Progressive Constitutions

Saurabh Sinha

The electorate of Chile on September 04, 2022 overwhelmingly rejected the new Constitutional text with more than 60 percent voting against it. The new Constitution was drafted after the previous one failed to live up to the expectation of the citizens and the nation witnessed an uprising in 2019.

The Constitution of any nation is a sacrosanct document and stands on a higher pedestal than an ordinary piece of legislation passed by the Parliament. Just like an ordinary law, the Constitutions should also keep pace with the progression of society to meet the aspirations of the citizens, avoid its abuse and ensure peoples’ participation in the constitutional process in a participatory democracy.

The Constitutions of different nations were drafted during different periods of time in history and the ones of recent origin are better drafted, more eloquent in expression and closer to present day realities and needs, taking a cue from history and older constitutions. A constitution may be said to be progressive, when like legislations, it should be more flexible in its amending process, may be reviewed from time to time according to the need of time and the will of people, contains a sunset clause and may transcend beyond the precedents of the past.

The Indian Constitution is several decades old and in the past few years has witnessed several friction points, disbalancing its principles of federalism with the states’ genuine grouse of usurpation of authority, holders of constitutional posts exceeding their mandate and centralization of powers.

Besides other states, this phenomenon cannot be better witnessed than in Delhi where the slugfest between the Union and Delhi Government is continuing since 2015 and is still pending in the Supreme Court.

In August, 2016, the Delhi High Court in a judgment[i]headed by the then Chief Justice expounded that the Lieutenant Governor was the head of Delhi and was not bound by the aid and advice of the council of ministers. It was challenged in the Supreme Court and it was only on July 04, 2018 the Apex Court in a judgment[ii] reversed the judgment of the Delhi High Court and observed “The power given to the Lieutenant Governor under the proviso to Article 239 AA(4) contains the rule of exception and should not be treated as a general norm.

The Lieutenant Governor is to act with constitutional objectivity keeping in mind the high degree of Constitutional trust reposed in him while exercising the special power ordained upon him.

There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism.”

However, there was a split verdict with respect to “services”, viz. control over bureaucracy and appointments to various government departments due to which the friction of the Delhi Government with the Centre continued and has exacerbated with each passing day to the extent of governance being paralyzed on routine matters. The matter is undecided till date and is currently being heard by the Supreme Court.

Meanwhile, the Centre on April 27, 2021 notified an amendment to the Government of National Capital Territory of Delhi Act, 1991 giving sweeping powers to the Lieutenant Governor by declaring him to be the “Government of Delhi”. It also provides that the opinion of LG shall be obtained on all such matters as may be specified by the LG before taking any executive action of the Council of Ministers of the Delhi Government”.

Meanwhile the amendment to the GNCTD Act, 1991 has also been challenged in the Supreme Court.

Given the nature of our constitution and our democratic process and principles of federalism, the governance process and constitutional principles have gone for a toss during the past few years, subverting and undermining the very nature of our robust democratic process. Peoples’ mandate has been undermined whether by the electoral process or in any other manner, constitutional provisions have been blatantly flouted and disregarded and independence and autonomy of institutions have been heavily compromised. All for achieving certain ends in a manner otherwise not warranted and in complete disregard of the legal and democratic procedures.

For a democracy to work with vibrancy, it is sine-qua-non that the mandate and the voices of the people is respected, the democratic institutions, constitutional or otherwise are given sufficient degree of leeway and autonomy without in any way undermining the principles of checks and balances to allow working them in a blatant manner.

The principles of federalism as mentioned earlier have eroded the democratic process as institutional autonomy whether constitutional or statutory institutions or bodies is gradually vanishing. This is being done in two ways:

  1. By subverting the autonomy of institutions by making changes in legislations, curtailing their powers or by exercising undue influence.
  2. By constitutional bodies usurping their powers and going beyond their mandate as explained and derived from the Constitution and thus hampering the working of the democratically elected governments.

As witnessed in the recent past, holders of constitutional positions or constitutional institutions’ working has been severely compromised in one of the two ways mentioned above. From Election Commission to Governors, their working has been questioned several times with the Supreme Court recently launching a scathing attack on the Government on the autonomy of Election Commission and questioning them on the appointment of an election commissioner during the hearing of a matter on the same subject.

With respect to Governors, their working has been questioned many times in the manner they usurp their powers and go beyond the mandate to enter a feud with the elected government. From Kerala to Tamil Nadu and Maharashtra the role of Governor has been shrouded in controversy.

The Governor of Tamil Nadu was recently in the eye of a storm when he digressed from the speech given to him as a part of his address to the Tamil Nadu assembly and omitted certain portions, a marked departure from constitutional practice and also going against the provisions of Article 176 of the Constitution. As a mark of protest, the Governor walked out.

Earlier in 2022, the Chief Minister of Tamil Nadu urged the Governor to give expeditious approval to 21 bills pending with him to which he had withheld his assent. This is again a marked departure from Article 200 of the Constitution which empowers the Governor to either withhold the bill or send it back for reconsideration to the Government. If it is sent back to him, he has to give his assent and, in some instances, send it for consideration of the President. Though no specific time limit has been prescribed under Article 200, it nowhere empowers the Governor to keep sitting on the files indefinitely as it would tantamount to usurping the powers of the legislative assembly which was elected by the will of the people and in turn would frustrate the democratic process as the Governor is bound to act on the aid and advice of the Council of Ministers under Article 163.

In Kerala, the Governor and the Government were at loggerheads when the former asked the Vice Chancellor of nine state universities to resign. The Governor made this move after the Supreme Court in a judgment in a case from Kerala (Prof (Dr) Sreejith P.S. vs. Dr. Rajasree M.S.) quashed the appointment of Dr. Rajasree as Vice Chancellor of Dr. A.P.J. Abdu Kalam Technological University. The move of the Governor was made after this judgment. It was wrong on two counts. Firstly, the Supreme Court invoked article 254 of the Constitution to highlight the repugnancy between a state act and UGC regulations to quash the appointment. However, a bare reading of the article shows that the article talks about repugnancy between a central and state act and excludes rules and regulations which are made by subordinate authorities. By-laws, rules, regulations etc. are subordinate legislation and are not expressly covered under Article 254 the repugnancy was not between a State Act and UGC Act but UGC regulations. Secondly, the judgment cannot be treated as a precedent to issue a general order to unseat all the vice chancellors. This again would be usurpation of powers and going against the principles of Article 163.

In Maharashtra, the Governor was in confrontation with the previous MVA Government when the former refusing to accept the date of election of the speaker. This again was a violation of the provisions of Article 178 as election of the speaker and deputy speaker is the sole prerogative and job of the house. The problem compounds when different parties form the Government in the centre and the states. Though the mandate and extent of the Governors powers have been clearly defined and explained by the Supreme Court in a landmark judgment[iii], the situation has only worsened with each passing year, despite the SC in that judgment clearly observing: “Governors are not expected or required to implement the policies of the government or popular mandates. The Governor is not an agent or employee of the Union Government.”

Even the powers of Information Commissioners under the Right to Information Act, 2005, the most important transparency legislation has been curtailed vide an amendment in 2019.

The only way to ensure autonomy of institutions (constitutional or statutory) is to have their heads and members selected in a fair and transparent manner. The selection process of members of most institutions is currently the same. They are selected by a committee comprising of the Prime Minister, a cabinet minister selected by him, Leader of the Opposition in the House of People and an eminent person, barring some minor variations, the composition of the committee remains the same.

With respect to Governors, they are appointed by the President (Article 155) which in turn means the Government as the President is to Act on the aid and advice of the Council of Ministers (Article 74).

To ensure autonomy and independence in the real sense, their appointment process has to completely change. The Governor has to be a non-political person in order for them to discharge their duties freely and independently without carrying the burden of past obligations. The same goes for heads and members of institutions for ensuring their autonomy. They need not necessarily be former members of the civil services.

There is no better way to ensure autonomy than to have them selected through an examination or an interview or both of eminent persons by the Union Public Service Commission which is itself a constitutional body commanding great respect and known for its merit and impartiality. Even the Supreme Court in 2018 suggested the appointment of Director General of Police to be made by a panel of list prepared and shortlisted by the Union Public Service Commission. If this is done it will go a long way in ensuring institutional autonomy and smooth working of the principles of federalism without any external factors.

As mentioned earlier, Constitution stands on a higher footing than an ordinary piece of legislation and in case of conflict between the two, the former shall prevail. While most Constitutions follow it as a matter of convention, the Constitution of Columbia which was enacted in 1991 unequivocally mentions it in Article 4 which reads as follows: The Constitution is the supreme law. In all cases of incompatibility between the Constitution and the law or any other legislation or regulation, the constitutional provision will apply. It is the duty of citizens and aliens in Columbia to abide by the Constitution and the laws, and to respect and obey the authorities.

If this provision is provided in all Constitutions, many disputes may be avoided or may not even originate.

Similarly, newer Constitutions have better provisions with respect to youth, their participation in work and other activities. While the Indian Constitution makes a fleeting reference under Article 39 (f), Article 82 of the Constitution of Egypt (2014) and Article 39 of the Constitution of Ecuador (2008) respectively reads as under:

Article 82: The state guarantees the care of youth and young children, in addition to helping them discover their talents and developing their cultural, scientific, psychological, creative and physical abilities, encouraging them to engage in group and volunteer activity and enabling them to take part in public life.

Article 39: The state shall guarantee the rights of young people and shall promote the effective exercise of these rights by means of policies and programs, institutions and resources that ensure and uphold, on a permanent basis, their participation and inclusion in all sectors, especially in public sector spaces.

Just like legislations, Constitutions of different nations should also be periodically reviewed to make suitable changes and make it more dynamic and progressive.

[i] Government of National Capital Territory of Delhi vs Union of India W.P. (C) No. 5888/2015.

[ii] Government of NCT of Delhi vs Union of India and Another Civil Appeal No. 2357 of 2017.

[iii] B.P. Singhal vs Union of India [(2010) 6 SCC 331]

The author works as an independent researcher in Delhi-NCR

Image Credits: Indian Currents


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