Tuesday, December 29, 2009

Constitution as a creature of Parliament – ‘India in the Shadows of Empire’

"The relatively easy process of amendment to the Constitution also reveals that the Congress did not see the Constitution as a permanent sovereign text that would endure through the ages. 'No Supreme Court and no judiciary,' declared Nehru 'can stand in judgment over the sovereign will of the Parliament, representing the will of the entire community… Ultimately the whole Constitution is a creature of Parliament.' By designating the Constitution as 'a creature of Parliament' what Nehru did in effect was to put the Parliament both above the Supreme Court and the Constitution itself. This understanding effectively abolished any notion of the sovereignty of the Constitution as a unique document that anchored the entire polity, and reduced it to the status of a regular act of legislation. For the text of the Constitution to acquire the aura of sovereignty – and by implication for the Supreme Court to acquire autonomy as its final interpreter – it was essential that the moment of constitution framing be symbolised as an extraordinary moment, distinct from routine acts of legislation. For example, the American Constitution, coming in the train of the revolutionary struggle for independence, became a sovereign document marking not just the independent existence of America as a nation separate from the British Empire, but also a fundamentally new relationship between the people and the state. This fact is also borne out by the rarity of amendments to the United States Constitution."

(Mithi Mukerjee in 'India in the Shadows of Empire,' p. 197 OUP)

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