Yes, Please, On Bibek Debroy's Call For A New Constitution: Why India Must Craft A Fresh Charter For 2047

Writing in Mint last month, Bibek Debroy, Chairman of the Prime Minister's Economic Advisory Council, looked ahead to the 100th anniversary of India’s independence and asked: “What Constitution does India need for 2047?”

His own view (Debroy wrote in personal capacity) is that tinkering with the existing Constitution — an amendment here, an amendment there — would not do.

He thinks “We the People have to give ourselves a new Constitution.” And I could not agree with him more. That is exactly what we need.

After all, as a friend of mine observes, if France — which gave the world “Liberté, Egalité, Fraternité” in 1789 — can in 2023 be in its fifth Republic, there is no reason Bharat cannot have a second Republic.

Most of the reactions to Debroy’s column have ranged from apoplexy (how dare he!) to not taking him seriously (oh, he’s just being provocative as usual) to outright dismissal (it’s a complete non-starter).

But I, on the contrary, believe he was dead serious, on point, and his proposition deserves to be debated in earnest, and the sooner the better.

For, the current Constitution is not fit for purpose; no wonder it has been amended more than 100 times! And its blemishes, large and small, are too many to resolve through continued piecemeal amendment. We need a fresh start, an altogether new Basic Law.

The Supreme Court believes the basic structure of the Constitution cannot be changed, but the reality is that the Constitution itself should be changed.

What is wrong with the Constitution we have?

For one, it is far too long. While the US Constitution fits comfortably in a pocket-sized pamphlet, its Indian counterpart is 145,000 words long. It is, in fact, the second-longest active Constitution in the world (The first? Alabama’s!).

It is long because it contains sections that have no place in a Constitution; for example, the Directive Principles of State Policy.

A Constitution is the basic law of a country, the law on which all other laws are based. It cannot be about policy, which is for elected governments to formulate.

This is also why the Preamble to the Constitution should not be allowed to stand, disfigured as it is by the insertion of the words "secular" and "socialist." In rejecting "secular," we will be in good company.

The United States (US), for example, does not have a secular Constitution: neither the word “secular” nor the phrase “separation of church and state” appear anywhere in it.

Underpinning the US Constitution is the notion (derived from its building block, the Declaration of Independence) of a creator endowing humans with certain inalienable rights, beyond the power of government and of humans. Hence, it cannot be regarded as entirely secular.

Which is why sessions of the US Congress open with an invocation and there is a sculpture of Moses and the Ten Commandments in the US Supreme Court.

Moreover, “secularism” means different things in the West and Bharat.

In the West, it signifies the separation of church and state (laicité, in France), but in Bharat, it has meant equal respect for all faiths and those who have no faith.

The word “socialism” is even more inappropriate in the context of a Constitution. A political and economic theory of social organisation, it is clearly in the domain of state policy, to be implemented or not by the government of the day.

No government in Bharat — neither Congress nor the Bharatiya Janata Party (BJP) — has been truly socialist and, technically, it could be argued that the BJP — the party ruling Bharat since 2014 — is unConstitutional!

So, obviously the word "socialism," too, has to go.

But all of these criticisms pale into insignificance in comparison with the the most fundamental objection to the current Constitution. It is, as Debroy notes, "a colonial legacy," based largely on the Government of India Act, 1935.

It is high time that Bharat gave itself an Indic Constitution imbued with the Dharmic ethos of its civilisation. After all, Bharat is more than a country and more than a nation; it is a civilisational state.

Therefore, instead of following a Western approach that gives primacy to inalienable human rights, Bharat’s Constitution should proceed from Sanatana Dharma and fundamentally privilege duties and responsibilities — to society and others — over a rights-based approach.

As one commentator has observed, in the Indic tradition, one first has to fulfill one’s duty in order to earn the right to a right.

As Rabindranath Tagore knew — traditionally, in Bharat, "the king waged wars, defended his territory and dispensed justice, but society attended to all else." ('Society and State' in Towards Universal Man, 1961).

For him, "what we understand by the word dharma permeated the whole social fabric. Every man had to acquire the discipline of self-control, every man had to accept the sanctified code of obligations."

Implicit in this view is the vision of a limited state, one that is restricted to the functions delegated to it by society. And that is the spirit that should permeate the Bharatiya Constitution.

What would such a Constitution look like, in specific terms?

That is obviously an issue that needs to be debated widely. Such a discussion should embrace all shades of opinion, but should have the clear objective of achieving a consensus on a truly dharmic Constitution.

But, it may also be asked, what about the process? Would this require a new Constituent Assembly?

Not necessarily. It is hard to think of a more representative body than the existing Parliament (Lok Sabha and Rajya Sabha), which has amended the Constitution so many times.

If it can amend, it can also replace.

All that may be necessary is for the draft of a new Constitution to emerge from consultations with influential thought leaders, and constitutional and legal scholars.

The draft could then be deliberated upon by an all-party conference, before being tabled in Parliament (which could, if considered necessary, convert itself into a Constituent Assembly) for adoption.

In view of the gravity of the matter, this process cannot and should not be rushed. It should be given the time needed to achieve consensus.

True, there are other weighty subjects that confront the nation: debating a uniform civil code, delimiting Lok Sabha constituencies in the face of a deepening north-south fault line, and considering the need for smaller states for better governance (as Gautam Desiraju proposes in Bharat: India 2.0), to name just three.

But they should not delay — and may possibly benefit from — the adoption of a new Constitution.

As noted, this will take time. All the more reason to take Debroy seriously and start now.