Inclusion of the word fraternity in Preamble is of historic importance and contemporary relevance

 

In any case, what the world’s present condition needs, namely bonding between humans, may be more important than the alphabet letters that make up “fraternity”.

Two months ago, Harsh Mander wrote in The India Forum of the significance of the word “fraternity” in our Constitution’s Preamble. Reading the article nudged me to explore the story behind that word’s inclusion.

Scholars have long noted a few milestones in the history of India’s constitution-making. A major one was the 1931 “Fundamental Rights” resolution of the Indian National Congress. Meeting in Karachi under the presidentship of Sardar Vallabhbhai Patel, the Congress resolved that “any [future] constitution should include fundamental rights of the people such as freedom of association and combination, freedom of speech and press, freedom of conscience and the free profession and practice of religion”.

Furthermore, the resolution added, such a constitution should prohibit discrimination against persons of any “religion, caste or creed in regard to public employment, office of power, and the exercise of any trade or calling” and should rule out any “civic bar on account of sex”.

It should assure “equal rights to all citizens of access to and use of public roads, public wells and all other places of public resort”. Also, the state was required, under the proposed constitution, to observe “religious neutrality”.

There is evidence that close collaboration between Gandhi and Jawaharlal Nehru produced the text of this consequential resolution, which Gandhi moved in Karachi in 1931. But it had the approval also of Patel and of everyone else who counted.

Subhas Chandra Bose, for example, played an active part at the Karachi session. Also present was Khan Abdul Ghaffar Khan and, we must assume, Abul Kalam Azad. Definitely present, too, in Karachi were the passionate spirits of Bhagat Singh, Sukhdev and Rajguru, who had been hanged a few days earlier in Lahore.

The “constitution” resolution, as this Karachi resolution may also be called, was thus adopted during a landmark moment in our journey towards independence.

Another milestone on the journey to the Constitution was Ambedkar’s powerful 1936 text, Annihilation of Caste, where he wrote: “What is your ideal society if you do not want caste, is a question that is bound to be asked of you. If you ask me, my ideal would be a society based on liberty, equality, and fraternity. And why not?”

In history’s light, it is thus Ambedkar who injects “fraternity” into India’s constitutional conversation.

Seven months before Independence, in January 1947, the Constituent Assembly passed its “Objectives Resolution”, which had been discussed from November 1946. This resolution declared: “All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms — of speech, expression, belief, faith, worship, vocation, association and action…”

While these words bear a clear resemblance to the Preamble to come, they do not include the word “fraternity”.

Two weeks after Independence, on August 29, 1947, the Constituent Assembly appointed a Drafting Committee, with Ambedkar, the Law Minister in free India’s first cabinet, as chairman. A Draft Constitution prepared by this Drafting Committee was the basis for the Constituent Assembly’s deliberations on the Constitution.

The volumes entitled The Framing of India’s Constitution: Select Documents, edited by B Shiva Rao and available online, contain much information about the Drafting Committee’s work. Page 484 of Volume III of this series shows the word “fraternity” in the draft preamble for the first time, while providing minutes of the Drafting Committee’s meeting of February 6, 1948.

This date suggests that the inclusion of “fraternity” may have been connected to the assassination of Mahatma Gandhi, which had occurred a week earlier.

Such a conclusion is strengthened by a letter that Ambedkar, writing as the Drafting Committee’s chairman, addressed on February 21, 1948, to Babu Rajendra Prasad, president of the Constituent Assembly. In this letter, Ambedkar said:

“The [Drafting] Committee has added a clause about fraternity in the preamble, although it does not occur in the Objectives Resolution. The committee felt that the need for fraternal concord and goodwill in India was never greater than now and that this particular aim of the new Constitution should be emphasised by special mention in the preamble.” (p. 510 of The Framing Of India’s Constitution: Select Documents, Vol. III, edited by B. Shiva Rao (Digital Library of India Item 2015.278539).

If available, any record of discussions within the Drafting Committee that led to the inclusion of “fraternity” in the eventual Preamble might throw additional light on the inference that Gandhi may have contributed posthumously to it.

Nearly two years later, in his famous speech of November 25, 1949, to the Constituent Assembly, Ambedkar would say: “Without fraternity, equality and liberty will be no deeper than coats of paint.”

As Mander has pointed out, the Hindi for fraternity, bandhuta, sounds more inclusive than male-centred “fraternity”. In any case, what the world’s present condition needs, namely bonding between humans, may be more important than the alphabet letters that make up “fraternity”.

This article first appeared in the print edition on October 22, 2020 under the title “The answer is fraternity”. The writer teaches at the University of Illinois at Urbana-Champaign

Source: Indian Express, 22/10/20

Cracks in the framework

With the systematic weakening of institutions, the government risks pushing all resistance to the streets

The Government of India has reportedly suppressed its own data on current employment, or rather job loss, in the country. It has, thereby, compromised the autonomy and the standing of the National Statistical Commission. This is the latest instalment in the rather sordid story of institutional decay in India, overseen by the leaders of the Bharatiya Janata Party (BJP). This is not to suggest that previous governments did not undermine institutions. The internal Emergency imposed on the country from 1975 to 1977 initiated the process. The government tried to tame bureaucrats as well as the highest court in the land. Postings and appointments were manipulated to suit the ruling dispensation. The BJP government has, however, earned the dubious distinction of sabotaging the autonomy of several political institutions in rapid succession.

Necessary checks

Institutional decay occasions worry because it affects ordinary citizens in disastrous ways. All governments, even those which have been democratically elected, betray an inexorable will to power. Expectedly, expansion of government power violates constitutional rights to freedom, equality and justice. The only way citizens can be protected against any arbitrary and unlawful exercise of power is by limiting the power of government. Liberal democrats, always sceptical of state power, have tried to contain dramatic surges of power by charting out of constitutions and institutional design. Institutions, as the embodiment of formal and informal rules, assure citizens that the government exercises power according to some norms that enable as well as regulate state capacity.

This makes for good political sense when we remember that most human activity is structured by systems of rules — take the intricate and rule-bound game of chess or cricket. Relationships, households, the economy, society, the games we play and do not play take place and develop within the framework of rules. Human beings are social, but we cannot be social unless we know what is expected of us, and what we should do or not do. Without rules that govern relationships — for example, the norm that friendship is based on trust— we will not know what is worthwhile and what is not, what is preferable and what should be avoided, and what is appropriate and what is expedient.

The Canadian political philosopher Charles Taylor has argued in his famous work, Sources of the Self (1989), that institutions embody ‘strong evaluations’. We learn to discriminate between right and wrong, better and worse, and higher and lower. These evaluations are not judged subjectively by our own desires or impulses. Institutions, which stand independently of us, give us standards that allow us to evaluate. Following Taylor, we can rightly wonder why political power should be exercised, implemented and executed without rules. Assertions of political power adversely affect our interests and our projects. We should be in a position to judge when this power is exercised fairly or unfairly. Rules in a democracy assure us that justice is synonymous with fairness.

Moreover, rules make our worlds predictable. We know what the boundaries of the freedom of expression are, we know that if the police arrests us tomorrow, we have the right to appoint a lawyer and appeal to the judiciary. Without institutions and rules our life would be chancy, unpredictable and fickle. We would inhabit a space empty of certainties, expectations, aspirations and evaluations.

Rules, not whims

In a democracy, individuals are governed by institutions, and not by men. If we do not live in an institutional universe, we will be at the mercy of capricious individuals. Democrats would rather be administered by a system of rules we can scrutinise and evaluate. Of course, rules can be, and are, unfair. But at least we can struggle against rules. We do not have to commit murders to get the ruling dispensation out of power. We might have to carry out a thousand peaceful demonstrations, approach the courts, lobby our legislative representatives, engage in civil disobedience, or withhold our vote. In a world stamped by the decline of institutions and the exercise of arbitrary power, the only way to dislodge a government is through violence.

The present government has tampered with institutions by appointing its own people to positions of authority, and by using the Enforcement Directorate, Income Tax authorities, the Central Bureau of Investigation and the police as bulldozers to flatten out any site of opposition. In civil society, human rights organisations have been pulverised by blockage of funds, raids and arrests. The shameful way in which human rights activists have been incarcerated without a shred of evidence testifies to the subversion of the rule of law. The ultimate aim of government action is to dismantle institutions, and the delicate relationship of checks and balances among them. This bodes ill for democracy.

The development contravenes the spirit of the freedom struggle. As far back as the 1928 Motilal Nehru constitutional draft, the leadership of the national movement opted for constitutionalism to abridge unpredictable use of power, and grant basic rights to citizens. On November 4, 1948, B.R. Ambedkar, responding to criticism of the draft Constitution in the Constituent Assembly, clarified that the Constitution provided but a framework for future governments. But: “If things go wrong under the new Constitution, the reason will not be that we have a bad constitution. What we will have to say is that Man was vile.” The Indian Constitution established major political institutions, Parliament, executive and the judiciary, laid out the relationship between them, provided for judicial review, and codified political and civil rights. The constitutional framework does not provide thick or substantive conceptions of how we shall think, and in what we shall believe. It provides us with a thin framework that guarantees constitutional morality, or respect for the Constitution as the basis of political life.

Today the ruling party wants to legislate a thick conception of the good. We are instructed to worship the nation, respect the cow, glorify the coercive arm of the state, and listen on bended knees to leaders. Frankly the discourse is reminiscent of the naïve, and often crude, nationalist scripts authored and acted out by the film star Manoj Kumar in the 1960s. We can avoid watching his films without fear of harassment, but we cannot defy the government without being abused and subjected to violence of the pen and tongue.

Upending the balance

The government arrests civil society activists who engage with policy, and vigilante groups attack individuals who dare transport cattle, legitimately, from one part of India to another. Immediately the sympathies of the police and magistrates, some sections of the media and public opinion swing towards the perpetrator, not the victim. The leaders of our ruling dispensation seem to have no respect for the rule of law, nor for the rules that regulate speech in public spaces.

Ultimately institutionalised power that is subject to regulation, and that can withstand the scrutiny of the political public, is meant to protect citizens. Unfortunately, in the India of today institutions are used to protect the ruling class, and its sins of omission and commission. The people who rule us should know that when the relationship between citizens and the state is governed not by institutions but by individuals, politics takes to the streets. And then a thousand revolts happen. We pay heavily for institutional decline.

Neera Chandhoke is a former Professor of Political Science at Delhi University

Source: The Hindu, 6/02/2019

Legitimacy of the basic structure

The doctrine may be derived from the abstract. But it exists within the Constitution itself

It has now been more than 45 years since the Supreme Court ruled inKesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that the Constitution’s basic structure was infrangible. But as entrenched as this doctrine might now be, it remains, to some, a source of endless antipathy. There have already been grumblings over the rule’s legitimacy in certain quarters in response to challenges made to the recently introduced 103rd Constitutional Amendment, which provides for reservations based on economic criteria in government jobs and education.

Unwarranted censure

The common criticism is that the doctrine has no basis in the Constitution’s language. The phrase “basic structure”, it’s argued, finds no mention anywhere in the Constitution. What’s more, beyond its textual illegitimacy, its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in something akin to what Union Minister Arun Jaitley once termed as a “tyranny of the unelected”.

Unquestionably, some of this censure is a result of the Supreme Court’s occasionally muddled interpretation of what the Constitution’s basic structure might be. But to reject the doctrine altogether because the judiciary sometimes botches its use is to throw the baby out with the bathwater. For not only is the basic structure canon legally legitimate, in that it is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.

Ever since the Constitution was first amended in 1951, the true extent of Parliament’s power to amend the document has been acutely contested. But the dangers inherent in granting untrammelled power to the legislature were perhaps best brought out in a lecture delivered by a German professor, Dietrich Conrad. His talk “Implied Limitations of the Amending Power”, delivered in February 1965 to the law department of the Banaras Hindu University, came at an especially fraught time. Only months earlier Parliament had introduced the contentious 17th Constitutional Amendment. Through this, among other things, a number of land reform legislations had been placed into the Constitution’s Ninth Schedule. This meant that those laws, even when discriminatory, were immunised from challenge.

But it wasn’t the merit of the amendment that troubled Conrad. He was concerned with the suggestion that Parliament’s power to alter the Constitution was plenary. Influenced by the theoretical scholarship of the jurist Carl Schmitt, Conrad believed that even if a legislature were bestowed with the widest of powers to amend the Constitution, its authority was always subject to a set of inherent constraints. Parliament, he contended, was, after all, a creature of the Constitution. It could not, therefore, make changes that had the effect of overthrowing or obliterating the Constitution itself.

As A.G. Noorani has pointed out, Conrad was affected by his own country’s history. In Germany, the virulent end brought to the Weimar Republic by Nazism had meant that when the country adopted its Basic Law in 1949, it quite explicitly placed checks on the legislature’s powers. This included a bar on lawmakers from amending those provisions of the Basic Law that concerned the country’s federal structure, that made human rights inviolable and that established constitutional principles such as the state’s democratic and social order.

Questions to ponder

In his lecture, Conrad said India hadn’t yet been confronted with any extreme constitutional amendment. But jurists, he warned, ought to be mindful of the potential consequences inherent in granting Parliament boundless power to change the Constitution. How might we react, he wondered, if the legislature were to amend Article 1, for example, by dividing India into two. “Could a constitutional amendment,” he asked, “abolish Article 21,” removing the guarantee of a right to life? Or could Parliament use its power “to abolish the Constitution and reintroduce… the rule of a Moghul emperor or of the Crown of England?”

Although it was delivered to a limited audience, M.K. Nambyar, who was to soon lead arguments in the Supreme Court against the 17th amendment in Golaknath’s case, was alerted to Conrad’s urgings. Devoid of any direct precedent from other Commonwealth nations, where an amendment had been subject to the rigours of judicial review, Nambyar thought the German experience carried with it a set of important lessons. Were Parliament’s powers considered infinite, he argued, the parliamentary executive can be removed, fundamental rights can be abrogated, and, in effect, what is a sovereign democratic republic can be converted into a totalitarian regime.

Interpreting ‘amendment’

The court, in Golaknath , didn’t’ quite feel the need to go this far. But, ultimately, just four years later, in Kesavananda Bharati , it was this formulation that shaped Justice H.R. Khanna’s legendary, controlling opinion. While the judge conceded that it wasn’t possible to subscribe to everything in Conrad’s arguments, this much, he said, was true: “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.” Yet, the limitation, wrote Justice Khanna, wasn’t as much implicit from a reading of the Constitution as a whole as it was evident from the very meaning of the word “amendment”. According to him, what could emerge out of an amendment was only an altered form of the existing Constitution and not an altogether new and radical Constitution.

This interpretation, as Sudhir Krishnaswamy has shown, in some depth, in his book, Democracy and Constitutionalism in India , is compelling for at least two reasons. First, it represents a careful reading of the text of Article 368, and, second, it delivers an attractive understanding of the moral principles that anchor the Constitution. Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”. Therefore, if what has to remain after an amendment is “the Constitution”, naturally a change made under Article 368 cannot create a new constitution. Such a construal is also supported by the literal meaning of the word “amendment”, which is defined as “a minor change or addition designed to improve a text”. Hence, for an amendment to be valid, the constitution that remains standing after such a change must be the Constitution of India; it must continue to possess, in its essence, those features that were foundational to it even at its conception.

Now, consider Conrad’s extreme example: were an amendment to be introduced relinquishing control over India to a foreign power, would it not result in the creation of a constitution that is no longer the Constitution of India? Would not such an amendment strike at the root of the Constitution’s Preamble, which, in its original form, established India as a sovereign democratic republic? On any reasonable analysis it ought to, therefore, be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character.

We must remember that constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy. But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter, with a view to translating, as Justice Robert H. Jackson of the U.S. Supreme Court once wrote, abstract principles into “concrete constitutional commands”. It may well be the case that the basic structure doctrine is derived from the abstract. But that scarcely means it doesn’t exist within the Constitution.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

Source: The Hindu, 4/02/2019