Context: Constitution Day (National Law Day), also known as Samvidhan Divas, is being celebrated in India on 26 November to commemorate the adoption of the Constitution of India.
Prelims: Current events of national and international importance
Mains: GS II-
- Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
- On 26 November 1949, the Constituent Assembly of India adopted the Constitution of India, and it came into effect on 26 January 1950.
- At the time of its birth, constitutional experts the world over did not expect our Constitution to survive very long. One of its most incisive critics was Sir Ivor Jennings, the world’s then leading expert on constitutional law.
- Sir Ivor Jennings declared that India’s Constitution is too large and too rigid. He felt that the Indian Constitution is too caged by its history, and focuses too much on superfluous provisions like the fundamental rights and directive principles of state policy, which would make it difficult to be molded into something useful through judicious interpretations. Overall, his judgment was that the Constitution would not endure.
- However, as against the views of the critics who came out with their premature analysis, the Constitution of India continues to be an enduring document of governance. Having endured 70 years, India’s Constitution remains one of the world’s oldest and most enduring.
- In the 1960s, the same Sir Ivor Jennings had been commissioned to write a new Constitution for Sri Lanka then known as “Ceylon”. Ironically despite all precautions taken in its drafting, that Constitution lasted about six years.
Findings of a key study:
- A careful examination of the work of the University of Chicago titled “The Lifespan of Written Constitutions, by Thomas Ginsburg, Zachary Elkins, and James Melton” on the longevity of constitutions the world over reveals the endurance, lasting appeal, and effectiveness of the Indian Constitution.
- The study considered the constitutional history of every independent state from 1789 to 2006. The study identified a “Universe of 792 new constitutional systems”, of which 518 have been replaced, 192 still in force, 82 have been formally suspended ultimately to be replaced.
Longevity of the constitutions:
- The study discloses that constitutions, in general, do not last very long. The mean lifespan of constitutions across the world since 1789 is a mere 17 years.
- The study also discerns noticeable variations across generations and regions. The mean lifespan in Latin America and Africa is 12.4 and 10.2 years, respectively.
- The study, however, found that constitutions in Western Europe and Asia, on the other hand, typically endure 32 and 19 years, respectively.
- The Organisation for Economic Co-operation and Development (OECD) countries have constitutions lasting 32 years on average.
- Unlike the trend of improving human health, the life expectancy of constitutions does not seem to be increasing over the last 200 years.
Functions of a constitution:
- The study finds that the most important function of the Constitution is to ring-fence and then to limit the power of the authorities created under the constitution.
- Constitutions define a nation and its goals.
- It defines patterns of authority to set up government institutions.
Constitutional lifespan and stability will depend on :
- The study shows that there are primary mechanisms by which constitutional changes occur like formal amendments to the text and informal amendments that result from interpretive changes.
- Constitutional lifespan will depend on the occurrence of shock and crisis such as war, civil war or the threat of imminent breakup and structural attributes of the constitution, namely its detail, enforceability and its adaptability and structural attributes of the state.
- The study also finds that the specificity of the document, the inclusiveness of the constitution’s origins, and the constitution’s ability to adapt to changing conditions will be an important prediction of longevity.
- Constitutional durability should increase with the level of public inclusion both at the drafting stage and the approval stage.
- Constitutions whose provisions are known and accepted by the people will more likely be self-enforcing, and in such cases, it would be easier to resolve coordination problems.
- Constitutions that are ratified by public reference enjoy higher levels of legitimacy.
- The primary mechanism through which a constitution is interpreted is a court empowered with powers of constitutional judicial review.
Explaining India’s stability:
- The study points to India is an example of the fact that fractionalized environments produce constitutional stability precisely because no single group can dominate others.
- Public ratification produces a more enduring constitution in democracies.
- Longer constitutions are more durable than shorter ones which suggest that specificity matters.
- The study points out that constitutions work best when they are most like ordinary statutes, which are relatively detailed and easy to modify.
- Judicial supremacy and independence.
Some of the noteworthy features of the Indian Constitution:
- The inclusiveness during the formative years of the Constitution-making debates involved views from all regions, religions, and castes.
- The specificity of the provisions in the Constitution removed unnecessary ambiguity.
- Fundamental rights and judicial review were made bulwarks against any concentration of power and authority.
- A workable scheme for amending the constitutional provisions.
- Notable is the fact that the framers of the constitution who did not have any erudite study to guide them on the path of Constitution-making, still succeeded in framing an enduring constitution.
- All that our founding fathers and mothers had to guide their work was their strong commitment to the welfare of our nation and their own experience during the long years of the freedom struggle.
The fact that the drafting committee of the Constitution headed by Dr. B.R. Ambedkar and the Constituent Assembly worked together and applied practically all yardsticks the study now declares as being indispensable to impart durability to a constitution is laudable.
Justice Oliver Wendell Holmes was indeed right when he observed: “The life of the law has not been logic. It has been an experience.”