Today, November 26, is observed as Samvidhan Diwas or Constitution Day.
November 26, 2024, marks the 75th anniversary of the adoption of the Indian Constitution. Over the decades, this seminal document has served as a bedrock of the country’s governance and a symbol of democratic aspirations. It has guided India through trials and transformations, cementing its reputation as a living document. Yet, as much as the Constitution inspires awe for its comprehensiveness, it also warrants scrutiny for its ambiguities and the silences that punctuate its text. These silences – intentional or inadvertent – have implications on democracy and governance, particularly when misused or left unresolved.
The framers of the Indian Constitution, in their profound wisdom, crafted a monumental document with 395 Articles, 22 Parts, and eight Schedules. This intricate framework sought to provide clarity on governance and accountability while accommodating the cultural, linguistic, and regional diversity of the nation.
Yet, even the most meticulously designed document cannot foresee every eventuality. Anticipating the need for adaptability, the framers deliberately left room for flexibility and interpretation, allowing the Constitution to evolve with changing times.
However, this inherent dynamism also carries risks. As Professor Upendra Baxi insightfully observes, “Constitutional silences are made to speak in the name of the people,” underscoring how these unarticulated gaps are often filled with interpretations that may diverge from the democratic ethos. Ambedkar, the principal architect of the Constitution, poignantly warned, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.” This enduring truth serves as a reminder that the strength of any constitution lies not just in its text but in the integrity and intent of those who wield its provisions. The challenge lies in ensuring that the spaces left for evolution are used to strengthen democracy, not to undermine it.
Pocket vetoes
One of the most pressing examples of constitutional silence in recent times is evident in the functioning of state governors under Article 200. This article grants governors the authority to grant or withhold assent to bills passed by the state legislatures, return them for reconsideration, or reserve them for the president’s consideration. The provision is a testament to the intricate checks and balances built into the Constitution. However, it does not specify a timeline within which governors must act on these bills. This lack of a timeframe has led to a troubling practice of indefinite delays, or what has come to be known as ‘pocket vetoes’.
Governors, often appointed by the ruling party at the centre, have increasingly used this silence as a tool to obstruct state governments led by opposition parties. Tamil Nadu, Kerala, and West Bengal are among the states that have faced significant delays in securing gubernatorial assent for critical legislation. The Tamil Nadu Prohibition of Online Gambling Bill is a case in point. Despite being rooted in public demand and addressing pressing social issues, the bill was subjected to prolonged delays, undermining the legislative process and the will of the electorate.
These delays raise fundamental questions about federalism, democracy, and accountability. India’s federal structure envisions a delicate balance between the Union government and the states. The indefinite withholding of assent by governors disturbs this equilibrium, reducing elected state governments to subordinate entities. This practice directly undermines the principle of representative democracy, where laws passed by legislatures are presumed to reflect the collective will of the people.
The judiciary has intervened to address these constitutional silences on several occasions. In Purushothaman Nambudiri v. State of Kerala and Shamsher Singh vs State of Punjab cases, the Supreme Court upheld the discretionary powers of governors under Article 200 but emphasized that India operates under a Cabinet system of government. Governors, therefore, must act on the advice of the council of ministers, serving as constitutional figureheads rather than independent authorities.
More recently, in a case involving the Punjab governor, the Supreme Court offered a progressive interpretation, asserting that governors “cannot be at liberty to keep bills pending indefinitely.” By reading “as soon as possible” into the provisions of Article 200, the court sought to curb the misuse of this constitutional silence. The judgment also emphasised the role of governors as constitutional statesmen, tasked with upholding the Constitution rather than obstructing governance.
Ambiguous terms a potential tool for interference
Article 201, which deals with bills reserved for the president’s consideration, suffers from a similar lack of specificity. While state legislatures are bound to respond to bills returned by the president within six months, the Constitution imposes no such timeline on the president. This asymmetry effectively grants the Union government the power to stall legislation indefinitely.
The issue of ambiguity extends further to Article 356, which empowers the President to impose President’s Rule in a state on the recommendation of the governor or “otherwise.” The term “otherwise” has been a source of controversy, allowing for discretionary and, at times, arbitrary decisions. During the politically turbulent decades of the 1970s and 1980s, this provision was frequently invoked to dissolve opposition-ruled state governments, often on tenuous grounds. While judicial scrutiny has curtailed the misuse of Article 356 in recent years, the ambiguity surrounding the term “otherwise” remains a potential tool for political interference.
Such practices reveal the darker implications of constitutional silences and enable executive overreach. Moreover, these silences erode public trust in democratic institutions. When an elected government’s decisions are blocked or delayed without justification, it creates a perception of governance paralysis and fuels disillusionment among citizens.
Closing the gap
Addressing these challenges requires a multi-faceted approach to safeguard the democratic and federal fabric of the Constitution. Firstly, imposing reasonable timelines for the exercise of powers under Articles 200 and 201 can help prevent undue delays. Secondly, ambiguous terms such as “otherwise” in Article 356 must be redefined, with clear criteria for imposing the President’s Rule, ensuring it is reserved for genuine governance failures and not political manipulation. Transparency and accountability in the functioning of governors and the president are equally vital; mechanisms such as regular reporting on pending bills and judicial review can curb partisan exploitation of constitutional provisions. Lastly, the principle of cooperative federalism must be reinforced through collaboration between the Union government and the states.
The Indian Constitution has proven remarkably resilient over the past 75 years, adapting to changing circumstances and challenges. Landmark judgments, such as the Kesavananda Bharati case, have enriched its scope by establishing the doctrine of basic structure, ensuring that its core principles remain inviolable. Amendments have added new dimensions, including fundamental duties, the right to education, and environmental protection, reflecting the evolving aspirations of Indian society.
As India celebrates the 75th anniversary of its Constitution, it is an opportune moment to reflect on these silences and their implications. By addressing ambiguities and ensuring accountability, India can strengthen its democratic fabric and renew the people’s faith in the Constitution as a living document. The journey of the Indian Constitution is far from over. It continues to evolve, guided by the principles of democracy, justice, and equality. As custodians of this legacy, it is our responsibility to ensure that its silences are not misused to subvert its ideals. Only by doing so can we honour the vision of its framers and secure its promise for generations to come.
Amal Chandra is an author, political analyst and columnist. (X: @ens_socialis)
Thirunavukarasu is a Doctoral Researcher at the University of Madras. He has worked as a journalist and consultant for the Indian Political Action Committee (IPAC).
