Implement the Constitution - II

By Garimella Subramaniam

This is the concluding part of the Constitution expert, Dr. Granville Austin's interview to Garimella Subramaniam.

SO FAR you've said that what you can establish by convention you don't touch the book. But what could be the aspects that would in fact require changing the Constitution?

Dr. Austin: I can't answer your question directly because I haven't thought about it quite that way. If it were decided not to expect the Governors to behave differently or the Central Governments to behave differently vis-a-vis the Governors, and that you couldn't do it by convention, one could look back at something like the old Instrument of Instructions for Governors which existed under the 1935 Act and more specifically not included in the new Constitution by the Constituent Assembly. It may be, if it is desired that there should be a great deal more devolution of power in this country, and indeed devolution is kind of a bad word because that has some of the wrong sense about it because that means that the Government is giving something away that is rightfully its. If you start with the philosophy that the States have as much to contribute to the health of India as the Central Government and therefore they should have more powers, you're putting a somewhat different complexion on all this. I would think then, if you decided that the health of India, economic, political and everything else, would be better if the States had more powers, then you'd go back to the Sarkaria Commission and you'd see how far you wanted to take this giving of powers to the States and then find out whether the Sarkaria Commission had any constructive suggestions that needed to be included in the Constitution as distinct from simply working the Centre-State relations provisions differently from now. I think that's quite possible. If it is decided that this greater sharing of power between the Centre and the States is desirable and as a result of that conclusion, if it is thought that may be we ought to break the States up into smaller units and that we ought to treat Kashmir and the Northeast differently, then you might have a kind of whole restructuring, not of the whole federal setup in India. In other words, it would be like the States Reorganising Commission all over again. But the States Reorganising Commission didn't say anything about Centre-State relations. It only changed boundaries and things like that. So if you wanted to have a study about should you do this or that or the other thing in the country with the federal system, one might start with the bigger idea and then narrow it down to what changes in the Constitution are needed to be made to achieve those ends. There I think the Sarkaria Commission report would be a very good guide.

You have often remarked that politics reflects the conditions and culture of a country. To what extent do you think the Indian Constitution, which incorporates so many aspects from other Constitutions, reflects Indian culture?

Politics under the American Constitution derives from the conditions in the United States and the culture of the United States which is historically a kind of wild west, highly individualist, very, very federal political culture in which citizens are not terribly interested in what happens in Washington but are very interested in what happens in their own State capitals. Indian conditions and culture produce a different kind of politics.

When people talk about reviewing the Constitution, one of the things that comes to me is: if the Indian Constitution needs to be reviewed because of the way it has been worked by Indians and Indian politics, then you can ask, if the Constitution were changed between now and tomorrow morning, would Indian politics be any different? Even though the Constitution is very derivative upon those of other countries, the bits that are in the Constitution were put in there by Indians. They thought them suitable to take India from where it was to where they wanted it to be, meaning a highly unified country, a very democratic country implementing a social revolution. May be not everybody agreed. The Constitution-makers first chose to go for a long detailed Constitution rather than a short one. I think they did that for continuity and stability. They wanted adult suffrage because they said specifically in the Constituent Assembly that they wanted to break the mould of traditional society, to give the poor access by giving them a new system rather than a hierarchy. They brought in the fundamental rights because they thought the people needed protection from their Government and they brought in the Directive Principles because they wanted a social revolution. But they dared not make the latter justiciable.

How much help can we draw from the Constitution to cope with unstable coalitions?

The parliamentary system as laid out in the Constitution I believe is the best under Indian conditions because it gives enough freedom for everybody to play the game of democracy. A series of Governments rose and fell and apparently the citizens and political parties were dismayed at this. Now we are in the midst of another attempt at submerging political differences and working together and that's the way parliamentary democracy ought to work.

Suggestions of cutting off smaller parties and so forth is a bad idea. This is a free country. But if they want to get into power they've got to get support. If they're going to get support, get citizens behind them, they may have to get support from other parties. Other parties may decide they want to give up this identity and go with that fellow. That's the way it seems to me parliamentary democracy should develop and ultimately it will produce more strength in the Government of India than anything artificial. Fixed terms of Parliament, directly-elected Prime Ministers have all more dangers in them for democracy in India than benefits. Having accepted parliamentary government and worked it, and this wonderful Constitution, after 50 years it has done remarkably well. One ought to stick with it and let it evolve and try to make it evolve through fruitful political behaviour. If you have a directly-elected Prime Minister you could have a Netanyahu; you couldn't get rid of him. If you had a Parliament with a fixed term, you could be re-enacting the Emergency.

Should the directive principles be justiciable to effect a more speedy social transformation?

It would be terribly risky because one can argue it might even slow down the pace of transformation. For instance, take Article 39, dealing with distributing the resources of the country for the benefit of the community. If it were made justiciable, that would bring into litigation practically every piece of legislation in relation to fundamental rights and with respect to fair implementation. The already over-stretched judiciary just couldn't handle this. Something like compulsory education up to the age of 14, the Government could simply pass a law without having to change the Constitution. In the United States, most States have laws; a kid can be brought in off the street if he doesn't go to school. On the other hand, what good would passing that law bring if States are not going to pay their teachers, teachers are not going to show up at school... There we again get back to whether should we implement or should we change. If we implemented the Constitution, we'd already be there. We know this was not done because of Nehru's stress on higher education. To make the Directive Principles in the Constitution justiciable is going to cause such a horrible mess. The best thing to do is to have individuals in Government who have the Directive Principles deep in their spirit and are going to work for them.

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