India’s Constitution has failed to deliver. Poverty, inequality, injustice, corruption, divisions in society, festering violent separatist movements, etc., are all indications of the Constitution’s failure. Most Indians however are reluctant to blame the document. They cannot imagine the likes of Nehru and Ambedkar produced a faulty system of government. They point to India’s entrenched democracy as proof of its success.
In any case, it is only wise to periodically review the working of the Constitution in a dispassionate way. It was sheer partisanship that caused the failure of the last such attempt, when Vajpayee government formed the National Commission to Review the Working of the Constitution in 1999.
Recently, R. Jagannathan, Editor of Swarajya magazine and a leading thinker on constitutional matters, recently published a list of changes he considers necessary to make the Constitution work. Here are excerpts…
We Mangled Ambedkar’s Constitution: Here Are 10 Changes We Must Make
(By R Jagannathan)
Bhim Rao Ambedkar, whose 125th birth anniversary we are celebrating today (14 April), would probably not recognise the constitution we have now. By constantly tinkering with 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; in 66 years since we adopted the constitution in 1950, we have pushed through four times as many, and another 40-and-odd amendments were (or are) proposed.
One is not arguing against giving the constitution flexibility to change with the times; but what we need is a statute book with a dual tone, parts of which are inflexible, and parts flexible. …Looking back, it is clear that some of the amendments were counter-productive, and need to be rolled back. And many ideas were inserted needlessly, purely to pander to political populism even though they had no actual impact on the conduct of policy.
To make the constitution workable, we need to overhaul it. That is, rewrite it from basics.
But if that seems too tall an order, it is best to do incremental changes one by one to remove the damaging parts, and insert the ideal bits. Here is the wish-list.
#1: The first and foremost change that needs to be made is to make fundamental rights stronger. We did the opposite. We have whittled down rights repeatedly, starting with Jawaharlal Nehru’s first amendment to curtail free speech, by inserting needless restrictions to it. There are eight limits to free speech prescribed by the first amendment: security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court,defamation or incitement to an offence. At least four or five of these restrictions are redundant: barring sedition, contempt of court, or incitement to violence, most of the remaining restrictions can go.
#2: The 44th amendment, one we cannot blame the Congress or Nehru for, removed the right to property as a fundamental right. This is shameful. It was done in 1978 by the Janata Party government, but no political party ever called for the restoration of this fundamental right. This suggests that every party has been complicit in the denial of this right to Indians.
The right has to be restored, even if it is circumscribed by some reasonable limits – as in the case of free speech. If this right had been there in the statute book, major market-distorting laws like the UPA’s Land Acquisition Act would not have been needed. Even in the case of compulsory acquisitions, genuine market 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 to make a silly law mandating the payment of four times market price for acquired land.
#3: The concurrent list needs to be abolished. This list in the constitution (which contains over 50 subjects, including sub-lists) indicates the areas where both centre and 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 its territory. This list has enabled populist central governments to shove bad laws like the Right to Food or Right to Education down the throats of states. The issue is not whether legislating the right to food or education is bad in itself (it may be), but that different states with different problems do not need the same remedies. One cap does not fit all. The subjects on the concurrent list need to be divided between centre and states, so that there is no overlapping list where both centre and states can legislate, creating needless confusion.
#4: The ninth schedule to the constitution has to go. This schedule essentially insulates certain bills or constitutional amendments from judicial review. The original intent behind creating a ninth schedule was to ensure that land reforms were not thwarted by judicial pronouncements in favour of the right to property,which would only have benefited landlords. But thanks to the desire of politicians to do everything without the judiciary having the right to review bad laws, governments have not only put land laws in this schedule, but an entire bunch of laws, including one to overturn a Supreme Court-mandated 49 percent limit on reservations.
According to this paper, “The Ninth Schedule now contains Union as well as state legislations, land reform laws containing agricultural land acquisition as well as non-agricultural land acquisition, tenancy laws, Land Ceiling Acts, Zamindari Abolition Acts, laws of eviction and various other land laws. Some other categories of laws like tax, revenues, railways, industries,insurance, coal, mines, textiles, trade practices, essential commodities, Motor Vehicles Act, etc. are added to the Ninth Schedule which are contrary to the very purpose of its creation. Thus, it shows the tenancy of parliamentarians to escape from the clutches of Judiciary for gaining their selfish motives.”
#5: The other side of the coin of giving courts the right to interpret the law from the point of view of constitutionality is that there must be a specific restraint on the judiciary from either making the law or policies. In recent years, the courts have been wading into policy domain, upsetting the balance of power enshrined in the constitution between executive, legislature and judiciary. Weneed an article that specifically prohibits the courts from making policy or law. 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 infringes on rights, but it cannot make the law. It is interesting that when it came to actually junking section 377 of the IPC, which criminalises gay sex, the Supreme Court actually failed to strike it down. It failed to protect the fundamental rights of citizens with different personal preferences.
#6: Articles 25-30, which deal with the rights of minorities to their religion,traditions and cultural and educational institutions, can be merged into one to effectively say that all communities will have equal rights to preserve,practice and propagate their religious and cultural heritage, and to run their own educational and religious institutions, subject only to the country’s civil and criminal laws. Currently, laws to protect minority interests are read as the right of states to intervene in the same rights of the Hindu community.This discrimination must clearly end.
#7: The preamble to the constitution cannot prescribe what specific road the state must take in terms of economic ideology.During the emergency, when opposition leaders were in jail, Indira Gandhi make India a “secular” and “socialist”republic. While one can argue that the existence of these words did not prevent PV Narasimha Rao and Manmohan Singh from rolling back socialism in 1991, the point is if economic policy is going to be pragmatic rather than ideology driven, why commit the state to pursue such ideologies?
Removing “socialist”does not prevent a future government from pursuing socialist policies, just as the 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 the Indian context is “plural” and not “secular”, which has a European meaning. By using it in the Indian context, we have mangled the meaning of secular out of shape. It now means nothing, while “pluralism” means accepting and promoting diversity of all kinds. It is a more inclusive and meaningful word in the Indian context.
#8: The scope of article 15 needs to be expanded. This article promises that the state shall not discriminate on “grounds of religion, race, caste, sex or place of birth”.It needs to be expanded to include age, physical disabilities, etc. The proviso must be that if there is any discrimination on any grounds, it must be specifically justified by a special law.
#9: The representation of states in the Lok Sabha should be proportionate to their relative population sizes, and adjusted every 30 years. The total number of seats a state gets has been frozen since independence, largely in order to give them an incentive 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 16.5 percent of India’s population and 14.7 percent of Lok Sabha seats; it gets 80 seats when 90 should be ideal. Bihar and Rajasthan are also grossly underrepresented.
While the idea that seat allocations should change is politically contentious, the imbalance cannot continue forever. It goes against the principle of equality enshrined in the constitution. You can’t have fewer representatives for some parts of India and higher for others. The best compromise would be to change Lok Sabha seats according to a state’s share of population once in 30 years, and compensate the losers (Tamil Nadu, for instance) with a higher share of Rajya Sabha seats, so that the balance is restored. Tamil Nadu may lose seven Lok Sabha seats, but gain the same in the Rajya Sabha.
#10: The directive principles 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 of law, have 17 different ideas in them, from enacting a uniform civil code, to introducing prohibition or protecting cows. The list needs to be whittled down and focus on principles – like ensuring universal 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 need more than 10 broad directive principles, especially when the preamble itself spells out broad approaches to promote equality, liberty and fraternity and non-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 new constituent assembly, the best thing to do is chip away at the above egregiously inappropriate provisions and fix them one by one.
[R Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi]
This article was first published on Swarajya on 14 April 2016