The Constitution of India: Miracle, Surrender, Hope 9788131250662

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The Constitution of India -

Miracle, Surrender, Hope

Rajeev Dhavan

Universal

Law Publishing

an 1mpnnt of tlJ·LexisNexis·

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((t· LexisNexis· · This book is a publication of LexisNexis (A Division of RELX India Pvt Ltd) 14th floor, Building No 10, Tower-B, DLF Cyber City, Phase-11, Gurgaon-122002, Haryana, India. Tel:+ 91 124 4774444 Fax:+ 91 124 4774100 Website : www.lexisnexis.co.in I E-mail : [email protected] @

Rajeev Dhavan, 2017

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Rajeev Dhavan, The Constitution ofIndia: Miracle, Surrender, Hope 2017 ISBN:9788131250662

Fali N ariman

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in friendship

Note: Due care has been taken while editing and printing this book. Neither the author nor the publisher of the book hold any responsibility for any mistake that may have inadvertently crept in. The publisher has taken all care and effort to ensure that the legislative provisions reproduced here are accurate and up to date. However, the publisher takes no responsibility for any inaccuracy or omission contained herein for advice, action or inaction based hereupon. Reference must be made to the Official Gazette issued by the Government of India for the authoritative text of any Act, Rule, Regulation, Notification or Order. The publisher shall not be liable for any direct, consequential, or incidental damages arising out of the use of this book. In case of binding mistake, misprints, or missing pages etc., the publisher's entire liability, and your exclusive remedy, is replacement of this book within one month of purchase by similar edition/reprint of the book. Printed and bound in India.

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Preface India's Constitution was a miracle-a gift to the Indian people. With many changes, the Constitution of 1950 has survived for decades to win the acclaim of being the largest functioning democracy in the world. But has the constitution worked well? Or, is it failing? I look at this in three ways. The first is to examine whether the Constitutions and processes set up by the constitution have retained their integrity. The report card to invite scrutiny does not look good. The second is whether the constitution promises to people of India have been comprehensively met at all levels and for all classes. Here, too, the report card is not too good-invoking concern and, at times, even despair. The third is the question of hope. It is upto the people of India to devise ways and means by which they can redeem the Constitution which has been stolen from them by their rulers. I dedicate this book to Fali S Nariman, in friendship and with love for a great lawyer, and constitutionalist; and for his sense of humour. Rajeev Dhavan 7 September 2016

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Acknowledgements Who shall I acknowledge? Everybody? The legends who influenced me: Shanti Dhavan, D.G.T. Williams, Duncan Derrett, George Keeton, Bhagwan Sahay, Krishna Iyer, Marc Galanter, B.D. Sharma, Upendra Baxi, and of course, Fali Nariman- all gurus in their right. And of course, those who saw the book through in my office (Swati who excelled as researcher and editor, and Jyoti, Kabir, Shalinder, Manish, Kailash also helped) and Lexis-Nexis for grooming the manuscript and making it publishable. I have no disclaimer about faults. All are to blame.

Contents Preface

vi

Acknowledgements

ix

1. The Constitution as Miracle

1

2. The Constitution as Surrender

28

3. The Constitution as Text

53

4. The Constitution as Change

102

5. The Constitution as Hope

142

Note on Sources

164

1 The Constitution as Miracle

Past Imperfect The Indian Constitution has proved to be a miracle. It was drafted during the stormy days of the partition of the sub-continent amidst the slaughter of millions, rioting, and mayhem. The political debris of the empire, having impoverished the economy, left open huge possibilities of balkanization. By virtue of the Indian Independence Act 1947, each of the 584 princely states could go their own way as independent countries and nations in their own right. If there w~~ a Pakistan, a threshold question was whether India should be a Hindoo(sthan). Even if the decisive answer was ''No", towards the end of the Constituent Assembly, a motion for invoking "God" (some said "why not goddess?") in the Preamble to bless the Constitution was defeated as late as 17 October 1949 by 68 to 41 votes. This did not deter members to press for the inclusion of"God", "Gandhi", the "grace ofParmeshwar" or "the Supreme being, Lord of the Universe ... the prime source of all

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Past Imperfect

authority" in the Preamble Th . sentiment behind th I . ese were tgnored, but the in our times No I em, ayhdo~ant, finding expression . ess emp ?tH' was the much d b d Preamble hi h . w c eventually I ~cted the Nehru. e ate . Karachi Resolution of 1931 . . msptred '.~romtsmg an egalitarian society. Although th e words Secular" a d "S · 1. ,, were added to the Preamble in 1976 n_ oct~ tst besieged Mrs Gandh· I d. by an tdeologtcally · I n ta's C · · intended to be "soc. '•· " onstttutton was always Hindu . ta tst and "secular" and never a fundamentalist alternative to Islamic Pakistan.

Africa and America put together. From well before the Christian era, India was known as a fabulous region with its fertile Indo-Gangetic valleys from which it got its name, and producing great wealth, trade, commerce, religions, culture and philosophy to attract predatory and peaceful interest for what it was. All modem nation - states are described as "imagined" communities. There was always an India in the historical imagination. But India's political map was constantly re-drawn by empires from the Mauryans to the British. Post 1947, it was for the Constituent Assembly to give it a comprehensive shape to a new nation state- relying on whatever it could tore-imagine India's past, present and future. The immediately antecedent prototype for the Constitution of the Indian Republic was the framework

In one of the biggest burna . n convulstons of history, approximately 2 ·Ir of Partition th mt dton people died in the aftermath , ousan s of wo me~. ~ere abducted and brutally raped. Facin deat privation families :e~e h, hostthttes, destruction and uprooted The fu · required 14 million Hindus M : re gee cnses re-settled. The embers of rt~t~luns and Sikhs to be for generations to come Pa;.ftton _would be stoked issues of ethnicity race . I" . t ton dtd not resolve the culture or regionaiism. :;;:e~gt~ndclass, caste, language, within the framework f e a to be worked through . o a strong sec I C . . commttted to social justice. u ar onstltutton •

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The Constitution as Miracle

With five thousand . behind it,_ India is th contmuous years of history e most celebr t d a e example of a multi-cultural mutt· di ' t- verse .1 · . religious and multi-l" . . ' mu tt-soctal, multimgutsttc so · ever known dwarfin th . ctety the world has , g e diversities of Europe,

offered b~ British rule. In 1687, Sir Josiah Child wrote that the English intended to establish a dominion in India for all time to come. Almost two centuries of militarized colonial expansion followed. For the purposes of Constitution making, we are concerned with the period 1857 (India's first war of independence) to 1947 (independence itself). The year 1857 had taught the British to get their imperial act together. Around that time Britain itself was evolving 'its own constitutional scheme. It gave dominion status and enacted the constitutions of Canada in 1867, Australia in 1900 and South Africa in

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The Constitution as Miracle

1910. Ind"tans saw no reason wh . on par with these "wh"t , d ~~~should not be placed 1e omtntons At h Ind" . t b · t e. tum into the 20th cenh1~, ·~J, Ia \V'"' .... stdJ resources and people . . o e exploited for its 'Inc tng these d" . . n tng Indentured coolies to the far flun established a law-and dg emptre. Post 1857, British -o~ er revenu b d enforced by the famed Indian . _e ase governance, the police and wh Ctvd Service including . ' ere needed th headed by the High C ' e a~y. A JUdiciary ourt was put In I . .. Bntish province Th . . P ace tn each · err mam role . Cnminal and revenue eli t was to resolve civil, spu es, but not exercise judicial review of the go vernment's · Presidency towns Th Ann actions, except in the · e Ywa k called upon to back h .s ept separate unless natives; while using nupt·t e pohce against protesting h a tves enroll d . h as uman fodder to fight its World W:e m t. e condescension towards 0 . ars. Wtth Imperial consider Indians Worth nfentals, the British did not y 0 self-govern n· Macaulay's Minute on Ed . ance. td not " . ucatton of 183 5 d eclare that a smgle shelf of a good E the whole native literatureur:iean !ibrary was worth lndta and Arabia.. ?" The late 19th century "t0 c. was to exem I1·ry h. J.Onn a class P Is solution · · ., between u ~ere Indian in blood and I s and the millions, who m0 . . co our but E I" h . Pmtons, in morals and . ' ng Is m tastes 17 December 1908, Secret Intellect". Even as late as clear that "a parliamentaryary of State, Morley made it system (fo 1 d" . goaI to which I could fo r n ta) was not a r a moment aspire'' . rr~en years

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Past Imperfect

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later, Secretary of State Montagu was no less emphatic that "'home' rule for India was not possible". Well may have 'Swaraj' been mentioned in the King's message to the Indian legislature read by Lord Connaught in 1922, Britain was far from weakening on this front. What seems astonishing is that the Indians absorbed into the Civil Services and Army remained loyal to the ideology of an Empire administered by a few thousand Britons stationed in India. Over the years, the Congress had split into 'Moderates' and 'Extremists'. Revolutionaries like Bhagat Singh chose the path of armed violence; and Netaji Bose founded the Indian National Army with the help of the Nazis and Japan. I \vonder what a Constitution achieved by revolutionary overthrow would have looked like. Tilak had coined the phrase: "Swaraj is my birthright and I shall have it." But what did Swaraj mean in constitutional terms? In the various demands made by Indians in their Home Rule Scheme 1889, Constitution Bill 1895, and Resolutions for Self Determination, Commonwealth of India Bill and the Nehru Report of 1928, the essential demand was an executive "responsible" to a legislature composed of and represented by Indians. In some documents, there were references to fundamental rights and liberties. "Responsible" and "representative" governance became the mantras of Indo-Imperial discourse. Representative demands were m~re easily

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The Constitution as Miracle

conceded in 1909, 1919, and 1935 than 'responsible' governance by which the ~rtministration of the Indian Empire was answerable Indian representatives. That never happened. The British left in 1947, leaving behind a divided and broken sub-continent. It was for Indians to sort out all the differences of religion, race, caste, tribe, locality and its unparalleled diversity into a representative democracy. The Pandora's box was opened; and it was for Indians to find solutions to close it. Into the fray entered Gandhi, the Mahatma (great soul), fresh from his vict.ories in South Africa but now adorning the half-naked attire of a peasant. Gandhi was a mercurial character with many personalities. In his persona/life, he was able to exploit the love of those around him. He was a tyrant in the way he ran the ashram, his treatment of his wife and children and his emotional dictatorship over his wife, Kasturba, Kallenbach (who funded his African endeavours), Madeleine Slade (Mirabehn) and so many others. These stories make painful reading. Having won people's love, he perfected the social and political strategy of "sulking", putting at risk his own body by fasting unto death until he got his way. Able to pull strings in the Congress, he excluded those he did not want and advanced his favorites, especially Nehru. Politically, he was a master-strategist re-defining the struggle for

Past Imperfect

7

independence as a mass movement through protests, peaceful movements, brinkmanship and negotiation. He had an intense sense of drama as self-evident from his involvement at Champaran, Kaira, Bardoli and of course the Salt March at Dandi, amongst others. His persona reflected his Hindu beliefs but he was committed to an India in which all could coexist in harmony. Many of his negotiations failed, but he emerged as the face of the freedom movement. His constitutional legacies are enigmatic, with some coherent strands. His concept of Puma Swaraj, (total independence), entailed a constitutional duty to eliminate poverty and strive for social justice, negatively by abolishing untouchability and positively by striving to achieve equal dignity for all. For him, the village was the starting point to empower rural India. Along with Puma Swaraj, came the idea of continuous revolution. His concept of the rule of law was simultaneously respectful and anarchic. All laws were to be respected, but civil disobedience to unjust laws was not only permissible but a duty. Many of Gandhi's social priorities were accepted half-heartedly, some ignored and even treated as irrelevant. It .is said Gandhi left behind a framework for a Constitution embodied in a book published from Allahabad in 1948. That text is unconvincing, its authenticity doubtful, its prescriptions impractical. But, Constitution making in the wake of independence took a very different course. Ambedkar successfully rejected the concept of village I

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The Constitution as Miracle

The Constituent Assembly

empowerment, and also proclaimed that normally Satyagraha and civil disobedience would create a "grammar of anarchy". P ~sts were made in the Constituent Assembly that '---' ~ndhi was missing from the Indian Constitution and Gandhism relegated to the periphery. Constitution making was not Gandhi's forte. He said his life was his message which was mercilessly overlooked when the Indian Republic was created. The times were out of joint. India was said to have descended into the Kaliyuga (the worst in the cycle of epochs) requiring stronger measure to get them right. In its working, over 70 years, the challenge to the Constitution was whether it would survive the onslaught of the unprincipled who saw power as property and to whom goodness did not matter. When the Constituent Assembly began its discussions, Gandhi was far away dealing with the atrocities of Partition, leaving the Assembly to get on with it.

Mission expressed its failure to bring reconciliation, but nevertheless, ''urged creating the best arrangements possible to ensure a speedy setting up of the new Constitution." It was futile to think a Constitution could bring together what politics had rendered asunder. The Muslim League members were sworn on 26 October 1946 but bad never intended to participate in the Constituent Assembly summoned on 9 December that year. Even Nehru's Objectives Resolution tabled before the Assembly was deferred after much discussion to await final political outcomes. But by January 1947, the League had decided to withdraw from the Assembly refusing invitations to return; and, eventually accepting what Jinnah called a "moth eaten" Pakistan located in West Punjab and East Bengal. The already begun task of the Constituent Assembly had now to address making a framework for the governance of a divided India. In the beginning, the Assembly consisted of 389 members, including 296 from British India, including specially represented Muslims and Sikhs and oth~rs of various political complexions including the Muslim League, Scheduled Castes, Krishak Praja, Communists and Independent members, and 93 members from the Princely States. After Partition, these numbers were jiggled around, reduced and aoded to compute at 318, including fifteen women who would influence the discussions greatly. Also included were well lmown personages such as Kunzru, A KAyyar, S Radhakrishnan

The Constituent Assembly The C~nstituent Assembly was not elected by adult franchise. In 1946, Britain's Cabinet Mission had suggested using .the Provincial Legislative Assembly to offer names in proportion to their population, and provide community representation, especially to the Muslims and the Sikh. On 16 May 1946, the Cabinet

10

The Constitution as Miracle Fear, Doubts, Compromises and Choices

and H C Mookerjee. The Constitutional Advisor was the hugely eclectic B N Rau. The motley Drafting Committee included many c:t~ lwarts. Its chairman was Ambedkar, who had been tl trongest critic of Gandhi and the Congress and a one-time supporter of Pakistan. "1 had not the remotest idea that I would be called upon to undertake more responsible functions. I was therefore, greatly surprised when the Assembly elected me to the Drafting Committee. I was more than surprised when the Drafting Committee elected me to be its Chairman." He was a good choice, well versed in constitutionalism with a radical approach to social justice. What followed from ~e Co~stituent Assembly was an intensity of extensive discusston which is unprecedented in the annals of constitution making.

Fear, Doubts, Compromises and Choices The Assembly could hardly ignore the violence generated by Partition and read many restrictions on fundamental Rights. It is no wonder that in the debate o~ ~9 Apri~ 1947, one member protested "that even mmtm~ n~hts were conceded to very grudgingly ... almo~t mvanably by a proviso ... which takes away the nght almost completely." Worse it was said that the dtaft was made from the point of ~iew of "a police I~

11

constable" taunting that " ... Sardar Patel would punish us if we make a speech ( ... ). We will simply be making a laughing stock before the whole democratic world." But the mood was, not entirely against autocracy especially when the derogation clauses suspending human rights were introduced, the mood in the Assembly was to favour these concessions to autocracy. On 4 April 1947, A K Ayyar wrote to the Constitutional Advisor BN Rau " ... The recent happenings in different parts of India have convinced, more than ever, that all -the fundamental rights guaranteed under the Constitution must be subject to public order, security and safety though such a provision may to some extent neutralize the effect of the fundamental rights guaranteed under the Constitution." It was a time of communal frenzy. Mosques were being converted into temples; the AngloArabic library was attacked. Nehru wrote to General Lockwood to protect it. The mood was for a law and order governance, including looking to the army to stop violence. The British "law and order" paradigm was to continue - as, indeed it did and does. Recourse to the judiciary to enforce constitutional rights was treated with some skepticism. Rau himself had claimed that American Judges had warned against giving judges too much power. In committee, an alarmed Govind Ballabh Pant said, "It comes to this. The future of this country is to be determined not by the collective wisdom of the representatives of the people, but by the

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The Constitution as Miracle

fiats of those elevated to the judiciary. If this is the case, then I strongly oppose it. T"'~ words 'due process of law' should be altered. The guage should be foolproof so that every judge may be expected to give the same sort of ruling." Wow! Eventually, the due process clause protecting life and liberty was converted into "any process" provided by the legislature. The only saving grace was the introduction of a "reasonableness" limitation, should the state intrude civil liberties. Right from 9 June 1947, the various committees echoed retaining the British Emergency provisions in their Act of 1935 to ensure peace and tranquility in every Province. National emergencies, too, were acceptable. On4 November 1948,Ambedkarwent one step further to countenance the collapse of federal system if the occasion required it stating that, "the Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances. In normal times it could be designed to work as if it was federal. Once the President issued a Proclamation ... the whole scene can be transformed and the state becomes a unitary state". Driven by anxiety, the Constitution makers accepted many elements of a "law and order" approach so characteristic of the governance of the British Raj_under which the Independence movement had suffered. Many supported the Constitution as an acceptable compromise. When the third reading began on 17

Fear, Doubts, Compromises and Choices

13

November 1949, 71 members wanted to speak. One member had "great reservations". Another found" ... the drafting is very bad". Another, that it was not "entirely satisfactory ... too bulky, (with) too many articles and also many details that could have been left out". A complaint was voiced that it "deviated from the ideals (the Assembly) stood ... for", without portraying "a true picture of India" or "our ancient culture". It was not the music of the veena or sitar (but) "the music of an English band". It was decried as a "fantastic mixture", "a scissor and paste job", "not upto our standards," embodying "all the defects ofa compromise". However, for others, this was not the case. The constitution was "a happy compromise" which accorded to both the ,ocialist and Hindu Mahasabha views. It was, "the product of the most unique incidents in the history of the world ... - a democratic non-violent revolution"; and, was indeed, "the child of the revolution". T~is was met with protests that the text was "not a revolutionary document". For many prominent members, the Constitution succeeded because it "enables the ~eople . to do anything they like". At _any rate, .thts. was ofi n d ta , "not the stage, nor the time to deny ... the Constitution . The discussion was a ritual in which many wanted to participate given the historicity of the moment. But, for one member it was another kind of ritual, best capture~ by the Persian saying 'Marg-e-ambush Jasn~:dar~ which means even "death enmasse is a festivity In

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The Constitution as Miracle

itself', more than hinting that members of the assembly members had joined a "death squad". Harsh words, one might say, but also pr ,.. of the honesty and frankness of exchange amongst mbers. Many displayed their excitement and resentment in strong, colourful terms. However, there were many serious confrontations. Consider the ire of some members on 5 November 1948 that the Drafting Committee "illegitimately converted themselves into a Constitution Committee ... changing vital provisions," even though it had become "functus officio". One member even called the "Drafting Committee" a "Drifting Committee" much to the chagrin of Ambedkar, who, in his concluding speech on 25 November 1947 insisted that the Drafting Committee was not a "motley crowd~ a tessellated pavement without cement ... (but had a sense of order and discipline)." All said and done, producing a Constitution amidst both external chaos and competing demands within the Assembly was, indeed, a miracle. The compromises made are self-evident from the constitutional text itself. Why does Article 25 contain a provision allowing the Sikhs to carry akirpan a fundamental right? Or special declarations about untouchability (Article 17), or forced or bonded labour (Article 23)? Should Buddhists and Sikhs have been included as Hindus for temple entry purposes (Article 25)? Why was existing agrarian reform legislation

Fear, Doubts, Compromises and Choices

15

specifically protected in the text (Article 31 )? TT Krishnamachari called the text Directive Principles a "veritable dustbin of sentiment". Amongst others, it included "maternity relief' (Article 42), promoting cottage industries and cooperatives (Article 43), a Uniform Civil Code to appease Hindus against Muslims (Article 44), prohibiting liquor (Article 47), protecting cows (Article 48). All these represent compromises. However, there are more. Why were the privileges of the legislators to be the same as those of the House of Commons (Article 105, 194)? Why did Article 164, insist that the Cabinets of the States of Madhya Pradesh, Bihar and Orissa include a Minister for Tribal Affairs? Why was there special representation for Anglo Indians (Article 336), or Scheduled Castes and Scheduled Tribes granted special representation in Parliament for ten years - now extended to seventy (Article 334)? Why were reservations based on affirmative action included in the Constitution (Article 15 & 16)? Are not the language provisions a compromise (Article 343 - 351)? There were special provisions to give Privy Purses to erstwhile Rajahs, Maharajahs and Princes later withdrawn (Article 362). Even more interesting are the federal provisions giving special status to Jammu and Kashmir (Article 370). Or to the State of Bombay (Article 371)? Even more interesting was earmarking the tribal areas, especially the North East for special treatment (Vth and Vlth schedules). These

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The Constitution as Miracle

Looking for its Soul?

are not provisions normally included in a Constitution. Compromises necessitate creating what could regard a weird Constitution, the gest in the world. However, the existence of comp~v~nises does not mean that constitutionalism was compromised.

its first two centuries, riddled with violent racism, the elimination of Red Indians (Native Americans), take over by the propertied and business classes and supporting America's dreadful wars of the 20th and 21st centuries. It was, and to some extent remains, a cowboy constitution. Of course, it has virtues. Indian jurists instinctively followed developments in England and, to a lesser extent, Australia. But, neither had a Bill of Rights. So they turned to American jurisprudence with oriental deference. Ecstatic recognition for the commonality of spirit of the two constitutions was symbolically declared by an American Supreme Court judge (William Douglas) who delivered the famous Tagore Law Lectures in Calcutta in 1956 entitled "From Marshall to Mukherjee"- both of whom have been the fourth Chief Justices of America and India respectively. Don't get me wrong. The original American Constitution of 1789 was a revolutionary statement. But, it was a constitution for the privileged. It had to be reconstructed twice-first during the 1860s, after the Civil War, and second, by the Warren Court from the 1950s. Only the Americans could have dealt with their Constitutions in the way they didsometimes shamelessly, and sometimes with honour. America celebrates its Constitution with reverence treating it as a civic religion. But, we should be wary of too much reliance on the American Constitution.

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Looking for its Soul? Do Constitutions have a soul? One simple view is that Constitutions are no more than arrangements that separate the political and judicial power (separation of powers) and are essential for allocating powers in a federal system arbitrated by judges (allocation of power). The English had survived for centuries with an unwritten text, but drafted constitutions for Australian Canadian and South African federations. New Zealand survived without a constitutional text; as indeed fundamentalist Israel. What the British had in mind for India was similar to its 'white' colonies epitomized by th~ framework of the Government of India Act 1935 Wtth entrenched complications. Distinguished jurists have called India's Constitution of 1950 a clone of the Act of 1935. Despite framework analogies, nothing c?uld have been farther from the truth. A. second VIew brought it closer to the American Constitution ~hich had a Bill of Rights. Anyone familiar with the history of the American Constitution cannot ignore

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Looking for its Soul?

The Constitution as Miracle

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the suggestion of drafting for "an ancient Hindu model of a State. . . instead of. . . western liberalism." He strongly defended the Constitution's borrowings stating "I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundam~~tal idea of a Constitution". Refusing to accept the posttlve contribution to the villages, he made his now famous condemnation that these villages "survived ... on a low selfish level. . . What is the village but a sink of localism and a den of ignorance, narrow mindedness and communalism? ... " The Draft Constitution has discarded the village and adopted the individual as the unit". Ambedkar was both right and wrong. He knew b etter than most that villages were socially . governed . by casteism and untouchability. Even m our trmes, Thevars in Tamil Nadu make Untouchables eat ex~reta and Dalits in Gujarat are made to dispose ammal carcasses. Khap panchayats dispense. a murderous . . T reproduce 'a village's soctal domtnatton . t" JUS tee. .10 ' · · 1 was anathema to every principle of ~e. constitutlona .t , Disempowering the State m favour of the . exts ence. · 1 d" village was not viable. But he was wrong tn exc u ~g the democratization ofvillage power.The compr~mtse . 1u de a Directive Principle in favour ofvtllage was to tnc . . panchayats (article 40) and recogntze community government in the North East (VI Schedule). The 73rd and 74th amendments to the Constitution of 1993

India's Constitutional Assembly struggled to find an appropriate inspiration for its efforts. Over the twelve volumes of its d 1ssions, and the innumerable records of its commih"'"'s and papers, we find two tendencies; the first was a hard headed thinking about the actual realities India faced. The second, was more exploratory to include the experiences of British governance, the white commonwealth, America and the Soviet Union. The case for the Soviet Constitution was canvassed on 5 November 1948 by the radical Muslim, Maulana Hasrat Mohani, who criticized Ambedkar for his borrowings elsewhere to remonstrate: "(B)ut the Soviet Constitution did not catch his eye". He believed that Soviet example would revive village republics and integrate a diverse, multicultural and religious society. Attracting some support, the Maulana was severely chastised because "his eyes are fixed on Russia" and that Russia's annihilation of the individual for the State was not to be accepted even in a dream. For others, there was no scope for "revolutionary totalitarianism", or an "over-weighted Centre". Eventually, while Soviet planning was relevant, the apparatus ofSoviet centralism without democracy was not. A totally different and contrasting approach came from the Gandhians who espoused the case of the peasantry, demanding the empowerment of village republics, which they maintained, had governed India over the centuries. On 4 November 1948, Ambedkar was horrified at

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The Constitution as Miracle

A Nehru Constitution with a Purpose

did not attend. The Resolution was "something higher than the law ... not a law but is something that breathes life into human mind .. (to) give some indication to ourselves... to those !.u ... Hions in this country . . . and to the world at large as to what we may do, what we seek to achieve, where we are going". The Objective Resolution drew from the Karachi Resolution of the past and resulted in the Preamble. So, this was it. A Constitution, clearly not by the people, but for the people and in their name. Not just an allocation of power, but guaranteeing social, economic and political justice, equality of status and opportunity for all, religious freedom, protecting the minorities, and advancing the cause of the depressed backward classes and tribals. The Resolution was debated for five full days. Some wanted a deferment until the Muslim League could join, some denied the idea of sovereignty of the people. Some saw the catch in the term ''justice - social and political" foreseeing that individual liberty would be compromised or that it would invite an undesirable political structure. Others asked why the protection of life, liberty and property was missing. Some were not sure whether the Republic would be democratic or socialist. Others pointed to future difficulties, including absorbing the autocratic Princely States. Some warned of fratricidal differences giving Indians "the freedom to fight amongst themselves". Some spoke for women,

others for tribals. Eventually, the Resolution was passed. Nehru had pulled off a coup. Born to the elite, seeing the plight of the poor in the late 1920s, he had moved the Karachi Resolution of 1931, which became a beacon for him. He had before him the examples of three revolutions: the French, the American and the Soviet. It was the Soviet that influenced him, but not its autocracies. At heart he was a Fabian, savouring democratic methods for a social revolution to animate the constitution and guide its purposes.

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If Constitution have souls, the soul of the Indian Constitution was to bring social justice for all through a powerful democratic federation which would absorb the Princely States and empower itself to plan for the future. Its Articles reflect this: there \vas to be equality, affirmative action, abolition of untouchability and ·bonded labour, special provisions for untouchables and tribals, recognition of all faiths with special provisions for minorities, land reform to eliminate landlords and give land to the tiller. The Directive Principles elaborated socialist objectives amongst other compromises. The Union at the Centre was designed strong to achieve socio-economic objectives. Nehru could not have used the words "socialist" and "secular". They would have been like a red rag to the diversity of bulls in the Constituent Assembly. His daughter Indira introduced them, explicitly in the Preamble in 1976.

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The Constitution as Miracle

A Miracle, Indeed

But as we absorb his euphoric vision, we need to remind ourselves that the Constitution also preserved the 'law and order' regime borrowed from the British past, including Emergency visions which could destroy the Constitution itself. A soul, yes; but a vulnerable one.

South African 153. Their enactments went reasonably smoothly. But the making of the Indian Constitution was highly contentious. It had 2,473 amendments of a kind no Constitution was called upon to resolve. This was one miracle. But there is also another way to look at it. All the other Constitutions in and around the subcontinent had collapsed. Pakistan's Constitutional Assembly took 7 years to produce the Constitution of the Islamic Republic in 1956. Two years later, it was taken over by dictators. This happened frequently. Pakistani judges had to use, what I call, juristic witchcraft to justify each change. The Constitution of Ceylon (now Sri Lanka) of 1948 had to be rewritten and re-done. Burma's Constitution of 1948 collapsed; its governance taken over by Generals. Bangladesh's Constitution could not avoid turmoil and went the Pakistan way. Even little Nepal struggled to reconcile differences. India's Constitution survived the scare of an Emergency and has continued, its script rewritten by 100 amendments and its meaning transformed by its judiciary.

A Miracle, Indeed The making of the Indian Constitution was indeed a miracle. The task before it was massive. There were huge differences, both inside and outside the Constitution, including the murder of the Mahatma on 30 January 1948 - four days before tl;te Draft Constitution was laid before the Assembly. How did ~s motley crowd, with vociferous views, expressing dtssents from each other produce such an elaborate Constitution of 395 articles and 8 schedules - the lo?~est in the world for a democracy of over 300 mdhon people with a framework for the future? On 25 November 1949, Ambedkar reminded the Assembly that the American Constitution was created in four months, its Bill of Rights came two years later. The Canadian took two years and five months the South African, a year in 1908-9 (which was riddled with racism an~ replaced in 1994). He wrongly pointed out that Amencan Constitution had four articles (totaling 21), the Canadian 147, the Australian 128, and the

25

Temporal survival is, ofcourse, part miracle, but it is not enough. Has the Constitution worked? Democratic elections continue to take place and the rule of law provisions have been strengthened. But its working pathology show tensions which are more wear and tear. The first is the absence of an intrinsic institutional i

.~

26

The Constitution as Miracle

morality to work its processes. Without a working morality (I hesitate to use the phrase constitutional morality), no governance is possible. The second test is to ask whether constitutional socio-economic objectives have bet..u ~.net. Ambedkar's apprehensions on this were incisive and foreboding- pointing to possible failures of the constitutional enterprise itself:

"On the 26th ofJanuary, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man, one vote; and one vote, one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to deny equality in our social and economic life? We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure ofpolitical democracy which this Assembly has so laboriously built up. " This unfulfilled task remains the biggest failure of the very raison d 'etre of the Constitution. In 1951 the population of India was 361 million. In 20 16, it has reached 1.2 billion, with half of its people hovering

A Miracle, Indeed

27

around or below the poverty line. India prospers, but not the majority of its people. I have one other reason for calling the Indian Constitution a miracle: if we were called upon to create a new Constitution afresh now, we would certainly fail.

The Quest for Legitimacy

2 The Const1hltion as SUrrender

The Quest for Legitimacy Constitutions are legacies from the past for the future.As exercises in legitimation, they seek legitimacy. There is a difference. Legitimation clothes the text with legality as the supreme law. Legitimacy goes beyond mere legality, striving towards ensuring that the constitution work~ efficiently, on principles of good governance and justice and in ways that find resonance with t~e people it serves. Modem Constitutions usually contatn two parts: a preamble which declares the grand objectives the constitution serves· and the text . ' explicates how power is distributed and exercised within limits prescribed by it. Constitutions are meant to endure, if they fail governance fails. If like Humpty Dumpty, they happen to fall, it is the duty of those who matter to put Humpty together again. If that doesn't happen, it is expected that a new constitution will rise like a phoenix from the ashes of failure. If the phoenix

29

fails to show up or fails, what happens? For me this is a revolutionary moment; for others chaos. India's dharmasastris of old, portrayed 'chaos' as a time of matsyanyaya (the law of fishes) - a nasty hobbesian state where life was 'nasty, brutish and short'. The great epic, Mahabharata, paints a gruesome picture of the failure of governance: 'People cannot see each other, the sun and moon do not rise, the fishes and birds rove as they please attacking each other " ... Men sink into darkness and destruction" (Shanti Parva 67: 16). However another text from the same epic insists and ' instructs that an unworthy king should be 'slain like a mad dog' (AnusasanaParva6l:3l-33). The duties of obedience and rebellion run hand in hand, but the former dwarfs the latter. Not particularly fond of revolutionary moments, our ancients even supported stabilizing takeover by usurpers. In a strange unparalleled text by Manu, the famous jurist, Brahmins could head the army and become king (Manu XII, 100), or, as history would occasionally permit, women could be queens. Bowing to necessity, the sacred texts ordained, even welcomed, a game of thrones, but within the limits of that most daunting of constitutional concepts: dharma. During the Independence movement, Indian intellectuals asserted that India's past recognized the sovereignty of the people, the social contract and self-governing

30

The Constitution as Surrender

vil~~ge republics. These were invented to challenge

Bnttsh rule and answer charges of orientalism with superior claims of a )mparable heritage. But the essence of sastric adv1 on constitutional governance was to inculcate surrender: as a duty of obedience to the ruler as an institution; and, to follow dharma as an ideology demanding personal, private, public and civic compliance. Ingrained in this was the political morality of surrender, surrender, surrender, as an instinct, as a duty, as a virtue. The

new

modem dharma is called '~constitu~ionalism" which claims morality in public hfe and If possible, virtue as a private commitment Elaborating on this while introducing the Draft constitution to the Constituent Assembly on 4th November 1948, Ambedkar, quoting from Grote, an expe~ o~ Greece, expressed the need, above all else, of constitutional morality. "The diffu · ' szon of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition oif a government at once free and pe~ce~ble; since even any powerful and obstinate r:zznorzty may render the working ofa free institution zmpracticable, without being strong enough to conquer ascendance for themselves. ,

The Quest for Legitimacy

31

While accepting the need for 'open speech controlled by law including the right to censure public acts, Grote demanded and Ambedkar endorsed: "a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms". (The members added: Hear. Hear). A year later on 25 November 1949 while explicating his fears of the "Grammar of Anarchy", Ambedkar elaborated that with the constitution in place, there was to be no 'bloody revolution', no 'civil disobedience', no 'non-cooperation', no 'Satyagraha'. Today eminent Indian constitutionalists offer a 'tour d' horizon of Indian constitutional law ... to explicate the historical commitment to the idea of constitutionalism "(and) ... , (t)he most important goal of constitutional morality .. . to avoid revolution, to turn to constitutional methods for the resolution of claims". Implicit in this are two assertions: the first was to join the euphoria of nation building above all. This was grandly put in Nehru's famous 'tryst with destiny' speech inviting all to join ihe "great adventure" give up "petty and destructive criticism abandon ill will and blaming others" and ''build the' mansion of free India". The second is to deify the constitution as an intrinsic good to be supported by aU in letter and spirit. The Constitution, so elevated, Was like a civic religion, and constitutional discourse its theology - as complex, contested and bewildering as the theology of any faith.

32

The Constitution as Surrender

Deifying of Constitution

Deifying of Constitution

The collectivity of peoples' sovereignty is channeled in specific ways. The French follow Lincoln's dictum that the Republic shall be "of the people, by the people and for the people", with "maxim liberty and equality and fraternity". National sovereignty shall vest it in the. people who shall exercise it ~ough their representatives by referenda. Bulgaria in 1991 declared that none can usurp the exercise of peoples' sovereignty which is the sole foundation of all power, but its people shall exercise their power or "through their representatives or directly". Directly? As in the case of Albania "directly"; probably means referenda. Morocco is more specific: 'direct' means referenda and "indirect through constitution~! institutions". This is in contrast to Indonesia which finds its grace from "God Almighty" but vests sovereignty in the people to be "exercised in full by them". Deification through God is not just a feature of Muslim countries. Ireland's Constitution is declared in the name of the "Most Holy Trinity ... our Divine Lord Jesus Christ while remembering the heroic struggle for independence". Way back in 1814, Norway's countenanced the free exercise of all religions but declaring the Evangelical Lu~eran fa~th as the official religion requiring all people of that faith to bring up their children in it. Denmark too, follows the Evangelical Lutherism. Sweqen is less explicit about the Kings' faiths and exalts its democracy based on adult suffrage, parliament, local self-government and

Modem constitutions are a super law from which all power i~ awn and to whom all laws are subordinate. Their ~l ~ation is a virgin birth. History may have paved the way for their creation to embody past, present and future. The validity of constitutions and the obligation owed to them arise from their self-declared supremacy in the Preamble. The magic mantra of the Indian Constitution: "We the people of India who adopt, enact and give to ourselves this constitution". Likewise, the American constitution: "We the People ... who do ordain and establish the constitution". India's n~ighbour Pakistan being an Islamic Constitution, invoked "AlmigJJ_ty Allah". Bangladesh incants "Bismillah-ar- Rehman-ar Rahim in the name of Allah", while tracing its history and emergence from "We the People". Afghanistan seeks validation from Allah, but "We the People" speak through the Loya Jirga. Sri Lanka, that dealt with each succeeding constitutional crisis wizardly, presents and resolves the issue ofpeoples' sovereignty with disarming honesty. If the sovereignty of the people is an article of fai.th, .is this sovereignty dormant? "No", says the constitution. The sovereignty includes the goverriment fundamenta1nghts . and franchise, but is to be exercised' bY Iegts . Iatton, · referenda, executive powers, respect for fundamental rights and through electoral franchise. .I

33

35

The Constitution as Surrender

Deifying of Constitution

law. The Swiss constitution appeals to God Almighty, the Swiss people and Cantons. Germany's post World War II constitution is more business-like but conscious of its "responsibility t ,. re God." England has still not dis-established its chu. . France has a strict separation of Church from State and public life, espousing its secular principles of tacite. Communist constitutions of the Soviet Union and China give elaborate histories going into pages of their Preambular declarations. So indeed the Constitution of Iran of 1979 which, amongst other things, derides the US conspiracy and expresses the Wilayat-al-Faqih (Rule of jurists) prescribed by Imam Khumayni and the Assembly of Experts constituted from peoples' representatives. Egypts' Arab Constitution of 2014 recalls its glori~u's and ancient past in detail and, even, makes passing reference to Moses and the hospitality given to the Virgin Mary and Jesus. Sovereignty vests in "We the Egyptian people" who ''shall exercise and protect this sovereignty and safeguard national unity". Islam and the principles of Sharia are the principal source of legislation. Recalling the recent disturbances, it warns "alliance of popular working forces is not a means of social conflict (but) ... a safety valve for protecting unity ... and eliminatory contradictions ... through democratic interaction". No more stteet demonstrations! Of the Middle East and North African constitutions some elaborate their

history. Saudi Arabia declares itself as Arab Islamic state following God's book and the Sunnah. Others, like Bahrain explicates its popular will through the alMajlis a/-watane (National Assembly): Morocco selfconsciously declares itself as an A~c~ State. The much celebrated South African constttutton declares "We the People of South Africa Constitution ... (wh~) through our freely elected representatives of, adopt this constitution as the Supreme Law of the land". With God's protection, it is a healing constitution.

34

Far from complete, our circumnavigation of some of the Preambles of the constitution of ~e ':orld, we · (") the deification of constttutton takes can surmtse 1 , ("") G d' place in the name of God, or "We the people n_ ? s . b eyond, question ' with some Constitutions supremacy ts , wedded to 'His' law (iii) The "We the people. formula . app1"ted.tn dt"ffierent ways · The purest form ts people ts 1 , ivin the constitution to themselves. Some p~op es g ~ . den·ved from the representatives of constitutions are . ven if their representative status, as tn the the peopIe (e · ) Th · " 1 " are case of India may be in doubt). {tv e peop e "t . s of the constituent power but may be . · ak h th e repost one the people who are sovetetgn t et e powerIess. Can . . consti"tut"ton back?· Or exercise therr constituent power "d the constitution? Some concede to the to ovem e .h ? s e power to act directly wtt out more. orne th peop1e, h d" t constitutions close this ambiguity so t at tree power

36

The Constitution as Surrender

i~ exercised indirectly through representatives and

directly through referenda. Most constitutions assume that ~e constituent power of the people is a once only exercise. The people are not above the Constitution but exercise their rights ~ ,r it. Preambles are meant to exaggerate the hopes of ~eople. ~ut they are like the tip of the iceberg, beautiful .o~ a dtstance but dangerous on close. If the iceberg disintegrates, the Preamble melts from memory. The ~eamble of the Indian ~onstitution is not entirely true. y cheeky truthful version, rewrites the Preamble:

"We_ the People of India, who had little say in the makzng of the constitution but were represented ~y people selected without mandate, have been znformed to accept this Constitution, lest there be chaos.

~e real!~e that our Constitution, part of which zs a Brztzsh India clone, makes unreal promises "tu about justice, liberty, equa/ifl' fo t sovereignfl' . 1" •.T' a ernz•.T' • ·.T: socza zsm, secularism and democratic republzcanzsm. Weh.have no choice but to accept this arrangement w zch the Constituent Assembly declared on Twenty Sixth November 1949.

Deifying of Constitution

37

We promise we will overcome every attempt to oppress us by and through this giant which our leaders have given to themselves to rule over us. We, will overcome. " Even, where constitutions survive for decades-onend, both, the Preamble and the text disguise working realities. America stands out as example. Its constitution originated in 1789. The Preamble is celebratory, its text simple - the shortest in the world. But American history belies everything that the Constitution should have stood for in the land of the free and the brave. Native Americans were massacred with impunity. The blacks condemned to slavery, even after a Civil War and protective amendments, violent racism and prejudice continue. For decades, the constitution was interpreted by judges in favour of business declaring even income tax unconstitutional and denying humane working conditions. The pre-World War II record of the working constitution is embarrassing. Today a constitutionally blessed American imperialism tyrannizes the world with immunized barbarism. The Constitution was reconstructed after the American Civil war in the 1860s, for which President Lincoln paid with his life. Even after the second reconstruction by the Warren Court in the 1950s and 60s, its sins of commission and omission continue. America is a militarized imperial nation,

39

The Constitution as Surrender

The Vulnerability of Constitutions

fighting awful wars to comer the world's resources under any pretext. Its constitution is easily hijacked by the powerful. A newcourt decision allows corporates to give unlimited · ;tion funds. The working of India's constitution .!r 70 years also has a lot to answer-military rule in the North East and Kashmir, the use of emergency powers to collapse democracy and federalism on a 100 occasions, an unforgiveable Emergency (1975-77) and the continuing lawlessness and corruption of government, atrocities by its functionaries and its people and more than ha!f of its people living in abject poverty. Preambles may deify a constitution, they cannot insure gross abuses of power and their effect on peoples' lives.

turn out to be quite fragile. Pakistan's constitution was created in 1956 and was abrogated by Field Marshall Ayub Khan in 1958. Its Supreme Court blessed each usurper with a new legality, and bowed to military leaders turning their back on their oaths to abide by and defend the constitution. The story was repeated in Bangladesh, Burma, Srilanka and various states in Africa and elsewhere. One 'juristic legality' toppled, another takes its place. It happens all the time. When the foundation of social and political facts which support juristic legality change, a new juristic legality (how~oever disagreeable) is born. Of course, usurpers always claim to act for the higher good. Bernard Shaw's Napoleon represents this splendidly:

38

~~There is nothing so bad or so good that you

The Vulnerability of Constitutions For the Indian people what could be grander than a diverse nation freeing itself from imperialism, and coming together as an independent country? Circa 1947 was a revolutionary moment. Circa 1950 was a juristic revolution shifting sovereignty from the British Parliament to the Indian Constitution. After 1950, all law, past, present and future, flowed from the constitution alone. India celebrates Republic day with pomp and ceremony, probably because the weather in January is better than August. "Juristic revolutions" can

will not find an Englishman doing it; but you will never find an Englishman in the wrong. He does everything on principle. He fights you on patriotic principles; he robs you on business principles; he enslaves you on imperial principles. He bullies you on manly principles ' he supports his king on loyal principles and cuts off his kings head on republican principles. His watchword is always Duty; and he never forgets that the nation which lets its duty get on the opposite side to its interest is lost."

40

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The Constitution as Surrender

The Vulnerability of Constitutions

Legality yields to new stubborn facts. As the great Bengali Dharmasastri controversially put it centuries ago: "A fact cannot be altered by a thousand texts" have remained quiescent on (Dayabhaga II 30). Jud these matters acceptinb .any changes as valid. After all they have to live under the usurpers regime even if the regime they swore allegiance to has gone for a toss. ~i~a wohi Sikandar (He who wins is Alexander). If Junsttc legality falls after every successful game of thrones, how do we protect a constitution from collapse?

world way of life" pulverized South East Asia, South America, and, now the Middle East. My friend Bob Meister's book After Evil has a nice explanation. Once you claim to have devoured fascist and communist evil, you become a self-righteous apostle of peace despite your real purpose to control the resources of the world and become the undefeated global power.

:o

. In our times "constitutionalism" represents the P~Iloso~hy of the "free world" requiring democracy, btll of nghts and a free press and a judiciary to uphold th~ rule of law. Argitably without this, any constitution fads the test of 'constitutionalism'. Having won World War II which destroyed the 'evil' of fascism constitutionalism has been both internationalized and militarized. The new international bodies - the United Nations, its delta of institutions, the World Bank, the Intern~tiona~ Monetary Fund and others - espouse these mgredtents. Countries which fail the standards of the "free world" . , may suffer economically or militarily. When the Sovtets and other countries resisted the free world, Americans called this a Cold War. It was far from cold. Soviet militarized intervention in Eastern Europe and elsewhere paralleled America's military adventures in the ·name of "truth, justice :;nd the free

Try if we must, we cannot ignore, the Russian Revolution's important distinction between"allo~a~i~e" Constitutions (which simply allocate the dtvtston authorities o f powers between constitutional . . . and constitutional limitations on therr power tncludmg by a Bill of Rights) and, "purposive" socialist c~nsti.tutions which exhort people to take control of the1r alienated . take over the economist power Itves, . . structure, . . d.~nd 1 work towards a comprehensive soc1al JUStice tnc u mg . t .c. d shelter health, education but also what DOt JUS .LOO , ' "}d" our most distinguished Amartya Sen cal~s but t~g an . f b"l"t ·es Communist reg1mes bebeved . · f equality o capa 11 1 · that this was best established by the 'dictat~rs~p ~ ·at' protected by what they call soc1ahst the pro1etan ' . · 1 1 · "ty" ,. 11e: may not accept this dictatona so utton 1egal1 • vv ~ • b · ti but cannot deny that these socio-economtc o ~ec ves . . ortance to more than half the world. are o f prtme tmp h If nations within it, cannot be half feda Theworld, and f · ·1 d h half educated-half illiterate, hal pnVI ege a::~lf discriminated against and disadvantaged.

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I I

I· I !

43

The Constitution as Surrender

The Vulnerability of Constitutions

This is what Ambedkar foresaw as the biggest threat to the Indian Constitution. Marx writing to Kugelman in 1871 did not foreclose socio-economic endeavours being achieved by libr ··", democracies like Holland and England. The Fabians England opted for democratic socialism as did Nehru, a self-professed Fabian. Ultimately, India's Preamble and Directive Principles owe their inspiration to revolutionary alternatives seeking to achieve a complete and comprehensive justice for Indians and the world. In this view, constitutions are not just playgrounds for politics, but possess a purpose. If that purpose fails, the constitution itself suffers diminution. The constitution may continue to function, but the constitutional revolution would fail by the standards it set for itself.

morality is Janus-faced. The ruler is promised stability and required to adhere to constitutional norms and purposes with integrity. The ruled .must inculcate the culture of obedience, and pursue their constitutional rights to the point of strong dissent, ?ut never rev~lut~on. The revolution being over, long hve the constitution. Constitutional morality is status quoist. Its prime directive is to save the constitution at all costs and keep it in stable equilibrium even at the expense of socioeconomic justice. Consti~tional power at all levels be easily taken over within and without to reflect can . , · ., d the dominant structures of society. Power m ctvt1 an 'political' society is inextricably inter-connected. To xtent can we rely on the restorative powers of w hat e · h" h constitutional morality? By force? If arevol~tton w tc challenges the constitutions esp_ouses a JUSt ca~se, why should constitutional morahty defend an unJUSt ·rut· ? Beware of false prophets. One of my const1 ton. · · 1 favourites, Nye Bevan, puts it in his charactensttc sty e:

42

"Constitutional morality" is an off-shoot of the liberal constitutionalism. If all 'human beings' (including the ruler and the ruled) were "good" and virtuous, there would be no need for "constitutional morality". Amidst difference of opinion, goodness would prevail, obviating threat to the constitution. Alas, people are not all good. Indian jurists of long ago, traced the fall of 'goodness' from the Kritayuga, to the treta, dvapara and kaliyuga. Have no doubts, we live in the kaliyuga. "Constitutional morality" is a recipe for the Kaliyuga to behave as if it we are in the Kritayuga. If wishes were horses, beggars would ride. Constitutional

"The reformists in the Conservative Party, ha:'e always been progressive young men walking rds with their faces to the future. They backwa l k" ,, us uLook where we are oo zng to a Iways say and we should say to them, ~~Look where you are

. ,, ,,

gozng ...

Good advice to the self-delusional.

tr

44

45

The Constitution as Surrender

The Take Over

The Take Over

arrangements. Rousseau, a fierce critic ofrepresentative democracy, spoke with perceptive candour to say:

Once upon a time, there was civil society. It surrendered all its po r to political society. The constitution records the ms of surrender. So far we have only looked at grand Preambles, thinking that they control the constitution when it is clear that they do not. What matters is the rest of the text. Take the Indian Constitution. Political society is created by elections drawn from votes in civil society. Powers are exercised in the name of the President (or State Governor) on the advice of Prime Minister (or State ChiefMinister). Bureaucracy is selected by special examinations and serves those in political power. Apart from its electoral power, people in civil society retain fundamental rights. Any excess by the political rulers and bureaucracy, or infringement of fundamental rights is adjudicated by the judiciary which also decides criminal cases and civil disputes. The power of the people surrendered to political society is formidably re-distributed across the constitution's text. Only the most powerful can suborn constitutional power to their own use, which they do. The ve~ act of surrendering power to peoples' representatives drawn from dominant interests inherently disables the people who surrender to such

"If the English people think they are free, they deceive themselves; they are only free during the election ofmembers ofParliament; as soon as these are elected, the people are slaves: they no longer countfor anything .... The deputies ofthe people thus are not nor can they be the peoples representatives; they are only their commissioners. " (The Social Contract: Bk/1/, Chapter XV).

. g the French Revolution, the sans-culottes (litera~those without breeches) challengingly signed themselves ton ega/en droit (your equal ~der law). But the representatives ruled the roost, even tf~ey ~ad their heads chopped off later Quaere: Was the gutllottne . a recovery of peop1es ' soveret·gnty?. Or an example of constitutional morality? Hopelessly conservattv~, Edmund Burke made it abundantly clear to ~s . I constt"tuency that he was their .representative Bnsto . . d legate They could not tell htm not thetr e . d r fwhatthto do. Legislators are sensitive to gro~ rea ttes: e .t. 1 arty they belong to. and thetr chances of re. th . t"tuency polI tea p election in the next election. In Indta,. err.cons I . . abysmal · They matnly mteract wtth1 . performance ts . own honeh os who form part of therr electora therr 0

46

The Constitution as Surrender

army. Under the Members of Parliament Local Area Development scheme they have money to spend for the welfare of their constituents. This brings them closer to money than constittJPncy welfare. Of course, outside India, there are schl s for the electorate to recall a legislator - a process dominated by politics. The other pressure comes from political parties choosing the candidates from election. In India, this process is far from democratic. An interesting phrase called "Party High Command" is etched into the working of India's party democracy. Super ambitious Chief Election Commissioner Seshan 's order that political parties operate within their democratic constitutions on pain of deregistration, met the fate of a snuffed candle. High Command autocracy is legendary. Elections are won by money and muscle. Since people are voters, they cannot be wholly ignored but are manipulated in their choices locally and nationally. Powerful media networks keep the people informed, andmould their minds. But, who controls the corporate, or government media? It is important to delve into social contract theory because I believe it forms the basis of modem liberal constitution. I have borrowed the terms "civil" and "political" society from the well-known social contract theory associated with the famous Hobbes, Locke and Rousseau trilogy (Hobbes, Locke and Rous~eau). Imbedded in its historical context, it was used to

The Take Over

47

legitimize the transfer of power from the King and his 'feudocracy' to the rising middle class. Its inventive solutions were based on entirely fictitious circumstances. So, I will use their theory as heuristic - a way to say things. 'Civil Society' representing the peopl~ was a fitting counter-blast to kingly claims. Civil Society was a homogenous fiction, speaking in a fictitious voic~ t~ claim a fictitious populist basis. That, this so-called civil society was riddled with dominances, was ignored. The next fiction was a supposed social contract between an undefined civil society to a supposed political ~oci.e~ (who presumably were the dominant e~ements m .c.Ivtl society wanting to rule). Neither civil nor ~ohtical society could rescind the social contract which w~s traversed inter-generationally for ever-and-ever .In never-never I and . What were the terms of . the. social vv e really don't know· In one version, It was a contract.? '"~' total surrender of power to a leviathan state. ~ ano,~er, to rulers protectmg hfe, t h e surrender Was Subiect ~ . . hberty and property' · If yet another version, the best way was to h ave smaII local states governed by all.. But , . t possible a fictitious 'general will . since that was no . . of wills . . 1 socte . ty tn"umphed over any particular pobttca . . . of persons and c1asses Of people. And, If. such vanattons fictitious social contract could 'J • are possi"ble, couldn't anl} . t d by anyone to suit their circumstances? In b e tnven l"d · e . 1 ntracts are Janus faced, va I attng any event, socia co . . . , d ty's n"ght to rule and civil society s uty . . . pohtica1 socie

49

The Constitution as Surrender

The Take Over

to obey. Bewildered students and fatigued academics in ex-colonial countries often wonder why they study the Hobbes-Locke-Roussaeu trilogy, by rote learning as gospel. Social cont1 theories are fairy stories ', designing metaphors to l.Jtablish the greatest surrender made by the ruler to the ruled Constitutions represent the terms of surrender. Theoretically, the ruler need not have democratic credentials,but constitutionalism mandated representative democracy and a Bill of Rights. With these constitutional limitations, the "surrender" acquires a more palatable and dramatic face lift. Social contract is the foundation of carefully centralized modem constitutional governance. Based on false fictions the social contract is contrived in reality. Nothing could illustrate this better than the course of the French Revolution ( 1789-1799) in which people's power was taken over by state terrorists who were later supplanted by Napoleon. Despite that, social contract theory did pave the way for a false "We the people" constitutionalism.

to modernity educate you to the extent possible and taking in return the right to exploit your natural and human resources and social differences? So help me God!" Caricature? Not entirely. India soon became a laboratory for reform inspired by Benthamite utilitarians- its most ardent followers, James and John Stuart Min, Macaulay and many others being strongly associated with British Rule in India. Anglo-Indian law was codified, its judiciary enjoined to enforc~ Engl~sh law. The civil services was trained to rule; and tts pohce (with the army's help) maintained a "Ia~ and or~,er" governance with censorial con~ol ove~ dtscontent. In his Anarchical Fallacies' that tnfluenttal proponent of modem governance, Bentham, spoke of natural rig~ts as "nonsense rhetorical nonsense, nonsense upon sttlts - a view tha; adorned British constitutionalism till the end of the 20th century. For Bentham, the real test for good governance was the greatest good of the greatest number of people. Based on a warped psychology called the 'felicific calculus' of pains an~ pleas~es, the slogan of the "greatest good" translate~ Its_ me~ngless calculations for happiness. The emptre tn India was supposedly for the greatest good. Arising from b_oth evangelical Christianity and n~ less evangelical Benthamite humanism used Indta as a laboratory. BU,t Bn.t.IS h Rule on India ·was hopelessly skewed, h. tainted by racism and tough militarized rule. T Is w~s another legacy of British rule whichperse 1947 India

48

. If the British in India were called upon to draft a soctal contract for its rule in India, it would have been drafted entirely in one way street: "We your rulers, finding you heathen natives immoral, ill-conceived and unworthy, do hereby endow ourselves with total sovereignty over you promising to teach the best of you by example, English language and the gateway

51

The Constitution as Surrender

The Take Over

has instinctively followed. Strangely even today, some Indians silently applaud British overlooking how India was exploited, looted, impoverished and divided for the greatest good of · Empire rather than for the Indian people. It was . the cruelest of Empires, but the voice of surrender and obedience to superio! power was written all over it.

governance, the structure of institutions and processes1 . I t·11e. .c. This did not mean and socta . that all contro . . m were necessarily coerctve. Manufacturing mec h ants . h many means established a egemony through consent s · b t. of thetr a strac ton, vemance. Shorn ful for success go . . t d "I and political soctety tnter-connec e ' . h x 'Political' the masters o f ctvt . . . 1 ontract theory was a oa . mtg?tl~Y·. ~oct~ c could never be treated in the abstract. and Ctvtl soctety . . t · was between the ru lt"ng 'classes The correct dtst:nc ton italists and workers, the and the 'ruled, betwdeen. capd the powerful and the d d the epnve ' . "1 pnvt ege an . . 11 misleading, social contract powerless. Intnnstca y itimate power for the ruling became a means to ~~!cal definition "Civil Society" class. In any honest po l and include only the . I de the ru ers could never m~ ~ and disempowered. I use this exploited, unprzvzleg~d. . ty The second Marxist as my definition of ctvt~ so:t:e ~ower are unlikely to insight was that thoseeww~o :o not have it. Hence, the give up power to thos unist Manifesto of 1848: 0 catching slogan of the ~ ~You have nothing to lose "Workers of the World n~ e. t"t seemed that the only · " At that ttme, but your chatns . s tbrough a vt"olent revolution. It had th way to ~o ts wa d that a revolution could also. be ·olent methods including to be fatrly concede ~ ful non-vt h collective disobedience achieved by orce protest, strikes, Satyagra a, here it hurts. Necessitous . ·t . . the system w and pressunzmg . f fy revolution. Ctvt circumstances con ld also JUS I

50

In its quest for constitutionalism, India had no choice but to look to western theories and practices of governance. The age of empires was not over, and that of democratic socialism barely begun. The real answer did not lie in abstract social contract or 'greatest good' theories, but in th~ ground realities of Indian life. If social contract effected a surrender to politicians, the 'greatest good' paved the way for dictatorship. Nineteenth century capitalism in England and Europe combined abysmal disempowerment with exploitation. Workers were not allowed to combine as trade unions. The working classes were exploited by low wages and unemployment. Technological benefits were garnered for capitalists. Engels' The Condition of the Working Class was only one description of the sordid state of affairs. Whether Marx's Das Capital was right in its economic analysis, his other insights were seminal. In the first place, his foundational insight that those who own the means of finance, production and distribution affected the super structure of law, politics, power,

o

52

The Constitution as Surrender

society, as I define it, could never b . e satd to surrender their power volunta "I I n y. t was forced into subjugation.

3

I must not b,... seen as . constitutionalism gtvmg up etther on the oppressed has( t sbtruggle. The subjugation of o e reversed ·th - et er through constitutions or outside them.

The Constitution as Text

The Humpty Dumpty Question On the important question of war time detention' an irate dissenting English judge accused his colleagues of whimsical interpretation by quoting from Lewis Carroll:

"When I use a word," Humpty Dumpty said in rather a scornful tone. It means just what I choose it to mean - neither more nor less. " ~~The question is," said Alice, "whether you can make words mean so many different things. ""The

question is, " said Humpty Dumpty, "which is to be master- that~ all. "(Alice Through The Looking Glass, c. vi) Humpty (ifl can use first names) is right. Who is the master of the text? That, too, given the fact that the Indian Constitution is massive, consisting of 395 articles and 12 schedules. By 2016,100 amendments

54

55

The Constitution as Text

The Original Intent

were made to it. 0 ngtna · · IIy, there were 8 schedules fo ur more have been added H ' the interpretat" f h . ave people lost control of ton o t e constitution's text or were they never meant to havt. Hump ty Is . nght; . , the question is Who s master- notJ ~ 1 b . u~" or aw ut every interpretative exerctse.

wing' interpretations of the original intent. To read the challenges of the 21st century with 18th century seems a little daft. But anything will do, to pull a rabbit out of the hat. The elaborateness of the Indian constitution was intended to minimize interpretation in various areas. There is a quirky provision in the Constitution which says that the Imperial General Clauses Act 1897 shall apply "for the interpretation of the Constitution" with the caveat: ''unless the context otherwise requires" (Article 367). This should not be there; and reduces the constitution to the status of an ord~ary statute. One foreign critic thought that lawyers in the Constituent Assembly "added to the complexity of the Constitution". Another warned: "We can observe all through the Indian Constitution.. . a certain heaviness of the constitution in conjunction with complicated rules to provide for all foreseeable contingencies; in a word the attempt to rationalize power, to replace the extra-legal fact of power by rigid and extensive rules of positive law". The Constituent Assembly was hugely critical of the judiciary and, having to trust '~five or six gentlemen sitting in the Supreme Court examining laws made by the legislature and by dint of their own individual consciences or their biases and prejudices" (13 December 1948: VII CAD 1000). The narrowest way to interpret the constitution was the principle of literal interpretation (the text is what it says it does). Subba Rao (later Chief Justice) had a nice twist to

Like any oth t a multi lici er ext, . the Constitution invites hermene!ic ; . of ~eanmgs. Interpretation (or extends acr s ts . c~~mly not limited to law, but . oss disciplmes - religion art l"t music si s t . ' , I erature, ideolo'gy gnd,. exts,_ history, tradition, culture, politics an Its vanous "" " ' to discover a m . tsms and so on. It is a pleasure someone I ' eanm~ by. yourself, it is a curse to have over mea::.se ~ mearun~ ~p~sed on you. The struggle . mg Is not an tndtvtdual sport. Interpretat" ts. a power piay came . d out In . discourse art m ton . ' ' USIC IIterature' protest, propaganda and indeed . I , Legal hermeneutics are also ' vto ence. appropriate the law and the co~::tuot: a power play to IOn.

The Original Intent Do we start w"th h ' . . framers of the const:tuti::? ;ngmal ~tent' of the Court and acad . · he Amencan Supreme emia were sharpl d" .d y .tvt ed between the conservative 'right' h intent" and their , leftyw, o ~~nted to mvoke the "original cnttcs, some of whom have 'left

56

57

The Constitution as Text

Democratic, Justice.and Federal Texts

this: "We are only concerned with the interpretation of the constitutional provisions but not with the policy underlyin_g it" (Subba Rao: Devadasan (1964) 4 SCR 680). Thts meant: "WPlcome constitution, goodbye Nehru's socialism". 1 irst the Supreme Court was ~ary _about looking at debates of the legislature mcludtng the Constituent Assembly Debates (CAD). At. b_est, reliance could be placed on the speech of the Mtntster, but not subjective views from the floor. But, soon they began to look at debates and committee r~ports ~andomly - sometimes getting it all wrong. Ltteral Interpretation was never a comprehensive answer even though it ·still dominates to earn the oft r~p~ated rebuke that the constitution is not a code of ctvtl procedure. The wider view was to look at textcontext-purpose of a provision read with constitution as ~ whole, often producing diverse results. The "original Intent" cannot be so sacral or wise so that the ghosts of the C?n~tituent Assembly Debate (CAD) obviated a ~ynanuc mterpretation for the future, or the myriad of Issues never imagined by the Assembly. In the early days, the judges favoured property owners but suffered constitut~onal amendments to overrule them. The 'left' accused judges of being right wing, the 'right' accused th~ of too much leftism. Jurists and lawyers thought the Judges were becoming more and more mediocre.

"Enough is enough" said the judges in the landmark Basic Structure case (1973) to rule that even the Parliament's sovereign constituent power to amend the constitution cannot violate its ''basic structure". This strange new doctrine was to apply prospectively so as not affect past amendments. But, what on earth did 'basic structure' mean? Broadly, democracy, fundamental rights especially the "golden triangle" of liberty freedom and equality, secularism, federalism, perhaps socialism and even reasonableness were all part of the basic structure. This could be used to judge the validity of the constitutional amendment not ordinmy statutes, but influenced judicial interpretation generally. The Basic Structure doctrine, could be taken as a version of the "original intent" spelled out as doctrine, but its uses are not all pervasive.

~ea~t~g to the melee ofcontroversy, Parliament overrode JUdicial decisions by constitutional amendments.

Clearly Humpty Dumpty was in for a lot of fun. At different times, jurists and critics of India's Supreme Court felt it had Humpty Dumptied the constitution. "No," said Humpty Dumpty "that is precisely what constitutional interpretation is all about".

Democratic, Justice and Federal Texts Such a massive text requires elucidating the fundamental principles of democracy, justice and federalism which underlie the constitution. The Democratic texts cover the democratic process including

58

The Constitution as Text

elections, the working of legislatures, accountability of the government (including bureaucracy), and related matters. The custodianship created by these texts rests eventually with politicians. The Justice Texts deal with a plethora of texts th romise fundamental rights and socio-economic justice to the people, accountability from the executive and justice according to law in all matters - civil, criminal, revenue and fiscal at all levels. The custodianship of these texts eventually belong to the judiciary. The federal texts concern the distribution of power including what is now India's three tier federalism and the special provisions for various areas. The custodianship of these belong both to politics and the judges.

The Democratic Texts Democracy is both a process as well as an ideology. As a process, it enjoins periodic elections. Ideally, democracy also entails empowering the people to interrogate power and participate effectively in decision making. Participatory democracy is a nuance of the demcratic principle. The victors of electoral democracy have many choices. Political theory is inundated, with many 'isms' such as capitalism, socialism, communism, totalitarianism, pragmatism, secularism, communitarianislll:, liberalisms or any or

59

The Democratic Texts

some of them. The 'isms' describe the direction that democracy can, or should, take even t~oug~ s?me paths may be inimical to the democrattc pnnciple. Electoral democracy has been described as a process of selecting 'competing elites'. Not all can contest. Power relations in civil societies are replicated in the electoral process. Those who win pursue personal ambitions or the programme or 'ism' of their choice, mindful that they have to face the electorate again. The "free" world, Which includes the insistencies of the World Bank, the International Monetary Fund (IMF) prescribes liberalism as an adjunct to democracy to ~cl~~e human rights, the rule of law and independent JUdiciary. ~ut, like democracy, liberalism, too, makes ~0 prorntses. t"t 1·s sufficiently flextble to allow . In weak verstons, the powerful to dominate the powerless. In ~tro~ger . . . · tm · bued wt"th higher pnnciples Verstons hbera ts 1tsm of good' governance and justice under conditions of relative status quo. But, it i~ doubt~. e~ged allow the powerless tentative chotces of ex~t, :ot~e and loyalty". The promises of socio-econo~tc JUStice are contingent promises-if and when posstble. The most Powerful nexus of a liberal democracy is with differe~t shades of capitalism, which is what the 'free world ts about. India's liberal democracy is not independent of the capitalism it sustains and regulates even if it resists such a comparison.

t?

60

The Constitution as Text

According to the British, Indians were unsuited to parliamentary democracy. Both Secretaries of State, Morley and Montagu, who introduced representative government in 1909 and 1919, were outspoken in their indictment o he natives. During 1920-47, the composition o1 &..ae Legislature, Councils and Assemblies, based on electorates drawn from religion, reservations, land ownership, tax assessments, commerce and membership of local bodies, shows a primacy of landholders, lawyers, businessmen. Did the 'brown Sahibs' do well? Extremely. The debates seem · exhilarating despite the frustration that the empowerment of the Indians in those Councils and Legislatures was very limited to express opinions The British policy of divide and rule prevented melting identities into a broader concept of Indian citizenship. The suggestion in Aga Khan's letter of 1 October 1906, .was lapped up in the Acts of 1909, 1919, 1935 and in the Communal Award of 1934. The only sane official British response was of Simon Commission Report of 1930 (Vol.1, pr.149) that such policies "opposed to the teaching of history ... perpetuated class division ... stereotyped existing relations. . . and constitute a very serious hindrance to the self-governing principle". India was partitioned. Incongruously, the blame game (Nehru or Jinnah?} continues, projecting the British as having tried their best. The Constituent Assembly responded· by articulating democratic texts. The first of

61

The Democratic Texts

providing a common citizenship (Articles 5-11) proved to be "such a headache" with "many drafts prepare~ and destroyed" on the basis of the principles of l~x solz (place of birth) and lex sanguinis (ancestry) wtth?ut race, class or religious distinction but ~xcluding refugees to Pakistan, leaving it to ~he Pa_rhament to work out details - as it did in the Citizenship Act 1955 Which was amended with some unkindness to N~rth East and Bangladesh refugees especially Musb~s. Thesecond was toget rid of communal representation. M 1· In India's Constituent Assembly (CA) some us tm members wanted separate electorates. Sardar Pat~l was . separate electorates unequivocal: that tf . were . gomg to persist even after partition, ''woe bettdeoth(ts~ co~; it would not be worth living in". From cto er it was clear that there will be one gener~l ~lectora roll for each constituency regardless of rehg~ ~ce; caste or self and based on adult suffrage.. e ~~ reflected this only on 16 June 1949 (no~ arttc1e .. · Of th C titution did have specta1 e1ecto~ates course, e ons T) hi h contmue for untouchables and tribals (SC/S w c Indi (Article 330 and 332) and for nominating Anglo an (Article 331 and 333) for 10 years-continued/or ~C and ST decennially till 2020, maybe beyond. Whithle . . protection . e .. llllnonty was deaIt with elsewhere, electoral law ensured that appeals to reh~ton, c~ste, conununity or language were not J·ust unfarr practices (to set aside the election) but also electoral offences

i

32

62

Elections

63

The Constitution as Text

which could result in disqualifications (Sections 8, 123, 125 ofthe Representation ofPeoplesAct 1951). On the third issue, an Independent Election Commission was created which has cessfully superseded periodic elections for the Unil .. 1nd States {Articles 324-329).

Elections Over the years, the electoral challenge has been stunning as India's population has increased from 361m (1950) to 439.23m (1961), 548.16m (1971), 623.33m (1981), 846.42m (1991), 1028.74m (2001) and 1210.19 million (2011) The data on elections is equally forbidding. From 1951 to 2014 there have been 16 Lok Sabha elections. The constituencies have risen from 401 in 1952 to 543 in 2014. But if we look at voters and votes, the dimensions craze the mind. The electorate in 1952 was 237 m (with 67.6% turnout). The later figures rise dramatically: 1977 321.2m (60.5% turnout); 1999, 619.5m (60.0% turnout); 2014, 834.1 m (66.4% turnout). Even the number of poll booths increased from 1,96,304 in 1951 to 37,93,910 in 1977,7,74,651 in 1999 and 9,27,553 in 2014. Add to this the elections to the 20 (and now 29) State Assemblies which trebles the achievement. From 19521998 the total electoral in all the States Assemblies election was 4,399.8 million with 56,692 candidates, in

• .c. 6273 seats with 2,562.8 51 91 215 polling stations J.Or . h h" It ' ' d t get btgger t an t million votes polled. It oes no . E ets. and . . II 0 fNorthAmenca, urop is difficult to tmagme a t China going to the Russia or the rest oft_he_ world ex~~~s largest democracy polls all at once. Indta IS the ~or I magnitude The . re of Htma ayan . because its eIecttons a . Commission of . tru t d the E1ectton Constitution en s e . ·se for the Union d t this masstve exerct India to con uc . (the Rajya Sabha from and both houses of Parliament It has been a gigantic State legislatures) and ~e states. armed intimidation, "d b "bery vtolence, task am1 st n lling stations and removal of ballot papers~m ~ostatutory offences. booth capturing-all of w . c. arhas won respect for When an overEven so, Election Commts~to~ t" . t · al 1nstttu ton. its work as a constttu ton . · tn"ed to hijack . 1 t" Conumsston ambitious Cb.J.ef E ec ton C urt sternly told him the Commission, the Supreme o Itt" member. Indian · · wasmu thattheElectionCommtsston . Nehru's time, the . ing Even tn unist government voters have been dtscem · first democratically elec~ed ~~eard of in global came to power in Kerala m 1d . 'ed by Indira Gandhi .. 9 history. Regretfully• N ebru a VISgovernment in 195 . 1 wrongly got rid of that Kera ; victory in 1967 at the 0 While Indira led the Con~hess rray of non-congress a Centre, she was faced wtt an ed her Emergency power ministries in the states. She us h In 1975 she called d troyt em. , of President's Rule to es h lf and convert India an Emergency to protect erse

9

64

The Constitution as Text

into a dictatorship, to lose the post Emergency 1977 election but to be returned to power in 1980 before her assassination. When Rajiv Gandhi was accused of corruption, the electorate threw him out of power on the basis a King cannot a thief. While the left retained power in Bengal from 1977 to 2007, having distributed land and create a strong grass-root cadre, they were thrown out of power for incompetence and corruption. This is true of other states with lesser terms in office. The electorate has voted differently at the Centre and the states; and often producing coalition government at both levels to produce instability. What has massively influenced elections is caste, class, religion, charisma and performance. The biggest gainer in recent years has been the Hindu Right which has manufactured dissent, attacked minorities to appease fundamentalists and pressurized Christians and Muslims minorities converted centuries earlier, to come back to the Hindu faith through the atrocious gharwapsi (come back into the fold) programme. Impervious to destroying mosques, the policies of Hindu fundamentalism disgusts and divides. The rise of Hindu fascism by elected dictatorship, with the support ofbusiness classes and others, frowns wickedly at Indian democracy. Will Hindu majoritarian prevail? Or will the electorate sustain India's multicultural secularism? Drawn into noisy and colourful electoral campaigns, the poor, often illiterate, men and women brave every kind of pressure

Elections

65

. ne and muscle to cast their vote heat, cold, ram, mo y w·th all its faults, in this lies d wn as a bounden duty. I . . h ra India's electoral democracy. The Bntls the strength of h of democracy. If they 0 thought Indians were not ~ ~ ~dia they would have ' had ventured into an electton m been voted out. . rocesses begin. The lesser ·t· which take After elections, two P . . f electiOD petl lODS process IS a space o H" h Court and in appeal b d ided by the tg years to e ec for unfair electoral practices by the Supreme Court. ld" rich jurisprudence of and electoral offences yte tng a Court insisted 002 the Supreme . 2 do's and don'ts. In ' · ·nality wealth . c. tion about crunt ' ' that candidate tn.Lorma d . the public domain. . d on be place m education an s~ . • m the Patna High Court and In a strong dectston fro riminals in prison were eventually the Sup~eme ~o: ~eir seat, if convicted, debarred from votmg an din However, the Supreme even if the appeal was pen of ':i.e Rajya Sabha, to be Court allowed members t"th which they had .1 from states w elected by legts at_m:es ndalous since the Rajya Sabha no connection. Thts ts sc~ .d For Prime Minister 11Y· tes indivt ua · b t th represents e s a d Sikh from PunJa . h a turbane M:anmohan Smg ,. A am for over 25 years living in Delhi representtn~ t~s More disconcerting d the Constttu ton. . seems a frau on . · ( ) where the Court 1995 is the Hindutva election .c~etva was not an appeal to held that an appeal to Hm u

66

67

The Constitution as Text

Parliament and Cabinet

Hinduism! Some judges, including the best and worst ?f .then: are closet Hindutva fundamentalists, forcing Htndu culture on children as history. Not surprisingly, one Supreme Court judge gave a speech that if he was ;e the Hindu Bhagwat Gita be Hitler, he would compulsory in schoots. I asked him in court: "Why not the Sermon on the Mount". The Election Commission and Courts have done well with the electoral texts to ~nable at least a peoples' democracy of choice. This ts th~ first stage of democracy, the second being the working of the legislatures.

collectively responsible to the House of the People (Article 75 (3), 164 (2)) ".This is based on British parliamentary system, but not always followed with constitutional integrity. Phrases like "aid and advice" and "collectively responsible" are full of ambiguity. Borrowing the phrase "aid and advice" fro_m the A~t of 1935 for provincial assemblies and Enghsh treatise~, the Constituent Assembly was in no doubt that Indta had adopted the British system of parl~~me~t~ry government. Munshi not only drew on the traditton of British Constitutional law", but added: "Most of us, and during the last several generations before us, public viewers in India have looked up to the British ~~del as the best" (VII CAD 984-S).Atnbedkar added that where the parliamentary system prevails, the _ass_essment t·s both daily and penodic.... by o f responst·b·t·ty 11 Members of Parliament through questions, re~oluttons, no confidence motions, adjournment m~ttons and debates on addresses. Periodic assessment ts done by the electorate which may take place every five years or . ,, In the .c.amous Punjab Text Book case (1955), 14 B ··h earI ter . s in doubt if it was the ntts Wa the Supreme Court System that India had adopted. Yet, s~mehow cranky . d mt·sguided J·udges ratsed doubts. A . . acad emtcs an . d b h 1-n S'hamsher ( 1974) authoritatively seven JU ge enc _ . tice Krishna Iyer felt that Indta Jus c Iose d controversy. . . should look to London not Washington for tnterprettng

Parliament and Cabinet Parliament (and state legislatures) perform crucial functions: extract accountability from the executive enact legislation and bring down a ministry if it lose~ a no confidence vote in that house. The core principles of accountability in the text:(ij ~~ ... (T)here shall be a council ofministers with the Prime Minister at its head to aid and advice the President who shall in the exercise of his functions "act in accordance with the advice ~(Articles 7~ (1), 163(1)) ". The last clause of acting tn accord wtth the advice was added in 1976 which also permitted the President but not the Gove~or with a once only power to demand the Cabinet to reconsider its decision. (ii) "The Council of Ministers shall be

E:,.

68

The Constitution as Text

these clauses. What he ended up saying was a lot more colourful. ~~Not

the Potom but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis we arefortified by precedents ofthis Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a 'silver jubilee ' span of time. " There still seem to be areas where the President or Governor may not be bound by the advice especially when choosing after indecisive elections. I have never quite understood why a newly formed cabinet is forced to table a confidence vote against itself. This is harakiri. Surely, a better tradition would be to wait for the opposition to table a no-confidence motion. This way minority governments would have time to breathe. The text speaks of the "Council of Ministers" with the Prime Minister (PM) as its head which is "collectively responsible" to the Lower House. When Nehru and his colleagues were sworn in as an Executive Council (EC), Wavell wrote to George VI that Nehru wanted to call the 'EC' a Cabinet; and, Rajaji insisted that this is how- they ought to function. The words "Cabinet" meant something more to Wavell and, he

Parliament and Cabinet

69

refused to accept that he was similarly bound as the Queen on all matters. Words exaggerate into meanings easily. But, there was another controversy over Prime Ministerial pre-eminence over the Cabinet. In 1947 Patel, who according to Wavell was most "silent in cabinet" had a grouse, expressed a grouse to Gandhi, of Nehru's claim of supremacy, and that Nehru's ideas if accepted would raise the Prime Minister 'to the position of a virtual dictator ... (which is wholly opposed to democratic and Cabinet system of government'. Nehru was stung by this as he lived opposite Patel's house and often walked across for discussions. This controversy remained. Many ministers who had differences with Nehru resigned. Responding to Deshmukh's allegation, Nehru spoke on 30 July 1956 and on 23 August 1956 totally denying the loss of collective responsibility. Morarji Desai's autobiography suggests that Nehru ''encouraged ministers to argue independently" ... (but) successfully neutralized any member of the Cabinet or the party who he felt was getting powerful". The liberation of Goa was decided without the Cabinet considering or approving this decision; as also the creation of Nagaland. His power waned when he was faced with stiff opposition and he reshuffied portfolios. to relieve colleagues of their domain. Yet, Nehru had a "magic way." As Mrs. Gan~i became more selfassured as Prime Minister, she created a "kitchen cabinet" of favourites, eventually splitting the Congress

70

The Constitution as Text

because Morarji wanted an equal say on issues like bank nationalization. She, too, reshuffled portfolios. Even the discussion to impose the Emergency did not pass through Cabinet. The Prime Minister's office became more important than Cabinet office. Rajiv Gandhi relied on his 'kitchen cabinet', but lacked the ability to take people on. This was equally true of Prime Minister Manmohan who was bound head and foot by Congress President Sonia Gandhi. In the Bharaitya Janta Party government of2014, Modi triumphed over his cabinet, relying on his Party-President Amit Shah as a political hit man. Entranced by travelling, he was an Air India Prime Minister, leaving it to some of his colleagues who knew more of complex areas of governance than he would everdo, to get on with it. Prime Ministerial power is also a feature of England's parliamentary democracy, making "cabinet" less important. No constitution can guarantee how a power will be exercised. Apart from constitutional mechanisms, many jurists feel that there are invisible forces to guide those in power. Some call this "the silences of the Constitution", "Constitutional morality" or "Conventions". I would hate to look for what some Indian jurists call the "hidden" or "real" constitution on which everyone has a story. True, conventions may develop distinguishing good and bad practices. But these are defied with impunity. A more modest approach

Parliament and Cabinet

71

ts needed so that each constitutional institution of process operates with the institutional integrity. Beware of slogans appropriating power. . India is run by a permanent bureaucracy - an Idea borrowed from the British's famed Indian Civil Service and Allied services who ruled India. Whether the Constitution makers thought of them as wise mandarins or with multi-tasking ability is not clear. The Constitution devotes a whole chapter to Services under the Union and States. Selection is by independent Public Service Commissions which have not been above corruption. In Punjab in 2005, the Chairman of the commission was found with crores from bribes. In 20 14 selections from 2008 to 2013 were cancelled because they were tainted. Once appointed bureaucrats cannot be "dismissed' removed or reduced in rank" without hearing. Nobody anticipated that this clause, and those providing for affirmative action in bureaucracy would generate so much litigation. Special Tribunals in the Union and each State have been established to deal with what is called "service jurisprudence'', a complex and painful area of Indian law. This has created fora for civil servants perennially fighting government and each other, paving away their lives fighting cases. Service law is self-destructive, adversely affecting governance. A constantly discontent and quarreling

72

The Constitution as Text

Parliament and Cabinet

bureaucracy prone to corruption has been overprotected by the Constitution.

in 1976 until changed by law.· But the original text sent the Supreme Court into an elaborate exercise into British precedent to rule that judges could not be summoned by the legislature. This quelled the crisis provoked an amendment of the constitution, but left' in place the practice of Indian Iegislatur~s exercising wide unscrupulous powers against people, the media and its own members.

The Constitution has elaborate texts on Parliament and State legislan , their composition, their Speakers, the privile~ of the House and its meetings every six months. Some textual provisions have thrown up strange situation and answers. I am not at all sure whether the Supreme Court was right in interpreting the 'six month' provisions in the Gujarat Reference case (2000) permitting a longer gap between the dissolution of one House and the election of another. Nor was the Court right in the Parliament Sessions case (2010) in not requiring the Presidential speech elaborating a government's programme at the commencement. One of the big issues before the Court was to define the privileges of the House in the context of a face off in the Uttar Pradesh Reference (1964) where the legislature had summoned Allahabad High Court judges for granting respite to a person who had insulted the House. The High Court protected its judges from such an ignominious summons. The Supreme Court had to interpret a provision which said the privileges of the legislature "shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of the Constitution ". What a provision - changed in 1976 to the privileges of. the Indian legislatures as they stood

73

What has totally misbalanced the parliamentary system have been defections i.e. legislators in the ruling party crossing the floor to bring down their erstwhile government, lured by money or promise of office. In one case from Goa, the Speaker laid claim to becoming Chief Minister! This is called aya-ram-gaya-ram (ram came and went) politics which toppled regime after regime in the various states and threatening instability in the Union. The 'aya ram gaya ram' appellation was named after Gaya Lal, a Haryana legislator who defected three times within a fortnight. Between 1967-71 there were 142 defections, 32 governments collapsed. Some barely survived because 212 legislators were awarded ministerial positions. In 1987 (and again in 2003), the Constitution was amended to try to limit defection to collective conscientious objection. The Supreme Court upheld the amendment following which 26 Lok Sabha Members of Parliament out of 88 were disqualified. Between 1989-2004, two Rajya Sabha

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The Constitution as Text The Justice Texts: Social and Economic Justice 75

Members of Parliament were disqualified. For the same period, 113 legislators in the States were disqualified following 268 complaints against them. More should have been disqualified, except the power to consider disqualification is , ~ed in the Speaker, himself a political creature. Th'"' ~onstitution Commission (2004) suggested that the Speaker's power be entrusted to the Election Commission of India. Recently in 2015, the Bharaitya Janta Party government tried to topple two non-Bharatiya Janata Party governments by engineering defections. Hardly conscientious, defections in India are an unscrupulous evil which make a mockery of parliamentary democracy subverting the loyalty owed to the electorate and the promised mandate on which the legislator was elected. No text can condone what really happens in Indian legislatures. Fights in the legislatures happen constantly, including Members of Parliament using pepper spray, breaking glass, and hurling stationery items at each other. Rushing to the well of the House is well known. In 2010, in Bihar footwear was thrown at the Speaker while others turned over tables. In 2005, there was mayhem in a trust vote in Jharkhand. In 2010, the Odisha speaker had to duck from a chair thrown his way. In 2009, Mehbooba Mufti, now Chief Minister of Kashmir snatched the Speaker's mike, throwing it on the floor. In a later incident in

the Assembly, the ~peaker was abused. In Kamataka, one legislator thought he was Ha~uman in ~ri.La~a jumping from table to table. A pohce commts~Ioner s cap was knocked Off. What can we say of legislators, . eating biryani and singing songs for 3 days In the followed H ouse. 0 r, legislators refusing to leave, . 009 0 f . 1ence ID · the Andhra legislature tn. 2 . · r o b y VIO riots in the House on the Nandigram_ Issue ~n West . 1988_ 19 89 and 1999 m Tamtl Nadu 1 0 r In Benga. . with legislators coming to blows. One consequencde Is · · In the first three deca that they were fewer sittings. . es . Parliament work ed harder than allocated. But tn· ·the 15th Lok Sabha the Bhartiya Janta Party ~pposttton . decision to stop parliamentary of 91 hours of its work took a consciOU~ . functioning resultmg ID a loss h h Congress did the t time. In the sixteenth Lok Sab a t e t"1 a Janata Party governmen. 0 ne same to the Bhara Y . d ithout discussion further result is bills bemg passe w . d d IS re uce . The Constitution's text by acclamatton. tragicaliy into farce.

The Justice Texts: S~cial and Economic Justice t arantee justice. The Democracy canno 1· · . ofcreating a substantive ega ttanan transformative task .. of the State to obtain society lies with the pobttca1 arm gu-

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legislative and financial approval from the legislature and secure implementation through bureaucracy. They have the power, they claim the glory, most emphatically at election time. The objective of transformative justice comes frorr: ~ Preamble, some fundamental rights and the Directive Principles of State policy. Primarily, this painstaking and expensive task of fulfilling the socio-economic texts lies with those in ~olitical power. The interpretation given to this goal In the famous Samatha case on tribals (1997) is: "The constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic". According to the famous Basic Structure case (1973-13 judges) the Preamble was of "extreme importance" even though in the Reservation case (1992) 9 judges seems to have given greater emphasis to liberty and equality than 'fraternity'. The term "secularism" and socialism" were added to the Preamble. "Secularism" has been declared a part of the "baszc · stru cture '' tn · the Presidential Rule case (1993) but suffers attack from the forces ofHindutva. "Socialist" is now mentioned in a hushed whisper as a thing of th.e past. What was originally envisaged was so~e version of 'state socialism'. But it was always ~ ~Isn~mer. India's mixed economy was a continuing tnvttatton to capitalists - no less in Nehru, Mrs. Gandhi and Rajiv Gandhi's reign. From 1992, India's

The Justice Texts: Social andEconomic Justice 77 economy is openly capitalist. Welfare for the down trodden will now come from as a "trickle down" from capitalism or revenue surpluses, if any. If the goals of distributive justice for an egalitarian fraternity fail, the Constitution fails. The Preamble and Directive Principles reinforce the duties of all states or state controlled authorities to achieve the Constitution's purposes. The pivotal provision is that the Directive Principles "shall not be enforceable by any court", but the principles "therein laid down are fundamental in the governance of the country and it shall be the duty ofthe state to apply these principles in making laws" (Article 37). A Constituent Assembly member called the Directive :rinciples "a veritable dustbin of sentiment"· That, mdeed, they are. They are part of the great c?mpr~mi.ses of the Constitution. Technically, all Directtve Prmctples are of equal weight, but some principl_es ar~ ~ore important than others. The socio-economic prmciples . d to create .. 1 1 . d reflectin· g social econonuc an po Itica a socta1 of er ... . . tt"ng inequalities in status, factbties and . t"tee, e1tmtna JUs opportunities for all individuals and ~ongst groups, health level of nutrition, equal pay, nght to human work ~d leisure living, wage and leisure, worker's . · t"Ion m· industries' uplifting .agriculture and parttctpa . . 1 h usban"~' promoting Interests• of anima . UI.J' education, · Schedule Caste/Schedule Tribe and weaker secttons

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and protection of environments and forests. (Article 38 and 39A, 41-43, 45-51). What a rag bag. Read them together, there is a thread. Two of the sub articles on State Socialism (Article 38(b) and (c)) may seem a little passe. The n .·~ ..lin wall has fallen. The Soviet Union gone. Busint 1as won. Public enterprises have been dismantled. Even so, some ideas behind these sub-principles prescribing anti-monopolism and that ownership and control of material resources of the community remain relevant. All the socio - economic principles hang together. One other principle for local government and panchayats has been fulfilled by Constitution Amendments creating a three tier federalism for the whole country (Article 40 and 73rd and 74th amendments). The promotion of cooperatives has also been introduced as part of the Constitution itself (Article 243 ZH by the 97th amendment). This leaves two controversial amendments which have been used to victimize the Muslim community. The first is the Principle to provide for a UCC Uniform Civil Code or the UCC (Article 44) following the massive codification by the British States exist on all areas of civil, criminal and other areas. Personal law was left uncodified. Hindu fundamentalists insist Muslim law be abolished not reformed. The Muslims agree to examine reform but not to be bull-dozed by the majority community. From time to time, judges of the Supreme Court drift into. supporting _a Uniform Civil Code for

The Justice Texts: Social andEconomic Justice 79 personal laws though treat this as a political question. The second Principle deals with animal husbandry and breeding and: "prohibiting the slaughter of cows and calves and other milch and draught cattle". In 1958, the Supreme Court worked out a compromise th~t slaughtering cows was not essential to Islam ~ut latd . on protecting milk giving cows. emphasts . But, tn. 2006, a Hindu Chief Justice hurriedly const.ttuted a 7 Judg~s bench to permit a complete prohibitto~. All of lndta uses and wears Ieathe[. When a cow dtes, the .carcass and meat has to be lifted. If dalits. and mushms are found with such carcasses or meat, wtthout reference to . d b aten and even murdered context, they are whtppe ' e dl th · . reverent to the cow, sa y so, ts, b for not etng .b.l"ty f the "political" . 2016 . The responst It obl fD" t• happened tn . . . d ·th Pream eo tree tve state does not begm or en wt nsibility of the . . I M generally, the respo P nnctp es. ore . . · d welfare and a . ubstanttve JUstice an ' State ts to ensure s . . . &: II Despite what is . .. dmtntstrat1on lor a . fatr and postttve a ld 's largest and most diverse said oflndia being the :'or tthe best. Some of its amongs democracy, t"t defies bemg . the 8 irit of discourse, others politicians have retatne~ thp elebration of India's d 1·t Am1dst e c have destroye ·. h ourn about its partial democracy, there . ts mucf to· m t ·tutional morality and E h 0 rtat1ons o cons I d . . · the voice and outrage . emtse. . h x e the1r place, but 1·t ts tntegnty av t ventually restore subversions of the people that mus e · . . lbeit by direct actton. of the Constttutton a

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The Rule of Law Texts

The Rule of Law Texts

of the latter's conservatism. More significantly, at the time of the Constituent Assembly's deliberations, even English style judicial review through prerogative writs was unknown to the British-Indian judiciary except in the narrow geographical areas of Bombay, Calcutta and Madras where it was rarely used. So, in one sense pre - 1950 India sported virtually no judicial review except habeas corpus in criminal law. In 1950, English administrative law introduced in India's Constitution (Article 226-8), from which Indian law was to draw its inspiration, was its lowest nadir. Post 1950, Indians law followed reformist administrative law decisions in England, adding fresh insights.

At the time of drafting the Constitution the "rule of law" texts had a "narrow" meaning as contradistinguished from later "emancipatory" meaning to transform peoples' lives. The "narrow" meaning was derived from the English High Courts to issue certain prerogative writs to challenge administrative decisions. These can be traced to Dicey's version of the rule of law which entailed. ( 1) the absolute supremacy of regular law as opposed to existence of arbitrariness or "even wide discretionary authority" (ii) "equality before law" and (iii) the "enforcement of the rule of law" as defined and enforced by the courts. This was in contradiction to the continental system of droit administratif with a special hierarchy of institutions culminating in the conseild'etat. By 1915, Dicey himself foresaw "the development of administrative law in England" but by the ordinary courts. The power of the administration was increasing. In 1929, Lord Chief Justice Hewart famously wrote in 1929 The New Despotisms and jurist C.K. Allen in 1934 of Bureaucracy Triumphant. The specially appointed Donoughmore Committee (1932) saw the problem but was not prepared to depart too radically from the system of parliamentary sovereignty and limited judicial review with limited potential. All these developments were familiar to Indian lawyers looking to English law for inspiration, especially because

81

. The Constitution entrusted the "emancipatory" meaning drawn from guaranteed funda~.ental ri~hts to the legislature with the promise of judictal restramt. In its long history, the American Supreme C~urt's interpretation of the Bill of Rights was atrociousleading to Civil War, amendments, a record -~f ~eing . pro-b ustness and antt" -welfare and warned by Prestdent . Roosevelt in 1935 that he would 'pack' the ~ourt wtth . dges 1"fthey dt"dn't stop interfering wtth welfare more JU . 1at.ton. Th"ts was what the Constituent Assembly I egts . expected of the Indian Supreme Court . an~ Htgh k eep therr· hands off welfare legtslatton, and, C ourts: " T .1 o programmes". There was anot~er reason wh~ th~ left did not trust the judiciary. The JUdges were, tnevttably,

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drawn from middle to upper class backgrounds and were class biased. The "class bias" thesis is elaborated in Griffiths': The Politics of the Judiciary ( 1977) in England and Peter Trnns': A Peoples History of the Supreme Court U1 1 States (2006). In America of course such a crude analysis is inconsistent with a nuanced Marxism. EP Thompson writing Whigs and Hunters (1973) looked at the indeterminacies' of governance and law to declare that 'law' was a mixed blessing and many escaped the gallows under the Black Act because of it. This was not the greatest advertisement for law but a step forward. Law could be trusted within limits; and, more so if planning and social welfare were enacted. But how would the judiciary react to this powerful "emancipatory" view of law which not only planned social changes but extensively empowered Ministers and bureaucracy to interfere with peoples' lives, including the powerful? What would judges do? At a lower levei,judges would examine if the delegated legislation was· "manifestly unjust and a!"bitrary", whether executive action took into account irrelevant considerations or did not take into account "relevant considerations" (called 'Wednesday reasonableness' in English law, invoked in India) or did not follow procedures or were tainted by malafide, bias and not giving an opportunity to be heard when it was due. This kind ofjudicial rev.iew was to be encouraged even if it put the State plans in jeopardy. At a higher level of the

The Rule of Law Texts

83

Constitution (including fundamental rights), would the judges evolve an "emancipatory" jurisprudence? What would the content of "emancipatory" jurisprudence be? Bearing in mind that the prime responsibility for planning and social welfare lay with the political texts there were many options: (i) In the first place "emancipatory"jurisprudencemayacceptapresumption of constitutionality in favour of welfare statutes subject to fairness in action. (ii) Second, infringements of fundamental rights would be considered in the context of a wider principle of "reasonableness" to be balanced out by the judiciary. (iii) The third principle is that any exercise must be democracy enhancing so that free speech, associational freedom, the right to participate in discourse and criticize officialdom were of special importance to strengthen the disempowered to take on dominant powerful elements in society. (iv) The fourth possibility was for judges proactively enforcing justice and social welfare themselves. This judicial usurpation angered politicians. The phrase "rule of law" itself underwent change, with Humpty Dumpty's affectations solidly in charge of the process .. The narrow English meaning of the rule of law to act according to a valid law as defined by the political texts and interpreted without too much fervor by judges was rejected. As Humpty puts it, all depends on "which is master"-the words or how the

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The Rule of Law Texts

people might look at them. One significant statement came in the now famous Delhi Declaration of 1959 canvassed through questionnaire to 75,000 respondents throughout the world. Its enunciation was attended by Nehru, Ministers tdian judges and Lords Denning and Devlin. The new pithy formulation was "respect for the supreme value of the human personality" and elaborated in four principles of responsible government a~d human rights conventions judicial redress, fair tnals and independence of the judiciary and lawyers. Although radical at the time, in retrospect almost fifty years later, they seem, too anthropomorphic-for getting the obligation owed to the world in which we live to curb the exploitation of people and the environment and ensure parity between the poor and rich nations and those who lived in them. We live in a greedy and unjust ~orld. It is not enough for governance and people to Simply act "according to law", but to pursue according to the "rule of law"-a different thing altogether.

women nakedly through the village. Some say this is the real law of India outside the constitution~! set up. Drawing principles of governance from some of India's customary practices is inherently dangerous even though history and social studies may produce illustrious examples of the justice and fraternity. Edward Coke in Bonham s case (1610) stated in his fourth proposition that the 'common law' will control a statute. This was followed in America's colonial period. In India, too, reference is made to custom, the Hindu Dhannasastra and Islamic jurisprudence to enable indigenous values to inspire consti~tionalism. This, too, will produce recalcitran~ and hostile results. In my view there are more sophisticated ways to support an ideology of law and justice and making them part of the· rule of law rather than a blind adherence to past ~ustom . f . We may not find the Holy Grail but rmght andbe1te . .be able to establish a higher justice in terms of eg~1ttanan · 1·ISm, expansive secularism, a discursive. and SOCia responst"ble democracy solicitous of the well-bemg. of , as the world we live in. Perhaps, India s aII, as we11 . h h fu Constitution sets up a vector along whic t e ture

Every legal system cannot be confined to positive law declared by legislative fiat or judges. In fact, it competes with innumerable social laws enforcing their customs producing justice and injustice at almost infinite levels. India's customary and personal laws based on caste, community and religion are enforced ~y caste and other processes which claim powers over hfe and death, with beatings, ostracism and parading

85

can move. Th Constitution makers gave the widest · · d"ICet.Ion 1·0 the world·· protecting fundamental rights Juns . . . 1 d" the power to strike down executive action Inc U mg . d" di . . . and laws deciding federal dtsputes a ~u cattng ctvi1

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The Rule of Law Texts

and criminal appellate powers, an advisory jurisdiction ~e right to transfer cases across the country or t~ Itself and to do 'complete' justice. High Courts too, had a fundamental no-hts jurisdiction to strike actions ~n~ l~w~ inimical these rights, civil and appellate Junsdtcttons and powers to review administrative decisions. The Supreme Court and High Courts can punish for contempt-a power that scares people. Over the years, all Courts in India suffer a huge backlog of cases. that is drowning the system-as predicted by the Rankin Committee in 1925. To deal with this, Indian governance has tried to create new tribunals. The flood increases daily, undermining the rule of law and justice.

clauses effectively prevented invidious classification of persons, actions and things, and prescribed no discrimination on grounds of race, caste, gender, residence, language and the like. Affirmative action was specifically written into the constitution as a part of equality. The freedom clauses included rights of free speech, association, movement, property and business. Thakur Dutt Bhargava made sure that concept of 'reasonableness' would weigh infringements of the freedom clause (Article 19) Bhargava thought this gave "soul ... (to a) lifeless article". History proved him right. The religious freedom and cultural rights clauses protected language culture and religion but preserved the separation of religion and state in crucial areas, but ensuring temple entry for untouchables and others of the faith and the social reform of religion. There was direct access to the Supreme Court for enforcement of fundamental rights (Article 32) and exceptions from fundamental rights for martial law and the army. But despite all their precautions, the Fundamental Rights chapter was a rag bag, victim to the many pressure~.that attend constitution making. This chapter accommodated conservatives, liberals, refonnists, radicals and others opening up potential areas for all kinds of interpretation. Clearly Humpty Dumpty was going to have a ball. But on whose behalf? To enclose 'meaning' as authoritative is an appropriation. But I will take you _to how H~pty Dumpty sitting in the Court turned the mterpretatton of

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The first instinct of the Constitution makers was to design the Fundamental Rights chapter with low key judicial intervention, animadverting to America's forbidding example. One singular example is indicative. The life and liberty article was specifically modified ~o that. their transgression could take place only accordmg to procedure established by law" (instead of "due process") of law. (Article 21 ). "Any process" ve~sus "due process" was strongly debated to the potnt of dissatisfaction. "Personal" prefaced "liberty" a~d ~e "any process" clause. Specific provisions on cnmtnallaw were added, as Ambedkar put it, 'by way of compensation.' Likewise, "any process" replaced "due process" in the right to property. The 'equality'

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The Constitution as Text

The Federal Texts

the ~onstitution upside down, including a takeover of how Judges were to be appointed, in the next essay.

before it followed the breakup of Bombay in 1960 and Punjab in 1966, but did not do so- making the task ridiculously facile. As long as the houses of Parliament were quorate, simple majority of present and voting could evaporate and redraw the boundaries of the State. Nehru did not want states of linguistic or such basis b~t conceded the creation of Andhra in Andhra. After the major reorganization in 1956 there were further splits and alteration of boundaries. Sikkim joined India in 1975 to get an extremely raw deal. They should have stayed outside like Bhutan - another Shangrila. In 1956, there were 14 states and 6 Union Territories {UT). In 2015 there were 29 states and 7 Union Territories. ' in area is Rajasthan (322,239 Sq.km) the The largest smallest Sikkim (7096 km) competing with some North Eastern States. Demographically, the largest population is of Uttar Pradesh ( 199.28m people) the smallest Sikkim (6.07 lacs). Most of the states were created by political pressure. Insufficient attention was given to the financial viability. If it was thought, sculpting such breakups would bring peace, Jammu and Kashmir (JK) and the seven North East states are held by armed intervention as w~s Punjab in the 1980s. India, could have organized its geographical federalism better.

The Federal Texts What makes India quasi federal is not the fact that power is overloaded in the Union's favour. Centralization of power occurs in most constitutions even where the text endows the states with residuary powers. The American Constitution lists the Union's power to specific empowerments. All other powers go to t~e States. The real malady in Indian federalism (its ~chil~es heel you might say) is the lack of territorial mtegnty without a constitutional amendment the boun~es of a State can disappear, by a simpl~ law of Parliament with formal consultation with the States leg~sl~ture. One day your State is Bombay, in 1960 its spbt mto Gujarat and Maharashtra. Till, 1966, there ~as a huge state of Punjab, thereafter it was divided mto Punjab, Haryana and Himachal. In 2000, the three states of Jharkhand, Chhattisgarh and Uttrakhand were carved out from others. In 1956, Andhra was created as a linguistic state after a person starved to death. In 2013 ... ' It was broken into Andhra and Telengana. The North East was divided into 7 states - suffering the annY' s presence. The Suprerrie Court could have made this consultation with the States stronger in cases

India's federalism is asymmetrical: all states are not equal in every respect. Kashmir (called Jammu and Kashmir (J & K)) has a special status and its own

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The Constitution as Text

constitution . by th M h . because the Instrument of Accesston C~ a ~J~ conceded Defence, Foreign Affairs and ~~Ications, but mitting extending India's constitution and gover.n .. lce after consultation or concurrence as prescribed. Consisting of Buddhists from Ladakh, Hindus from Jammu and Muslims from the valley, "Kashm"tr,, Is · at the centre of a low intensity war .fu~lled by Pakistan which has continued and is conttn~tng till today. Pakistan has taken over "Paki t · " and their . Prime Minister hadsthe an occupted . KashmIr :udacity to give p~ of Kashmir to China. Kashmir . ould have been an Ideal mixture of faiths and culture ~ns~ead of an insurrectionary battle ground. Pakistan gross troub~e ":ithin its federation of Pathans, It t ~· ~aluc~Is, Smdhis, Punjabi and other people. s .emt_onal claims on the Kashmir valley are based on It b~tng an _Islamic state, claiming suzerainty over ~he neighbounng Muslims of Kashmirs. It cannot e overlooked that India has82 million M I" to Pakist , us tms . . an s 178 and Bangladesh's 245 wh dtstributed over Uttar p . o are radesh, Bthar West Bengal A ssam, Andhra ( ' . h now ,., 1.eI angana) Kerala and others ' Indta as · . no provtnce created on religious identity· Concedtng such a 1. . . · alter the fi . r~ Igious Identity to Kashmir would fi ede~al basis of the Union of India to engender oment. Pakistan's. clann · Is · really temtonal . . using . . 1 :~ ~:n to fo~ent discontent in valleys where ~eoples t erent faiths have lived side by side. But Indians

;ru:

The Federal Texts

91

are also to blame for not respecting Kashmir's a unique status under the constitution, Hindu fundamentalists insist the special status of Kashmir be abolished, to integrate it fully into India playing into Pakistan's hands. India has also breached the special federal arrangement with Kashmir by promulgating on the order of 1954 whereby the Indian Constitution and governance has been extended to Kashmir through overpowering methods. One Kashmiri demand is to go back to 1953 and rework the federal relationship afresh so that the Indian Constitution of 1950 and the Jammu ' and Kashmir constitution of 1957 work in tandem in the spirit of cooperative asymmetry. The army h~s committed too many excesses in Kashmir, the Delhi government has been too dominating and the people of Kashmir feel they are under military occupation. Their war has already acquired aspects of an Islamic jihad. The danger of losing Kashmir by endangering its people is high. We may well end up with the l