Constitution Day 2023: Legal experts decry calls for a 'new Constitution'

Of late, the argument that the Constitution of India has “outlived its time” and, therefore, the country needs a new Constitution befitting contemporary times, seems to be escalating.

Those in favour of the argument have either associated the “colonial legacy” of the document or have cited examples of nations that have had constitutions with shorter lifespans. 

But legal experts point out that the Constitution is a seven-decade old "living document” which will always stand the test of time.

Solicitor General of India Tushar Mehta told Bar & Bench that the Constitution was framed by framers with exemplary foresight as a result of which it has withstood the challenges posed till date.

“Our constitution is complete document and there is absolutely no necessity of having a new constitution,” he said. 

Mehta, however, argues that over a period of time, by the process of interpretation certain new theories were implanted in the original constitution which are too individualistic and subjective in their approach and application. 

And, therefore, he thinks concepts like constitutional morality, manifest arbitrariness, etc., could perhaps have not been envisaged by the framers of the Constitution in the wide sense in which it has been applied. 

"These subjective concepts, judicially implanted, needs to be given a serious fresh look as it has the potential of creating an imbalance in the constitutionally demarcated separation of powers without leaving any level playing field. A piece of legislation reflecting collective will of the citizens of the country can be declared void on a very very personal, subjective and individualistic notion of “manifest arbitrariness” or ‘lack of constitutional morality’,” said Mehta. 

He is of a firm personal view that there is absolutely no need to have a new constitution and all the organs under the Constitution must follow the constitution keeping in mind one fundamental fact. 

“It is meant for and belongs to the people of the country and cannot be moulded based upon individualistic or subjective views of any of its organ,” he added.

Senior Advocate and former Advocate General of Maharashtra Darius Khambata called the Indian Constitution a “masterpiece” and opined that its endurance is a positive feature.

“It provides a foundation for a path into the future for independent and free Indians. It has stood the test of time marvellously, despite frequent amendment. Today’s vibrant and aspirational India would not have been possible without the ethos and spirit of the Constitution we have," he said.

The idea of a “new” Constitution, without any conception of what that would look like, is a fantasy, he opined.

“Look at our neighbours and the several Constitutions they’ve had and where they are. Look at the US which has had the same Constitution for well over 200 years and see the stability and economic well-being that it has brought."

Adopted by the Constituent Assembly on November 26, 1949, the Constitution of India has, by the sheer fact of its age, proved itself to be an enduring document.

The average lifespan of national constitutions across the world since 1789 is 17 years, according to a 2009 study by Thomas Ginsburg, Zachary Elkins, and James Melton of the University of Chicago Law School. Their estimates also showed that one-half of constitutions are likely to be dead by age 18, and by age 50, only 19 per cent remain.

France and countries in Latin America and Africa are known for discarding and enacting constitutions with alarming frequency. 

In 2022, a new constitution was born in Tunisia after a referendum which went a long way in legitimising President Saled's monopolisation of power. At the same time, Chile's draft constitution was rejected via national referendum.

The Constitution of India, which enters its 74th year this November, stands out in this context.

That isn’t to say that the Constituton is a static fossil. It has undergone 106 amendments as of today, the 42nd of which, passed during the Indira Gandhi regime, altered it most significantly.

“That (42nd Amendment) was recommended by the Swaran Singh Committee. Later in 1992, the Atal Bihari Vajpayee government also constituted that committee for review of the Constitution under Justice Venkatachaliah,” former Law Secretary PK Malhotra explained.

To call the Constitution static and of a colonial era, he feels, won’t be correct.  

“When the Constitution was drafted, no doubt the major portion was taken from the Government of India Act, 1935. But our constitutional framers, who are all wise people who knew the word very well, have applied their mind and best practices available in other countries, including USA, Russia etc. All those were taken into consideration and relevant provisions were incorporated in the Constitution."

His contention is based on the fact that the Constitution, during its drafting, was discussed for three years. Post those deliberations, almost 2,000 amendments to the original proposed draft were suggested.

“So much has gone into framing of the Constitution. Now simply saying that we don’t like some of the judgments given by the Court and that we need a new Constitution will not be a correct proposition. In case there are certain provisions of the Constitution that you feel need reconsideration, Parliament has full competency to do it,” he said.

It is this living nature of the Indian Constitution that has the potential to be used both as a bulwark against brute majoritarianism and as a hammer to chip away at the rights and freedoms of citizens.

Recent developments indicate that the ruling party’s sights might be set on not just altering constitutional values, but on replacing and enacting a new Constitution of India.

On Independence Day 2023, two articles were published on Livemint and News18, authored by public personalities who are associated with the ruling party.

In one of the articles, Bibek Debroy, a member of the Prime Minister’s Economic Advisory Committee, argued that constitutional amendments won’t do and that we should draft a new Constitution. In the other article, Alok Bansal, Director of the India Foundation, argued that parliamentary democracy should be replaced with a Presidential form of government.

These articles prompted heated reactions from all quarters, and the Central government quickly issued statements distancing themselves from the authors’ opinions.

While the fears of some were assuaged, those of a more skeptical outlook believe that the government was merely testing the waters through the authors who were relative outsiders.

In his recent book entitled The Colonial Constitution, Arghya Sengupta argues that the fact that much of the Constitution is inspired by the Government of India Act, 1935 passed during the British rule in India, makes it a colonial document.

Like Malhotra, Senior Advocate Sidharth Luthra too disapproves of the apparent desire to paint every legislation from the 1950's, including the Constitution, with a colonial tinge.

His arguments are based on the fact that if the Indian Constitution has been drawn from the Japanese and the French constitutions, among others, can it be called colonial at all?

Luthra disapproved of a "fashionable trend" that stems from a section of contemporary thinkers and those who claim to speak for the public to decry various laws, including the Constitution as a colonial era relic. 

“They would perhaps like to revisit the monumental works on the making of the Constitution, including the Constituent Assembly debates, which would clear lingering doubts, if any, as to the inclusive nature of the Indian Constitution. Though it may have taken the structure of the 1935 Act, the content is vastly different,” he said.

Having said that, he believes that the review of any law is important for any republic. 

“It is definitely an exercise which should be undertaken on a timely basis. However, it is not the Constitution alone that makes a republic or a democracy function,” he argues.

The senior lawyer argues that several of our neighbouring nations have had multiple constitutions, but that did not necessarily make them as functional. 

However, he said that it is necessary to upgrade the institutions in view of the changes the world has undergone since 1950.

According to Senior Adovcate Sriram Panchu, a new Constitution is the last thing we need right now.

“It needs people to implement the existing Constitution in the spirit with which a Constitution should be implemented. We just need to remember John Marshall and Vivian Bose. The last thing we need now is a new Constitution,” Panchu said.

History has witnessed various governments across the world wield their power to alter the very foundations of democracies.

When the ruling party has a significant majority in Parliament and seems to be particularly adept at using hyper-nationalistic rhetoric to stir the masses, concerns regarding the misuse of power are bound to arise. 

Those concerns can’t be said to be completely misplaced either, because while we have not witnessed just one drastic move, we have seen small, incremental changes that some would argue, undermine India’s democratic setup. 

Indeed, the recent calls for a new Indian Constitution came in the backdrop of Azadi ka Amrit Mahotsav, Har Ghar Tiranga, and the Bharat v. India debate. The government also introduced three new bills to replace the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act, all with new decolonised names.

The past year saw everyone from Vice-President Jagdeep Dhankhar to former Chief Justice of India Ranjan Gogoi decry the basic structure doctrine. 

In the last decade alone, the Central government abrogated Article 370 of the Constitution and provided for 10% reservation for Economically Weaker Sections (EWS) through the 103rd constitutional amendment. 

The present regime also introduced the Citizenship (Amendment) Act (CAA), the Farm Laws (which were later revoked in the face of widespread protests), the Information Technology Rules, 2021, and the electoral bonds scheme. It found itself accused of misusing Sedition laws and hampering the independence of central investigative agencies, muzzling the media and disrupting the powers of state governments through Governors.

The impact of these actions is reflected in public discourse, people’s movements and, pertinently, in challenges before the Indian judiciary.  

That brings us to the role of the judiciary in shaping the Indian Constitution.

Senior Advocate Pinky Anand says that the Indian judiciary as an interpretative institution has continuously innovated to provide a Constitution that remains relevant through the ebbs and flows of socio-political challenges. 

“The evolution of basic structure doctrine and the foresight of our forefathers created a dynamic and flexible Constitution, giving our great nation a play at the joints. Life, quality of life, and human dignity have all been infused with multi-dimensional facets. A brief perusal of the constitutions of nations that came post, would reveal that Indian constitutionalism remains relevant and adaptive to change,” she noted. 

And while the judiciary has had its moments in the sun as well as moments for which it can be critiqued, a new Constitution is not the answer, she said.

The former Additional Solicitor General added that the Indian Constitution is a “perfectly and judiciously crafted” self-sustaining ecosystem, one that equally preserves values and is welcoming of progress.

“The woods are lovely dark and deep, but the Indian Constitution has promises to keep. Miles to go before it sleeps and miles to go before it sleeps,” Anand noted poetically.

To replace the very document against which the Supreme Court evaluates the government's actions would have far-reaching consequences.

The Constituent Assembly did face a different India, one that was only just emerging into herself, breaking free from colonial rule.

Much has changed in the country and the world over since, prompting changes in the legal landscape. But do these changes call for a new Constitution entirely?

Senior Advocate Vikas Pahwa believes that evolving needs needs may warrant thoughtful amendments, rather than a complete overhaul.

He suggested that improvements in areas such as social justice, judicial and electoral reforms, gender, healthcare and the federal structure, can help build a better constitutional framework. 

“I think adaptability within the existing framework can balance continuity with the need for contemporary considerations. Several areas in our Constitution may warrant immediate consideration for amendment to address the gaps in regulating emerging technologies, ensuring data privacy and incorporating safeguards against misuse,” Pahwa said.

Punjab Advocate General and Senior Advocate Gurminder Singh said that the Constitution of India has withstood the test of time for over 73 years.

"The Indian democracy has flourished in keeping with the fundamental principles of the Constitution of India which is always the go to Code in situations of constitutional crisis," he said.

He called the call for a need for a new Constitution for India “completely misconceived”. 

“In case the constitutional institutions find the mandate of the Constitution inconvenient, the answer is not in replacing the code but in rising to the need of better governance and adhering to the prescribed principles contained in the Constitution, so as to restore the prestige and majesty of the organs of the state and the Republic to their original pristine glory. I most certainly, do not endorse the thought of replacing the Mother of all Laws that is the Constitution of India."

Singh argued that constitutional amendments are sometimes necessitated by the growth of different social needs, and often to protect rights of the underprivileged.

"And also at times by the legislative will to maintain a certain legal positioning by resorting to amendments to take away the basis of certain judgements of the Supreme Court," he added.

While stopping short of calling the idea of a new Constitution a threat to democracy, legal experts seem to be unified in saying that the Constitution of India, as it stands, is capable of enduring future challenges.

With the uproar that Debroy and Bansal's articles caused, it is unlikely that there will be any concrete developments in this regard - that is, at least until the 2024 Lok Sabha Elections.

Until then, we can take recourse in Prime Minister Narendra Modi's address at last year's Constitution Day event organised by the Supreme Court.

"We the people is a call, a pledge, a faith. This sentiment in the Constitution is the core of the Indian system and which enriches the mother of democracy. To keep citizens happy and to behave amicably should be the role of the governing authority."

The story was updated with views of Solicitor General of India Tushar Mehta subsequently.