Unlike the norm in newly independent countries of Asia and Africa, the making of Indian constitution had been an internal affair. Leaders of the Indian independence movement had decided that they did not need external assistance to draft the common code for the future of their country. Some British constitutionalists must have been mighty miffed.[break]
Sir Ivor Jennings (1903–1965) was the Vice Chancellor of what was back then the University of Ceylon, where he remained in the post for 13 long years between 1942 and 1955. He would later serve as the Vice Chancellor of University of Cambridge (1961–63) and advise in the making of constitutions of Afghanistan, Nepal, Malaysia, Pakistan, and Sri Lanka. Perhaps he had expected to be consulted by constitutionalists of independent India. Denied such an opportunity, he was scathing in his criticism of the Indian constitution.
Historian AV Narasimha Murthy of University of Mysore has narrated that Sir Ivor faulted the Indian constitution on almost every count of fundamental beliefs of democratic law. During a public lecture at Madras University in 1951, the imminent British constitutionalist had torn the document that he had been invited to critique apart.
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In Sir Ivor’s assessment, Indian constitution was full of contradictions. It was rigid and not easily amenable to amendments. Fundamental rights in the Indian constitution were not really fundamental and the kind of federalism it envisaged was flawed. He mocked the provision of “no person shall be deprived of life, liberty and property except by law” with the hypothetical rule of a university that declared that “no person shall be failed in an examination if he has passed or no person shall be considered passed in an examination if he has failed.” His final prognosis was that “the jugglery of words” would not last.
History played pranks with predictions of the learned lawyer and academic. The royal order in Afghanistan collapsed. The constitution of Pakistan he had helped formulate turned out to be a joke. The constitutional monarchy he had fashioned for Nepal lasted all of 18 months. The spirit of constitutionalism was violated every time the document was amended in Sri Lanka. Malaysia retains some elements of British tradition, but with rediscovery of its Islamic roots, the country has turned out to be very different from what Sir Ivor had envisaged. In comparison, the statute that he had trashed—the Indian constitution—continues to be functional and dynamic.
Except for a brief interlude during the Emergency (1975-1977) when authoritarian impulses of Indira Gandhi held sway, constitutional supremacy in India had remained almost unchallenged. Rebel groups have variously defied it in Punjab, Kashmir, northeast India and in Naxal belts in various parts. Enforcement agencies have often flouted supremacy of laws with impunity. But by and large, Indian constitution has retained its relevance and shown the capacity to change with the needs of the time without compromising fundamental values of democratic governance.
What is it that makes the Indian republic work? There could be many possible answers. However, the most visible one is its raucous democracy that has made revolutions redundant.
Sixty-forty
Effectiveness of democracy is often measured on the basis of five fundamental features of the system: Democratic practices, liberalism, republicanism, good governance and social justice. Free, fair and periodic elections reflect the health of democracy and display its ability of renewal and reproduction. Guaranteed fundamental freedoms are foundations of liberalism and without its inviolability, no democratic system can work effectively. Separation and diffusion of power ensures republicanism. Checks and balances, resulting in transparency and accountability, lead towards good governance. However, none of these elements can be sustained unless the political system is geared towards promotion of equality in society.
Except for minor hiatuses, the electoral juggernaut of the most populous democracy in the world has been on an uninterrupted roll since the first parliamentary polls of the independent country in 1951-52. Perfection in polls is only an ideal—hanging chads and friendly judges can influence outcomes even in presidential elections of the most powerful country in the world. What matters is that the Indian electoral system has been getting ‘cleaner’ with every exercise of franchise.
Indian liberalism has fewer successes to its credit and here the worst fears of Sir Ivor have turned out to be true. The justice system—police force, administration, the bar, and the bench—in India is completely divorced from the life of commoners. The poor fear the police more than they fear criminals. Administration is largely rapacious. Strange as it may seem, courts even in the countryside conduct their business in English!
Republican ethos as expressed through federalism and local governance in India has shown surprising dynamism and resilience. In the assessment of political scientist Paul R Brass of University of Washington, the Indian elite has been willing to accommodate all voices of self-rule short of outright separation, which the state fights with all the might at its command. Though called a quasi-federal system, constituent states in India have continued to enlarge their sphere of influence. Even in matters of foreign policy—the sacrosanct monopoly of the central government—states such as Bengal and Tamilnadu have begun to play decisive roles.
Indicators of good governance too have remained far below par. After relentless efforts of National Campaign for People’s Right to Information and its activists like Aruna Roy, public servants steeped in the culture of secrecy have reluctantly begun to open up. But the road to public accountability is torturously long.
The capacity of Indian democracy to promote equality has proven to be severely limited. During an event hosted to crown Rahul Gandhi in Jaipur recently, the young prince of the Nehru-Gandhi dynasty tacitly admitted that gross inequality was the Achilles heel of Indian political economy.
On balance, successes of Indian democratic experiment outweigh its faults. Its greatest strength is that the Indian political class has never been averse to learning from failures such as the Emergency, Operation Blue Star and its aftermath, demolition of Babri Mosque, the butchery in the northeast or the pitfalls of Casino Capitalism.
Love-hate
Learning requires a certain distance. Nepal is too close to India to learn from its giant neighbor’s experiences. In what is an annual ritual, the movers and shakers of Kathmandu queue up at the India House in Lainchaur with great obsequiousness. The proconsul holds court with grace and tact. The conversation among the invitees over glasses of sherbet—the luncheon is always dry—invariably turns towards finding fault with the policies of the host!
Someday, the Nepali glitterati would grow up and realize that India is neither as influential as it is believed nor as tolerant as perceived. The largest democracy of the world is still on the learning curve. The confidence of a climber is invariably tinged with mortal fears.
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