BOOKS

Interpreting the Constitution

FALI S. NARIMAN

Constitutional Questions in India by A.G. Noorani; Oxford University Press, 2000; pages 358, Rs.525.

COMPILING newspaper articles written over the years into a book is a dangerous exercise, at the best of times; such pieces being invariably written for the moment, their impact is temporary and transient. But the words that flow from A.G. Noorani's pen a re an exception: he labours over what he has written, making sure that it is communicative and the context is not missed; he expresses his views clearly and without ifs and buts. And he is that rare species of special correspondent whose writings never g et dated. They appear as fresh and topical as when he first wrote them.

Printed in a format that is easy on the eye, Constitutional Questions in India is a carefully selected compilation of articles written on and about our Constitution in relation to events that spotlight one on more of its provisions. Reading these articles yet again - neatly divided as they are under three main sections, The President, The Parliament, and The State (the troika where all constitutional authority ultimately resides), one is reassured that India's Constitution is not for lawyers alon e. One of the early Justices of India's Supreme Court (Justice Vivian Bose) wrote in March 1956 in the course of an eloquent judgment: "I am clear that the Constitution is not for the exclusive benefit of governments and States; it is not only for lawyer s and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the 'butcher, the baker and the candlestick maker'. It lays down for this land 'a rule of law' as understood in the free democracies of the world."

If the Constitution then is for the common man and the businessman - and citizens concerned with public life and public affairs - it must be made easily understandable. This collection of essays enables the reader, uninitiated in the mumbo jumbo of the l aw, to form his or her own conclusions as to when, and why, the Constitution has been (as Noorani puts it) "badly mauled in its actual practice". Shorn of knotty legal details of constitutional law, the author unfolds each constitutional problem with ref erence to a particular political event - and thus stimulates in the citizenry an interest in constitutional questions.

What makes these essays so current and topical is not only the author's inimitable style but the stark fact of India's constitutional history: the constitutional question discussed in one or the other article has kept recurring in one form or the other a t different times in the hurly-burly of India's politics. What are the options when a government loses its majority? How do constitutional conventions in Britain apply in the Indian context? Can dissolution of the Lok Sabha take place on the Prime Minist er's advice or does it require the advice of his Council of Ministers? Is the position of Governor under our Constitution exactly the same as the position of India's President? Is the Rajya Sabha a clog or a rubber stamp? Is it time to codify the convent ions governing the Constitution? All these and many more fundamental constitutional questions keep surfacing again and again, and reading Noorani, we are able to understand them better. There is much legal learning and acumen in these articles but, fortu nately, they do not obtrude. The author, a distinguished lawyer himself, takes care to avoid indulging in legalese.

OUR Constitution has the somewhat dubious distinction of being the longest amongst the written constitutions around the world. But despite many shortcomings, the Indian experience has been that whenever governments have been voted out, whether at the Cen tre or in the States, transfer of power has been strictly according to the constitutional provisions; even if, occasionally, not in accordance with their true spirit. When, after imposing an Emergency in June 1975, Indira Gandhi called for elections in e arly 1977 and lost, most people were concerned: Would she call in the Army? To her credit, she did not. Would she respect the mandate of the people? Despite the advice of some lawyer-politicians, she did. James Callaghan, then Prime Minister of Great Bri tain, paid tribute to this singular event in our political history. Callaghan said that the ultimate mark of a true democracy is the willingness of a government defeated at the ballot box to surrender power peacefully to its opponents. That is what happe ned when Indira Gandhi was defeated at the polls in March 1977. And that is what again happened when her opponents (the Janata Party) were in turn defeated at the elections of 1980 and Indira Gandhi was swept back to power. The spirit of constitutionalis m is now ingrained in India's political psyche.

With a now-unbroken continuity of 50 years, India's Constitution was forged in the late 1940s, after intense discussion spanning a three-year period, and filling 12 printed volumes entitled the Constituent Assembly Debates. In the biography of one of the founding fathers of the Assembly, Sir Alladi Krishnaswamy Ayyar (written by his son Justice Alladi Kuppuswami) reference is made to Sir Ivor Jennings, constitutional historian of the Commonwealth, who was invited in 1951 to deliver a lecture to the Univ ersity of Madras on the newly adopted Constitution. The expert did not think much of it. "Too long, too prolix and too rigid" was his laconic comment. When I mentioned this to the distinguished President's Counsel Desmond Fernando of Sri Lanka a couple o f years ago, he said that it was the same Ivor Jennings who had very carefully fashioned for the Island of Ceylon a written Constitution but, despite all precautions taken in its drafting, that Constitution lasted only seven years!

The important lesson about written constitutions, then, is that they do not work on their own. We have to make a special effort to make them work. As the author reminds us (in his introduction), when the Constituent Assembly was about to finish its task, the Chairman of its Drafting Committee, Dr. B.R. Ambedkar, in his reply to the debate (on November 25, 1949, a day before the adoption of the Constitution) said: "However good a Constitution may be, it is sure to turn out bad because those who are calle d to work it happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution."

These excellent little vignettes - 55 different articles on constitutional problems - help to explain to us how our Constitution has worked, and where it has failed. The failures are not because of the Constitution's inadequacies but (as the author expla ins) "it is India's politicians who have tended to ignore, or worse, violate it for the end of power and have sadly let down the country". The comment by India's head of state was more felicitous (and more poignant). Addressing a gathering of parliamenta rians (in January 2000) on the occasion of the 50th anniversary of the Republic of India, President K.R. Narayanan said: "Today when there is so much talk about revising the Constitution or even writing a new Constitution, we have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution."

I would advise you to read Noorani - and find out for yourselves!

Fali S. Nariman resigned his position as Additional Solicitor-General of India after the Emergency
was declared. He was a member of the International Commission of Jurists, Geneva.