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Mainstream, Vol 62 No 48, Nov 30, 2024

The Constitution At Seventy-Five: Only Guardrail Against The Pursuit of Restructuring The “Idea of India” On Ascriptive Category | Vijay Kumar

Friday 29 November 2024, by Vijay Kumar

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On 26th November,2024, The Indian Constitution turned 75 – a great, enviable and exceptional achievement – in light of the fact that average life-span of the Constitution is 17 years, as per the compilation done by three American Scholars: Zachary Elkins, Tom Ginsburg and James Milton.

In newly independent countries in Asia after the Second World War, Constitution has survived only in three countries : India, Taiwan and South Korea. In South Asia, the Indian Constitution is the only Constitution which has endured, whereas multiple Constitutions have been framed in Pakistan, Sri Lanka and Bangladesh.

The momentous exercise of framing the Constitution was undertaken in most traumatic time, when the independence came with bloody partition on religious line. Thus, the circumstances were not conducive at all, and yet, the framers transcended the constraints of temporality and rose to the challenge of performing historic duty to make new Constitution – Indeed, colossal achievement!

The Constitution of India was framed in almost three years – starting from 9th December, 1946 and was completed on 26th November, 1949. It is the longest Constitution in the world. One of the tallest Constitutional scholars of England, Sir Ivor Jennings, ridiculed it by describing it as “Too Long, Too Rigid, Too Prolix” – a damning indictment, indeed! But the irony is that the Ceylon (now Sri Lanka) Constitution drafted by Ivor Jennings himself around same time lasted only for 14 years. On the other hand, another great constitutional scholar of England, Kennth.C. Wheare, showered lavish praise by commenting that “Framing of the Constitution was the biggest liberal experiment in government of men by themselves that has ever been tried”.

On the opening day of the sitting of the Constituent Assembly itself, Dr Sachchidananda Sinha, the temporary chairman, set the tone of the proceeding by infusing idealism from following inspiring quote from the American Constitutional scholar, Joseph Story:

“Let the American youth never forget, that they possess(in their Constitution) a noble inheritance, brought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully-guarded, of transmitting to their latest posterity all the substantial blessing of life, the peaceful enjoyment of liberty, property, religion, and independence.”

The framers of the Constitution, being aware of the significance of the Institutions, continued with colonial legality and institutions. They knew it well that the Constitution could not be written on tabula rasa. The complete break from the old system set up in France after the French Revolution collapsed immediately and paved the way for the anarchy, eventually leading to the rise of Napoleon. Therefore, the framers, in their wisdom, retained the colonial institutions, such as Civil Service, High Courts, Universities and the Army. It is on the bedrock of these institutions to which others were added, like Election Commission, Comptroller and Auditor General, Public Service Commission and others that democracy took root in India. The most crowning institution established under the Constitution was the Supreme Court as an apex judicial court that is vested with the power of judicial review to invalidate any transgression of power by the Executive and the Legislature.

The novelty, however, lied in guaranteeing the fundamental rights to the citizens, definition of citizenship and social aspirations aka directive principles. The framers were conscious about civilizational heritage rooted in mind-boggling diversities, and decided to preserve them by guaranteeing group rights by conferring special right to linguistic and religious minorities. Recognizing the stratified social structure, the group rights were also conferred on downtrodden classes through affirmative action. The framing of the Constitution marked the introduction of modernity. By guaranteeing right to equality and proscribing discrimination on the basis of gender, caste, religion and residence, the framers ruptured the tradition, notorious for patriarchy and hierarchy. The most striking break from the tradition is marked by conscious shift from ‘duty’ to ‘right’ without which democracy cannot be conceived at all. The interaction of the citizen with public institution was made on the principle of equality.

Two Phenomena: guarantee of enforceable fundamental rights and rights to adult suffrage were embraced by the citizens with the fullest of zeal after promulgation of the Constitution. Soon after the Constitution came into force on 26th January, 1950, the citizens started taking their rights seriously by filing writ petitions in the High Courts and the Supreme Court under Article 226 and 32 respectively. It is this assertion of rights coupled with the right of adult suffrage that enabled democracy to take root and become robust. The independent and insulated judiciary enforced the right of the citizens, and thereby ensured democratic accountability by interrogating administrative deviance and legislative overreach.

Constitution and Constitutionalism

There is, however, the crucial distinction between the Constitution and constitutionalism. Every country has its own Constitution; whether it is totalitarian countries like Russia and China, rogue country like North Korea, and regressively religious countries such as Iran, Saudi Arabia and other countries in Middle East, but that does not mean there is a constitutionalism in these countries. The constitutionalism becomes operative only when citizens exercise their rights and independent judiciary enforces it, and there is vibrant culture of deliberation and scrutiny – not only by scholars and intellectuals--- but also by public at large. There is no written Constitution in England and Israel, and yet, all-pervasive ethos of constitutionalism is present that interrogates that abuse of power. Thus, the culture of constitutionalism is more critical for the democracy than the existence of formal constitution. It is this phenomenon coupled with creative power of interpretive hermeneutics deployed by constitutional adjudicators that results in the Constitution being transformed from descriptive to prescriptive.

The Constitution contains mechanism for checks and balances to ensure that no organ exceeds the power earmarked to it. The Constitution grants power and set limitation on the exercise of it, and in the event of transgression, the Constitutional Courts are empowered to quash it, and thus majoritarian impulse is tamed.

Identity of the Constitution

The Indian Constitution is erected on fundamental values which represent the spirit of the Constitution. The ideals like democracy, republicanism, rule of law, independent judiciary and independence of other institutions, federalism, and secularism along with liberty, equality, fraternity and dignity of the individual are defining features of the Indian Constitution. The framers of the Constitution consciously adopted these principles. The foundational values of the Constitution were further entrenched by the formulation of the doctrine of “basic structure” in historic judgment by 13 judge bench--- larger ever formation---- in celebrated Kesavananda Bharati case in 1973.The theory of the “basic structure” means that there is inviolable core of the Constitution that cannot be touched by the Parliament even in exercise of its constituent power to amend the Constitution. This writer, in his theoretical book, titled ‘Theory of Basic Structure: Saviour of the Constitution and Democracy’ has expounded that ‘the core identities of the Constitution correspond with ‘Idea of India’. One of the most distinguished political theorist of our time, Francis Fukuyama, has theorized that “Wherever the identity of the nation is based on political principles or ideals, rather than ascriptive group categories, the liberal democracy has survived and flourished”, and he includes India along with other advanced countries. Fukuyama further goes on to argue that “identity politics denies the possibility of universally valid modes of cognition; and it elevates the value of group experience over diverse individuals hold in common”.

The ’idea of India’ on the basis of ethno-religious criteria is wholly dissonant with constitutional identity; in fact, it destroys the very soul of it. This is reinforced by following comments of another eminent political theorist, Bhikhu Parekh (now Lord Parekh as a Member of the House of Lords):

There was an extensive debate on this in the Constituent Assembly, resulting in the Indian Constitution, which provides the clearest statement of the country’s self-given identity. The Preamble commits India to certain basic principles such as justice, which is mentioned first, followed by liberty, equality, fraternity, and the dignity of the individual. Fundamental Rights institutionalize and protect individual dignity, freedom, and the basic equality of rights and status. The Directive Principles, expected to be ‘fundamental in the governance of the country’, go yet further.”

In a pluralistic society reliance on religious identity grounded in cultural revisionism would only mean annihilation of rights and safeguards guaranteed to the minorities which amounts to negation of secularism – in fact the very concept of equality and fundamental pillars of democracy. Again, the following comments of Bhikhu Parekh are extremely apposite:

“In my view the so-called Indianness is not an attribute or a quality that Indians do or do not individually possess, but a relationship in which they stand with respect to each other. I, therefore, prefer to ask what holds Indians together, what makes them think and feel that they belong to a single community or form a single people, and share more in common with each other than with outsiders. I think these bonds exist at four levels. First, they share the common status of being the citizens of India. They are subject to a common structure of authority as articulated in the Constitution and enjoy equal rights. The Constitution constitutes them as a single political community and marks its formal birth. Second, in an increasingly integrated economic, social and political environment, Indians share common interests and face a common future. Third, thanks to India’s democratic institutions, they share common experiences of cooperation and struggle, common achievements and frustrations, and a broadly common political culture including ways of talking about and negotiating their differences. Finally, India is the product of a long history and the memories associated with it form part of its collective heritage. During the course of its history, different groups obviously fought each other, had different geographical origins and political biographies, and viewed India’s history differently. However, these memories are interlocked, overlap, centre on common events, and unite them in the very process of dividing them.”

Anxieties and challenges

But the framers were equally conscious of the challenges that lied ahead. On penultimate day of the functioning of the Constituent Assembly, that is 25th November, 1949, Dr. B.R. Ambedkar, the head of Drafting Committee, commented on the floor of the Constituent Assembly that “however good a constitution may be, it is sure to turn out bad because those who are called to work it, happened to be a bad lot. However, bad a constitution may be, it may turn out to be good if those who are called to work it, happened to be a good lot.” Similar sentiment was articulated by the President of the Constituent Assembly, Dr. Rajendra Prasad, on the last date of functioning of the Constituent Assembly, i.e. 26th November, 1949, and that too, deserves reproduction :-

“……If the people who are elected are capable and men of character and integrity, they would be able to make best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them….”

Though the Constitution has endured for Seventy-five years and proved up to be catalyst for survival of democracy, it has encountered the challenges all through its existence. The first major assault on the Constitution was made by Indira Gandhi government by declaring the Emergency in June 1975, which suspended the citizen’ right to move the court for the enforcement of fundamental rights, in the wake of Allahabad High Court invalidating her election. But the democracy proved out to be resilient and the attempt to denigrate the Constitution could not succeed. But the emergency experience is mere fleabite compared to attack on the Constitution on the basis of it being grounded in western liberal values. The RSS, the ideological mentor of the BJP, has been opposing the Constitution right from its inception, as the salient aspects of the Constitution are wholly at odds with the pursuit of RSS to make India ‘Hindu Rashtra’. While paying leap service to the form of the Constitution, RSS and BJP are hostile to its spirit, especially foundational tenets like secularism, independence of judiciary and federalism. Therefore, the irony in celebration of seventy five years of the Constitution by the party which rejected it, is too glaring to be glossed over.

Significance of Constitutional Oath

Equally worrying is the rising tendency to interpret the mandate secured in the election as a license to alter the identity of the Constitution, and thereby very ‘Idea of India’. The RSS always wanted India as a ‘Hindu Rashtra’, and thus never felt comfortable with the secular and liberal features of the Constitution with emphasis on rights and special protection guaranteed to the minorities. The brute majority gives power to a party to form the government, but the functionaries of the Government take oath in the name of the Constitution. Once oath is administered, fidelity has to be shown to the Constitution, and not to the party’s cultural agenda. This is one significant aspect which has not been touched by the Supreme Court with any detailed elaboration and commensurate seriousness.

The democracy is further undermined by the cult of personality. One of banes of Indian Democracy is that it has always nurtured personality- cult. It happened with Jawaharlal Nehru, Indira Gandhi and Rajiv Gandhi in the age of Congress’s hegemony. With a hiatus of almost quarter century, marked by coalition government, there is recrudescence of personality- cult in the time of ascendancy of BJP in and around the persona of Prime Minister, Narendra Modi. Modi is treated bigger than law, bigger than constitution----indeed, bigger than the country! The health of democracy is sustained through impersonal rule and its robust enforcement by independent institution rather than personality of the leader of ruling dispensation. On this malaise of Indian politics, once again, the last speech of Dr Ambedkar delivered on 25th November, 1949 was prophetic in which he warned against the culture of the hero-worship in following words:

“The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions.” There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no women can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”

Mark Tushnet and Madhav Khosla in their Introduction to Book, ‘Unstable Constitutionalism’ writes that “constitutionalism is threatened by extra-constitutional forces, such as paramilitary or radical ethnic and religious groups that seek to construct an entirely different constitutional order”. Indian Army has remained professional to the hilt and never became extra-constitutional forces, as happened in our neighbouring countries. But the majoritarian politics with cultural agenda has become degenerative elements for democracy and poses a threat to core constitutional values and moralities.

The task of preservation of the foundational pillars of the Constitution should not be left solely to the Supreme Court. The opposition parties, academics, public intellectuals and media must articulate the essential features of the Constitution, and thereby educate the public at large and inculcate in them the feeling of what great German political thinker, Jurgan Habermas, terms ‘Constitutional Patriotism’. The Constitution has enough potency to counter the hegemonic tendency, provided it is used with spirit of statesmanship, concern for democracy, and last but not the least, with courage.

When the American Constitution was framed in 1787, one of its distinguished framers, Benjamin Franklin, wrote that “We have made the Republic; can we keep it?” Our founding fathers and fifteen mothers framed sublime Constitution, and the nagging question before us, “we the people”, is: Can we preserve it?

(Author: Vijay Kumar, Senior Advocate, Supreme Court of India and Author of ‘The Theory Of Basic Structure: Saviour Of The Constitution And Democracy’)

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