The Republic has never felt more endangered
than it does at 69. When Union Minister 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.
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 WW 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 infantilized, 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 adibasi 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) mobilizing
petitioners when they want certain principles argued.
And this is where the people come in – for
without petitioners to bring a complaint against Aadhar, 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
programs 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 memorialize 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 has pointed out in an
essay titled Sovereignty and the Dialogic
Subject, when governments say that they will talk to insurgents in the North-east
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. 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.
https://thewire.in/218274/constitution-living-document/
