The authors of ‘The Long and Winding Constitution’ make the central claim that the Indian Constitution’s length and the inclusion of details are undesirable. For them, the ideal Indian Constitution would have been a ‘succinct document’ that contained ‘broad rules’ and avoided ‘going into detail’.
Concerns about the length and specificity of the constitutional text were often expressed while the Indian constitution-making process was underway. The Draft Constitution 1948, the first precursor to the final Constitution of India 1950, was enormous with 315 Articles and 8 Schedules. This was primarily because the framers of the Constitution included numerous administrative details into the Draft. But why did they do this in the first place? B.R. Ambedkar, chairman of the Drafting Committee, explained when he introduced the Draft to the Constituent Assembly:
…Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. In these circumstances, it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution…’
The framers of the Constitution included administrative details into the constitutional text rather than leaving these details to be decided by future legislatures, to avoid the risk of constitutional values being subverted. But what kind of outcomes did this constitutional choice produce?
The authors seem to give GDP per capita a central role in measuring a country’s constitutional performance: they provide graphs which plot GDP/capita v length of the constitutional text and seem to imply that India’s relatively lower GDP is a function of its long constitution. The invocation of ‘GDP per capita’, ‘transactional costs’ as key metrics – the vocabulary of a kind of institutional economics – is bizarre and not the best way to evaluate the outcomes of Constitutions.
The world has seen the birth and death of many Constitutions. A reasonable measure of the performance of a Constitution is to ask a simple, fundamental question: How long has a country’s Constitution survived? What makes a Constitution endure?
These enquiries drive the seminal work – ‘The Endurance of National Constitutions’ (Ginsburg, Elkins & Melton, 2009). Endurance draws upon ‘an original set of cross-national historical data’ to identify constitutional design features that explain why some Constitutions survive and why others fail.
Strikingly, Endurance argues that one of the key factors that determines the fate of a Constitution is the level of specificity: the more a constitutional text specifies details, the higher the chance of it surviving – and India is showcased as an example. Endurance counterintuitively suggests that the Indian Constitution’s ‘constitutional excess is a feature that contributes to its longevity’ (Sudhir Krishnaswamy, Constitutional Durability, 2010).
‘The Long and Winding’ hold the view that ‘the particular enormity of this document [Indian Constitution] may not be a cause for celebration’. Empirical evidence, however, indicates otherwise. The Constitution of India is certainly not a flawless document – its length is just not one of them.