'Generality' as an Essential Characteristic of our Constitution

Dr. B.R. Ambedkar's Statue

Constitution is drafted in a general language and not very specific language. The classical example is that of USA. When American constitution was drafted, it had only 7 sections and merely 250 words. Presently, after more than 250 years, the American constitution has 17 articles. In 1791, 10 amendments were made to the constitution.

Whereas in comparison, Indian Constitution is the longest constitution in the world. It is too long, too rigid and too prolific. Why Indian Constitution is so bulky?

1. Indian Constitution is not one Constitution. It has many constitutions inside it. It consists of provisions relating to all tiers of governance.

2. Existence of Constitutional Morality. We always thought that the successive governments may not have a constitutional morality. Therefore, if we leave many things to the discretion of successive governments, then those governments may use that discretion for ulterior motives and personal reasons.

It is this generality of the constitution that makes it a living organism. Sometimes we say that constitution is not a changeless code, it is a living growth like a plant that has an organic growth. Automatically the constitution grows with the needs and aspirations of the people. The power of judicial review plays an important role in this growth of the constitution. If the constitution is rigid, the organic growth is very slow. Thus, frequent and timely amendments are needed. It is because of the generality that the American Constitution does not need frequent amendments.

What makes Constitution a General Document? In every constitution, there are open-textured expressions meaning thereby constitution always uses certain words without defining them or without laying down their area of operation. For e.g. ‘Equality’ is used in our Constitution. No meaning is ascribed to this expression. The meaning was not defined so that the meaning may change with the context. The words must take their color with the change in the society.

In every Constitution, there may be certain silences. In many situations, these silences are more important than the written words of the constitution. When we fill these silences, the constitution grows by finding words for the vacant spaces. Judicial Review does not arise from written words of the Constitution but is implied in the scheme of the Constitution. It is generally true that if a constitution is written and there is division of power and there is a bill of rights, then such a constitution cannot function without Judicial Review.

If a constitution gives the governments certain powers, then how they can exercise that power? E.g. the constitution gives government the power to appoint the chairman of UPSC. But, there is a silence as to who is to be appointed. The silence is that every power of the government must be exercised in public interest and in a just and fair manner.

In every constitution, we find that there are certain gaps and blanks. These gaps and blanks in the constitution makes the constitution a general constitution and makes the constitution a living constitution. The Freedom of Press has not been explicitly mentioned in our fundamental rights. However it is absolutely essential for functioning of our democracy. This gap has been filled by the courts by interpreting that right to freedom includes freedom of press.

In every constitution, we will find that there are asymmetries. Asymmetries means that in a constitution there are contradictions, one provision contradicts another. Thus in every constitution there are contradictory values and norms. E.g. Freedom and Liberty is contradictory to Equality. . It is required that these asymmetries need to be reconciled. It is the court that tries to reconcile as the context requires.

In every constitution, there are ambiguities. The biggest ambiguity that our constitution has it the extent to which it can be amended. We have article 368 that gives power to the parliament to amend the constitution. But whether this power includes the power to make minor changes or re-write the whole constitution is an ambiguous question. It is the courts that play a very important role in this regard.

(This short essay was prepared while taking notes in the Class of Professor I.P. Massey.)