Politicians have wrecked some institutions that created the architecture of Constitutionalism, by replacing rules-based decision making with ad-hoc policies. But many institutions survive, thrive.

By Apurv Mishra

I was taught Constitutional law by a certified ayurvedic practitioner. He was a charming old man who was extraordinarily generous with class attendance and examination marks. That was enough to keep us students happy and as a result, the college administration never bothered to check his credentials. He was eventually sacked, after teaching the ‘fundamental law of the land’ to six batches of law students, when the authorities finally found the time and inclination to verify his credentials. In all fairness, he was much better than several professors who had proper credentials and unlike some of the other courses, I do remember fragments of information from his classes; nothing very profound, but enough to bluff my way through a discussion with non-lawyer friends.

He started the first lecture of the course with this memorable line which was probably ripped off in a hurry from some NCERT civics textbook: “The Indian Constitution is the longest written constitution in the world; it is partly rigid and partly flexible, federal in nature with a unitary bias.” I have used variations of this line to begin almost every answer in the six constitutional law exams that I’ve written, without once realizing the wisdom and the extraordinary history behind these three traits of our Constitution. Like all children who eventually love their parents despite having a troubled relationship with them while growing up, I have begun to admire our Constitution in the time since I have passed out of law school.

The length of our Constitution is truly astounding. It contains 448 articles, 12 schedules and on the last count, was amended 98 times. Just to put this in perspective, the Constitution of USA (which is almost 225 years old) has only 7 articles and 27 amendments; Britain did not even feel the need to write down its constitution. Does our Constitution really need to specify the language to be used in the parliament (English and Hindi), payments to temple trusts, and the method of appointment and term of office of almost every public servant including the judges, election commissioners and members of our public commissions?

This attempt to capture the minute details of the functioning of government institutions in the Constitution might seem a little restrictive to us, but our founding fathers knew better. Dr B R Ambedkar once remarked in the Constituent Assembly that democracy is only “a top-dressing on an Indian soil, which is essentially undemocratic.”

The architects of our Cconstitution understood the need to protect the independence of critical institutions in a new democracy by minimising discretion in the hands of the executive. And if you want any proof of their wisdom, just observe what happened to institutions whose functioning was not explained in our constitution. You need not look any further than our bureaucracy, which is still supervised (read manipulated) by the government of the day through the archaic All India Service Rules. Sixty-four years after becoming a republic, all that we have to regulate the “steel frame” of our administration are mere rules -- not even a legislation to ensure at least the pretence of independence of the bureaucracy. It required the Supreme Court’s intervention last year to push the government towards civil service reforms.

Keshavananda Bharati Vs State of Kerala is the Michael Jordan of legal cases; even people who don’t know anything about Constitutional law have heard of it. Usually, it is first case most freshers quote to impress their seniors during a ‘personality development session’ at law schools. I remember a friend who volunteered to summarize it for our seniors, only to realize later that the judgment runs into 703 pages. He subsequently apologized and as a punishment, was made to write an article on the legality of watching porn in India.

Truth is, no law student I know has read the case despite the fact that it answers one of the most fundamental questions in Constitutional law - to what extent can Parliament modify our Constitution?

Hypothetically, can the Parliament take away all the fundamental rights guaranteed under the Constitution? A thirteen-judge bench (largest ever) decided by the smallest of margins (7-6) that there are certain limits to the power of Parliament to amend our Constitution.

It may amend some fundamental rights but cannot emasculate the “basic structure” of our Constitution that is essential to our survival as a democracy. What constitutes “basic structure” is decided by the court on a case-by-case basis but principles such as democracy, individual freedoms, secularism, mandate to build a welfare state, free and fair elections have been declared non-negotiable. This case is our bulwark against authoritarianism and dictatorship. It protected Indian democracy during the dark days of Emergency and will continue to stand up for us whenever individuals try to subvert our institutions.

Separation of power (between executive, legislature and judiciary) and division of power (between centre, states and panchayats) are also a part of our basic structure. This is good news for our democracy but bad news for all prospective law students. The mammoth Constitutional law syllabus which takes an entire year of classes to finish is not going to be reduced any time in the near future.

The principle that every right must have an effective remedy ( ubi jus ibi remedium) lies at the heart of the current debate surrounding the Judicial Standards and Accountability Bill, which fixes one of the biggest shortcomings of our Constitution by making it easier to prosecute the higher judiciary for corruption and moral turpitude. In the name of protecting the independence of our judges, the Constitution insulated them from any accountability by providing for an impeachment process that was more unrealistic and difficult to implement than AAP’s manifesto. Till date, there is no legal mechanism to deal with complaints against judges; classic case of a right without a remedy. There are legitimate concerns about the new bill compromising the independence of the judiciary but look at the numbers, or the lack of it. Not a single judge has been impeached in our country since independence. Does this imply that all our judges over the last sixty seven years have been honest and upright individuals?

A law student adept at Constitutional law is like a cricketer with a good straight drive. Other things being constant, you are considered the first among equals. As a lawyer, you earn brownie points with the judge if you can also make a Constitutional argument while presenting your case. But the Constitution is not just a text that I studied in law school; it is a living tradition that I am loyal to and committed to protect. Despite my brief, flawed and dilettante approach to our Constitution, I have come to have a deep respect for it.

Our politicians have managed to wreck most institutions of governance which created the architecture of Constitutionalism in India by replacing rules-based decision making with ad-hoc and reactionary policies. Despite this relentless assault by the political class, some of our institutions have stood the test of time and enjoy a lot of public trust even today. These include the Election Commission, Comptroller and Auditor General, Supreme Court and UPSC. It is not a coincidence that all these institutions have Constitutional mandate- there is a strong case to be made here for giving constitutional protection to Lokpal and Lokayuktas.

These are turbulent times, and in the near future we will have to choose between apathy, autocracy and anarchy. All these forces are a threat to our democratic tradition. But I am not worried; no matter what choice our country makes in the next elections, democracy will continue to survive and thrive in India. It has a “silent guardian; a watchful protector; a Dark Knight.”