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Mainstream, VOL 61 No 51 December 16, 2023

New Constitution: A Fig Leaf for Hindu Rashtra | Vijay Kumar

Saturday 16 December 2023, by Vijay Kumar


The idea of a new Constitution is being floated, especially by those who are perceived to be close to the Narendra Modi Government. It started with Derek Debroy, writing in Mint, followed by others, and gained currency after the publication of a book, Colonial Constitution by Arghya Sen Gupta.

The Constitution contains core ideas and represents the collective aspirations. The consensus available during the constituent assembly debate is conspicuous by its absence.

Our Constitution incorporates grand political principles of liberty, equality and fraternity- rallying cry of historic French Revolution. The present time is an era of deep polarisation --- not only in India, but even in developed and advanced countries. Sublime principles of the present Constitution sit uneasily with cultural agenda of the present ruling dispensation. Hence, attack on the present Constitution, and idea of new Constitution is being articulated on ascriptive criteria of cultural marker.

It is not the first time that the idea of new Constitution is being bandied about. The two earlier circumstances in which it was introduced would be instructive. The first time the idea of new Constitution was conceived during emergency, and the committee was set up under the chairmanship of Swaran Singh. The committee comprised of, among others, two tallest Constitutional scholars of the day, Prof. P.K. Tripathi and Prof. Upendra Baxi, and the said committee recommended drastic changes which would have diluted the core values of the Constitution. But the chairman of the committee Swaran Singh acted like statesman and recommended against tinkering with the existing Constitution. The second instance for change of the Constitution occurred during the earlier government of BJP under the primeministership of Atal Bihari Vajpayee. A committee was setup under the chairmanship of former Chief Justice of India, Justice M.N. Venkatachellaiah. This committee also recommended changes which were perhaps desirable and not drastic like Swaran Singh committee report. It would be pertinent to note that Justice Venkatachalliah led constitutional review commission merely suggested the amendments rather than repealing the Constitution.

The Indian Constitution is 73 years old which could be considered to be relatively old in comparison with the fact that average life span of the Constitution is 17 years, as per the research done by American scholars, Zachary Elkins, Tom Ginsburg and James Melton. The majority of the Constitutions framed have not survived. South Asia, in particular, only Indian Constitution has survived. The Constitution of Lanka framed by the tallest English Constitutional expert of the time, Sir Ivor Jennings, collapsed alarmingly in short time, whereas framing of the Indian Constitution, which was ridiculed by the Jennings, is still surviving.

The Indian Constitution is flexible as Article 368 confers power on the parliament to amend this provision to meet the challenge of the time. Unlike US Constitution, which can be amended only after ratification by 75% of the states, the Indian Constitution can be amended by separate voting of two third of members present and voting separately in Lok Sabha and Rajya Sabha. The proviso to Article 368 carves out an exception by providing that some provisions, particularly pertaining to judiciary and federalism, can be amended only through ratification by half of the states. In last 74 years, the Parliament has passed 106 Amendment to meet the needs of the time.

The power of the amendment, however, is subject to the theory of ‘basic structure’ propounded by the Supreme Court of India in historic Kesavananda Bharati Case in 1973. According to the doctrine of basic structure, the overarching principles of the Constitution cannot be touched by the Parliament, even under the power of amendment. It is significant to note that the theory of basic structure does not fetter the power of the parliament to amend the Constitution, but has only drawn the red line in form of core ideals of the Constitution, which should not be crossed.

The US Constitution is oldest, as it was framed in 1789, i.e. 235 years ago, and the procedure to amend the Constitution is extremely cumbersome, and yet the Constitution is surviving, and there is no demand to replace it with new Constitution. Indian Constitution was framed by the most gifted statesmen and miniscule number stateswomen who were not concerned with party politics and agenda of their respective parties. We cannot produce the galaxy of gifted genius who framed the Constitution in the present time of polarisation. In fact, Dr. Ambedkar prophesized this in his statement on 4th November, 1948 in following words :

“…..The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable constitution it has no axe to grind. In considering the Articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans seeking to carrty amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it.”

Equally significant is perceptive comments of Fali Nariman in his latest book:
“You must Know Your Constitution” which deserves to be extracted :

“The life of a written Constitution – like the life of the law – is not logic (or draftsmanship), but experience. Seventy-odd years of experience on this subcontinent has shown that it is easier to frame a Constitution than to work it. In the same subcontinent, Pakistan and Bangladesh had crafted written constitutions at different times, but they were interspersed with periods of martial law, and civil and military dictatorships. We will never be able to piece together a new Constitution in the present day and age simply because innovative ideas however brilliant and howsoever encouragingly expressed in consultation papers and reports of commission, can never give us an ideal Constitution. In constitution – making, there are hidden and hidden forces that must not be ignored, viz. the spirit of persuasion, of accommodation, and of tolerance. In India – as in the rest of the world – all three are at a very low ebb today.”

Apart from this, the experience of last 73 years has demonstrated that democracy has survived only in India among many Asian and African Countries which secured independence after 2nd World War.

The aberration and abuse of power could be corrected, or as a matter of fact, has been rectified through constitutional amendment. Some of the most obnoxious provisions inserted through the 42nd Amendment during emergency were rectified by the 44th Amendment passed by Janta Government in 1978. The polarisation in present time is too deep to frame any Constitution with an iota of consensus.

Pertinently, core values of the Constitution, especially principles of pluralism and federalism have come under severe strain under Narendra Modi Government which makes the talk of the new Constitution motivated and suspect.

The Constitution is only thing that stands in the way of making India as Hindu Rashtra – professed goal of BJP and RSS. The noxious identity politics and toxic phenomena of majoritarianism are at odds with core ethos of the Constitution. Therefore, the talk of new Constitution is merely fig leaf for establishing the ‘Hindu Rashtra’ by discarding the grand principles of Liberty, Equality and Fraternity.

(Author: Vijay Kumar is Senior Advocate, Supreme Court of India and the author of a recent book: ’The Theory of Basic Structure: Saviour of the Constitution and Democracy’)

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