Senior Advocate Shyam Divan emphasized the importance of preserving the integrity of Constitutions, warning against amendments driven merely by the numerical strength of a government. Speaking at an event organized by the Bar Association of Sri Lanka in Colombo, Divan underscored the need for extensive public consultation in the constitutional amendment process, cautioning against ad hoc changes.
Divan referenced esteemed jurist Nani Palkhivala’s work, “Our Constitution: Defaced and Defiled,” to highlight the risks of altering the Constitution without thorough public discourse. He stressed that such practices could undermine the foundational principles of constitutional governance. The event, titled “Deepening Democracy: Constitutions and Constitutionalism,” occurred amidst a heated constitutional debate in Sri Lanka concerning the judiciary’s structure.
He commended the Bar Association of Sri Lanka for its principled stance and advocated for a transparent and consultative approach before implementing any constitutional amendments. Highlighting India’s constitutional journey, Divan recalled Palkhivala’s foresight in 1974 about the potential dilution of core constitutional values due to frequent amendments.
Divan praised the heroic role of Palkhivala in the pivotal Kesavananda Bharati case, where the Supreme Court’s adoption of the Basic Structure doctrine ensured the protection of the Constitution’s essential features against alteration through amendments. “Constitutionalism is our best bet to navigate the turbulence of a complex world and to transition to a more fulfilling future,” Divan remarked, emphasizing the public’s faith in constitutional supremacy as paramount.
Quoting political scientist Pratap Bhanu Mehta, Divan articulated that constitutionalism relies on self-restraint, respect for diversity, adherence to processes, skepticism towards popular sovereignty claims, and a commitment to open critique. Additionally, he invoked economist Amartya Sen’s concept of “matsya nyaya,” or “justice in the world of fish,” as a metaphor to caution against the erosion of constitutional norms.
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Divan warned that in a democracy, majority rule and electoral victories should not justify altering constitutional mandates, as such actions could destabilize foundational institutions like the judiciary. “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,” he asserted.
He further emphasized the critical role of bar associations in safeguarding constitutional values and educating the public. “Bar associations have a vital societal obligation in educating the community and advancing constitutionalism,” he concluded.
The event was live-tweeted by Bar and Bench on July 11, 2026.
