Endurance Of The Indian Constitution: Text Of Justice AK.Sikri's Speech On 69th Constitution Day

India is described as a young democracy whose Constitution is only 68 years old. In contrast, there is also a view that 68 years in the life of the Constitution is too a long journey. Why I say so?Thomas Jefferson in one of his letters to James Madison dated September 6, 1789, stated that constitutions should have a sunset clause providing for its expiration after 19 years and that, “if it is enforced any longer, it would be an act of force and not of right”[1]. 220 years later, a study conducted by scholars at the Chicago Law School under its Comparative Constitutions Project came out with a finding, after studying all the constitutions from 1789 to 2005, that the life expectancy of a national constitution was 19 years[2]. This was calculated from a baseline survival model.Today, we are celebrating the 69th birthday of Indian Constitution. There is not even a whisper or thought in anybody’s mind that it has outlived its life span. The question that arises is: What makes constitutions endure or, to be more precisely, what has made Indian Constitution endured? This poser assumes more significance as we laud our Constitution as a vibrant document which has so far served, in a great measure, its well-defined purposes. Justice K. Iyer labels it as ‘The Nation’s Safety Valve” and these four words embrace the entire essence and spirit of our Constitution. Justice K. Iyer captures this essence in the following words:“The Indian Constitution is the cornerstone of a liberated nation. It lays the grand foundation of a great people’s political edifice of governance. It spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character.An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways,— these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.”There are certain factors that prevent constitutional demise at an early stage. Some such factors are mentioned in the above statement of great judge which lend endurance to the Indian Constitution. Let me enumerate some universally accepted norms, which make a Constitution great and prolong its life:(i) First is the inclusion aspect, i.e., to what extent are the divergent groups of a nation consolidated and brought to the table for constitutional negotiations. It must be noted that constitution making in deeply divided societies, like ours, has huge transaction costs since it involves bringing together people from divergent groups to agree to a common minimum scheme. A constitution having a transformative agenda makes things more difficult, with each group having its own ideas about what is ideal and each group trying to impose its idea in the constitutional bargain. Our Constitution ensures inclusion at two levels. First, it incorporates provisions to safeguard and protect the rights of minorities, autonomy for religious communities and freedom for linguistic groups. Secondly, it also aims at bringing marginalised, backward and dalit communities into the mainstream by having the provisions for reservations and other safeguards. All these provisions are in the form of Fundamental Rights.(ii) Another factor which makes constitutions endure, is flexibility. Stability does not mean immutability. Times change. Social conditions are altered by various factors. Each generation may differ in values from a previous generation. This again is achieved at two levels, viz. at the hands of the Parliament as well as the Courts. Realism dictates flexibility which implies amendability and, therefore, our Constitution (Art. 368) vests power in parliament to amend the Constitution but with more rigorous procedures than in passing ordinary legislation. Indeed, amendment of the Constitution has been provided for, blending pragmatism with special safeguards, avoiding rigidity, but facilitating flexibility. Amendments to constitution act as substitutes for constitutional replacements, which would involve re-negotiation. Courts also, by their pragmatic approach (in contrast to originalism) achieve this purpose, to which I shall allude to...

Endurance Of The Indian Constitution: Text Of Justice AK.Sikri's Speech On 69th Constitution Day

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