Research Archives - Politics Now

The importance of a robust national constitution in contemporary times cannot be understated. Constitutions around the world have helped shaped the modern polity that we find ourselves in. They have been surprisingly resilient and firm throughout several tribulations spread across the spectrum of contemporary history. Yet many more are crumbling by the day, their original intent and spirit being actively usurped by power-hungry authoritarians. In India, the Constitution has been described as a “living, breathing” document that testifies our commitment to building a progressive and democratic state.

The Comparative Constitutions Project is one such initiative that has been set up with an explicit aim to quantify Constitutions across the world in terms of certain predefined and widely accepted parameters. These include the pillars of an ideal free state: judicial independence, number of rights assured, and the degree of legislative and executive powers that the Constitution permits. Does the length of a Constitution alone help predict how free a country is? Does increasing executive power hamper judicial independence? In an effort to understand and frame definitive responses to several questions like these, I decided to perform an exploratory analysis on data available with the CCP Project. The following is a quantitative, mathematical attempt to break down how Constitutions shape a country, and if tweaking a parameter or two can yield desired results.

1. Countries by their Constitutional Length

Most of the countries that happen to have the lengthiest of Constitutions are also incidentally third-world countries. Perhaps the fear of delving into a state of chaotic anarchy compelled those who framed the Constitution to fill as many gaps and loopholes as could have been practically possible. The top-ten lengthiest constitutions of the world, in descending order are:

A choropleth map depiction makes it evidently clear that India stands out from the rest in terms of the sheer length of its Constitution. It encompasses varied subjects, including concepts and ideas borrowed from foreign constitutions, and defines the rights, roles and responsibilities of both the government and the citizen. In fact, India’s Constitution is more than twice as voluminous as its next competitor, Nigeria. Even Latin America features prominently as a bunch of countries with extensively detailed Constitutions.

2. Constitutional Length and Rights Assured:

The Universal Declaration for Human Rights was a significant stride towards standardizing a globally accepted set of fundamental human rights that would enable an individual to lead a life of dignity. The Comparative Constitution Project (referred to as CCP henceforth) has analysed a set of 117 different rights found in national constitutions. The rights index indicates the number of these rights found in any particular constitution. In the following plot, we establish a relation between the length of a Constitution and the number of rights assured by it. We have excluded India from the analyses below because it is an outlier and does not otherwise disagree with the forecast trend.

P-value: 0.0001278

Equation: Number of Rights = 0.000344274*Length + 42.8475

Clearly, a linearly increasing trend exists for the number of rights against the length of the Constitution. The more encompassing a Constitution becomes, the greater the probability that it allows for the rights of its own citizenry. Those countries that fall below the trend line (marked in red) lag against other countries in terms of assuring a wider spectrum of rights.

3. Constitutional Length and Legislative Power

This captures the formal degree of power assigned to the legislature by the constitution. The indicator is drawn from Elkins, Ginsburg and Melton, The Endurance of National Constitutions (Cambridge University Press, 2009), in which a set of binary CCP variables was created to match the 32-item survey developed by M. Steven Fish and Mathew Kroenig in The Handbook of National Legislatures: A Global Survey (Cambridge University Press, 2009). The index score is simply the mean of the 32 binary elements, with higher numbers indicating more legislative power and lower numbers indicating less legislative power.

P-value:	0.0131016
Equation:	Legislative Power = -1.45739e-06*Length + 0.327069

We find a negatively sloped line as the Constitutional length varies against the Legislative Power of the country. This is indicative of greater checks and balances that have been introduced in such Constitutions that have an adverse effect on arbitrary legislation. While it is certainly a contentious issue in terms of bureaucratic red-tapism, greater oversight more often than not results in well-formulated legislation that goes on to have significantly more impact than their counterparts who do not have the benefit of consensus and elaborate discussion preceding it.

4. Constitutional Length and Executive Power

This is an additive index drawn from a working paper, Constitutional Constraints on Executive Lawmaking. The index ranges from 0-7 and captures the presence or absence of seven important aspects of executive lawmaking: (1) the power to initiate legislation; (2) the power to issue decrees; (3) the power to initiate constitutional amendments; (4) the power to declare states of emergency; (5) veto power; (6) the power to challenge the constitutionality of legislation; and (7) the power to dissolve the legislature. The index score indicates the total number of these powers given to any national executive (president, prime minister, or assigned to the government) as a whole.

P-value:	< 0.0001
Equation:	Executive Power = -3.46203e-05*Length + 5.13594

It does not defy our expectation that a lengthier constitution would naturally attempt to curb excesses on part of the executive. Here, the monotonically decreasing trend function has a higher R-squared value than the preceding trend function that evaluated the legislative powers against increasing Constitutional length. This means that the trend line is a better fit- and hence a better estimate- to prove the empirical relationship. With increasing Constitutional Length, Executive Power goes on declining. However, some exceptions still remain (marked in red), but they are found to have been significantly slumped in number post a certain threshold in the length parameter.

5. Constitutional Length and Judicial Independence

This index is drawn from a paper by Ginsburg and Melton, Does De Jure Judicial Independence Really Matter? A Reevaluation of Explanations for Judicial Independence. It is an additive index ranging from 0-6 that captures the constitutional presence or absence of six features thought to enhance judicial independence. The six features are: (1) whether the constitution contains an explicit statement of judicial independence; (2) whether the constitution provides that judges have lifetime appointments; (3) whether appointments to the highest court involve either a judicial council or two (or more) actors; (4) whether removal is prohibited or limited so that it requires the proposal of a supermajority vote in the legislature, or if only the public or judicial council can propose removal and another political actor is required to approve such a proposal; (5) whether removal explicitly limited to crimes and other issues of misconduct, treason, or violations of the constitution; and (6) whether judicial salaries are protected from reduction.

P-value:	< 0.0001
Equation:	Judicial Independence = 2.84882e-05*Length + 1.98147

It is heartening to note that judicial independence does tend to better itself if constitutions are more verbose. Judicial independence is considered as a cornerstone of a successful democracy. Thus, those countries lagging in terms of the aforementioned parameter must do more to ensure the protection of those in the hallowed institution of rendering justice; a corrupted justice mechanism only accentuates the decline of political power and foments resentment among all stakeholders involved.

6. Rights Assured against Legislative Power

P-value:	< 0.0001
Equation:	Legislative Power = 0.00269629*Number of Rights + 0.159655

Now that we are done understanding the effect of a verbose Constitution on key parameters, it is also important to study the inter-relationships between these parameters themselves. Visual evidence from the plot suggests that if a country wishes to increase the number of rights it grants to its people, it must also make an effort to increase the legislative power. How is this consequential, then? Often, bolstering legislative power leads to overriding of the minority voice. A possible explanation for this observation is that legislatures all around the world tend to be on the conservative side, they mostly resist dramatic change wherever possible. Including legislation defining new rights often are results of landmark judicial interventions or extraordinary consensus to include a particular right as one guaranteed by the Constitution. Hence, only an emboldened legislature can make way for a broad range of new generation rights. For example, although experts have cautioned of increasing privacy woes and a landmark Supreme Court judgement that mandated the right to privacy (KS Puttaswamy v/s Union of India), the right to digital privacy has been languishing all along. It has managed to garner some attention now that corporations have begun consolidating their user bases, but it goes a long way to demonstrate how legislatures are normally not very welcoming of expanding the set of rights issued to its citizens.

7. Rights Assured versus Executive Power

P-value:	0.0107787
Equation:	Executive Power = 0.0173729*Number of Rights + 3.50851

As defined earlier, executive power alludes to the ability of those discharging Constitutional duties to enact sweeping changes without immediate clearances or review by oversight bodies. The trend is rather a surprising one, as an ideally free country should not require strong executive action to guarantee its rights. However, this is not the case. To have a greater degree of individual liberty and rights granted, it takes a strong executive. Multiple factors can be responsible for such a deviation from intuition, foremost among which can be a governmental determination to boost national standards and rankings in terms of freedom(s) granted and rights assured.

Concluding Thoughts

Much of our knowledge about the effectiveness of a constitution comes from our experience with the country implementing it. Can a constitution ever be truly quantified in terms of set parameters, and more importantly, can a model Constitution be defined by computing all past experiences and empirical relationships observed together as a gift for posterity? At present, it is difficult to say. The vagaries of ever-changing data in social sciences put researchers in a very uncomfortable position to entrust complete, unquestioned belief in one model alone. Thus, our understanding of the functioning of Constitutions can be bettered not only by objectively studying and assessing the documents alone but also by noting how well it is implemented and the laws it prescribes, followed.

Jallianwala Bagh memorial — The Jallianwala Bagh Memorial

As we step onto the 101st year of commemorating the horror that was the Jallianwala Bagh massacre, it is worthwhile to discuss and debate the multitude of layers that surround the butchery by the bloodthirsty fighters under General Reginald Dyer, on that fateful day of 13th April 1919. The popular and widely accepted notion that the act was perpetrated in response to the murder and rampage trail left by the natives is only superficial at best. The Jallianwala Bagh lives on today as a grim reminder of the discord that prevailed during the British Raj and has been hailed by many as the single-most definitive moment in India’s quest for freedom. Notable historian A.J.P Taylor recalled the incident as “the decisive moment when Indians were alienated from the British Rule”. By standing up to an act as violative and wrongful as the Jallianwala Bagh, the British had lost the moral authority to reign India- and united millions in India with a strong fervent of patriotic passion. The brute display of might may as well be thought of a planned act of genocide; an act intended to impress terror upon the minds of defiant rebels who dared to question the authority of the Crown.

India’s immense contribution to the British war efforts in the First World War had inspired hope among certain sections of the society that their benefaction would not go unnoticed; many aspired for the remuneration to be some form of local self-governance. Such hopes were quickly dashed by the Montague-Chelmsford ‘Reforms’ and the punitive Rowlatt Act- which designated competent authority with impunity, and upon their whims, to search, arrest, harass or even kill civilians suspected of crimes against the empire- all without the necessity of a trial. On 6th April, Gandhi had called for a nation-wide hartal to condemn the malicious design of the Britishers. In Amritsar, too, the call for strike was religiously obeyed- and there were no reported incidents of violence. Yet, in an unprecedented act of undue aggression, the Provincial Government of Punjab arrested Dr Kitchlew and Dr Satyapal on 9 April- both of whom held sway and considerable influence over the masses. This triggered protests all over Amritsar, and in the ensuing anarchy, ten demonstrators were fired upon. The crowd, maddened by a taste of vengeance, reacted by killing five Englishmen and assaulting a woman missionary (who was later rescued and carried to safety by Indians themselves).

The British wasted no time and sent troops to cordon the holy city of Amritsar. By 11 April, over 600 fully armed troops had been stationed under the command of General Reginald Dyer. He made several arrests to stamp his mark of authority, and on the 13th, issued prohibitory orders that forbade people to leave the city, engage in demonstrations, or even meet in groups larger than three. Oblivious to such orders, some ten to fifteen thousand people from outlying districts gathered in the city to celebrate the auspicious occasion of Baisakhi- ushering in the new year. They had assembled at the confines of the Jallianwala Bagh, an enclosed walled garden that lay at the heart of the city. The spot was accessible only through five narrow passageways. When Dyer learnt of this development, without caring to know whether the attendees were indeed in defiance of his orders, he did not hesitate to park vehicles mounted with artillery outside the complex. He ordered his troops to open fire, and in a span of a mere ten minutes, the vivacious crowd was silenced by the stench of death and sorrow. 1650 rounds of bullet fire had been unleashed on those present, and by official reports, 379 were killed in the heinous act of cold-blooded mass murder!

Salman Rushdie suggests that the immediate trigger to the genocide was the assault of a lady missionary. He wrote, “the calumny… that frail English roses were in constant sexual danger from lust-crazed wogs” may also have played a part in Dyer’s mind. In retrospect, it was much more than that. No other punishment meted out by the Empire was as barbarous as the Jallianwala Bagh. The Peterloo massacre had claimed only eleven lives. Across the Atlantic, British soldiers who had fired upon the Boston Commons had killed five men- and had been accused of deliberate massacre. In contrast, figures established by an independent fact-finding committee appointed by the Congress for the Jallianwala Bagh pegged the dead at nearly a thousand, with countless many bruised beyond recovery. This was no ordinary act of retribution, but also an unabashed display of egoistic assertiveness. The establishment was up in arms to suppress the news of Dyer’s notorious act and effectively contained it for six months before all hell broke loose and the news spread like wildfire.

The British, who advocated themselves as crusaders of human rights and democracy, were now in a desperate bid to cleanse themselves of the unholy taint. An official commission was established to enquire into the misdeeds of General Dyer, popularly called the Hunter Commission. While deposing before the commission, Dyer had not the slightest of remorse or guilt for his actions. He claimed that the congregation was a ‘rebel meeting’, a direct challenge to his authority which had to be responded to in kind. He noted with satisfaction that it was him that had ordered the troops to fire towards the exits, where the crowd was swelled in an attempt to escape. He described with absolute iniquity, ‘… the targets [innocent civilians], were good’. When they had exhausted their ammunition and innumerable people lay writhing in pain on that harrowed compound, Dyer forbade his soldiers to provide aid to any of the injured. He consequently ordered all natives to stay off the roads for twenty-four hours, thereby denying help to even those who watched their life chipping away under the obstinacy of the General’s whims. It was perhaps not a surprise that the commission only found him guilty of ‘grave error’, and refused to accept the outrageous violation of life that had been carefully orchestrated under Dyer’s sadistic watch. This made it quite discernible that the commission was set up as an eyewash- and that homicide of the hapless was at best inconsequential to those placed comfortably away in the High Command.

When public distrust and anger against the Hunter Commission unfolded, Jawaharlal Nehru was deputed to ascertain the facts. He found several more ignominies hurled at Indians, all of which he meticulously noted. He described with a sense of utter repugnance, that Indians using the street where the missionary was assaulted were condemned to crawl on their bellies, in ‘the manner of snakes and worms’. Perhaps the greatest surprise of all lay not in the ruthless killing itself, but the reaction of the British public to such a despicable act. While being dismissed from service later, he continued to enjoy stately privileges and lapped up a handsome pension granted to him. Rudyard Kipling- who is a favourite among bibliophiles- hailed Dyer as ‘The Man who Saved India’. The Britons, in full complicity, ran a crowdfunding campaign for Dyer, and presented to him a princely sum of £26,317 – equivalent to almost a quarter of a million pounds today! In stark contrast, the kith and kin of the deceased in the Jallianwala Bagh tragedy were compensated a poorly £37. Nehru later penned, “… the cold-blooded approval of that deed shocked me greatly. I realised then, more vividly than I had ever before, how immoral imperialism had eaten into the souls of the British upper classes.”

The Jallianwala Bagh massacre hit the last nail in the coffin which reinforced the construct that the British Raj did not value Indian lives. It was not a mere exercise in saving the honour of British women or responding to defiance of authority. Rather, it was an exhibition of brute power by bloodthirsty hoodlums who donned the garb of mannered diplomats. In 1928, Sir William Hicks- Home Minister under the Conservative government led by Prime Minister Baldwin- made it amply clear: “We went with a yardstick in one hand and a sword in the other, and with the latter we continue to hold them helpless while we force the former down their throats.” The tragedy was nothing but a clear-cut case of egregious racism solidified by the British intractability and authoritative obstinance, and shoved upon helpless civilians who would go on to be framed forever in the annals of contemporary Indian history.

Research

A Quest to Quantitatively Understand Constitutions