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The Indian Constitution is the bulkiest. We Indians are very good at getting into the Guinness Book of World Records, and the Indian Constitution finds its place in that rather dubious book. I say "dubious" not because that the contents of the book/ compendium are false, but that a large portion of the contents deal with "achievements" that are "dubious". I don't know if I would go the stretch and call the "compiling" of the Indian Constitution a dubious effort, but I can say that it is a Constitution which has as many weaknesses as it has strengths. It reflects, in many ways, the Indian "mind": it makes simple matters complex; it wavers and it waffles; it makes grand gestures; it leaves loopholes the size of the Lincoln Tunnel; it tries to cover every bit and inch of political, philosophical, sociological, and metaphysical territory; it tries to leave nothing to chance and ends up leaving almost everything to chance or whim or vagary, as can be seen from the eighty plus amendments foisted on it in the past fifty years (compared to the twenty plus amendments to the U.S. Constitution in the past two hundred plus years).
So, what is wrong with the Indian Constitution? That was the question the BJP raised as part of its political platform. Not that it was the only party to ask that question: note that the Congress, the protean and amorphous entity that calls itself a party, and which has been "owned" by the Nehru family for fifty plus years, has itself called for a Constitutional review and has been the party that has tinkered, altered, abused, and misused the Constitution the most. But since the BJP actually began the process of putting together a Constitutional Review Committee, there have been some hoarse shouting from the ramparts of Parliament House and any other vantage point that the slimy and slick Indian politician can climb on to. But it is not just the Congress Party which is now opposed to the review but a host of others. And they all have one thing in common: they are opposed to the BJP. Opposition for opposition's sake is what has kept India backward and weak. Should we not consider therefore some measures that will assure us a healthy and responsible opposition and not a rabble-rousing, short-sighted, and demagogic opposition?
The debate about a constitutional review is and should be complex. It is not for the likes of a Laloo Prasad Yadav or a Sonia Gandhi to weigh in on these matters. Though they will, and that is the "fun" part of democracy. When the CRC presents its recommendations/ views, those will be discussed in Parliament, and not only the heavyweight parliamentarians will have a chance to debate about them but the mavericks, the misfit, and the misanthropes will too. That the public debate has already gotten mired in a myriad issues can be seen from this quick list of "headlines" from newspapers and online news groups:
- The Constitution is malleable to the point of being characterless
- If it is really so 'basic', why fear to define secularism?
- Look out, it's changing
- Constitutional review a reality finally -- Christ notwithstanding!
- 'Parliamentary democracy should not be tinkered with'
- 'The weaknesses are not of the Constitution but of the system and of the state'
- Is the Constitution so sacred that it cannot be touched?
- Yeh 'review, review' kya hai?
- 'People are what they are. The system has to be adjusted to meet the needs of society'
- 'The Constitution is a flimsy bit of paper indeed when we are unable to put criminals where they belong'
- 'If the Westminster type is not working, there is no guarantee that a new type of Constitution will also work'
- Them Counterfeits & Their Contentious Issues
- Stop the review!
- 'We need to rejuvenate our democratic process'
- 'We are third rate, unfit to be a democracy'
- 'The President's powers have to be reviewed. He can't just be a dummy'
- Why we need to change our Constitution
- Constitutional review is a ruse to usher in dictatorship, says Mulayam
- Non-Congress Opposition parties feel review of Constitution is unnecessary
May be, I should stop this essay at this point! The headlines have said it all! But no; let us look at this problem, and let us, for the sake of the people of the country, the majority of whom have suffered under a feudal, bureaucratic, corrupt, criminal, casteist system, put this debate about the Constitutional Review in the proper context.
The Indian Constitution is a child of compromises. Given the climate of conflict, fratricide, confusion, worries about Balkanisation, princely kingdoms seeking to go their own merry ways, and a myriad other problems, the Constituent Assembly remained the same body which Lord Wavell had inaugurated, and which was based on the very limited franchise allowed in British India. So, the assembly was not chosen through adult suffrage. Moreover, the assembly did not or could not even consider producing an Indian Constitution. They spent three years amending the existing constitution, the Government of India Act 1935, which had been transmuted into the 1947 Independence of India Act! So, for those novice students of Indian government who take pride in the unique quality of the Indian Constitution, I suggest a little bit more research and reading.
The conflict with Pakistan, and the post partition carnage had their impact on the Constituent Assembly. This assembly, given the pressures and pulls of those times, tended to think conservatively. One of those "pressures" was the fear of Balkanisation. What if India were to break into a million parts as Ishwara threatened would happen to Mythreyi's head if she continued to ask those troubling questions? To hold India together meant that the assembly had to make sure that the chances or possibilities for breaking away from the Indian Union were few if not nil. So, for example, instead of allowing the more democratic process of electing governors, they proposed the option of governors being appointed by the Centre. That, as we know now after fifty years, has led to the kind of "remote control" by New Delhi that has queered the pitch in many a state on many, many occasions. The assembly did not also throw out the emergency powers of the central government which every Indian had resented as practiced by the British. The emergency powers had been indeed omitted by the British when they passed the Independence of India Act, but the Constituent Assembly brought it back in the garb of "President's Rule"! And we know what havoc Article 356 has done to governance and democracy in India. The party, by the way, which has most misused that rule is the Congress Party. Can't we understand why that party is now resentful of and opposed to a constitutional review? What if there were to be a Congress government at the Centre sometime in the future, and what if there were those pesky and recalcitrant state governments headed by other parties, and what if the Congress wanted to rein in those governments? Simple: with Article 356 they could just get the pliant governor to take over the administration. The question now is whether the Constitutional Review Board that has been set up is going to do something about this piece of "naughty" legislation.
It is pointed out that the only heritage of the independence movement that was incorporated into the Constitution was the catalogue of fundamental rights. However, it was mostly a catalogue and there were very few guarantees. For example, some of the fundamental rights listed were the right to work and the right to a living wage. But could the government guarantee that? Could it be taken to court for reneging on its pledge? So, they took the only route out, and that was to list a bunch of non-justiciable rights under the "Directive Principles of State Policy." The "look good, feel good" aspects of the Constitution should have been jettisoned out, simply because that was it did: it made the "netas" look good, and they felt good about making vague promises.
The framers of the Constitution were also bamboozled by Nehru into reforming Hindu law. However, they were restricted in proposing the same kind of changes in Muslim law. Thus, while the British had been cautious about making changes in Hindu law, the framers of the Indian Constitution became cautious about making changes in Muslim law. Critics, then and now, have pointed out that this was incompatible with the idea of a secular state which should have a common civil law. Nehru's soft spot for the Muslims became constitutional edict, as well as his barely concealed contempt toward Hindus and Hinduism. Don't mistake me: there were many practices among Hindus that were feudal, archaic, anti-women, and which went against the greater and grander principles of Hinduism. The framers of the Constitution did well in considering those issues. What they failed to do, however, was come up with an Uniform Civil Code. Their inability to do so undermined one of the "basic and fundamental principles" of the Constitution: that of equality of status (in the eyes of law).
The Constitution, under Nehru and Indira and Rajiv, have been reshaped in such ways that it has taken the protean quality of the Congress Party itself. When Indira Gandhi pushed through the amendment that incorporated the words "socialist" and "secular" in the Preamble of the Constitution, I believe it undermined the basic structure of the Constitution. But that is all right for the Left-leaning, pseudo-secular academics and pundits in the country. However, the BJP setting up a CRC was enough to elicit howls of protest from this same group, which now fears that the RSS, through the BJP, is out to destroy the basic structure of India's beloved Constitution. Here is what some of the worthies have said: former Kerala chief minister K. Karunakaran, opined that the "review is a ploy to divert the attention of the people from the government's failures". K. N. Raj, social scientist, fattened and fed during the Nehru and Indira eras, says that the BJP is interested in a review because it has nothing else to offer. Here is a sound-bite from the worthy: "The government is not ready to tackle the obvious problems like poverty. Instead, it talks as if a review of the Constitution would remove poverty".
Enough of history, and enough of partisanship. What can and should the CRC consider, and what have they indicated so far? According to some, the basic structure of the Constitution should not be tampered with. They say that provisions like fundamental rights, secularism, the Westminster model of government and multi-party government cannot be tampered with. They quote the Keshavananda Bharati case in that regard. And they also quote the S. R. Bommai case in which the Court ruled that secularism was a basic feature of the Constitution. Strangely though, despite repeated reminders from the same Court to do something about the Uniform Civil Code that would ensure real as opposed to pseudo secularism, none of the "secular" breast-beating brigade have the courage to introduce such a bill in parliament.
What is the "basic structure" of the Constitution? The Kesavananda Bharati vs Kerala case was decided by a full Constitutional bench on April 24th, 1973. By a majority of 7-6 (note this carefully), the Supreme Court held that the power to amend the Constitution under Article 368 cannot be exercised in such a manner as to destroy or emasculate the fundamental features of the Constitution. The Court considered fundamental the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, separation of powers between legislature, executive and judiciary, and the federal character of the Constitution. Several jurists have not accepted the verdict (remember it was a seven to six verdict!). They say that the Court "in asserting the basic structure theory the Supreme Court has asserted political power in the guise of judicial interpretation. By propounding it, the guardians of the Constitution have in one bond become the guardians over the Constitution. Constitution adjudicators have assumed the role of Constitutional governors". For those Sonia supporters (who fear that Sangma, one of the members of the CRC, might introduce the "no foreign-born person should hold the highest positions in government" clause) shouting hoarse over the review it might not be remiss to suggest that they remember that Indira Gandhi's law minister had argued in Parliament in 1976 that there was no basic feature of the Constitution which Parliament could not amend.
What about the Westminster model? Is it the right one for India? Under this dispensation we have seen parliament stacked and stocked with the mediocre, the criminal, the feudal, the uninformed, the crooked, the party "faithful", the clueless, and the confused. Oh, it is not the system that is at fault but it is the people, some have chimed in. But if it is the people, then should we not have a system that would encourage, first of all, to educate and train the people in democratic ideals and habits? Is the Westminster model the best to train the citizens of a country in such matters? Or should we listen to Lee Kwan Yew, the ex-Prime Minister of Singapore, who said while visiting India a few years ago, that it is more important for the country to feed, shelter, and educate its people before throwing them into messy pot and pottage that "parliamentary democracy" is?
We have already taken enough space in giving the context for this discussion. To conclude, let me say this: the review is needed. India celebrated its fiftieth anniversary of independence in 1997. And it celebrated the fiftieth anniversary of becoming a republic this past January. It is time therefore to take a look at what India has accomplished in the past fifty years, and where it has failed. If more than forty percent of its people are still illiterate, and God knows how many are still below the poverty line, should we not ask what we should be doing to remove the constraints that have kept these people hungry, ill-clothed, uneducated, and manipulated and oppressed? Strangely enough, the people who shout themselves hoarse about fighting oppression are themselves the most vociferous when it comes to opposing the review of the Constitution. Let us wait and see what the committee is going to recommend. The CRC is made up of judges, lawyers, politicians, statesmen, and intellectuals. I would like to see them recommend some measures to make and keep governments stable. I would be happy to see them recommend ways and means of punishing the crooked and corrupt politician, quickly and effectively. I would like them to insure the guaranteeing of more fundamental rights, including the right to free speech as well as the freedom of information. I would like them to rid the Constitution of its bulk and its lugubriousness. A lean, spare, clear, and compact Constitution to assure the making of a strong, healthy, and prosperous nation is what I would like to see. Wouldn't you?
Ramesh N. Rao
April 8th, 2000
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