LAW RESOURCE INDIA

The Republic in retrospect

Posted in CONSTITUTION, DEMOCRACY, JUDICIARY, SUPREME COURT by NNLRJ INDIA on February 10, 2010

GRANVILLE AUSTIN IN THE FRONTLINE

At 60 the Indian Republic has come a long way, but it has to travel a greater distance to achieve the goals set in the Constitution.

ANY people that sets out to govern itself assumes a monumental task. Who are “we?” Are “we” a congeries of groups, or something that might realistically be called a nation? What do we want from self-governance – our form of political and administrative organisation; our form of representation, the reach of suffrage; the kinds of laws and the institution that should oversee their justness and effectiveness – especially for the lower classes in society; what should “our” goals be for the entirety of this new thing that we are creative? Are we going to write this all down – and call it a “constitution”?

JAWAHARLAL NEHRU

JAWAHARLAL NEHRU

The public figures gathered in New Delhi in 1946 confronted all these and more issues. The Indian Constituent Assembly declared three grand goals for the founding document: They were protecting and enhancing national unity and integrity, establishing the institutions and spirit of democracy, and fostering a social revolution (often called socialism) to better the lot of the mass of citizens. As essential as were the goals, individually, the framers believed that none should be pursued at the expense of any of the others. They were mutually dependent.

Of course, the institutions for government created in the Constitution also were mutually dependent whether or not their responsibilities put them at odds. The judiciary often struck down parliamentary legislation as not in accordance with the Constitution. Parliament responded, first in 1951, with an Act that placed certain land reform laws outside the Supreme Court’s jurisdiction. In 1973, the government, during Indira Gandhi’s prime ministership, did its best to curb the court’s reach and, indeed, to bring it closely under the influence of the executive branch. The relationship between the court and the government was soured several more times during the 1970s and 1980s and the first few years of the 1990s before stabilising since then.

In federations that may find themselves facing issues where Central government authority may be at odds with actions by the constituent units’ governments (State legislative and executive actions) Supreme Courts are typically called upon to settle the disputes. Somewhat surprisingly, the court in Delhi seldom has been called upon to adjudicate these “federal” cases. It has been approached through political channel – the dominant party at the Centre bringing its power to bear on the party dominant in the Legislative Assembly in the State. When the Congress party was powerful, nationally, this was comparatively easy. As other political parties won power in the States, the task was far more difficult. In the late 1960s and in the 1970s, with Indira Gandhi in office as Prime Minister, she clipped the wings of the Congress in the States and outmanoeuvred other State parties. This trend culminated in her well-known Emergency, in which her government and Parliament, over which she had unchallenged influence, held authoritarian sway over the entire country.

This degree of “centralisation”, to employ an inadequate euphemism, had been seen in milder form for two decades. State governments had been complaining about New Delhi’s policies to exert influence over them. Chief Ministers formed committees in protest, offering recommendations for measures, constitutional and less formal, to restore greater balance in the federal relationship. The Centre, for its part, devised methods to bring the Ministries and the State governments together for problem solving. These efforts, however, typically bore New Delhi’s stamp and were unpopular with the States, which continued to level charges against centralisation. The report of the Commission on Centre-State Relations, chaired by Justice R.S. Sarkaria and published in 1983, proposed alterations in constitutional provisions and extra-constitutional political practices that, if implemented, would have markedly improved the situation.

None of this should startle us greatly for the Constitution tips the scales of power towards the Central government. The mood among the framers was anxiety about national unity and integrity. Partition was only months in the past; Kashmir’s status was undecided; there were murmurings of separatism among the Sikhs; Telangana was in revolt; the north-east was uneasy (as it since has continued to be); secularism versus communalism worried Jawaharlal Nehru and other Congress leaders; economic planning and development depended upon national unity. Still, Centre-State relations have worked. India now is a united nation, blemishes notwithstanding. If Telangana does become a State it is unlikely that its relations with New Delhi will vary significantly from those of other States. Most important was, and is, that the Constitution is two documents, a national constitution and a constitution for the States – a situation that seems to have had little effect on Centre-State relations. The appearance of independent political parties in States will reduce the ability of the Central government and its constituent parties to meddle in State affairs. Violence by naxalites, however, persists as a dangerous matter. But not more so than exploitation of peasants by alliances between politicians and economic “developers”.

From time to time during the past 60 years, theorists have argued that federal and parliamentary systems fit ill together. In India’s situation I, personally, think that little would be gained from changing to a presidential system. Beyond the vast subsidiary changes that would be entailed, States would still be dependent on the Centre’s power and largesse. Related to this consideration is the often raised query: “Does the Constitution need significant change to make it work better?” Perhaps. I am not a student of the question. My reaction to the suggestions I have heard is that they are premised on the fantasy that a change in the Constitution’s wording would reform human, political conduct. Yet improving human behaviour never has been so easily achieved. Substitute the word “draftsman” for “doctor” and “Constitution” for “patient” and you have, “The draftsman survived, but the Constitution died.”

Thanks to the character, humanity and prescience of the founding fathers, and mothers, the Constitution has been “the cornerstone of the nation”. Reduced to its barest essentials, it is a template for national administration (thanks in great part to the Parliament in London and its 1935 Government of India Act) and a document meant to establish the nation’s social reform goals and to write down the constitutional mechanisms to be used to reach them. These appear throughout the Constitution – in the Fundamental Rights and the Directive Principles of State Policy, and in the provisions for special treatment for various minorities and backward sections of society. As Vice-President S. Radhakrishnan put it, India must have a “socio-economic revolution… [to achieve] the real satisfaction of the fundamental needs of the common man… [and] a fundamental change in the structure of Indian society.”

The Constitution’s Preamble says that it is to secure to all its citizens

JUSTICE, social, economic, and political and

EQUALITY of status and opportunity and

FRATERNITY assuring the dignity of the individual.

The nobility of these goals is exceeded only by their ambition.

For India is a “survival society” – a society characterised by hierarchy and want. The “want” stretches from the man who is striving for two chapatis for himself and his family when he has one – the tenant farmer, the agricultural labourer, the Dalit, the member of the backward classes – to the person at the top of society – as defined by economic status or caste – who strives to maintain the contacts in government that bring him money, who assures his son a place in a university or a good school (perhaps with a little gentle bribery), to him who, no matter what his caste or income, follows the scriptural injunction to promote the well-being of his family before that of his neighbour.

The well-known social thinker R.C. Dutt has said that “the moral atmosphere of the struggle for existence…has provided ample opportunities for corruption and for collective self-aggrandisement at the expense of the poor”. P.N. Haksar, for some time secretary to Indira Gandhi, has said that members of “our civil services…are committed first of all to themselves and to their nuclear family…[and beyond this] to members of…his sub-caste, caste, community, and region.”

Himalayan barrier

These characteristics of Indian culture, have constituted a himalayan barrier to achieving the creed of the Preamble. Yet, the provisions of the Constitution have chipped away at the barrier with some success. Adult suffrage has been its principal tool – even though candidates elected may promptly ignore the promises they have made to constituents. As injurious to the integrity of adult suffrage – and certainly to its reputation in India and abroad and to Parliament and several State legislatures – has been political parties giving the ticket to known criminals to contest elections. On the plus side, suffrage continues to spawn political parties and active politics and an open process for vote seeking. The Fundamental Rights and the security measures put in place by the Election Commission have protected voters’ rights. Social action legislation and group activity and the increasing energy shown by panchayats have enlivened villagers’ political involvement. Reservation of seats for various classes, castes and women in education, legislative bodies, including panchayats, and the civil services have brought previously unrepresented individuals and groups into national life. Great controversy accompanied such developments.

Recently, long-argued issues have re-emerged: the definition of “backwardness – caste or class or poverty”; whether reservation is equalising downward or upwards; whether reservation/concession tends to become vested interests; whether reservation/concession engenders a spirit of self-denigration among the people. What is basically important here is that legislators, lawyers, and the courts are considering these questions seriously. Faith in the Constitution is widespread among the wide variety of constituencies.

In a speech given recently on Human Rights Day, the noted advocate Fali S. Nariman said: “It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed [in the year 1950] to be achievable goals.” Nariman added: “The remedy to effectively countering discrimination…is not by law, but in attitudes… [which] must change.” The noted political thinker Andre Beteille summed up this appraisal when he wrote that “a constitution may indicate the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace”.

A success despite frailties

The Constitution and its seamless web of democracy, social revolution, and national unity and integrity have met India’s needs. It is fair to say that it has been a success despite some frailties – which might, with political will, be easily remedied. Yet the Constitution has presented a paradox: the sturdiness of the system it has provided has permitted vast deviations from its system and its spirit, by those who would ignore them or distort them. The Constitution has provided protective coloration much as an animal or a bird changes its appearance without changing its being. Praising its provisions has given licence to those who would ignore them to do so. Democracy was subverted by the First Amendment’s placing of the land reform legislation beyond the Supreme Court’s jurisdiction, by the executive branch’s many attacks on the court’s independence, and by the imposition of the monstrous Emergency in 1975.

The Preamble’s promise to seek justice, social economic and political, and equality of status and opportunity – and the vainglorious addition of the words “socialist” and “secular” to the Preamble by the 42nd Amendment left conditions for Dalits and other backward castes much as they long have been. I must add here that adult suffrage, and its accompanying effect of caste encouraging political mobilisation for voting, and reservation policies have increased citizen participation in democratic processes – although caste-against-caste oppression still may be savage. To compare political conditions in, say, 1945 with those in India today demonstrates how far representative government has come during the interim.

India under the Constitution has come a long, long way in 60 years – not to forget the distance it still has to go. The critics who downplay its achievements lack understanding and empathy – particularly American critics, whose democracy has serious difficulties no matter where they look. Indeed, not looking is one of their difficulties. Indian citizens have much to be proud of, but should avoid smugness. A remedy for it could be to ask themselves what the members of the Constituent Assembly might think if, like Rip Van Winkle, they awoke tomorrow.

With Independence we have lost the excuse of blaming the British if anything goes wrong, Ambekdar told the Assembly. We will have nobody to blame except ourselves.

Historians of constitutional developments in India are unlikely to be without a job. There is too much going on, too much to puzzle over, to learn. One matter, among the many others, especially perplexes me. Can India be a great democracy, strong in itself and in the eyes of the world, so long as so many of its people are denied the promise of the Preamble?

Granville Austin began his study of India and the Constitution in 1959. He has published two books on the subject: “The Indian Constitution – Cornerstone of a Nation”, 1966, and “Working a Democratic Constitution – A History of the Indian Experience”, 1999. He holds a D.Phil degree from Oxford University.

http://www.hinduonnet.com/fline/stories/20100226270400400.htm


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