The 75th Anniversary of the Indian Constitution: An appeal to “We the people of India”: No time to lose: Let’s all stand up and reclaim the Constitution!!
By PUCL Bulletin Editorial Board
The 75th anniversary of the Indian Constitution is a timely occasion to reflect on what it means to Indians. Is the Indian Constitution, an arcane legal instrument, an arena for quibbling by men with long purses, as Justice Dwivedi put in Kesavananda Bharati’s case? Or is the Constitution more publicly owned as the iconography of Babasaheb Ambedkar holding the Constitution in his hand seems to indicate? Did the anti-CAA protests in 2019-2020, breathe new life to the Constitution, with public protests centering the Preamble making it an artefact of resistance?
We have to understand the Constitution as an expressive document which signifies something more than the legalese which it expounds. CJ Dipak Misra eloquently described the constitution as an “organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in society”. Within this viewpoint a Constitution can shape a society’s way of thinking. Or in the evocative words of Dr. Ambedkar, the purpose of a constitution is to ‘cultivate constitutional morality’, especially in a society in which ‘constitutional morality is not a natural sentiment’ and ‘Democracy is only a top-dressing on an Indian soil, which is essentially undemocratic.’
This viewpoint on what a Constitution is, finds resonance in Bhiku Parekh who says that ‘constitutions are not merely documents of governance but also frameworks through which we imagine the possibilities of collective life.’ There is an imaginative and utopian dimension to Constitutions, where Constitutions gesture towards a future free of the shackles of the present. More than being just a document of governance, the Constitution outlines a vision of our collective future and indicates how we can get there. The Preamble of the Indian Constitution outlines the vision in a synoptic form which envisages a world based on the core ideas of liberty, equality, fraternity and dignity as well as justice: social, economic and political. None of these come into being with the birth of the Constitution, but become the benchmark by which we evaluate legislative, executive, judicial and citizen action.
Another viewpoint on the Indian Constitution is proffered by the former President of the PUCL and eminent human rights lawyer, K.G. Kannabiran who said that ‘A constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquility.’ For Kannabiran, the essence of the Constitution is that it is a product of struggle. The reason it inspires affection and even devotion among the people is because it is not a dry legal document, but rather something which results from the liberation struggle. What is a product of struggle is the notion of rights. Thus rights in the Indian Constitution are not conferred by the Constitution but rather confirmed by the Constitution. The normative commitment to freedom of speech, expression and association is only there because freedom fighters right from Bhagat Singh to Lala Lajpat Rai and many others gave their lives in defending these rights.
To add an Ambedkarite dimension to Kannabiran’s formulation, the Constitution of a new India had to contend with the possibility of both state oppression, as also of oppression by society. The Constitution therefore recognises that in newly independent India where caste is the law and caste discrimination is legitimised, the new Constitution must visualize the law being used as a tool to combat caste oppression. This progressive worldview accounts for the criminalisation of the practice of untouchability in Article 17, the criminalisation of forced labour and begar in Article 23 and the prohibition of discrimination in access to public spaces such as shops, tanks, wells etc in Article 15(2).
The SC has understood this dimension of the Constitution and therefore described the Constitution as ‘a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy’
While the Constitution is about writing the script of our collective destiny, it is also about ensuring that power is limited by law, power is distributed among various constitutional authorities and power is made accountable. Thus the Constitution is a document which distributes the power of the state through dividing power between the union, the state and local self government as well as between the legislature, the executive and the judiciary. The division is an attempt to prevent an authoritarian form of governance. When we say that we are governed by a Constitution, implicit in the statement is the idea that power is defined, limited and is accountable. The political executive must act within the limit points of the power vested in it by the Constitution, as must other organs of the state.
Thus the Constitution traverses the realm from guaranteeing individual rights to creating institutions of governance who have to function within constitutional limits. In particular the Constitution, if its promise to ‘we the people’ is to be honoured, it critically depends on one particular institution, namely the judiciary. The judiciary has in recent times, tragically failed to fulfil its responsibility of protecting rights and ensuring governance within the framework of the Constitution. The judgement on the abrogation of Article 370 which gave the go by to the principle of federalism, or the failure to ensure that those arbitrarily arrested under the UAPA such as the BK-16 and the anti-CAA protesters are released stand as testaments (among many) to this failure of the judiciary to ensure governance in accordance with the Constitution.
However, one must continue to argue against these failures of justice using the language of the Constitution when it is available to us. One such recent failure with very serious implications is the judgment in Property Owners Association v State of Maharashtra in which a majority limited the power of the state to use private property as a ‘material resource to subserve the common good’. The Directive Principles of State Policy, Article 39 (b) directs that state policy should be towards securing that the ‘ownership and control of the material resources of the community are so distributed as best to subserve the common good’. The majority judgment authored by C.J. Chandrachud, held that private property cannot be acquired or taken over by the state on the basis of Article 39(b). One of the legs of the reasoning adopted by the Chief Justice was that Ambedkar was “not tied to one economic structure, such as socialism or capitalism, but to the aspiration for a ‘welfare state’”.
This conclusion which limits the actions the state can take to address inequality is deeply worrying as the judiciary failed to remind the executive of its constitutional obligation to redress the worrying rise of inequality in India. The recent study by world famous economist Piketty notes that, ‘Billionaire Raj’ headed by India’s modern bourgeoisie is now more unequal than the British Raj headed by the colonialist forces. It is unclear ‘how long such inequality levels can sustain without major social and political upheaval.’
However the minority opinion by Justice Dhulia was cognizant of ‘the inequality in income and wealth and the growing gap between the rich and the poor’ and held that, ‘ privately owned resources’ should be seen as ‘a part of the “material resources of the community”’ as it is only then that, ‘the purpose of Articles 38 and 39 is fully realised.’
Justice Dhulia’s opinion finds its constitutional voice in Dr Ambedkar’s speech in the Constituent Assembly when he presciently said that, ‘On the 26th of January 1950, 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… We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.’
One hopes that the minority judgment becomes the ‘intelligence of a future day’, and Property Owners Association v State of Maharashtra is overruled.
Even as we must go to minority judgments, Constituent Assembly Debates, contemporary economic and political analysis to challenge problematic interpretations of the law, the troubling question still remains as to what extent is the Constitution alive in contemporary India ? To take an example, how has the history of freedom of speech fared with the draconian use of the sedition law and the now Section 152 of the BNS which is even broader in the criminalizing ambit ? The persecution of Mohammad Zubair under this law tells a story of how weak is the protection of the freedom of speech in India today. How has rule of law fared in the context of arbitrary and punitive home demolitions of houses and places of worship of the minority community ? The failure of the Union and state government to ensure governance in accordance with the Constitution in Manipur represents yet another devasting failure of the Government to ensure that the promise of the Constitution is available to all its citizens.
What the troubling story of the Constitution in action lets us know is that justice in accordance with the Constitutional vision is often a mirage and sometimes the fruit of a long and passionate struggle. The failures of the constitutional courts only reinforces the point, that ‘we the people of India’ need to hold dear the ideals of the Constitution and remember the sage words of Balagopal and Kannabiran that struggle is what results in rights. As Balagopal put it, ‘On the whole without some struggle or agitation rights do not accrue.’ In challenging times, the ownership of the Constitution needs to vest more strongly in ‘we the people’.
The Constitution framers dreamt of the impossible in the India of the 1940’s – that of giving universal suffrage to all adults, recognising the right to equality and equity and emphasizing the fundamental right to dignity and fraternity, in a social context when none of this could even be imagined. The people of India have over 75 years shown that they can be relied to safeguard the Constitution that literally made them enjoy social and political freedom. During multiple times in our political history, the people of India have demonstrated that they will rise up to oppose authoritarian and fascist tendencies.
In the last 10 years of the present BJP-led government there have been constant and continuous attempts to nullify and subvert, if not to totally erase the Constitution of India, especially its core characteristics of respect for diversity and plurality in India, thrust to ensure reduction of inequality through the constitutional ethic of inclusion, ensuring transparency and accountability of the executive and respecting dissent as elementary part of our polity. In such a background, we need to reach out to “We, the People of India” to rise up and reclaim the constitution so that the constitutional vision of realisation of justice (social, economic and political), liberty (of thought, expression, belief, faith and worship), equality (as a guarantee against arbitrary treatment of individuals and fraternity (which assures a life of dignity to every individual) will facilitate the creation of a more humane and compassionate society.