The Constitution was a leap of faith

In the 70th year of the Republic, “We the People” must reward their imagination by emerging from the littleness and binaries of our current public discourse, and expanding our own political imagination of the possibilities for the future of India.

Sixty-nine years ago, the adoption of the Indian Constitution was regarded, variously, as a “reckless” political experiment, a cause for celebration amid uncertainty, as India set out to be the world’s “largest democracy”, and of triumph amid tragedy, as it became a republic during the bloodbath of Partition. The first Constitution of a Commonwealth country to be drafted entirely by its own nationals, the Indian Constitution was, and remains, the longest written constitution in the world. The length of the Constitution is a reflection of the magnitude of problems facing the newly independent nation, including its very integration as a nation state; the need to reassure minorities following Partition; and the need to build a new social and economic order that would lift millions out of poverty, even as it sought to eliminate pervasive social and religious discrimination.

Some of these problems and uncertainties continue to resonate today. But as India enters the 70th year of the Republic, it has the new moniker of being the world’s largest “stable” democracy, a feat unique to India in the post colonial world. The resilience of the Constitution is a testament to the founders’ foresight in imbuing its text with the spirit of diversity amid unity. The Indian Constitution is not one constitution, but many. Though Article 370, for the state of Jammu and Kashmir, is the most well known exception to the Constitution’s general provisions, the entirety of part XXI of the Constitution contains differentiated provisions for the states of Assam, Nagaland, Manipur, Mizoram, Sikkim, and Arunachal Pradesh. Part X of the Constitution creates a differentiated legal framework for “Scheduled Areas” within 14 states of India, that constitute 13% of India’s geographical area, including the entire state of Meghalaya, and more than half the states of Chhattisgarh, Jharkhand and Tripura.

The Constitution is also resilient because it was wedded to the principle of incrementalism. The founders were deeply conscious that they were guaranteeing fundamental rights to life, liberty, equality, and property, to all citizens, in a society deeply divided on the basis of religion, caste, and gender. Therefore, in the chapters on Fundamental Rights and Directive Principles of State Policy, they provided pointers, not answers, for resolving tensions that would inevitably arise between the interests of the individual v. the collective.

Resolution of tensions between “individual property” and “state’s power to take away property” for the “collective good of economic development and social redistribution”, resulted in the abolition of the fundamental right to property in 1978. Tensions with respect to “individual women’s rights to equality” v “collective religious diktats” have been playing out, with intermittent resolution, for many decades, for instance, in the case of Muslim women’s rights to divorce and maintenance, from the Shah Bano case in the 1980s to the current bill criminalising triple talaq, and Hindu women’s rights to inheritance of joint family property from the 1950s to equal religious right to worship in the context of the Sabarimala case today.

Despite our Constitution’s resilience, we can never take its continued existence and the stability of India’s democracy for granted. In fact, the greatest threats to the Constitution come because we expect both too much, and too little, from our Constitution. The recent constitutional amendment on “poor upper caste reservations”, which has turned the concept of reservation based affirmative action on its head, is an example of how public disaffection with the state’s redistributive failures is sought to be temporarily assuaged through recourse to the Constitution. The constitutional amendment, while it exists (there are strong reasons to believe that it is unconstitutional), will momentarily camouflage the ineptitude and decay of our public institutions, and the failure of our “economic development” narrative, but will not resolve the crisis that threatens the social and economic, and, therefore, the political stability of the nation.

This deflection of public disaffection from our Parliament and executive towards the Constitution is a grotesque pantomime that we have seen played out previously in the context of the abolition of the fundamental right to property. The period since the abolition of the right has in fact seen a far greater increase in economic inequalities, and “land grabs”, than the one when the “fundamental right to property” was intact.

We also expect too little from our Constitution. The Pathalgarhi movement is an example of how provisions for “tribal autonomy” within the text of the Constitution and their ambiguities can be used to construct a narrative of demands for greater decentralisation and self-governance through gram sabhas in the Scheduled Areas.

It is not clear why “We the People” did not similarly use our fundamental rights to liberty and equality, and constitutional right to property, to hold the government accountable for its demonetisation exercise that has proved to be an economic disaster. Or why we remained silent when the Supreme Court, the self appointed highest guardian of the Constitution, winked at the unconstitutionality of passing the Aadhaar law as a money bill, or gave unsatisfying verdicts on recent public controversies, including the CBI director’s removal and the legitimacy of the Rafale deal?

The founders took a leap of faith in imagining this magnificent Constitution for us, with the humility that even as they showed us the way forward, they didn’t have all the answers, and the hope that we would use it wisely, to build a peaceful and prosperous nation in which everyone has the opportunity to “develop according to their own genius”. In the 70th year of the Republic, “We the People” must reward their imagination by emerging from the littleness and binaries of our current public discourse, and expanding our own political imagination of the possibilities for the future of India.

We must respect the founders’ faith in us by pledging to renew constitutional values of resolving tensions through dialogue even as we respect differences, and to strengthen the fabric of our public institutions that have the power to both build and break the Republic.

Namita Wahi is fellow at the Centre for Policy Research, and director of the Land Rights Initiative

Source: Hindustan Times, 25/01/2019