The Constitution as a Living Document

A party or a government which comes to power swearing on the constitution but does not share its vision is not only committing perjury, but is profoundly anti-republic.

Credit: Wikimedia Commons

The republic has never felt more endangered than it does at 69. When Union minister Anant Kumar Hegde let slip the public secret that the BJP/RSS government is here to change the constitution, the problem is not that the constitution cannot and should not be changed, but what direction that change will take, and whether it will destroy the very basis of the republic or strengthen it.

Justice, liberty, equality, fraternity – these progressive values in the constitution are the last defence of the republic. It is clear, however, that these are not values shared by the RSS from the moment of its inception and that indeed, the RSS regards these as an obstacle to realising its own vision of the country.

In the last couple of years, the ABVP, supported by pliant university authorities, has stopped several campus events which explicitly set out to celebrate the constitution or Indian democracy, such as one at the Delhi School of Economics in August 2017 and another at Allahabad in September 2017, titled Jashn-e- Samvidhan. It is only an organisation which is itself deeply anti-national and anti-democratic that can object to others celebrating the constitution or democracy.

If people are to be reduced to their caste or religious identity, as Hegde, the Karni Sena, and various other fronts of the RSS want, it is not only the term secularism which will go, but equality, liberty and fraternity as well. For secularism is nothing but the equality of all religions in the public sphere and fraternity across religions and caste as practiced by individuals in their public and personal capacities.

Authoring the constitution

The constitution has never been a frozen document, and it has always had multiple authors. Notwithstanding the sterling role played by the drafting committee and Babasaheb Ambedkar, the constitution as it exists today is a product of interactions between three elements: the text, the courts and above all, ‘the people’.

Even at the time it was framed, the text was not a closed document. There were at least four elements that informed the making of the constitution – existing administrative provisions such as those embodied in the Government of India Act of 1935, internationally accepted constitutional principles, the ideals of the freedom struggle, including universal adult suffrage, and the events that were taking place in a country slowly emerging out of World War II, famine and above all, Partition. As the chronicler of the constitution, Granville Austin, famously wrote, “Fundamental rights were to be framed among the carnage of fundamental wrongs.”

At one level, the similarities with the 1935 Act make the constitution appear almost pre-ordained. But the final product came out of sometimes deeply-contested arguments between deeply-opposed individuals. Not every shade of opinion was equally represented, especially the Communists, and the franchise on the basis of which members were elected was less than 30% of the adult population.

Chauvinism was rife, for instance, when Shri RV Dhulekar declared that he would only speak in Hindi as “People who do not know Hindustani have no right to stay in India” or when Muslim members were heckled, for example, on their demand for proportional representation. The great adivasi leader Jaipal Singh was taunted about his elite lifestyle, and simultaneously accused of being parochial, forcing him to list the multiple languages he could speak and the tribal areas he had visited. Women like Sarojini Naidu were courteously infantilised, but also managed to turn the tables on their male colleagues.

In all, the constituent assembly was just as much as a space of conflict and collegiality, as many current assemblies, and its hallowed status in the country’s history should not blind us to the fact that real individuals and not mythic heroes populated it.

The final shape the constitution took was often weaker than it could have been, and this is very visible in the 5th Schedule, where the original proposal gave far more power to the Tribes Advisory Council than it currently has (where the council can only consider matters referred to it by the governor). In response to Jaipal Singh’s demand that the powers of the Tribes Advisory Councils be preserved, KM Munshi declared that the tribes could not be allowed to advise on questions of law and order or forests.

But those are precisely the issues that have subsequently agitated adivasi movements. Had Jaipal Singh’s suggestion to use the term adivasi in the constitution not been rejected, we would not have had absurd judgments like the one in Prem Mardi vs Union of India, 2015, where the judge rejected the demand to ban MSG 2 for glorifying the killing of adivasis on the grounds that the constitution did not mention the term adivasi anywhere.

The constitution makers had much to answer for, including the neglect of villages. But what is equally amazing is how much they got right, especially in terms of fundamental rights, universal suffrage and a host of other features.

And where they missed out, the citizenry has intervened to expand the constitution in meaningful directions.

The courts

Much of the work on the Constitution, such as Granville Austin’s Working a Democratic Constitution or the Oxford Handbook of the Indian Constitution, has focused on the landmark judgments by which the courts have interpreted and extended the constitution.

In particular, we recall with a sense of relief and gratitude the outcome of the 13-judge bench which decided Kesavanand Bharati upholding a ‘basic structure’ to the constitution, or the several PILs which have extended the Right to Life to life with dignity. But the constitutional statements of the courts, as we all know, are themselves a medley of factors.

The most important, perhaps, is the text of the constitution itself, which in principle at least, shapes judicial activism. The caste, class and gender backgrounds of the judges matter, even though in India we have relatively little information on how these influence their judgments, at all levels of the judiciary, not just the Supreme Court. At the same time, there is a certain kind of common habitus that professional training develops in them. The text of the constitution and a certain professional fidelity to interpreting its spirit means that judges often go beyond their background in remarkable ways.

The recent judges’ press conference was such a remarkable event, precisely because of the psychological hurdles that judicial professionalism imposes. If judges who are trained to be silent start speaking, we must assume that things are seriously amiss for them to have taken this step. Finally, the court’s contribution to shaping the constitution depends heavily on the kind of cases that are brought before them, even though there are also many instances of lawyers (and even judges) mobilising petitioners when they want certain principles argued.

And this is where the people come in – for without petitioners to bring a complaint against Aadhaar, against Section 377, for the right to food, or for the freedom of expression, the judges would have no occasion to exercise their craft. Rohit De’s work on the early years of the Supreme Court provides a fascinating glimpse into how people engaged with the constitution and transformed it. It is true that often the courts are closed off to the poor, but citizens have a responsibility to try and force the judiciary and legislature to attend to sections of the public or take up issues that they would not otherwise have cared about.

The people

The role of ‘the people’ in preserving and extending the constitution, however, goes far beyond bringing cases to court, or electing representatives once every five years. While the ideologies and programmes of successive governments are clearly important to the functioning of the constitution, through the various amendments they have brought in (land reform, abolition of privy purses, 73rd and 74th amendment etc.), in the end, they seek legitimacy for their changes in the name of public opinion.

The ‘public’ is clearly not homogenous, and while corporates can quietly get an SEZ act passed, other citizens have to struggle for years to get an act on the Right to Information, or the Right to Education. Some states are almost handed over to their elites on a platter like Chhattisgarh, while others like Jharkhand, Uttarakhand and Telangana have been long in the making.

When Dalit groups memorialise their caste histories as in Bhima Koregaon, youth are rounded up and arrested for having taken part, compared to the kid gloves with which dominant castes are treated. When it comes to the constitution, however, it is important to remember that the goal of Dalit or adivasi mobilisation is usually towards greater equality.

On the other hand, when traditionally dominant communities take umbrage at imagined slights or demand reservation for themselves, they do so in order to perpetuate inequality. Not all mobilisations are, therefore, in keeping with the values of the constitution, but the constitution has grown because all of these issues have been debated. In some respects like the Citizenship Act, which now makes citizenship conditional on having an Indian parent, rather than on birth alone, the constitution has actually shrunk from the vision of its founders.

As Ranabir Sammadar points out in an essay titled “Sovereignty and the dialogic subject”, when governments say that they will talk to insurgents in the Northeast or Kashmir only “within the framework of the constitution” they tend to forget that the constitution is not just a set of administrative provisions but also embodies the spirit of dialogue. The year 1950 cannot and does not represent a closure on what can or cannot be discussed, since the constitution is a living document.

Ultimately, the only thing that is not negotiable in the constitution is the hope for justice, equality, liberty and fraternity. A party or a government which comes to power swearing on the constitution but does not share this vision, and which believes in the supremacy of one religion or one language, is not only committing perjury, but is profoundly anti-republic.

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  • Nandini Sundar

    Yes, there are disagreements on whether the three Judges cases went beyond a strict reading of the Constitution. There are others, however, who argue that the primacy of the judiciary was necessary, especially following the supercession of judges during the Emergency. Either way, one can hardly say that this caused the Constitution to stop working – at best one can say it was a justified or unjustified interpretation of the Constitution

  • Nandini Sundar

    1. I think we need to go back to the basics and see why the founders enshrined reservations for SC/ST. The minorities, who also needed it, gave up their claims. Insofar as by all objective indicators like HDI, employment, education, atrocities against them etc. SC, STs remain at the bottom of the list. Christian and Muslim SCs and OBCs should also be given reservation, according to the Mishra Commission. As for groups like the Patidars, Marathas etc. I do not think that reservation for them would fit the principles of the Constitution.

    2. Kindly do not waste time pretending to be so naive about Hegde’s intentions. He clearly said he wanted the word secularism removed.. just google his statements, his background etc.

    3. The issue is not just how easily the Constitution can be changed, but also how it is being mangled at the very highest levels now. Unfortunately, even the judiciary is feeling it doesnt have the heft to balance the danger to the Republic

    • Srivas

      Re. Hegde’s comment and intention. As of Jan 2018, there have been 123 amendments to Indian constitution, out of which about 12-15 have been done during BJP regimes (give or take a few). Out of this one (the Judicial Appointments Commission) has been struck down by the SC. My point is, it is not that easy to amend our constitution without any debate and checks. Modi on several occasion has said he swears by the constitution. So, let’s not use political rhetoric by one politician to spook and overstate that there is a grand conspiracy to make India a constitutionally fascistic, majoritarian, police state, if we don’t to remove BJP at the helm. I do agree we ned to guard against such attempts.

      Re. removing the word secularism from the preamble. This term did not exist in the original (as drafted by Ambedkar) and was introduced later by Indira. Are you saying that Amdedkar’s constitution was not secular in spirit and letter because it did not have the word “secular” in it and if it is removed now India would lose its secular character overnight? This is genuine question not rhetorical.

      Re. nibbling the spirit of the constitution w/o actually amending it. Here, I am actually with you. This is a real danger and we should all make sure regardless of our political leaning that the rue of law is forcefully and impartially enforced. Unfortunately, blaming the BJP alone is not the cure for this and will only create a political backlash…. corruption and feudal culture among the political class, inept and corrupt police, etc., are all to blame. We need to fix the entire political class

  • Nandini Sundar

    As I said, the fundamental principles are secular – equality, fraternity, so adding secularism and socialism simply reiterates and extends those principles, it doesn’t go against them.

  • Nandini Sundar

    Baba Saheb’s relations with Gandhi may have been strained on certain principles, but they also talked and agreed on others. However, it was RSS and Hindu Mahsabha leaders like Golwalkar and Savarkar who wanted Gandhi dead – and the killing was done by Nathuram Godse a, debatably former, member of the RSS.

  • hypocrisy

    Appreciate your response Ms. Sundar. Your question belies the very reason the Indian Constitution has failed to achieve its preamble.

    To start with, i think Hindutva is garbage. However, i also believe the ideology on the other end of the spectrum (not to be mentioned here, cause i could be arrested or censored ) and its proponents were full of nonsense. What you want is a Constitution that is altered every three days to suit the “social justice” agenda of one side. India tried that. Guess what it failed. Does India have equality, despite heavily weighted outcomes rather than opportunity being enshrined in the Constitution ?

    Beria once told Stalin, something like “Show me your enemy, I’ll find you the crime”. Rather than limiting the Constitution to freedom, equality it went haywire. Today under the supposed freedom of speech, there are like fifty thousand amendments. All done by social justice warriors. Well do we have freedom of speech in India ? Really ? Criticize a politician, you could get arrested for “hurting the sentiments”, feelings, criticizing an oppressed person. Did the BJP create these laws or did the Congress with it social justice warriors create these laws, that the BJP is now running to the bank with ?

    And we should add add more constitutional amendments?

    You describe a constitutional process that supposedly attempted to thread a needle between multiple constituencies. In the end what it created was a threading of spaghetti. By trying to solve everything, it solved nothing. The country deals with the same set of issues, if not worse. Why ?

    Cause rather than limiting laws (like the American system) and enforcing laws, we created a perfect petri dish of endless laws which politicians (on both sides) have used to pick and choose which one to use to silence the common man while amassing endless corrupt wealth and shacking up in public mansions in Lutyens Delhi. All created by BJP ?

    With all due respect you fail to recognize is that having endless laws have solved nothing. Because the Congress and its pliant supporters ________ the other two legs of govt, the judiciary which is supposed to interpret laws based on fundamental aspects of the constitution and does not (rather has an endless discussion club on some women who married a muslim guy), and the administrative branch (police etc) which is supposed to enforce laws does neither. Thereby leaving the average citizen with no rights.

    It should have been more simpler. You break the law you go to jail. Based on some simple set of laws. Rather than the mess which basically gives the “outraged” citizen a hecklers veto on basic freedoms cause they know there is no judiciary and police to protect the “criminal” common man who merely expressed a view.

    Yet you wish to double down on that process ?

  • Bankimchandra Desai

    As of today The Constitution is a Dead Document. With all law books it has been rendered #Irrelevant by #AmiShaModi @narendramodi @PMOIndia @AmitShah @AmitShahOffice

  • Somdeb Lahiri

    Even if you are right about the current state of affairs in the US (which I suspect you are), let’s hope Trump is just a temporary aberration. In fact the numbers in the senate and house of representatives don’t permit him to change the constitution unilaterally. The only way he can do it is by overthrowing the present establishment (coup de tat). But, then we are not talking about the US as we understand it, anymore.