On the 63rd Republic Day, India needs to ask itself: has our constitution failed us, or have we failed the constitution? Or is it a mixture of both?
To be sure, the failure is really that of the constitution. One needs a statute not because it is a nice thing to have, but because we want to bind ourselves to a specific kind of conduct and behaviour in public life.
It's not good enough to say that we have failed the constitution, because in that case it means we didn’t create the right constitution for ourselves. If we don’t like the old constitution, we must replace it with a better one. The right constitution for us is the constitution we really want to follow and implement. (If we are more or less happy with small-time corruption, we must specifically allow it, as some people have suggested.) A constitution is an active document, not a holy book to be preserved and revered in private.
I believe that Indians don't really like the constitution we have. So, we ought to change it. This way we will at least be true to ourselves.
In a sense, we have done this repeatedly. We have changed the constitution over a 100 times through constitutional amendment bills.
So why should we not change the current constitution itself? Maybe we need a new constitutional assembly to reflect the hopes and aspirations of the peoples of India in the 21st century.
Let's look at the preamble to the constitution and see if we can identify with any significant statement in it.
This is what the preamble says:
We, the People of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Democratic Republic, and to secure to all its citizens, Justice, social, economic and political; Liberty, of thought, expression, belief and worship: Equality, of status and opportunity; and to promote among them all, Fraternity, assuring the dignity of the individual and the unity and integrity of the nation.
After this, in the opening chapter of the constitution, we describe India, that is Bharat, as a Union of States.
Have we achieved even one-tenth of this stated goal in the preamble? My comments immediately follow every relevant phrase in the preamble (original in italics) in normal type.
We, the People of India (I would say, We,the Peoples of India, for India is a multi-identity state, we are not one people), having solemnly resolved to constitute India into a Sovereign, Socialist, Democratic Republic (Sovereignty needs independent minds and a strong political-economy; without either, we lose our ability to manage our affairs ourselves; as for Socialist, a country which can't feed half its population cannot by any stretch of imagination call itself Socialist; as for Democratic, we have looked more like a mobocracy in recent years); and to secure to all its citizens: Justice, social, economic and political (Our justice system delivers delays for those seeking justice, and benefits crooks and scoundrels; so let’s not worry about delivering social, economic and political justice); Liberty of thought, expression, belief and worship (When we won’t allow Salman Rushdie to speak even on a video-link and a MF Husain has to die abroad, this aspiration is a dead letter); Equality of status and opportunity (We have achieved neither, but democratic politics has indeed improved the social status of the deprived castes and classes a wee bit); and to promote among them all Fraternity assuring the dignity of the individual (ha!) and the unity and integrity of the nation (barely just).
Then, in the opening chapter of the constitution, we describe India as a Union of States. In fact, this is the truest part of the constitution: there is no India without its states, since the main entity is a sum of its parts – the states. The problem is the constitution then goes on to achieve the opposite – to make India a centralised country with states as vassals.
This gives us a clue on the first change we need to make to our constitution: complete separation of the powers of centre and states with almost no overlaps. Our states should be our effective nations, with India being the equivalent of European Union – which ensures free commerce, free movement of people, and defends the country from external threats, among other things. India has to be a federation, even a confederation, with Pakistan and Bangladesh having the option to join in at a later date.
Unfortunately, in the initial years of the nation, we placed too much emphasis on trying to be one nation and centralise all powers in Delhi. The fact is India cannot be governed from Delhi or any single capital. Even some of our states are too big to govern. The fall in governance standards – wrongly blamed on coalition politics – is the result of a flawed constitution that privileges central powers over state powers. Coalitions are the norm in much of Scandinavia, but is there any lack of governance?
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This area of the constitution – the division of powers between centre and states – needs to be completely rewritten. In fact, there is scope for each state to have its own constitution, with only the broader goals of free movement of people and commerce and defence being allotted to the centre. Once this happens, we can deal with a Kashmir and Telangana and Nagaland more sensibly.
In the absence of this separation of powers, we have a Mamata threatening the centre on minor issues. We have the centre threatening lawfully-elected governments in opposition-ruled states. We have allowed our flawed constitution to create anarchy and poor governance. In a reworked constitution, a Mayawati would be happy to rule UP instead of aspiring to rule India without really performing in her own state. Only national parties would compete nationally.
In fact, in an ideal constitution with redistributed power, article 356 – which allows the centre to remove state governments – should either be abolished or replaced with a duality of power: the centre should be able to act against states that are not being governed constitutionally; equally, a qualified majority of states should be able to replace the central government if it doing damage to the federation.
Another element of the constitution should be to give people the right to limited internal secession: any territory or people should have the right of self-government within the broader India, and this process should be mediated through constitutionally-valid referendums.
The purpose of this evaluation is not to criticise the old constitution or its provisions, but to modernise it in the context of the completely different world we live in.
Our constitution-writers lived in a world of nation-states, a world emerging from the clutches of colonialism. India’s constitution was modern for the mid-20th century. It isn’t now. Of course, the US has a constitution that has been practically remained unchanged for 200 years. But this is not relevant. The US had a modern society even then – the constitution thus merely upheld what the people wanted. We don’t have modern minds even now. And we are more diverse than what the US was even in the 18th century. We need a different constitution that meets our current needs.
Moreover, the world too has changed dramatically.
Today, we live in a virtual world, where instant access to information makes nonsense of the old territorial idea of a nation. Nations are states of mind and affinity – they require physical borders only in order to enforce law and order and make administration technically feasible. You can’t really administer cyberspace, virtual worlds and independent minds – however hard Kapil Sibal and Markandeya Katju may want it.
The communities we connect to are not just the old groupings of race, religion, caste, gender and language, but communities of interest and active association and involvement. As Amartya Sen points out, we all have multiple identities, but the idea of multiple identities is terrible. Only schizophrenics have multiple-identities; individuals have only one identity, but with many dimensions to it. Our minds live in separate virtual universes simultaneously — I could be a journalist, a father, an internationalist, and a nationalist and many more things at the same time.
If we accept the basic idea that nations are a state of mind, the idea of what constitutes a state – and what duties it should perform – also needs redefinition.
Should the state be an all-powerful entity that can regulate all aspects of its citizens’ lives, or should it be only a facilitator in important areas?
This question is important not only in authoritarian regimes, but also in democratic ones. The size of the state in the US and Europe is huge – thanks to the kind of tasks it has taken on, to serve its citizens from cradle to grave. The US and European economies are crumbling because their citizens have over-extended the state and it is crumbling under its own weight and hubris.
This is the kind of state that thinks it can snatch the children from Anurup and Sagarika Bhattacharya on the assumption that it knows best what is good for the kids. And in this same state, which thinks it has all the answers on parenting, we find a misfit called Anders Behring Breivik who killed 77 of his own people in July to teach them a lesson.
Clearly, the state does not have all the answers to the problems of society. In the 21st century, the state should see itself as an enabler except in areas where no one else is willing to step forward. In business, for example, companies compete, governments can only enable. The job of government is to enable companies to compete, not compete itself.
Similarly, we know the fate of how badly social sector schemes are managed in India. If the hungry must be fed, the state must enable the feeding of its people through appropriate laws and tax-breaks, and not necessarily try to do the job itself. It has to help create incomes, and offer safety nets for the poor when there is no one else to do the job; but if there are others willing to do this, the state’s job is to enable, monitor and audit this work.
We can go on and on and on. But 62 years after we became a republic, we have to examine all our premises as a nation. Maybe, we need a new constitution for a different nation by recognising all our sub-nations.