‘Vestigial’ Articles of an evolving Constitution

Indian Constitution at the latest count has around 395 Articles, twelve schedules and 2 appendices, making it what many authors refer to as the ‘longest’ constitution in any democratic country. However in this post we would try to analyze as to whether all these Articles, schedules etc. are in constant use or have the legislature, judiciary, media forgotten about some articles which have become ‘vestigial’ or redundant.

To find such Articles we would apply all the objective criteria mentioned hereinbelow:

1. No amendment for last 15 years (Given that Indian constitution has been amended 94 times in 56 years i.e. 1.68 times every year, 15 years can be considered a safe period for us to assume that legislature has almost forgotten about this article.)
2. Not mentioned in last 5 Law Commission Reports.
3. Less than 5 cases in SC referred this Article in a judgment in last 10 years.
4. Little or no reference in main stream media channels like newspaper etc.
5. Only a passing mention of the Article in popular student edition books on Constitutional Law (for this I have selected MP Singh and MP Jain’s book)

After this we would use the subjective test: “No one would notice that the article has been removed from the Constitution”.

As a word of reminder, this post is not about which Articles should be removed from the Constitution (like some would argue Art. 370, 51A etc.) but is about ‘vestigial’ Articles which we have ‘forgotten’ about but exist nonetheless.

Applying the objective criteria we find:

• Articles which have not been amended from 1994 (i.e. missed from 77^th Amendment to 94^th Amendment) – Art. 1 – 14, 17 – 21 (not 21A), 22 – 44, 46 – 51 (not 51A), 52 – 54, 56 – 74, 76 – 80, 83 – 163, 165 – 169, 171 – 242, 244 – 268 (not 268A), 271, 273 – 329, 331, 333, 336 – 337 (not 338A), 339 – 395 (not 361B). In the schedules 1^st to 6^th have been unchanged since 1994. Thus around 370 Articles and 6 schedules have remained unchanged in last 15 years.
• Out of the ‘legislatively untouched articles’ the most popular Constitutional law books student edition does not go past a bare reading of the articles in - Art. 392, 378, 378A, 377, 376, 372A, 374, 368 [(3), (4), (5)], 361, 313, 255, 97, 89 – 95, 63 – 64, 8, 7, 6
• And among these Articles in past 15 years the Supreme Court of India has not referred the following in more than 5 cases since 2001 – Art. 392, 378, 378A, 377, 376, 372A, 374, 368 [(3), (4), (5)], 361, 313, 255, 6, 7, 8

This brings us to the subjective test 'would we miss these Articles'?

• Art. 392 - Power of the President to remove difficulties – This is one of the many temporary, transitional and special provisions (Part XXI of the Constitution) which have become redundant and can be safely thought to be ‘put out’.

• Art. 378, 378A, 377, 376, 372A, 374, 313 – All these articles fall within the category mentioned above (now we know why the constitution is so large, as it carries so much excess junk)

• Art. 368 [(3), (4), (5)] – The first controversial Article in our discussion. This trio of sub articles were added in 24th and 42nd amendments and they seek to take away judicial review on constitutional amendments especially relating to Fundamental Rights. Surprisingly this addition was overlooked in the 44th amendment when the Janata Dal led government wanted to purge the Constitution of the 42nd amendment, this shows that legislature love to play out the judiciary. However using the Basic Structure doctrine the Indian Supreme Court struck down the amendment. This was made sufficiently clear in Minerva Mills Case, however after many decades the sub article still persist as if to remind law student of the inherent conflict between legislature and the judiciary.

• Art. 255, 361 – The issue to be highlighted in these articles are the use of the word ‘rajpramukh’, the 7th amendment in 1956 had removed most of the traces of this raj relic from the Sardar Patel’s bargaining days when he forcefully requested the maharajas of princely states to join the union in lieu of posting as rajpramukhs and privy purse. Thus another amendment taking away these offending reminders of a by-gone colonial era could do a lot of good to the constitution and hardly anyone would notice.