66 years after India adopted the constitution drafted by an Ambedkar-led committee, how accurately does still it represent the realities and conflicts of India after all the amendments made to it? And if it doesn’t, who is to blame and what is the solution?
Bhim Rao Ambedkar, whose125th birth anniversary we are celebrating today (14 April), wouldprobably not recognise the constitution we have now. By constantly tinkeringwith it for populist reasons, we have beaten it out of shape. In 240 years,America has managed to get by with about 27 amendments to its constitution; in66 years since we adopted the constitution in 1950, we have pushed through fourtimes as many, and another 40-and-odd amendments were (or are) proposed.
One is not arguingagainst giving the constitution flexibility to change with the times; but whatwe need is a statute book with a dual tone, parts of which are inflexible, andparts flexible. For example, fundamental rights ought not to be made flexible;they should be nearly absolute, subject to very few restraints. On the otherhand, laws like the Goods and Services Tax IGST), which also require aconstitutional amendment, can be left flexible. We should be able to easilyadopt GST or dump it if experience shows it is not useful.
Looking back, it is clearthat some of the amendments were counter-productive, and need to be rolledback. And many ideas were inserted needlessly, purely to pander to political populismeven though they had no actual impact on the conduct of policy.
To make the constitutionworkable, we need to overhaul it. That is, rewrite it from basics. But if thatseems too tall an order, it is best to do incremental changes one by one to removethe damaging parts, and insert the ideal bits. Here is the wish-list.
#1: The first and foremost change that needs to be madeis to make fundamental rights stronger. We did the opposite. We havewhittled down rights repeatedly, starting with Jawaharlal Nehru’s firstamendment to curtail free speech, by inserting needless restrictions to it. Thereare eight limits to free speech prescribed by the first amendment: security of the state, friendly relations with foreignstates, public order, decency or morality, or in relation to contempt of court,defamation or incitement to an offence. At least four or five of theserestrictions are redundant: barring sedition, contempt of court, or incitementto violence, most of the remaining restrictions can go.
#2: The 44th amendment, one we cannot blamethe Congress or Nehru for, removed the rightto property as a fundamental right. This is shameful. It was done in 1978 bythe Janata Party government, but no political party ever called for therestoration of this fundamental right. This suggests that every party has beencomplicit in the denial of this right to Indians.
The right has to be restored, even if it iscircumscribed by some reasonable limits – as in the case of free speech. Ifthis right had been there in the statute book, major market-distorting laws like the UPA’s Land Acquisition Actwould not have been needed. Even in the case of compulsory acquisitions, genuinemarket prices (with a small premium) would have been more than acceptable toland-owners. It is only the absence of a proper land market that forces us tomake a silly law mandating the payment of four times market price for acquiredland.
#3: The concurrentlist needs to be abolished. This list in the constitution (which containsover 50 subjects, including sub-lists) indicates the areas where both centreand state can legislate, with the central law getting primacy if the state lawis in conflict, unless the centre allows a state to have its own law in itsterritory. This list has enabled populist central governments to shove bad lawslike the Right to Food or Right to Education down the throats of states. Theissue is not whether legislating the right to food or education is bad initself (it may be), but that different states with different problems do notneed the same remedies. One cap does notfit all. The subjects on the concurrent list need to be divided betweencentre and states, so that there is no overlapping list where both centre andstates can legislate, creating needless confusion.
#4: The ninthschedule to the constitution has to go. This schedule essentially insulatescertain bills or constitutional amendments from judicial review. The originalintent behind creating a ninth schedule was to ensure that land reforms werenot thwarted by judicial pronouncements in favour of the right to property,which would only have benefited landlords. But thanks to the desire ofpoliticians to do everything without the judiciary having the right to reviewbad laws, governments have not only put land laws in this schedule, but anentire bunch of laws, including one to overturn a Supreme Court-mandated 49percent limit on reservations.
According to this paper, “The Ninth Schedule nowcontains Union as well as state legislations, land reform laws containingagricultural land acquisition as well as non-agricultural land acquisition, tenancylaws, Land Ceiling Acts, Zamindari Abolition Acts, laws of eviction and variousother land laws. Some other categories of laws like tax, revenues, railways, industries,insurance, coal, mines, textiles, trade practices, essential commodities, MotorVehicles Act, etc. are added to the Ninth Schedule which are contrary to thevery purpose of its creation. Thus, it shows the tenancy of parliamentarians toescape from the clutches of Judiciary for gaining their selfish motives.”
#5: The other side of the coin of giving courts the rightto interpret the law from the point of view of constitutionality is that there must be a specific restraint on thejudiciary from either making the law or policies. In recent years, thecourts have been wading into policy domain, upsetting the balance of powerenshrined in the constitution between executive, legislature and judiciary. Weneed an article that specifically prohibits the courts from making policy orlaw. At best, the courts, when faced with public interest litigation, should flaga problem for the legislature to work on, or junk a law that actually infringeson rights, but it cannot make the law. It is interesting that when it came toactually junking section 377 of the IPC, which criminalises gay sex, theSupreme Court actually failed to strike it down. It failed to protect thefundamental rights of citizens with different personal preferences.
#6: Articles25-30, which deal with the rights of minorities to their religion,traditions and cultural and educational institutions, can be merged into one toeffectively say that all communities will have equal rights to preserve,practice and propagate their religious and cultural heritage, and to run theirown educational and religious institutions, subject only to the country’s civiland criminal laws. Currently, laws to protect minority interests are read asthe right of states to intervene in the same rights of the Hindu community.This discrimination must clearly end.
#7: Thepreamble to the constitution cannotprescribe what specific road the state must take in terms of economic ideology.During the emergency, when opposition leaders were in jail, Indira Gandhi makeIndia a “secular” and “socialist”republic. While one can argue that the existence of these words did not preventPV Narasimha Rao and Manmohan Singh from rolling back socialism in 1991, thepoint is if economic policy is going to be pragmatic rather than ideologydriven, why commit the state to pursue such ideologies?
Removing “socialist”does not prevent a future government from pursuing socialist policies, just asthe existence of the word did not deter Manmohan Singh from doing the opposite.As for “secular”, one can take it or leave it. But the appropriate word in theIndian context is “plural” and not “secular”, which has a European meaning. Byusing it in the Indian context, we have mangled the meaning of secular out ofshape. It now means nothing, while “pluralism” means accepting and promotingdiversity of all kinds. It is a more inclusive and meaningful word in theIndian context.
#8: The scope ofarticle 15 needs to be expanded. This article promises that the state shallnot discriminate on “grounds of religion, race, caste, sex or place of birth”.It needs to be expanded to include age, physical disabilities, etc. The provisomust be that if there is any discrimination on any grounds, it must bespecifically justified by a special law.
#9: The representationof states in the Lok Sabha should be proportionate to their relativepopulation sizes, and adjusted every 30 years. The total number of seats astate gets has been frozen since independence, largely in order to give them anincentive to control populations. But the net result is that the Hindi states are under-represented andthe south over-represented. As this report notes, Uttar Pradesh has 16.5percent of India’s population and 14.7 percent of Lok Sabha seats; it gets 80seats when 90 should be ideal. Bihar and Rajasthan are also grosslyunderrepresented.
While the idea that seat allocations should change ispolitically contentious, the imbalance cannot continue forever. It goes againstthe principle of equality enshrined in the constitution. You can’t have fewerrepresentatives for some parts of India and higher for others. The bestcompromise would be to change Lok Sabha seats according to a state’s share ofpopulation once in 30 years, and compensate the losers (Tamil Nadu, forinstance) with a higher share of Rajya Sabha seats, so that the balance isrestored. Tamil Nadu may lose seven Lok Sabha seats, but gain the same in theRajya Sabha.
#10: The directiveprinciples of state policy are simply too long and elaborate to serve asany meaningful goad to action. They should be shortened, and simplified.Currently, the directive principles, which are not justiciable in a court oflaw, have 17 different ideas in them, from enacting a uniform civil code, tointroducing prohibition or protecting cows. The list needs to be whittled down and focus on principles – like ensuringuniversal primary education and literacy or policies to promote public health –and not get into what precisely must be done under each head. We don’t needmore than 10 broad directive principles, especially when the preamble itselfspells out broad approaches to promote equality, liberty and fraternity andnon-discrimination.
We need a more concise and robust new constitution,and these are the places to begin. Since we are not going to get a newconstituent assembly, the best thing to do is chip away at the above egregiouslyinappropriate provisions and fix them one by one.