43 highlights
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How well the Constitution measures up to its stated aspirations depends in large part on an evaluation of what it does to protect cultural and minority rights.
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But there is another criterion by which the Indian Constitution must also be judged: its pursuit of social justice in a much wider sense, beyond just affirmative action for select groups.
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The scholar Madhav Khosla, in his book The Indian Constitution, quotes Ambedkar saying “however good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those called to work it, happen to be a good lot.”
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The political scientist Samir K Das, in The founding Moment: Social Justice in the Constitutional Mirror, points to many weaknesses—mainly of omission—in the document.
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But Das also sees the Constitution as having “multifarious concepts of justice” circulating within it, and argues that despite its weaknesses, the proper interpretation and implementation of the Constitution would nonetheless constitute a bulwark against democratic degeneration.
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What kind of democracy has the Constitution sought to promote? How much responsibility, if any, does it bear for sanctioning the undeniable authoritarian drift of the polity over time?
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If some countries replace old constitutions with new ones to keep them relevant, in India, keeping the Constitution “alive” has required a steady accumulation of amendments. (The country has had 103 constitutional amendments in 69 years, whereas Australia has had eight in a hundred years, and the United States 27 in over two hundred.)
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The asymmetries of class power are obscured in the Constitution by propping up a notion of the “people’s will,” one that is expressed through the functioning of electoral democracy.
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The Constitution is testament to the fact that the members of the original Constituent Assembly, incidentally not elected by universal suffrage, were overwhelmingly members of the Congress party—an organisation that headed an independence movement that sought not so much to overthrow colonial power, but to transfer it from British to Indian hands.
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For instance, in Article 1, the name given to the union is “India, that is Bharat,” invoking a pre-Islamic past of presumed glory—a Bharat Varsha when a legendary Hindu king is said to have ruled.
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Very few have dared to argue that the text exhibits any bias at all. One of those few is the scholar Pritam Singh, and I am indebted to his writings, particularly his paper, “Hindu Bias in India’s ‘Secular’ Constitution: probing flaws in the instruments of governance.”
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A more universal sense of the common good and of justice emerged with modernity. This owed to the Enlightenment, whose main ideological legacies are liberalism and socialism—the most egalitarian version of which is Marxism.
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The philosopher Brian Barry, in his book Why Social Justice Matters, argues that until the Industrial Revolution, notions of justice pertained to individuals, not to society.
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For liberals, and even for social democrats, the “right to property,” even in the basic means of production, is crucial for the pursuit of the common good. For Marxists, with their socialist vision of the common good, this is not the case.
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Article 45 of the Directive Principles had called for free and compulsory education for all children up to the age of 14, within ten years of the Constitution’s promulgation. It was only six decades later, with the Right To Education Act coming into force in 2010, that this promise was translated into a fundamental right, and the centre and states were obliged to fulfil it.
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This Constitution has often been an instrument for rationalising the status quo more than one for progressive change.
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The fact that the term “socialism” did not feature in the original preamble to the Constitution is indication enough that the consensus in the Constituent Assembly was against a serious commitment to socialist ideals. Indira Gandhi introduced the term into the preamble during the Emergency, but the less said about the sincerity of her commitment to socialism, the better.
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In India, in the immediate aftermath of Independence, given the widespread concern for social justice, and therefore for land reform, an uneasy compromise took place. The right to “acquire, hold and dispose of property” was put into the fundamental rights but made subject to reasonable restrictions in the public interest.
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On the issue of gender discrimination, the makers of the Constitution should have established a progressive uniform civil code rather than the current mishmash of personal laws specific to—and conceding to—the traditional customs of each major religion.1
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Rather than function as a check on each other, the executive and parliament have all too often acted in cahoots. The task of making both organs accountable has fallen to the courts.
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There has been an ongoing tussle between the legislature and the judiciary as to which is the final arbiter of the Constitution.
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The Supreme Court’s interpretation of the document has not been based solely on the text itself. Sometimes, it has aimed to give effect to the “intent” of the document’s framers. Other times, the court has leaned towards “creative adaptation” of the document, in the light of what it understands to be “Constitutional morality.”
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The elected legislature, presumably representing the people, has the power to amend the Constitution, but the unelected Supreme Court, under the doctrine, has the power to annul any amendments that it deems to be violating the document’s basic features.
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Members of the Rajya Sabha do not need to be domiciled in the state they are supposed to represent.
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In parliament and state assemblies, members are not free to vote against their own party on any matter that the leadership claims is central to the party programme.
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However, what shines the harshest light on the Constitution’s claim to democratic representation is the first-past-the-post electoral system.
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In 2014, the concentrated support in the Hindi-speaking states for the Bharatiya Janata Party saw it secure a majority in the Lok Sabha with only 31 percent of the vote. This made a huge mockery of any claim that the government represented the popular mandate.
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they allow for territorial expansion from the original national boundaries prevailing at their birth, but disallow any secession of territory.
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India practises an asymmetrical federalism, one where all the states in a union do not have the same legislative powers.
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There are political scientists who argue that a democratic state need not be secular—a view that allows for Israel, an explicitly Jewish state with formally constituted second-class citizenship for non-Jews, to be called a democracy.
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There are some key principles then that make a state secular. First, it should not be the job or goal of the state to help promote or secure spiritual or religious salvation for anyone. Second, its institutions are free from the control of religious personnel and institutions. Third, there should be equality of citizenship rights irrespective of religious affiliation, though these rights may not be democratic.
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A forthright secular stand for the state would be to refuse both these things: to not provide any funding to such institutions; and to refrain from taking over institutions that insist on specific religious instructions.
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The final definition of religious freedom in Article 25 of the Constitution reflected a compromise. It enshrined the freedom to practise and propagate religion, “Subject to public order, morality and health.” Given the wide latitude in how this clause can be interpreted, it is no surprise that many an unsavoury religious practice persists without state intervention.
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Brahminical diehards in the Constituent Assembly could not get a complete ban on cow slaughter, but smuggled an emphasis on the need to protect cows into the directive principles under the cover of animal husbandry.
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The document notes that, in the sub-clause, “the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion.” Here, the Constitution can almost be seen in line with Hindutva’s assimiliationist project
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Article 26 allows every religious denomination to “establish and maintain institutions for religious and charitable purposes,” but clause 2(a) of Article 25 saves the power of the state to regulate or restrict any “economic, financial, political or other secular activity which may be associated with religious practice.”
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Article 26 is seemingly impartial towards all religious institutions, but in reality a huge and powerful nexus has emerged between the state, the corporate sector and the Hindu religious establishment.
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The Constitution designates Hindi as the “official language of the Union,” to be used along with English in centre-state exchanges. Though Hindi is spoken by more people than any other Indian language, it is still spoken by a minority of the country’s entire population.
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The Constitution also grants official status to Sanskrit, spoken by perhaps a few hundred people, by including it in the Eighth Schedule. The tribal languages of Bhili and Lammi, each spoken by over a million people, are denied that honour.
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The promotion of Hindi comes at the expense of Hindustani, which affords greater importance to Urdu with its stronger Persian and Arabic borrowings.
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Article 351 promotes a Sanskritised Hindi that relies for its vocabulary “primarily on Sanskrit and secondarily on other languages.”
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AT ITS VERY CREATION, the Indian Constitution was never the remarkable document many have claimed it to be. Its commitment to secularism, liberal freedoms and social justice was never wholehearted, and was more restricted than it needed to be.
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Another facet, more directly spawned by the Sangh’s success, is that any party aspiring to electoral success must pander to the Hindu majority, and distance itself from anything that looks like appeasement of religious minorities.
Footnotes
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Check Consitutent Assembly Debates in Uniform Civil Code in this context. Why didn’t they incorporate Uniform Civil Code in the Constitution? ↩