Flexibility of Indian Constitution helped in preserving unity and democracy in the country – Experts

12 September 2018
Flexibility of Indian Constitution helped in preserving unity and democracy in the country – Experts
Photo: Thura/Mizzima

Speaking at a workshop on “Constitution-building and its implementation Indian experience and Takeaways for Myanmar” at Nay Pyi Taw on 10 September, Constitution experts from India highlighted that “Indian Constitution is a living document and has met the changing needs of the contemporary society”.  

It has been able to preserve the democracy and ensured the unity of the country by meeting the aspirations of diverse communities of India. “The members of the Constituent Assembly had shown a vision for India as a united country, and they were determined to ensure that the country moves forward with the goals of liberty, equality, and social justice”. 

Fundamental rights and directive principles of state policy enshrined in the Indian Constitution together makes the governments ensure equality of all before the law and affirmative action for the socially disadvantaged groups. Special provisions are also made to ensure identities of ethnic minorities and others preserved and promoted.   

These two-part interactive panel discussions were jointly organized by the Embassy of India in Myanmar and International IDEA. Mr. Shakti Sinha, a former member of Indian Administrative service and currently the Director of Nehru Memorial Museum and Library and Mr. Sumit Bisariya Senior Programme Manager, Law and Constitution Building Expert, International IDEA, shared their experiences of working of Indian Constitution. From Myanmar side, U Mya Thein, Former Member, Constitutional Tribunal of the Republic of Union of Myanmar and Prof. Daw Khin Mar Yee, Department of law, Yangon University and Member of Union Legal Advisory Board presented the views on the Myanmar Constitution.

Welcoming the gathering of over 50 delegates consisting of members of the Union Parliament, Attorney General’s Office, and legal luminaries of Supreme Court and members of the Constitutional Tribunal, Mr. Vikram Misri, Ambassador of India to Myanmar observed that “the purpose of this workshop is to contribute to the ongoing discussions on the systems of governance and the shape of the government that various stakeholders of Myanmar are grappling with as part of the ongoing peace dialogues”.  

“Constitution building is an important issue in the current context of Myanmar and there are many models to choose from, however, ultimately its people and the leadership of the country to identify what works best for them and make necessary adaptations from the experiences of other countries,” he said.  Indian experience on Constitution building gives an idea that the process has to be inclusive.  Popular self-government at different levels including the lowest village Panchayat levels is the central to the Indian Constitution with the universal adult franchise, fundamental rights and single citizenship for all citizens.
Speakers from India pointed out that flexibility of the Indian Constitution can be understood by noting the number of amendments that it has undergone, with all of them through a process of political consensus.  While the word ‘federal’ does not figure in the Constitution, India is a de-facto federal State and aspirations of different groups and sections of the society were considered in the Constitution and time to time amendments that were made reflects that accommodation. Formation of New States and special status for certain states and regions reflect such an approach of accommodation.

Speaking on the occasion, U Mya Thien – Former member Constitutional Tribunal pointed out that parliamentarians have to consider retaining what has been good in the Constitution of Myanmar and the reform need to be undertaken only on those aspects that are not working and updating those provisions that are obstacles for the full realization of goals.  Mere abolition of certain laws is not sufficient. Ensuring working of the constitutional provisions is equally important which requires good systems of governance and elimination of abuse of power. India’s diversity is similar to that of Myanmar and thus there will be a lot to learn from India’s experience in making its Constitution work for its people. He urged the audience to understand the experiences of India and identify lessons which can be adopted for Myanmar.  “While all Constitutions talk of justice and equality –which are well-guarded principles – it is critical to ensure that Constitution works towards preserving the unity of the country”. 

Emphasizing the importance of Constitution making process as critical,  Mr. Sumit Bisariya, Law and Constitution Expert at IDEA, pointed out that Indian Constitution principles were embedded in its culture and it has to be seen as a document beyond its legal aspects. The notion of flexibility embedded in the Constitution of India enabled it to preserve democracy and at the same time there are checks and balances, by way of review by Supreme court and more importantly, the basic structure of Constitution cannot be altered under any circumstances.  These features are important to establish it as a robust document.  In India Supreme Court stands as a guardian of Constitution and reviews the laws and amendments. The processes of amendment of Constitution and its review has also been approached through consensus building at different levels. It is often considered as a dialogue between the Court and the legislature.  Different procedures enshrined in relation to the amendment to the Constitution reflect the doctrinal value of the Constitution. 

Explaining the features of Myanmar 2008 Constitution and the need for reforms, Prof. Daw Khin Mar Yee highlighted the message of General Aung Sang that “people need to assimilate the spirit of the Constitution of the union of Myanmar rather than relying on the letter of the Constitution”. It should be seen as a social contract between people and the governance systems.  In the context of Myanmar, it is the Constitutional Tribunal which works as a body to ensure the working of the Constitution to meet the needs of the people.

The second part of the panel discussion, moderated by India’s Ambassador to Myanmar, Mr Vikram Misri dealt with some of the practices related to devolution of powers, especially fiscal devolution and how constitutional provisions protect and promote rights and aspirations of linguistic, ethnic and religious minorities. 

Sharing Indian experience on the devolution of powers, Mr. Shakti Sinha pointed out that India became a de jure federation and Constitution does not provide for secession and such movements were dealt with through various mechanisms of accommodation.  They are increasingly reflected in the form of more devolution of powers, finances and decision making to the State Governments.  Democratic practice, particularly electoral democracy works as a check to control the majoritarian rule in India which has the potential to abuse Constitution.  In India, federalism is also being practised through many executive decisions and through other institutions like the Finance Commission which ensures equity and justice across provinces.  

Dwelling on the subject of devolution of powers in Myanmar, Daw Khin Mar Yee pointed out that the 2008 constitution ensures checks and balances of power between the legislature, executive and judiciary.  Separate schedules of responsibilities of the union government, state/regions and self-administered areas are also enshrined in the constitution. 

Elaborating specific aspects of Indian Constitution that protects the interests of marginalized sections, Mr. Sumit Bisariya pointed out that several amendments of the Constitution were carried out to ensure that linguistic minorities, religious and ethnic minorities enjoy equal rights and freedom. India’s official language policy, articles related to freedom of religion and preservation of the domain of personal laws, promotion of equality are some of the issues that the Constitution has dealt in this respect.  

Summarizing the deliberations, Mr. Mark McDowell, Head of Mission International IDEA pointed out that constitutional change is a subject of great interest in Myanmar and experiences from India would work as inspiration for Myanmar to gather insights and adapt them to the local context. He committed to organizing such dialogues in future to enhance knowledge and understanding on issues of constitutional reform which are crucial for the ongoing peace dialogue.

India’s experience of accommodation and diversity through Constitution is a significant point to ponder over.  Its flexibility and asymmetry are also significant as they provide for an inbuilt justice and equality principles.  India’s experience on the process of constitution amendment is also worth emulating as it is built on achieving political consensus.  It has also been able to use judiciary as a guardian of the Constitution. Another takeaway has been that India’s working of Constitution is developed in practice and the system is agile in making necessary changes as warranted.