For those of us who dozed through Civics classes in
school and did not elect to study Political Science in college, references to
the Constitution evoke hazy notions of something very important confined to
weighty books, dusty journals and erudite discussions between learned scholars
far removed from our immediate concerns.
However, given the growing significance of
constitutional questions in day to day lives of citizens -- especially issues
of individual freedoms, civil liberties and the like -- an attempt to
understand the nature of our Constitution becomes imperative.
Instead of attempting to ‘summarize’ any one of the
huge number of books on the subject -- Granville Austin’s ‘classic’ study, The
Indian Constitution-Cornerstone of a Nation or even The Indian Constitution by
Madhav Khosla for Oxford India Short Introductions series -- this post shall
attempt to itemize the major questions that need to be asked about the
Constitution. Once we have the questions clear, it may be easier to find
answers than if one were starting cold on this vast subject.
The Constitution was drafted between December 1946 and
December 1949 by a group of about 300 men and women, and the first question of
interest relates to the nature of the group. How exactly was the group
selected, by whom and what was its composition. Universal adult suffrage did
not prevail in 1946 so just how representative of the people of India was the
Assembly?
Some scholars have regarded the Constitution as a
triumph – ‘a moral document embodying an ethical vision’ with the ‘theme of
social revolution ‘running throughout the proceedings and documents ’.
Universal adult suffrage, fundamental rights, the Directive Principles are all
markers of a commitment to transformative social and economic development.
Others, however, have argued that a document that incorporates large portions
of the colonial Government of India Act of 1935 and severely constrains the
rights and freedoms it purports to grant to its citizens has to be viewed a
trifle differently. When many important colonial institutions, designed to rule
rather than serve, are adopted along with the laws that govern their
functioning, are not the promises illusory and the vision but a mirage?
Constitutions serve to establish structures of the
state and its institutions and distribute power between them. How exactly has
this been done in our case and has the balance shifted over time? Power has to
be distributed to ensure checks and balances so that no particular institution
has too much of it. Has this been done effectively? Importantly, what should be
supreme, the will of an elected legislature or the judgement of an appointed
judiciary?
Federalism is an oft mentioned word in our context.
What, however, does it precisely mean? Are we federal, quasi federal,
cooperatively federal or what? Instead of looking for an appropriate label and
the related problems of definition, should we not try and itemize the
relationship between the central government and the states in terms of the
power each wields including legislative and financial powers?
And then there is the vexed question of the
limitations on the fundamental rights of citizens, the reasonableness or
otherwise of the conditions under which these constraints can be imposed and
the availability of emergency powers to the central government. It may be
important to recall here the circumstances in which the Constituent Assembly
was doing its job; the violence and social disturbance, the problem of
‘integration’ of the Princely states, the uncertainty, the turmoil. As Dr B R
Ambedkar put it, “The principles embodied in the Constitution are the views of
the present generation or if you think this to be an overstatement, I say they
are the views of the members of the Constituent Assembly.” Such blunt honesty
is rare amongst political figures especially when the views of a leadership or
political dispensation are effortlessly conflated with the views of the nation!
Views are conditioned by circumstances, and at that point the circumstances
were difficult, to put it mildly, and perhaps that explains the stress on a
‘strong centre’ and all that implies.
A larger question pops up here. Scholars have argued
that if individual freedom is to be ensured the state must be constrained in
its operation. If the state is to solve all economic and social problems, it
must necessarily be granted powers to do so and this would inevitably ‘exact a
heavy price on freedom’. The validity of this point of view needs examination.
Finally, it needs to be asked if all the high-minded
rhetoric has had much of an impact on the common citizen. How has the ordinary
woman or man used the provisions of the Constitution, especially the
fundamental rights and the legal remedies to enforce them, in interacting with
the almighty state and its perceived injustice?.
A fascinating account of this is to be found in Rohit
De’s A People’s Constitution:The Everyday
Life of Law in the Indian Republic. The author picks up sets of
cases in four socio-economic areas to examine how the aam admi and aurat went
to court to protect their fundamental rights and even when they did not win,
caused serious turmoil in the complacent corridors of state power. The battle
that Behram Khurshed Pesikaka, a middle aged government servant, waged against
the state of Bombay regarding his prosecution under the draconian provisions of
the Bombay Prohibition Act makes an amazing read. Just as gripping are the
other cases that De highlights: the case of the honest prostitute, who went to
court against the provisions of SITA as they violated her right to exercise her
profession as guaranteed by the Constitution, is just one example.
Has the Constitution ‘worked’ in the seventy odd years
it has been in operation is an obvious question to ask. And here, we may end
where Granville Austin begins in the book cited above. The author contends in
the preface that ‘Constitutions do not ‘work’, they are inert, dependent upon
being ‘worked’ by citizens and elected and appointed leaders.’
So, at the end of the day, it is up to us-‘We the
people of India’ -- and those whom we select to lead us, to determine if the
vision of the founding fathers of a just and equitable society, is ever
realized.
Happy reading.
