in the Constitution tend to hamper such progress." Some years later, Indira Gandhi claimed that Fundamental Rights (especially the right to property) obstructed social and economic change, and it was none other than Atal Behari Vajpayee who led a walkout by his party from the Lok Sabha, protesting that an irresponsible Congress majority in Parliament may sweep away the very basis of the Constitution! The attitude towards the Constitution that finds expression in all these statements is disturbingly instrumentalist.

Nevertheless, we cannot lose sight of the very different ideological projects that animated the desire for constitutional change then and now, or of the fact that even governments with substantial majorities attempted to bring in changes through amendments, rather than through a lock, stock and barrel review. Not every reader of Austin's book may interpret it in this way, but this reviewer was left with the disconcerting impression that the Constitution of India has never been taken seriously enough as the basic framework of the polity in the Rawlsian sense. This involves the elaboration of the principles of justice that inform the social and political organisation of society, which all its members publicly accept as the fairest principles that should govern their social and political relationships. All manner of political regimes have perceived the Constitution as an inconvenience, and even political leaders of great stature have made no secret of their impatience with it or their willingness to change it. It has but rarely been accorded the sacrosanct character of a document that reflects the distilled wisdom and political consensus of the struggle for national independence. It has not even enjoyed the advantage of an undisturbed running-in period. Was this because the Constituent Assembly was not as representative a body as it should have been? Or was it because conflicts between the framers of the Constitution resulted in some forced compromises that, in the long run, wore thin and rendered the political fabric fragile?

The evolution of this document was in fact the subject of Granville Austin's first book The Indian Constitution: Cornerstone of a Nation (first published by Oxford University Press, Delhi in 1966, and reissued last year). In that work, Austin had conceptualised India's constitutional edifice in terms of "a seamless web", composed of three intertwined strands which were intended to be strengthened together: social revolution, democracy, and unity and integrity. In his new book, Austin approaches the working of the Constitution chiefly through the lens of conflicts between parliament and the judiciary, and attempts to show how the three strands of the seamless web have worked out in 35 years of political practice. On the whole, he is inclined to the view that the seamless web remains an appropriate metaphor, though he does, at the end of the volume, add a fourth strand: namely, culture.

The book is divided into six parts, of which the first five are chronologically arranged, each with an opening chapter that provides the political context of the legal and judicial controversies detailed in the rest. Given the enormity of the task he set out to accomplish, it may seem churlish to complain, but the author's dependence on purely political history sometimes results in an account which is worryingly innocent of political economy and the societal underpinnings of politics.

Members of the Central Cabinet
sign copies of the Constitution, 1950

In his examination of the working of the Constitution in the first phase (1950-66), Austin identifies the main challenges to (a) the social revolutionary strand through the cases relating to the right to property, and the first, fourth and seventeenth amendments; (b) the democracy strand through the issues of freedom of expression, individual liberty and preventive detention; and (c) the unity strand through the use of Emergency provisions in the states, as well as the sub-constitutional institutions set up to `make' the nation. This was also the phase in which conflicts between parliament and the judiciary first surfaced, with the First Amendment establishing the precedent of amending the Constitution whenever the judiciary sought to put a spoke in the wheel of government programmes and policies. Austin alerts us to the significance -- even in this phase of relative innocence -- of the creation, by this amendment, of the Ninth Schedule, which would later be diabolically misused by Nehru's unscrupulous daughter.

The class tensions which were manifest in the first Nehruvian phase of constitutional government were carried over into the second (1967-73) phase, the early `socialist' period of Indira Gandhi's prime ministership, symbolised in the policies of bank nationalisation and the abolition of privy purses. This was also the period of the most intense warring over particular constitutional provisions, with both parliament and the judiciary claiming supremacy in the interpretation of the Constitution. These were obviously not unrelated issues. The Supreme Court's 6-5 decision in the Golak Nath case, that fundamental rights could not be abrogated by Parliament even through constitutional amendment, as also the subsequent judgements on the bank nationalisation and privy purses cases, made manifest the latent tension between the government's social revolutionary aims and the court's status quo-ist interpretation of the constitutional right to property.

With the renewed confidence that came from a favourable electoral verdict in the 1971 elections, Indira Gandhi set about counteracting the effects of these judgements, through the Twenty-Fourth and Twenty-Fifth amendments, which entrenched the principle of parliamentary supremacy vis-à-vis the judiciary and of the executive vis-à-vis the presidency. However, in the Kesavananda Bharati case (1973), the Supreme Court laid down the principle of the `basic structure' of the Constitution which Parliament, being a creature of the Constitution, did not have the power

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to amend (this idea, Austin tells us, was first proposed by the advocates of Golak Nath in their arguments before the bench). Though he provides a detailed description of the legal provisions that became the subject of disputes between the social revolutionary (government) and conservative (judiciary) tendencies, and apparently recognises the social tensions that these represented, Austin emphasises equally the underconfident Indira's search for, as he calls it, "job security". So, if it is an explanation of these events that you are looking for, don't expect to find it on Austin's elaborately laid out table: just take your pick of toppings and make your own pizza.

The somewhat excessive reliance on interviews with Delhi's bureaucratic and political elite, and faith in the integrity of every individual interviewed, leaves its imprint on Austin's account of the Emergency. Though his position is robustly democratic for the most part, he actually sees some merit in the view that the country was lapsing into chaos. "The government's action was not", he argues "utterly without justification". Nevertheless, Austin documents ably the centralisation of power that was taking place, as also the dramatis personae of this script. He recognises also the spuriousness of the claim that it was to advance the social revolutionary programme that unity had to be enforced and democracy banished from the Republic. He remains, however, ambivalent: "There existed, separate from the power-hungry intentions of the Prime Minister and her clique, genuine ideological sentiment to reform the Constitution." Even PN. Dhar's account (in his recently published Indira Gandhi, the 'Emergency' and Indian Democracy, Oxford University Press, Delhi, 2000) is, despite being an insider's story, more broad-based.

It would, nevertheless, be hard to find a more detailed and comprehensive account of the events that ultimately led to the infamous Forty-Second Amendment, which sought to undo the damage caused by the Kesavananda judgement, by conferring virtually unlimited power on Parliament. The establishment and functioning of the Swaran Singh Committee, and the debates in several forums, on the question of constitutional reform, are carefully documented. Having already `packed' the Court by ignoring norms of seniority, and punished those who were seen to be recalcitrant, Indira Gandhi sought to use the Forty-Second Amendment to bar judicial review of constitutional amendments.

The restoration of democracy in 1977 entailed the restoration of Fundamental Rights and civil liberties, as well as guarantees of judicial independence. The Supreme Court's judgement in the Minerva Mills case (1980) ruled that judicial review was inseparable from the basic unamendable structure of the constitution. Meanwhile, Indira Gandhi's return to power was marked by challenges to the unity strand, as regional assertions and separatist politics demanded administrative attention. Never again would the social revolutionary strand be preeminent in national debate the way it was in the years before the Emergency. The Emergency not merely undermined democracy, the rhetoric of social revolution too was now revealed to be no more than hollow populism.

Granville Austin has told his tale well, privileging two dimensions of the story: one, the struggle for preeminence between the judiciary and the government-in-parliament; and two, the tension between the Fundamental Rights and the Directive Principles of State Policy. In both cases, the legacy of the 1970s presents non-eradicable scars. Judicial independence was indeed formally restored, but any contemporary reader would be forgiven for chuckling over the evidence offered by Justice Reddy for his allegation that ministers were influencing judges: a lunch that Minister S.S. Ray and his wife had with Justice and Mrs. Mukherjea! Similarly, as the commitment to the Directive Principles was cynically translated into populist rhetoric, the Indian citizen today is assured neither of respect for her Fundamental Rights, nor of her entitlement to state-provided welfare.

What, then, does the introduction of the fourth strand achieve? India, says Austin, is a "survival society", in which both the rich and the poor working hard to increase their pile and protect what they have. The working of the Constitution, he argues, has been profoundly impacted by culture, especially in terms of inherited structures of caste and ideologies that justify hierarchy and inequality, and which encourage casteism and communal politics. At the end, everything from the failure of public policy such as that on land reform, to the "empty promise" syndrome (the gap between promise and performance), is blamed on culture. But surely, even populist politics, let alone public policies on poverty, deserve a fuller explanation than this, and are related as much to political economy as to culture?

In seeking to document the history of a Constitution at work, Granville Austin attempted a truly ambitious task and has, within the parameters he set himself, pulled it off admirably. Just as his first book remains an indispensable guide to the deliberations of the Constituent Assembly, this volume too will endure as an encyclopaedic work of reference. The timing of its release confers on it an additional value, as a reminder that the flimsy, and even fatuous, reasons being offered today to review the Constitution have been (with, of course, different ideological purposes) offered before, and are potentially dangerous. No more today than yesterday is the Constitution inhibiting the achievement of either stability or socioeconomic progress, however these are defined. It is surely unrealistic to expect political stability in a polity undergoing a dramatic social upheaval. Moreover, it is apparent that the economic reforms process inaugurated by the Congress Party in 1991, and being enthusiastically advanced by the once-swadeshi BJP today, represents a radical departure from the welfare socialism implicit in the Constitution. As such, it is hard to see how the Constitution has fettered economic `progress', as it is defined in the lexicon of these political parties.

Ultimately, as both common sense and Austin's book tell us, the fault lies not in our Constitution, but in ourselves. This tired cliché has been repeated countless times since January 26, 2000, but there is in it a precious kernel of truth. Institutional design is a complex business, rendered even more complicated by our inability to figure out the relationship between institutions and those who work them, as well as the human relationships for which they provide the framework. While we readily recognise the normative underpinnings of policy -- as distinct from the practical aspects of policy implementation -- we are less willing to accept that a constitution is, on a larger, more encompassing scale, the same sort of exercise, one that simply spells out most generally the broad normative principles by which a polity will be guided. This is why constitutionalism is not something that is practised exclusively by state personnel and the political class, but also by citizens, as a habit of the heart. The recognition of the failures of the last 50 years calls for a more solemn commitment to the foundational principles of the Indian Constitution. Undermining it in ways that we are currently witnessing will simply damage the already delicate political fabric of our society further. We can only hope that this effort at change will also go the way of many of its precursors -- into oblivion.

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