Constitutions should not be amended merely because governments have the numbers: Senior Advocate Shyam Divan

Senior Advocate Shyam Divan on Saturday said that Constitutions should not be amended merely because governments command the requisite legislative numbers.

He cautioned against ad hoc constitutional changes undertaken without broad public consultation.

“Constitutions are not to be amended merely because the government of the day commands the requisite numbers,” the senior lawyer said.

Divan was speaking at an event hosted in Sri Lanka's Columbo by the Bar Association of Sri Lanka on the theme Deepening Democracy: Constitutions and Constitutionalism.

He invoked noted jurist Nani Palkhivala’s book Our Constitution: Defaced and Defiled to assert that constitutional amendment processes should not be used to “defile the Constitution” through ad hoc amendments that are carried out without adequate and wide discussion amongst members of the public.

The lecture was delivered against the backdrop of an ongoing constitutional debate in Sri Lanka over proposals affecting the higher judiciary.

Divan praised the Bar Association of Sri Lanka for taking what he described as a principled stand and urged authorities to adopt an open and transparent consultative process before introducing piecemeal constitutional amendments.

Drawing on India’s constitutional experience, Divan said Palkhivala had warned as early as 1974 that repeated constitutional amendments had diluted several foundational values of the Constitution.

He described Palkhivala’s role in the landmark Kesavananda Bharati case as “no less heroic,” saying the Supreme Court’s adoption of the Basic Structure doctrine ensured that the Constitution’s core features could not be abrogated even through constitutional amendments.

“Constitutionalism is our best bet to navigate the turbulence of a complex world and to transit to a more fulfilling future...The preeminent value of constitutionalism is people’s faith and belief in the supremacy of the Constitution. This is the cardinal value,” he said.

He also quoted political scientist Pratap Bhanu Mehta to state that constitutionalism and constitutional morality rests on self-restraint, respect for plurality, deference to processes, skepticism towards authoritative claims of popular sovereignty and a commitment to an open culture of criticism.

He also referred to economist and Nobel laureate Amartya Sen’s concept of matsya nyaya - or “justice in the world of fish, where a big fish can freely devour a small fish” - to caution against the erosion of constitutional norms.

“So the suggestion appears to be that even in a democracy, majority rule and merely having the votes in an election is not enough to carry out a tinkering of constitutional mandates which can really destabilize institutions, and particularly those which are foundational like the judiciary,” Divan said.

Divan also underscored the role of bar associations in safeguarding constitutional values.

“Bar associations have a vital societal obligation in educating the community and advancing constitutionalism,” he said.

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