Insights into Editorial: India’s enduring document of governance
Context:
At 69 and stepping into 70, India’s Constitution is one of the world’s oldest and most enduring.
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.
Findings of a key study on the Lifespan of Written Constitutions:
The endurance, lasting appeal and effectiveness of our Constitution is brought home to us in full force when we peruse a 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.
The study encompassed 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.
The study discloses that constitutions, in general, do not last very long. The mean lifespan across the world since 1789 is, hold your breath, a mere 17 years.
The estimates show that one half of constitutions are likely to be dead by age 18, and by age 50 only 19% will remain.
A large percentage, approximately 7%, do not even make it to their second birthday.
The mean lifespan in Latin America (the source of almost a third of all constitutions) 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 an average.
What do constitutions the world over generally do?
- The study finds that their most important function is to ring fence and then to limit the power of the authorities created under the constitution.
- Constitutions also define a nation and its goals. A third is to define patterns of authority and to set up government institutions.
The study shows that there are primary mechanisms by which constitutional changes occur:
- Formal amendments to the text and informal amendments that result from interpretive changes;
- that constitutional lifespan will depend on: occurrence of shock and crisis such as war, civil war or the threat of imminent breakup;
- structural attributes of the constitution, namely its detail, enforceability and its adaptability; 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.
- Constitutions whose provisions are known and accepted will more likely be self-enforcing, for common language is essential to resolving coordination problems.
- Constitutions, that are ratified by public reference enjoy higher levels of legitimacy.
- Constitutional durability should increase with the level of public inclusion both at the drafting stage and the approval stage.
- That the primary mechanism through which a constitution is interpreted is a court empowered with powers of constitutional judicial review.
Explaining India’s stability: Success of Indian Constitution:
- Longer constitutions are more durable than shorter ones which suggest that specificity matters.
- It points to India being an example of the fact that fractionalised environments produce constitutional stability precisely because no single group can dominate others.
- What is noteworthy is the fact that inclusiveness during the formative years of the Constitution-making debates;
- Specificity of the provisions that produced an excellent balance between redundant verbosity and confounding ambiguity;
- Fundamental rights and judicial review being made sheet anchors of the instrument;
- A workable scheme for amending the constitutional provisions which the current study found among others important to ensure longevity of Constitutions, were all applied even in the 1940s by our Constitution makers.
- And all this happened when there was no erudite study to guide them on the path of Constitution-making.
- Public ratification produces a more enduring constitution in democracies but not in autocracies.
Conclusion:
In conclusion the study points out that constitutions work best when they are most like ordinary statutes: relatively detailed and easy to modify.
The drafting committee of the Constitution headed by Dr. B.R. Ambedkar did not have the benefit of such an advanced study to guide its workings.
However, one is deeply impressed with the fact that a distinguished group of Constituent Assembly worked together and applied practically all yardsticks the study now declares as being indispensable to impart durability to a 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.
Justice Oliver Wendell Holmes was indeed right when he observed: “The life of the law has not been logic. It has been experience.”
