Geopolitics

Constitution@ 74: Quest For Merit & Socio Economic Justice
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Issue Net Edition | Date : 27 Nov , 2023

Introduction

The Indian Constitution is the lengthiest of all written Constitutions of the world. Most of provisions are borrowed from various sources; fundamental rights from US Bill of Rights, the directive principles from the Irish Republic, Parliamentary form of government from UK and federalism from the GOI Act 1935. In 1949 it contained 395 articles and 8 schedules. Presently it has 470 articles and 12 schedules. The Constitution is a living document and has evolved with time to meet with changing aspirations of its people. As CJ John Marshall of USA has observed: ‘A Constitution is framed for ages to come and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil’. Indian Constitution is seventy-four years oldand its course has been far from tranquil. Granville Austin, the renowned constitutional expert in his seminal book ‘Working a Democratic Constitution’considers the Indian Constitution a seamless web, with three strands that are mutually dependent &intertwined. Those three strands are protecting national unity & integrity, establishing institutions & spirit of democracy & fostering socio-economic reforms. It would be interesting to examine in retrospect, the major messages of the Constitution, the major changes incorporated, impact of constitutional expectations, contemporary debates & the way forward.

Major Messages of Original Constitution

A careful reading of the Indian Constitution brings out three messages; clarity, opacity, and deferrals. There was complete unanimity amongst the founding fathers that the fundamental rights would be the conscience of the Constitution. Influenced by the Bill of Rights of the USA (1791), there was no prevarication on concepts like rule of law, the right to freedom, the right to life,the abolition of untouchability, and federalism. Though not specifically incorporated in the Preamble(1949), India did not opt for a theocratic state like Pakistan; but a secular one. Secularism was subsequently incorporated as part of the Preamble in 1976 (42nd amendment).

However, there was opacity in areas like the separation ofpowers between the Executive, Legislative, and Judiciary unlike the USConstitution. This has led to a slew of spats between the Supreme Court and the Parliament over its powers to amend. The Kesavananda Bharati Case (1973) has allowed Parliament to amend, even the fundamental rights; with a caveat that it cannot delete or defacebasic features likedemocracy, federalism, secularism, separation of powers, free and fair election and most importantly independence of the judiciary. The Minerva Mills Case (1980) set this to rest by reaffirming that the Constitution and not the Parliament is supreme and the desire to have Parliamentary supremacy alongthe lines of the British Parliamentis untenable. It has also settled once and for all, that the Supreme Court’s power of judicial review is beyond question, by quashing Article 368(4).

The other area where the Constitutionhas provided a window of opacity is the exact relationship between the fundamental rights of citizens and socio-economic justice, incorporated as Directive Principles. In the ChampakamDorairajan Case (1951) the court ruled supremacy of fundamental rights over goals. However, in the Minerva Mills Case (1980), the court ruled that Part IV is not a “veritable dustbin of sentiments”.  In the words of Justice Y.V. Chandrachud:“the rights and goals of a nation are like two wheels of a chariot”.

The major issues which were deferred by our Constitutional framerswere Hindi as the national language and the introduction of a Uniform Civil Code (UCC).The discussion on UCC was particularly stormy. Most Hindu members wanted UCC to promote unity among major religious communities, KM Munshi wanted religion to be a private affair like in Western countries, while Muslim members clamored for separate personal laws.  It may be recalled that while the British promulgated Uniform Criminal Law (IPC) and Civil Law (CPC) they steered clear of enacting  a common law. The framers kept UCC as a non justiceable objective before the state. Such laws were put in the Concurrent List.

Amendments to the Constitution

There is a perception that the Indian Constitution has been amended too often (106) as against the US Constitution operative from 1789 with only 27 amendments. However, a careful reading will reveal that there have been only ten substantive amendments.The 24th amendment (1971) authorised Parliament to amend any part of the Constitution. 25th amendment (1971) gave primacy to distributive justice over fundamental rights. The 42nd amendment (1976) included secularism, socialism to the Preamble, and fundamental duties for the citizens. The anti-defection provision was included in 1985. In 1992, the 73rd amendment introduced Panchayats&Municipalities as the third tier of democracy. The right to free public education was introduced in 2002 as a new article 21A. Fiscal federalism was brought in through the formation of the GST Council, allowing both states &Centers to impose GST. The 103rd amendment in 2019 is to give 10% reservation to EWS to the upper castes. The Constitution has incorporated a few provisions for ushering in inclusive development. Raising the level of nutrition, providing early childhood care & education to children below the age of six years are goals before the state. In 1978, Article 38(2) was introduced enjoining the state to minimize inequalities of income.

Impact of Constitutional Expectation

Mr Nehru wanted the Constitution to incorporate Socialism as one of its goals in the Constitution. This was stoutly opposed by Dr Ambedkar and Patel. However,Mr Nehru brought in SOCIALISM though the backdoor by creating a Planning Commission on the same lines as GOSPLAN of Soviet Union. Mrs Gandhi took a step further by boxing Socialism in the Preamble and opting for massive nationalization of banks and coal mines. However, low growth, high inflation and low Foreign Exchange (FE) reserves led to economic liberalization and embracing free market philosophy. Disintegration of socialist USSR by 1991 added ballast to free market economy. Without amending the Preamble India has changed its economic construct.

The Directive Principles, though non justiceable, ink a vision of just and equitable society.The ground reality in India brings out a serious mismatch between Constitutional goalsand reality on the ground. As per the latest NFHS-V (National Family Health Survey -5) report, stunting among children is as high as 35.5%. Anemia amongst children & pregnant women has increased from 58.6% & 50.4% in 2015 respectively to 67.1% & 52.2% in 2021. The World Inequality Report (2022) brings out how the top 10% have become richer with a 57% share of total income as against 40% in 1951. On the other hand, the bottom 50% of account for only 13.1% of total income as against 20% in 1951. After economic liberalization in 1991, we have an ironical situation where the Constitution swears by socialism but the economic system is propelled by capitalism &free markets.

The unfortunate fallout has been the dissonance between growth variables and human development indicators. Doubling of  growth rate in GDP, exports &savings, post 1991, is accompanied by  reduction in Infant Mortality, Maternal mortality &malnutrition, stunting &anemia at snail’s pace. It is our consistent failure to improve our quality of basic education in government schools, as brought by successive ASER surveys, is most disconcerting. The NEP (2020) with soundbites for universal foundational knowledge remains stillborn. The primary health care infrastructure in villages still remain rudimentary in most parts of India. Health being a state subject and education a concurrent subject has made commercialization of education and health the toast of the corporate and night mare for the bottom 50% of India. It is largely because the state has abdicated its mandate to ensure equal access to education, health and nutrition to all.  Socialism, which is a part of our Preamble seems to have been purloined by a majoritarian government to promote private corporate interest and crony capitalism.

The contemporary Debates

A NCRWC (National Commission to Review the Working of the Constitution) was set up by the Vajpayee government in 2000 to suggestchanges to the Constitution. Some of the important recommendations include making freedom of press an explicit right to freedom, constitute a NJAC (National Judicial Appointments Commision) to recommend appointment of HC &SC judges, changes to anti defection law. A major contentious issue under review by the Supreme Court is scrapping of special Constitutional status of J&K under Article 370. The other issue where the Supreme Court has displayed an ostrich like approach was by striking down the NJAC Act and its weak defense of Collegium system to promote crony selection. Democracy which stands on the three pillars of transparency, accountability and responsible dissent has been systematically sabotaged by the judiciary in the NJAC judgement. It also displays manifest pusillanimity and complicity in its interminable delay in handling of cases like electoral bond scheme &CAA (Citizens Amendment Act) by the BJP to the other debate is whether it’s time to graduate to UCC.

The Way Forward

K Santhanam, a leading constitutional luminary had observed in the Constitution Assembly debates: The Constitution must usher in a social revolution which will get India out of medievalism based on birth, religion, and community and reconstruct a foundation based on rule of law, merit and secular ideas. Caste based reservation which was meant to be a temporary measure to bring backward classes at par with the mainstream has become a millstone around the neck of meritorious. To bring the caste based dynamics to a different level, the Modi government has now a quota of 10% for general category on economic criteria. In the Caste Survey of Bihar, only 17% of jobs will be available on merit basis, with 36% EBC, and 27% OBC. While these figures will vary marginally in other states, the GC will hope to get only 20% of the government jobs. The quest for merit and competition will be sacrificed at the altar of Mandal 2.0. This may be a premature apprehension but nevertheless be tested in the choppy waters of elections that lie ahead.

The larger issue on which some political consensus to emerge is how to bring out a real social revolution by providing equal access to basic health care and nutrition by making them fundamental rights and allocate suitable budget and accountability mechanism. These are merit goods as Musgrave would call them, giving grater benefit to the society than the individual. Such capability based approach as espoused by Prof Amartya Sen must be shafted in to the Constitution.

The delivery mechanism remains India’s tender soft spot with weak and inefficient institutions, where the heads are selected by the Party in power rather than by a broad based collegium where opposition parties and civil society groups and eminent persons are apart. The Supreme Court has fired a shot at CEC. Next in line in may be the C&AG. The Judges should not skirt this system. As Setalvad, the Attorney General had said at the inauguration of Supreme Court in 1950: Like all human institutions judges will earn respectthough truth. These are low hanging fruits for political parties. But they will go a long way in pulling the wheels of rights and equity in harmony.

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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

About the Author

Prof (Dr) SN Misra

was previously Joint Secretary (Aerospace), Ministry of Defence, Government of India.

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