“The essence of democracy is that when a law has been adopted after the fullest debate it should not lightly be interfered with even if it should be found unsatisfactory in certain respects. For the sense of continuity on which any stable society must rest may be rudely disturbed by a too restless quest of legislative perfectionism. The argument gains in strength a hundred-fold when the law in question is the fundamental law of the realm. It is a matter singularly unfitted for party legislation. If the party in power today can bring itself to change in important respects a constitution which is so largely of its own making and which has not been in existence long enough to show whether it is sea-worthy or not, what is there to prevent other parties which may come into power tomorrow from scrapping other parts of it or even the whole of it?”
APRIL 14, 1951
Changing the Constitution
IT HAS BEEN STATED THAT DRAFT AMENDMENTS TO THE CONSTITUTION which the Government of India are considering will, as soon as they are finalised, be circulated to the Chief Ministers of the various States to elicit their opinion. But public opinion, as different from that of the various Legislature Parties which the Chief Ministers may consult, will not have much chance of expressing itself on matters of such paramount importance if the Government, as has been stated, are bent upon incorporating the changes in the Constitution before the end of next month. We advisedly say that the changes are of paramount importance, since many of them aim at a drastic modification of the fundamental law in the direction of curtailment of the rights of the individual as against the State. It is true that the proposed amendments are being undertaken on the ground that a number of judicial decisions have put a constriction upon some of the Fundamental Rights which, according to the Government the framers of the Constitution had not anticipated. It is true, too, that the judicial decisions militate against the implementation of policies to which the Congress, which played a leading part in framing the Constitution, has long committed itself. But to admit this is not to admit the rightness or the propriety of attempting to introduce amendments in haste to get over the difficulties arising from the judicial decisions. It is barely a year since the Constitution came into operation. It cannot be said that it was vamped up in a hurry. Some of the finest legal brains in the country worked upon it continually and the written Constitutions of many of the most democratic countries in the world were examined for light on particular problems. It was after considerable debate that it was decided that fundamental rights should be incorporated in the Constitution itself. The general opinion in the country was that these rights were defined, if anything, too narrowly and with too many restrictive qualifications. If in spite of all this caution it is found that much controversial legislation adopted by the Central and State legislatures is vitiated by incompatibility with the rights of the citizen as laid down in the Constitution it must not be too lightly assumed that the fault lies in the Constitution. An explanation that would be far nearer the truth is that the Government in exercising the power of legislation has been so obsessed by its sense of urgency of social objectives that it has paid too little attention to what is due to the individual. As Constitution-maker and as law-maker, it has allowed its mind to function in water-tight compartments.
The essence of democracy is that when a law has been adopted after the fullest debate it should not lightly be interfered with even if it should be found unsatisfactory in certain respects. For the sense of continuity on which any stable society must rest may be rudely disturbed by a too restless quest of legislative perfectionism. The argument gains in strength a hundred fold when the law in question is the fundamental law of the realm. It is a matter that is singularly unfitted for party legislation. If the party in power today can bring itself to change in important respects a Constitution which is so largely of its own making and which has not been in existence long enough to show whether it is seaworthy or not, what is there to prevent other parties which may come into power tomorrow from scrapping other parts of it or even the whole of it? In fact both the Communists and the Socialists have been going about threatening to do just this if and when they have the power.
We are not for a moment suggesting that the Constitution should be regarded as sacrosanct for all time. All that we are concerned to stress is that constitutional change is something that is not safely attempted under the stress of strong political emotion or without prolonged investigation of the national as distinct from the party reactions to the change proposed. A Parliament which came into existence in extraordinary circumstances and for a very different purpose and a Government which has had no opportunity so far of ascertaining through the recognised method of a general election the measure of popular support behind its policies would be singularly ill-advised to restrict the rights of the citizen in the name of the people, especially after the Supreme Court, which is vested with the sole right to interpret the Constitution, has upheld the individual’s rights. The proper time for considering an amendment of the Constitution would be after the general elections in which a mandate may be legitimately sought on the major policies on which the proposals for amendment hinge. The fact that some of these policies have long figured in Congress manifestoes does not lessen the need for securing such a mandate in the very different conditions prevailing today. On the one hand the Congress Party itself is by no means so united as it was in the days before the transfer of power when it first put these planks on its platform. And in the actual trial some of these policies, for example, prohibition have been found so difficult in the working and so meagre in the results that today there is a considerable cooling of ardour in the Congress camp itself. On the other hand adult franchise will, for the first time, bring to the polls millions whose views on major issues, supposing they have any, are yet to be ascertained. As Senor Salvador de Madariaga has pointed out, the degree of democracy in any country must be judged not only by the number of people necessary “for the consent to authorise a decision to become law” but also by the criterion whether that consent was more or less spontaneous, informed and enlightened”. Judged by either test the attempt to amend the Constitution in a hurry must be regarded as contrary to the spirit of the Democratic republic which the framers of the Constitution aimed to establish. It is to be hoped the Congress and the Government will re-examine the matter carefully from this point of view.
Reference:
The First 100
A Selection of Editorials, 1878-1978, THE HINDU, VOLUME I