A democracy hinges on its Constitution. It is a public, organic and fundamental law of the State acting as its supreme law. The Constitution of a democratic country serves as its Magna Carta. Thus, it is the most important public document commanding the respect and amenability of citizens. Constitutions become important during and post times of upheaval. They usually bear the stamp of past fears. Their existence depends on the recent bad experiences. Or in order to avoid recurrence of those experiences.
The drafters of the 1787 United States Constitution were almost paranoid in their endeavour to avoid monarchy and populist democracy. The fear of Nazism and the negative experience of the failure of the Weimar Republic led to modern German constitution. In 1958, de Gaulle was desperate to avoid a paralysis of the parliament of the Fourth French Republic.
Our Constitution is similar to US Constitution. The Indian Constitution is a product of long arduous research and deliberation of a body of eminent representative. However, it bears an imprint of the fears of our colonial past. We put in efforts to provide no room for a possible disintegration.
India is an unwieldy territory full of heterogeneous elements with radically conflicting ideologies. Thus, the need for having a strong union was not alien for the makers of our Constitution. The demographics of India demanded heavily from the Constitution. Thus, we have the lengthiest Constitution in the world, catering to the world’s largest democracy.
The 78 year long history of the working of our Constitution shows a lot of crests and troughs. Ever since the Indian Constitution came into force in 1950, the ruling party of the day sought to amend the document. It may be out of political or administrative necessity. Ofcourse, the same can pass with a Parliamentary approval. There have been many formal and informal changes in the Constitution in the past. But a bare perusal of the 101 formal amendments will show that by vesting the power of amending the Constitution in the hands of the legislature, the makers of the document gave a lot of power in certain hands.
Now this seems like a revolutionary idea in other countries. Meanwhile, India after all such efforts for a “better working” of the Constitution India is still a third world country struggling with problems. Some of the these problems do not exist for most of the world. Maybe since the 20th century itself. Be it over-population, unemployment, economic laxity or social disharmony. So the real question is, if the Constitution that we have really the Constitution which works for us?
Need for Re-Writing
Often there are debates about the need for re-writing the Constitution. This happened citing the varied amendments. Also contemplating a shift from the Parliamentary style of governance to the Presidential style. But there is a grave possibility that a re-writing will actually turn out to be a mere re-shuffling. Thus, the debate needs to be on reviewing the spirit of the document.
For instance, the Preamble of our Constitution serves as the vision document. A Constitutional ideal with the words “Sovereign, Socialist, Secular, Democratic Republic”. (Which was originally just “Sovereign Democratic Republic”.) But, the need for the Indira Gandhi regime of “people’s government” brought about an amendment to the Preamble itself. Thus, the words – socialist and secular. In present day, India seems to be a confused nation. It has a crippled economy striving to be capitalist but still wishing to be socialist. A country which wishes to be secular but does discriminate between its citizens on the basis of religion, caste and ethnicity.
Talking about confusion one cannot possibly miss the structure of governance that our Constitution provides. It is federal or quasi-federal with a strong unitary bias. This predicament is the fruit of the history and the present experiences. State consciousness was more active under the British regime. It somehow automatically came in 1947 to the independent India. Thus a strong union was imperative. Also the internal and external disturbances in Punjab, Jammu and Kashmir, Assam have lead to the fact that a strong central control is important to keep the Indian nation intact.
However, in such a system the financial matrix between the centre and states are not independent. The schemes in the states receive funds by the centre. Thus it is important to tackle financial inadequacy of the states by revising the provisions of the Constitution. Also, a greater emphasis on consultation with the consent of the states in areas affecting them vitally, but not affecting the integrity of the Union. This is to establish a try ‘co-operative federalism’ in India, necessary at a time when the pluralistic state political parties are endeavoring to unite and tackle the strong central government in order to establish “true federalism”.
A quasi-federal government has strained the Centre-State relations and a loose separation of powers has strained the relation between the Legislature and the Judiciary. Conflict between the legislative intent and judicial review is very apparent. Whether we take the instance of a Muslim woman’s right to maintenance; or the very recent uproar on the National Judicial Accountability Act (NJAC) overthrowing the collegium system for appointment of judicial officers, it is apparent. The Act was held to be unconstitutional by a constitutional bench of the Supreme Court. Hence it cannot be denied that judicial review is beneficial promoting greater legislative accountability.
But the Court’s evolving of novel doctrines such as that of ‘basic structure’, ‘prospective overruling’ or the interpretive fundamental rights lead to confusion and uncertainty. Thus, engendering bitterness between the legislature and the judiciary whereby either of them to seeks to checkmate the other.
A debate about revising the Constitution inevitably includes the topic of reservation. Yes, it is provided for in the Constitution itself, albeit not defined very clearly. It is safe to say that Article 15 provides a window and now the political parties are misusing the same as a gateway to power. Popular sentiment (exception being those who are benefiting from it) is that reservation should be done away with. But is it all that simple? The answer to that is a simple no.
The Political Play
To make their way to power, political parties wish to appease the marginalized section not by imparting them means and the relevant skills to prove their worth for an opportunity. But by actually giving them the opportunity which in turn brings the parties loyal votes. This has been the modus operandi and will continue to be. Atleast until the time our political parties do not fish out better political agendas to fight elections. In the year 1990, the Constitution was amended to provide the benefits of reservations to the people from the Scheduled Caste who converted to Buddhism conceding to their demands for the same.
The same ploy is used for the appeasement of religious minorities. The most grievous feature of this post-independence development is that the minorities have held up their vote as a bait. Political leaders of the majority community belonging to different parties have indiscriminately swallowed that bait in their election manifestos and alliances. This is irrespective of the ideologies which ushered in the Independence of India and which form the bed-rock of the existing Constitution.
But, it is pertinent to understand here, that anybody who assumes that to meet the ever-aggressive demands of the religious minority is to foster “secularism”, should note, that it would be the highest form of communalism to support one religion. As against the majority, who are to lead in a parliamentary form of government. The makers of our Constitution envisaged to create a Uniform Civil Code but placed it under the Directive Principals of State Policy which cannot be enforced. Thus the independent governments of India have been very comfortably neglecting it. This can also be attributed to the mission minority appeasement of the political parties.
Minorities’ demand of not wanting to be governed by a uniform civil code was conceded. That too by the very government which had induced the Hindu majority to give up their scriptural laws relating to their personal laws. But now that Art.51A has been embodied in the Constitution, any opposition to Article 44 which provides for the establishment for UCC would be a violation of 51A. Thus, any government which yields to thereto would be a party to such violation of the Constitutional provision.
Minority appeasement gives rise to separatist forces and dilutes the feeling of nationalism. The blunder of reorganizing the states was committed by former Premier Jawaharlal Nehru which proved to be a major catalyst in fostering separatist feelings. It was in addition to the unscrupulous political ambitions of the linguistic leaders. This gave rise to the demands of a separate Gorkhaland for Gorkhas and Bodoland for the Bodo people. Telangana was formed corresponding to the Telugu-speaking portions of the erstwhile state of Andhra Pradesh. A very abysmal outcome of such politics and the cry of “muslim in danger” gave birth to Hindu fundamentalism. Thus a demand for namaz on the highway was reciprocated by a demand for moha-aarti on the highway. Thus, forgetting that both were equally untenable in the eyes of law.
Therefore, it can be safely concluded that the Constitution has only provided for the politics of polarization. This has thus become the most sought after tool for the parties in order to attain power.
One of the major things lacking in the Constitution as it stands today is the failure to build a national sentiment amongst its citizens. A country inhabited by heterogeneous elements belonging to different races and religions, can maintain her independence, only if she stands as one organism. A national sentiment bearing allegiance to nothing but the Constitution only, has to prevail.
The spirit of national sentiment is very strong within the Americans which although has variegated demographics stands united to fight against dangers at home or abroad. The situation is just the opposite in India. We are saddled with politics of greed and power placing personal interests before national interests. We were taught to be devout towards our motherland with the national song “Vande Mataram”. But today anti-idolatry groups hold debates about the fact that whether it should be called motherland or not.
Many governments from time to time have sensed the need to re-write the constitution. But it all was in the direction of political gains. Talk of engineering a complete overhaul of the Constitution raged during the general elections, in 1971. In the face of a power struggle between a Parliament – impatient to bring about a socio-economic revolution – and an ever watchful judiciary applying the brakes by upholding the spirit of the Constitution. The idea of adopting a Presidential form of government was also not acceptable during the 1970s and the early 1980s.
Influential elements in politics, academia and the media, canvassed for the creation of a strong executive authority, independent of day to day Parliamentary control (a form modelled along the lines of the Presidential system in the USA). The debate over any comprehensive review of the Constitution abated during the mid-eighties through the 1990s, until 1999 when resurfaced as an election issue for different reasons altogether. The 1990s were a time where the political parties were unable to muster up a proper majority to form a stable government. Between 1995 and 1998, the numbers game that ensued after each general election and the incompatibility of the Olympian egos of political leaders resulted in fall of the Deve Gowda and I.K. Gujral governments in quick succession. Thus there were multiple elections in a short span of five years leading to sheer waste of public money.
Finally in 1999, the National Democratic Alliance (NDA) – a coalition of 24 political parties; led by the BJP came into being. The NDA’s pre-occupation with assuring a stable government at the centre has lain behind the urge to review the working of the Constitution. In February, 2000 the then President of India appointed ex-CJI Justice Shri. M.N. Venkachaliah to be the chairman of the committee; the National Commission to Review the Working of the Constitution (NCRWC). As its name indicated, the brief of the NCRWC was to review the working of the Constitution and not to rewrite or review its provisions. A great deal of misunderstanding was caused simply by the Commission being wrongly called “Constitution Review Commission”. The need for this committee faced opposition.
The committee submitted its report after 25 months. However, none of the recommendations saw the light of the day. It was contended by a journalist who was also a member of the NCRWC that the members were highly polarized. He also added that it was unfortunate that in some vital matters did not find place in the final report. Which was simply because any one of the members had some reservations. Some highly controversial matters of doubtful legitimacy have found place in the final report because of the insistence of the one member. Also, while in some matters majority was enough, in others lack of unanimity stopped the process.
It would have been better not to focus on the wish-list or the demands of some individuals. Or groups, for that matter, instead of the interests of the nation at large.
Recently, Shashi Tharoor who is a Congress Lok Sabha MP, talked about BJP’s will to re-write the Constitution. He expressed fear that if the BJP comes back to power in 2019 then it would look to re-write the Constitution. It will become a Constitution of Hindu Rashtra. He hailed that such a Constitution that the party would write will not build a nation through inclusiveness. Rather it will be one through exclusion. This is opposite to the vision of a Constitution.
This fear seems to be justified. But the credibility of this speech is questionable. This is because of the 78 years of the working of the “sanctified” Constitution of 1950, around 60 years were years with Congress in government. Some major foundation-altering amendments got a push by the Premiers of the Congress party. The Constitution was maneuver to stay in power. More so at a time when Constitutionalism could not afford catering to the vote-banks.
Dr. Rajendra Prasad, the first President of India, in his speech as the President of the Constituent Assembly, on the day of passing of the Constitution said:-
We must admit that the defects are inherent in the situation in the country and the people at large. If the elected people are capable, and men of character and integrity; they would be able to make the 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.
It is unfortunate to say that this statement down to its each and every word holds true to this day. Makers of our Constitution were visionaries. But what was lacking then and even now is the feeling of nationalism before any personal interests. The pre-independence India possessed the ability to seize its independence from the British Crown. But what it needs today is the ability to fight its greed and think as one nation.