Constitution is meant to preserve integrity of nation and institutions; romanticising it is like confusing medium for message

Every value, concept, construct, ideology, language or even faith, no matter how universal or universalist it may be or claims to be, necessarily goes through a process of nativisation. That is the nature of things because human beings are prone to viewing and processing the world through the prism of their worldview which, in turn, is the product of conscious and subconscious conditioning and experience. Concepts such as secularism, constitutionalism, democracy and republicanism are no exceptions to this phenomenon of nativisation, which is why the definitions and practice of these values vary from continent to continent, country to country and sometimes even region to region within the same political unit depending on the extent of diversity that unit is blessed with — depending on where one stands on diversity — by geography and history. Naturally, diverse sensibilities lead to diverse and often divergent reactions to the same act or incident.

 Constitution is meant to preserve integrity of nation and institutions; romanticising it is like confusing medium for message

Narendra Modi bows to the Constitution of India. Twitter@NarendraModi

One such case in point is the torrent of conflicting reactions to the Prime Minister-elect Narendra Modi’s act of bowing down before the Constitution on Saturday at the NDA’s first parliamentary meet after its historic victory in the finally concluded excruciatingly long elections to Lok Sabha. Broadly speaking, one school of thought believes that the act was consistent with Indic ethos, and therefore sees holiness in the Constitution just as it does in the Tricolour or the National Anthem or the Bhagavad Gita. Ironically, some “distinguished” members of this school of thought who call themselves “constitutional patriots” do not believe that the Tricolour or the National Anthem deserve the same degree of respect as the Constitution itself because, well, “the Constitution does not say so”. That position is either convenient or it misses the forest for the trees. Moving on, another school of thought believes that the act unnecessarily deifies a document which has been amended over 100 times, not always for the most altruistic or even ideological of reasons. As is the case with any issue in India, there may be several opinions which lie between these two strains or between which these two strains lie.

In most such issues, more often than not, what is expressed shines more light on what remains unexpressed. It appears that the fundamental issue, which is at the heart of the conflicting reactions, revolves around the immutability, perceived or otherwise, of the Constitution. In other words, one school of thought believes that by bowing before the Constitution, the Prime Minister-elect has signalled that he will not undertake surgical amendments of the Constitution because it is “holy”, while the other believes that such obsequiousness could come in the way of what is necessary and what the future generations must not be saddled with.

At the serious risk of sounding similar to a supposedly popular mythmaker (“mythologist”) who trades in sophistry, both schools of thought are right in some measure, and wrong too.

Since there aren’t many who can claim to know the workings of the mind of the Prime Minister-elect, one doesn’t wish to speculate as to the message he sought to convey by bowing before the Constitution or at whom the message was directed. Only time can answer that question. Until then, it is in the interest of all stakeholders to have a greater sense of clarity through a dialogue on the larger question of interplay between constitutionalism and democracy.

It has been argued by scholars of Constitutional law that a “constitutional democracy” is, in fact, an oxymoron because excessive emphasis on or veneration of constitutionalism could lead to a rapidly shrinking space for democracy itself. In other words, the Constitution in itself has no intrinsic value but for the fact that it represents the collective will of the people, and therefore, it is the spirit of constitutionality that must reign supreme in a constitutional democracy. Also, the fact that the Constitution binds the country together, makes the document worthy of respect and even veneration perhaps.

However, since the document is fundamentally meant to keep pace with the times, its contents are not and cannot be treated as being immune to change. In the Indian context, this proposition is limited by the basic structure doctrine carved out by the Supreme Court in Kesavananda Bharati Sripadagalvaru and Others versus State of Kerala and Anr (AIR 1973 SC 1461), which serves to identify the limits on the power of democracy (namely the Legislature) to alter the Constitution. This means that subject to such limits (as long as they exist), the Constitution is not immune to change. Consequently, to baulk at the very suggestion of an amendment to the Constitution is to showcase one’s ignorance of the nature of the document or its history which is replete with amendments of varying amplitudes and implications.

Some of these amendments, such as the inclusion of the term "socialist" and some may argue even the inclusion of the term "secular", have fundamentally altered the document’s character and are waiting to be expunged to restore the Constitution to its original intent, which may have been corrupted over time. Whether any such attempt at restoration militates against the basic structure or furthers it, would have to be judged on its own merits, instead of treating any change per se as haram. Given that the Constitution has not fallen from the heavens or revealed by a divine voice on a mount or authored with the guidance of an archangel, to lend rigidity to a man-made document by imputing a sense of religiosity to it, is to defeat its core nature and, therefore, its object, which is to reflect the will of the people at a given point in time.

Importantly, if veneration of the Constitution is effectively veneration of its basic structure, even that may not be immune to reconsideration by a bench larger than the one which presided over Kesavananda Bharati (a review of the judgement by a 13-Judge Bench was almost undertaken in 1975). In any case, perhaps the only things whose constancy can and must be taken for granted in a constitutional democracy are the existence of a Constitution and democracy. And both should be directed at preserving the nation, its identity, integrity and those institutions which are essential for its survival as a constitutional democracy. To romanticise constitutionalism beyond that is to confuse the medium for the message and to call for blind submission to the letter of the document as opposed to its spirit, neither of which is consistent with the civilisational ethos that gave birth to the Constitution, and, in turn, are represented by it.

J Sai Deepak is an engineer-turned-litigator who practises as an arguing counsel before the Supreme Court of India and the High Court of Delhi

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Updated Date: May 28, 2019 14:01:00 IST