Shri Thengadiji campaigned for thorough changes in the legal and constitutional system and proposed: “One of the first and indispensable steps in this direction is to convene a new and competent Constituent Assembly.” (‘Third Way’ p. 134.)
In the past seventy years of the history of the Indian Constitution, 126 amendments were presented in Parliament. Thus, on an average, nearly two amendments were brought about per year in our basic law. That shows the inherent weakness of the Constitution of India that came into force in 1950, which tries hard to cop up with the changing national needs on passage of time. “Constitutional patriotism” and sanctity attributed to the Constitutional provisions are necessary for a coherent national life, but that does not desist us from critically analysing many of the defects that it carries today.
Even Dr Ambedkar expressed his strong dissatisfaction with its imperfect provisions and said that a Constitution of his dreams could not be materialised. In 1953, he went to the extent of declaring in the Rajya Sabha that he made the Constitution which he was asked to do, much against his will, and he is ready even to burn the Constitution! Our Constitution did not reflect the aspirations of our freedom fighters and leaders about a new India after independence. We have to bear the paradox of having two names for the country viz “India that is Bharat” and two anthems viz national anthem and national song. The national song was adopted on January 24, 1950 by the Constituent Assembly even though only the national anthem was included in the Constitution.
One main criticism was that the Constitution was a stitching together of different portions taken out of different foreign Constitutions—a “bag of borrowings”. It does not reflect the specialities of our culture or heritage. Dr Ambedkar commented that it was framed after “ransacking all the known Constitutions across the world”. It has borrowed the basic structure from the British Government’s Government of India Act of 1935. Fundamental Rights were taken from the American Bills of Rights. Directive Principles were adopted from Irish Constitution. From British Constitutional principles, the political system of Parliamentary democracy was taken. The federal relation between Union and the State was adopted from the Constitution of Canada. The rights and powers of Parliament and Assembly members were taken from the Australian Constitution. Thus goes the long list of “ransacked” Constitutions. The sole communist member in the Constituent assembly Somnath Lahiri accused that the assembly is a collaboration with the British.
Constitutional jurisprudence was discussed very less in the Constituent Assembly. The members spent most of their time debating whether India needed the American model of Presidential system or the British model of Prime Ministerial system and finally adopted the British model. American and British fans sitting there did not spend time deliberating an Indian model rooted in our ethos, even though Dr Ambedkar unsuccessfully tried to present the Buddhist tradition of democratic functioning. Smt Indira Gandhi used the same Constitutional political system to finish democracy in the dark days of the emergency period during 1975-1977. The names of writs mentioned in Article 32, 226 like “habeas corpus”, “mandamus”, “quo-warranto”, “certiorari”, etc., are alien and unpalatable to the linguistics of the common man.
In a Constitution stitched out of the provisions from foreign Constitutions, if any of the great ideas that our national tradition can claim, they are contained in the “Directive Principles of State Policy” which cannot be enforced by the courts. This prevents bringing social changes through the instrumentality of judicial interventions. Uniform Civil Code is an example.
One of the greatest mistakes committed by our Constitution-makers was that they forgot to include in it the most important and effective political system existing in India continuously for thousands of years—the Panchayat system. It did not get a place in the Constitution except a passing reference in the directive principles.The mistake was rectified in April 1993 when the Panchayat Raj system was added to the Constitution.
The word “secular” was criticised in the Constituent Assembly being “a slippery phrase, a device to by-pass the ancient culture of the land”. However, the word was added in Article 25(2) (a) with the meaning of something outside religion. Later the word was added to the Preamble also in 1976, but without clarity or proper definition. “Secular” is a negative concept developed in the context of the acute conflict between the Church and the State in European history. Something similar never happened in Indian history. Today many interest groups define the word “secularism” according to their fancies, like rejection of all religions, equidistant to religions, etc., which are not in the spirit of our culture. Hindus, who are in the majority, believed and practised equal respect to all religions. All the major religions from outside came to India and settled without even a slight interference due to the unique greatness shown by the Hindu society.
The Constituent Assembly discussed the prohibition of cow slaughter; and it was finally added in Article 48, as a part of directive principles, fulfilling a strong wish of Mahatma Gandhiji, even though it was done with an apologetic secular tone of preserving animal husbandry.
Minority rights in Article 30 have always been a bone of contention in India. It was adopted from the experience of Poland. The first draft of the Constitution proposed protecting minorities from discrimination by the majority, but later it was mutilated to provide special rights to “minority” religions. Such special rights or “minority rights” were in addition to the general rights given to all religions. These special rights have been termed by the Supreme Court as “reverse discrimination” in the famous TMA Pai case of 2002. The special minority rights patently conflict with many other provisions of the Constitution viz. the idea of secularism in the preamble, the concept of equality before law in Article 14, the prohibition of religious discrimination in Article 15, equal rights to all religions in Article 29(2), Uniform Civil Code in Article 44 etc. It has prompted many sections of majority religion like Brahmo Samaj, Arya Samaj, Sri Ramakrishna Mission, Aurobindo Society etc., to fight in the courts claiming legally as separate “minority” religions. The conflicting minority provision had been a constant headache to our judiciary. The UN had, in 2002, declared seven sections of the people as minorities, each forming less than 10% of the population. In an equitable Constitution, all religions should enjoy the same rights, and no religion, not even the majority religion, should be discriminated against in any of the matters.
Article 15 and 29 bear the blunders that there are several “races” and “cultures” in India. The concept of “race” was crucial in the knowledge system that existed at the time of framing of the Constitution, but later United Nations has officially rejected the notion of “race” citing several scientific studies.
Apart from repeated amendments, higher courts were compelled to make their own additions to plug the loopholes, which are termed as “judicial legislations”. One example is, while interpreting the concept of “equality before law” in Article 14, Supreme Court had to add the words “in similar circumstances”, “intelligible differentia”, etc. Similarly, several “fundamental rights” were added by the judiciary. For instance, Right to Information was added to Article 19, and the Right to Life and the Right to Environment were added to Article 21 interpreting the provisions. Moreover, Courts have had to intervene in the conflict created between fundamental rights and Directive Principles of State Policy. The various contradictions inherent in the Constitutionhave compelled our higher courts to engage in the time-consuming job of interpreting the conflicting provisions. In the Kesavananda Bharati case of 1973, the SC had to examine whether the preamble is a part of the Constitution.
A strong Indian nation has been manifested in the course of history through a wide variety of languages. It is an example of India’s unique feature of “unity in diversity”. But unfortunately, the western idea of linguistic nation-states led to the creation of linguistic states in India. Article 370 is another example of such lack of farsightedness, which the present Government has boldly rectified through non-Constitutional legislations. There was discussion in Constituent Assembly for making Sanskrit or Sanskritised Hindi the national language. However, a consensus was not arrived.
Our Constitution is characterised by serious drafting defects. It contains a mismatch between the caption and text in Article 29 which happened while splitting portions of the original Article 23 of the first draft of the Constitution. India has the longest written Constitution in the world. One main reason for this is, it is filled with several unscientific, unnecessary, temporary, transitional provisions and procedures which are outdated in the present context. There are many procedural provisions that could have been the subject of ancillary legislations. There is even a provision, Article 371E, for establishing a university in Andhra Pradesh. Disqualification on the ground of defection was brought about as an amendment, not in the main text, but inserted as the 10th schedule appended to the Constitution.
The Constitution-makers did not understand the greatness of the word “Dharma” even though it was discussed in detail in the Constituent Assembly by scholars like Dr Radhakrishnan. The word “Dharma” is defined as that which sustains the people together- “Dharmo dharayati praja:” People protect each other by the principle of dharma—“dharmenaiva praja sarvam rakshantisma parasparam”. It is the moral level of the people and not a written Constitution that sustains the nation. Britain, even today, is ruled by an unwritten Constitution. The word “Dharma” was not even mentioned anywhere in the Constitution; instead, the social contract theory of the west was adopted as its basis. Thus our Constitution starts with the words borrowed from the preamble of the American Constitution indicating a social contract- “We the people of India having solemnly resolved….” European History had to bring a compromise among the fighting groups in the western society in the form of “social contract”; whereas we have through the ages accepted “Dharma” as the basis of the strongest nation in the world. The Constitution should be capable of contributing to the growth of healthy social values, social unity and democratic culture. However, many elements contained in it convey the opposite ideas. The excess tilting of the Constitution towards rights has been to an extent rectified by the 42nd amendment by adding “fundamental duties”. A centralised political “sovereignty” is alien to our culture. Article 310 proposes the “doctrine of pleasure” of sovereign power. There were demands for either replacing or supplementing the current territorial representation with functional representation in legislative bodies. In 1976, during the emergency period, the word “socialism”, which was fashionable in the world at that time, was included in the preamble. However, within a span of 10-15 years, socialism was wiped off from the face of the earth! Today in the era of globalisation, the word “socialism” is just a museum piece. Many recent Supreme Court judgments are sermons on the opposite idea called “globalisation”. The latest threat that has arisen to our Constitution is the evolving concept of “Constitutional morality” imported from the background of a morally fallen West.
On May 12, 2020, Prime Minister Shri Narendra Modi began the third stage in history, the “AtmaNirbhar Bharat” 3.0. It represents the manifestation of the Atma or Soul of India. Thus an appropriate time has arrived to deliberate changes required in various facets of national life. We are living in a world that is fast changing. We cannot turn our back to changes. The visionary Dr Ambedkar was probably the one who vigorously argued but in vain for a political system based on Indian tradition.
(The writer is former president of Bharatiya Mazdoor Sangh)