The concrete constitution

The recent anti-corruption campaigns may not increase probity in public life but they have certainly sparked a debate about the Indian Constitution. Politicians, especially in the treasury benches, have criticised the movement and have implied the parliament to be supreme – they are wrong, the “basic structure” doctrine of Indian jurisprudence, which survived the 42nd amendment, assures us that the constitution is supreme. But many commentators have termed these peaceful agitations “unconstitutional” or at least contrary to an appropriate “constitutional morality”.

A very important question therefore is, what does constitutionality mean – especially in the Indian context? How did our constitution evolve from Ambedkar’s ideas through our two most constitutionally-consequential prime ministerships (Jawaharlal Nehru and Indira Gandhi) to the recent present? To try to find some of these answers, it is difficult to suggest a more scholarly and comprehensive book than Austin’s Working a Democratic Constitution: A History of the Indian Experience (Oxford University Press).

The original Indian constitution was a curious document – socially radical, yet politically conservative. Codifying social custom would have meant legitimising feudalism, sexism, communalism and casteism, and that was (rightly) out of question, but on the administrative side the Indian government largely continued with the top-down bureaucratic structure of the Britishers.

Though many social ills were not codified in the constitution, they were not aggressively punished through constitutionally mandated socio-economic engineering. Attacking feudalism and casteism up front, for example, would have meant attacking the Lockean right of property and the right of people to freely associate and discriminate, respectively. The founders did outlaw the excesses of casteism while putting in place a temporary affirmative action program, and they of course did away (in theory) the worst aspects of feudalism such as forced labour. But they tried to keep the constitution ideology-agnostic and nimble; Ambedkar, for example, specifically precluded socialism from the Constitution.

Yet after the deaths of Gandhi and Patel, Nehru towered over Indian politics. The eccentric Gandhi was strongly against centralisation of power, and even the more pragmatic Patel had specifically opposed the establishing of the Planning Commission. But Nehru, a Fabian socialist (Fabians were inspired by the Roman general Fabius Maximus who believed in war through attrition rather than confrontation) finally had his unilateral moment. He set out to fundamentally change the Constitution, just one and a half years after its adoption, through its very First Amendment. He wanted “to fully secure the constitutional validity of Zamindari abolition laws and to place reasonable restriction on freedom of speech” Schedule 9 was introduced to protect laws that were contrary to the constitutionally guaranteed fundamental rights. The fall of India from a liberal republic to a majoritarian democracy had begun.

Zamindari was the one exception to property rights that even most liberals did not defend, and surely many Indian leaders foresaw a clash between Zamindari abolition and a fundamental right to property. Yet this exception was not explicitly included in the Constitution. Unfortunately, once Nehru devalued a fundamental right for a morally valid reason, further changes with less consensus behind them gradually sprung up. In 1972, the 25th Amendment restricted property rights as well as compensation in case of takeovers (not just for agricultural land, but any property). In 1994, the 76th Amendment enabled the continuance of 69 percent reservation in Tamil Nadu by including the relevant Act under 9th Schedule of the constitution, a legislation which far from “annihilating” caste, further entrenched it.

Nor did Nehru set a good precedent on internal democracy and federalism. As Austin informs us, “The first use of President’s rule was a far cry from the Constituent Assembly’s intentions…The government of the Punjab in 1951 held a majority in the legislature, and the governor’s report to President Rajendra Prasad that the constitutional machinery had broken down was an official fiction. Additionally, the centre, and not the governor, had initiated the letter to the President… Nehru claimed that the law and order situation was worsening, but his arguments to Prasad that Bhargava was not acting ‘straight’ and it was inevitable for parties to give directions to their members told a different story.”

But there was not just constitutional and political abuse, there was widespread corruption too. In 1956, the All India Manufacturers Association and the Federation of Indian Chambers of Commerce almost euphemistically expressed that “planning, although a good thing, contained dangers to democracy due to the concentration of power in government hands”.

Under Indira Gandhi’s Emergency and move to the Left in the 70s, things got worse. The Supreme Court did put up a fight. It initially struck down bank nationalisation. Justice J C Shah “held that the ‘principles’ of compensation that a legislature could lay down for the taking of property were not beyond judicial scrutiny (for this could result in arbitrary parliamentary action)” The legislature struck right back, and some of the parliamentary excesses were reversed only under the Janata Government (43rd and 44th amendments).

Napoleon Bonaparte had said that a constitution should be “short and obscure”, presumably to suit a dictator’s needs. Successive Indian governments have continued to obscure the constitution, though through sheer length – around a hundred amendments have, to paraphrase Nani Palkhivala, defaced and defiled the original constitution.

Ambedkar himself wrote: “It is propounded by Western writers on politics that all that is necessary for the realisation of self-government is the existence among a people of what Grote called constitutional morality… these notions are fallacious and grossly misleading… Habits of constitutional morality may be essential for the maintenance of a constitutional form of government. But the maintenance of a constitutional form of government is not the same thing as a self-government by the people…The recognition of the existence of a governing class as a fundamental and a crucial fact confronting democracy and self-government is the only safe and realistic approach to those who wish for democracy and self-government to come into their own.”

An increasingly illiberal constitution has enabled cronyism in India. In such a case, anger at what Ambedkar called the “governing class” is symptomatic of our present constitution itself being relatively inimical to self-government. The confusion about constitutionality arises because there are two views here – a normative and therefore subjective view of what constitutionality should entail, and a legal view of what constitutionality actually entails. Normatively, it is indeed unfortunate that activists must resort to hunger strikes to highlight issues, yet legally this is acceptable so long as it is not “bloody” or “anarchic” (if for no other reason than that of precedent).

Austin keeps in mind the reality of Indian society throughout his treatise. He refers to it as a “survival society”, where education and empathy are still relatively low. Even Ambedkar had noted that without fraternity, liberty and equality are useless in practise. To overcome this poverty of our economy and society, our politicians – many of them well-meaning – successively concentrated too much power. The last couple of decades have finally seen some reverses, and to sustain them we must follow Austin’s lead and get down from atmospheric abstractions to dirty details. As Palkhivala said that to every policy and legislation, “we must apply the acid test – how far will it bend the talent, energy and time of our people to fruitful ends and how far will it dissipate them in coping with legal inanities and a bumbling bureaucracy”.