Debates about our Constitution have become quite interesting in recent days. Bibek Debroy has suggested it is a colonial legacy. Since we are enthusiastic about jettisoning our colonial legacy, should we not be opting for a new Constitution? Meanwhile, former Chief Justice of India Ranjan Gogoi has raised a concern that the “Basic Structure” doctrine perhaps needs revisiting.
At the risk of being labelled a reactionary contrarian, this writer would like to make the case that the fact that our Constitution has an element of being a colonial legacy is not all that bad. Members of our Constituent Assembly were acquainted with the Regulating Act of 1773. This Act brought the Presidencies of Bombay and Madras under the control of the Governor of Bengal, who was designated as the Governor General of India. But for this fortuitous provision, it is entirely possible that in 1947, the British would have been conferring independence not on India, but on three different Presidencies. The very idea that we were framing a Constitution for a Union of India derives from an administrative and political legacy going back to 1773. (This is in no way opposed to our legitimate position about our ancient cultural unity).
However distasteful it may sound to us today, the GOI Act of 1935 was recognised by B.R. Ambedkar, Benegal Narsing Rau, Rajendra Prasad, K.M. Munshi and so many others as a brilliant piece of legislation, which could and should be the foundation upon which the new nation’s constitution should be built. The 1935 Act was not leveraged blindly perhaps on account of laziness. B.N. Rau was asked to visit Ireland, Canada, and the USA to learn about constitution-making from these countries. The 1935 Act was used as a foundation precisely because it was an extremely well-thought-out document. Accepting this “colonial legacy” was not seen as a sign of disrespect to our own ancient traditions in India. It was seen as a wise and pragmatic move. They introduced Fundamental Rights, which our colonial rulers would not have been eager to include. They abandoned separate electorates, a mischievous anti-democratic tricky device. But they ensured that these and other seminal changes became the cement concrete reinforcement around the steel framework of the 1935 Act. They changed, even as they conserved the best.
There are many features of our Constitution which lend it the gravity that has stood us so well. The parliamentary system suits us. A complex, diverse country like ours could have easily fallen apart with an executive strongman in place. Neighboring Pakistan and Sri Lanka may have had problems. But they were trundling along until they got seduced by the myth of the strong executive and switched to a Presidential system. They never recovered from this disastrous experiment. Our Constitution went in for constituency-based, first-past-the post system and not for proportional representation. We must be grateful for this. When one looks at the utter lack of stability in countries like the Netherlands or Israel, our sense of gratitude gets reinforced.
It is difficult, but not impossible to amend our Constitution. We have retained flexibility to deal with changing conditions. Of course, some of us are distressed by amendments like those abridging free speech or eliminating the fundamental right to property. I am personally not too distressed by the former. When we witness the ceremonial public burning of holy books in countries like Sweden, which claim that such acts are part of free speech, one realises that if this kind of thing were allowed in a country like ours, we would have chaotic conditions. The latter amendment is a problem too. We were told that property rights only mattered for zamindars and for Tatas and Birlas. It turns out that property rights are of much greater importance to small farmers, tribal landowners and fisherfolk who have their property routinely expropriated by the state. One can only hope that a future amendment restores our fundamental right to property.
The idea of getting rid of a constitution and starting with a new one is an extremely dangerous one. The multiple republics in French history are not a source of optimism. This writer lived in south America for a few years. In that unfortunate continent, it is the practice to introduce new constitutions every decade or so. This has been a disastrous practice. Fragile societies have been burdened with additional catastrophic instability. We have a constitution. It is not perfect. We can improve it here and there. But to abandon it, will be to open a pandora’s box. The consequences will be worse than 1789 or 1917. In fact, the most likely outcome has parallels in the 1991 Yugoslavia’s break up.
Also read: ‘Basic structure’ doctrine a judicial coup against Parliament. Gogoi is right in debating it
‘India not a State of the United States’
About the Basic Structure debate, here is a confession: My friend Ashok Subramanian and I were present in the Supreme Court in New Delhi for the days when Palkhivala was arguing before the bench in the Keshavananda Bharati case—popularly known as the fundamental rights case. I know that this dates us as dinosaurs. But let me tell you that we are incredibly lucky and blessed dinosaurs to have had the opportunity to listen to the incandescent Palkhivala. It was like being in the presence of a Solon, or a Thiruvalluvar.
Palkhivala conceded that with a two-thirds majority, Parliament did indeed have the authority to amend the Constitution. With extraordinary prescience, he then went on to build a case around the different usages of the amendment provision in different parts of the Constitution. He asked a profound but simple question: what can be amended? He started with the Preamble. “We the People……………give unto ourselves this Constitution on January 26, 1950”. This was simply a historical fact. Even with a two-thirds majority, can Parliament alter a historical fact and say that we did not give ourselves a Constitution in 1950?
Palkhivala spent a lot of time on three words: “Sovereign”, “Democratic” and “Republic”. This was of course before the words “socialist” and “secular” were introduced by means of a travesty of an amendment. Palkhivala was a master in the use of biting examples. He argued that India was sovereign and that even with a two-thirds majority, the Indian Parliament could not declare that India was a State of the United States of America or a Republic of the USSR. (The USSR was very much around those days). India was democratic. Parliament with a two-thirds majority could not pass a law stating that Members of Parliament would be succeeded by their children or that the constituencies could be redrawn so that of the 543 Lok Sabha members, 542 would be elected from a neighborhood in New Delhi and one from the rest of the country. India was a Republic. Parliament could not declare it a monarchy.
Palkhivala contended that not only were the three features of sovereignty, democracy, and republicanism not amendable, however large a parliamentary majority there was, there were other features that deserved similar recognition. He conceded Parliament’s power to add or subtract names from the list of Scheduled Castes and Tribes, create new states or alter the borders of existing ones and so on. But the mere existence of a two-thirds majority could not be used as an excuse to convert the free citizens of India into subjects. Citizenship was the paramount gift and our Constitution and Parliament, which was a creature of the Constitution, could not tamper with it.
Palkhivala’s most incisive argument came up when he referred to the fate of Weimar Germany. The German Reichstag by majority vote conferred dictatorial powers on Hitler. This was seen by Germans as a constitutional act. If ordinary Germans had been forced to view this not as constitutionally legitimate, but as revolutionary, their reaction would have been different. It is possible that India may become a dictatorship. But when that happens, that situation must be denied the recognition of constitutional rectitude and propriety. Parliament even by unanimous vote simply cannot be allowed to appoint a dictator. If a Hitler emerges in India, let him not emerge with the blessing of constitutional legality.
Justice Khanna was acutely aware that the Keshavananda Bharati judgement, which he authored, would be studied for generations to come, not just in India, but in several countries. The core doctrine is simplicity itself: there are somethings that the sovereign simply cannot do and claim that these actions are legal. Justice Khanna went back to the most ancient of Indic obsessions: Dharma. The names I can think of in our long history with whom Justice Khanna has kinship are Bhishma in the Shanti Parva of the Mahabharata, Yagnavalkya and Gargi in their dialogues and Allasani Peddana in his humanist manifesto. Clearly, Hans Raj Khanna is in good company. And Palkhivala, who was well-acquainted with the Upanishads, can be thought of as the Lord’s Sudarshana Chakra who stood by the sage Khanna Maharishi.
Justice Gogoi’s argument can and should be entertained on the grounds of what constitutes elements of the ‘Basic Structure’. Sovereignty, democracy, republicanism, and free citizenship are inviolable. Specific mechanisms that further these ideals or hamper them are of course subject to continuous, even endless debate and discussion. But to use disagreements in detail as a Trojan horse to attack the grand narrative around which the Basic Structure doctrine is built would be a serious disservice to us and to our descendants.
Also read: What’s behind Modi govt’s push for ‘One Nation, One Election’ and why it has rattled INDIA
Unwise amendments
Now to look at the atrocious additions to the Preamble made in 1976.
They were piloted by, our former prime minister with a controversial son and heir looming in the background. Apparently, it was insufficient that our republic be just sovereign and democratic. It now had to be “socialist”. The supine parliamentarians of 1976, at least those who were not in jail, went along with this. (Hitler imprisoned political opponents and ensured a quorum and a majority for his bills.). No less a person than Dr. Ambedkar had ruled out its inclusion.
Our founding fathers were intelligent enough to comprehend that forcing future generations to adhere to a single economic doctrine was not wise. Thirteen years after this pointless inclusion, the Berlin Wall fell, and the last rites of socialism were performed. We are now saddled with this obsolete word.
The second word included was “secular”. I recall the exchange between Justice Hegde and Palkhivala in the Supreme Court. The venerable judge pointed out that the word “secular” was never used in the Constitution and yet the spirit of the document was totally and consistently secular. Not only is there no reference to a state religion, but there is not even any requirement for state officials who might be atheists or agnostics to take their oaths of office in the name of any divinity. The needless introduction of the word “secular” in 1976 has only encouraged foolish, divisive consequences.
It is fascinating to note that our system has kept postponing the judicial hearings on the late S.V. Raju’s petition opposing these illegitimate additions to the Preamble of our Constitution. Given that our Parliament is unlikely to cobble together a two-thirds majority to eliminate this grotesque aberration, it becomes the obligation of the judiciary to step in and correct this grievous mistake. The judges can hark back to Ambedkar’s reasoned rejection of the word “socialism” and to Justice Hegde’s trenchant observation that the spirit overrides the word; in fact, the spirit is better preserved without this ill-defined, and divisive word. If the judges want a simpler alternative, they can just issue a judgement stating that it is a plain historical fact that these two words were not in the picture on 26 January 1950. That should suffice to restore the Preamble to its original sanctity and grandeur.
Also read: If Xi skips G20, India may have to host one of the weakest number 2 in Chinese politics
Restore the Constitution
The idea of getting rid of our present Constitution and giving ourselves a new one is just simply bad. We do not want to become France with new republics every fifty years; we do not want to become a Latin American failed state with new constitutions every ten years; we do not want disastrous experiments practiced by our neighbors. We have many legacies gifted to us by our long history. If our founding fathers were willing to see the good in some of the doings of their adversaries, we with our contemporary confidence should be even less apprehensive about picking and choosing good ideas, irrespective of their source.
Change is inevitable, so let us change using the “amending powers” granted to us in our Constitution as Palkhivala eloquently pointed out to us. But our “amending” must be restrained by some things that are dharmic categorical imperatives. What then is the dharmic duty of our generation? It is to preserve, protect and enhance our seventy-three-year-old constitutional inheritance and not to jettison it and seek seductive outcomes with the belief that we know better.
We must remain free citizens of an independent, sovereign, democratic republic and not servile subjects of a dictatorial monarchy that answers to some transnational monster. We must not jettison the grand idea of the “Basic Structure” even as we engage with debates about the operating elements and not the strategic ones that are associated with the basic structure doctrine. There are many Rishis who we must not let down: Ambedkar, B.N. Rau, Nani Palhivala, Justice Khanna, and Justice Hegde come to mind. It is by no means an exhaustive list. They are our recent sages, no less important than Yagnavalkya, Gargi or Thiruvalluvar. It is to their brooding spirit that this essay is addressed.
Jaithirth Rao is a retired businessperson who lives in Mumbai. Views are personal.
(Edited by Anurag Chaubey)