A few days before Republic Day, we were given the most sweeping indictment of our failures as a constitutional republic.
The Justice JR Verma Committee on Amendments to Criminal Law, set up barely a month ago in the wake of the horrific Delhi bus gangrape, was supposed to suggest changes to laws to ensure protection of women and effective prosecution of rapists and other sex offenders. But what it has effectively done is pronounce us all guilty—from the most powerful to the ordinary citizen—of failing the test of constitutionalism and republicanism.
Sixty-five years after independence, and 62 years after declaring ourselves as a republic, we are neither free nor republican-minded. Without explicitly saying so, Verma suggests that the Indian state has failed on its constitutional duties.
Says the committee: "We wish to base a large number of our conclusions on the theory of the constitution. The actions of those in authority have been in conflict with constitutional theory under which citizens of India are entitled to equality."
To politicians who justify their actions—or inaction—on the premise that since they have been voted to power, they represent the will of the people, Verma retorts: "It is important to state that, even though a government may enjoy popular public will, unless and until its actions are informed by constitutionalism, it will be unable to discharge the obligations towards citizens which are guaranteed under the constitution. The way in which these rights are made visible in life, society, and on a practical and continual basis, is the obligation of the state. This cannot be more telling in the context of women, their rights and their empowerment."
In short, the state has failed us.
Even though Verma’s observations and conclusions are made in the context of women’s rights and gender injustice, the argument holds equally in all spheres – whether it is caste inequities, religious intolerance, denial or human rights, or any other form of injustice.
In the Verma Committee’s opinion, "The ideology and the conduct of political parties, and all constitutional institutions must bear the character of a republic. It is important, therefore, that our public life as well as society must be capable of reflecting republicanism. India’s democracy, as well as sovereignty is contingent on the realisation of the ideal of social justice. We are, therefore, of the view that gender inequality is contrary to the unifying idea of a sovereign, democratic republic."
Where the Verma committee fails is in its inability or unwillingness to identify the reasons for the failure of the Indian state and its political parties to remain republican and democratic in character, and eager to defend human rights. Suggesting corrective action—whether for women’s rights or anything else—is pointless unless you know what has gone wrong. He has suggested remedies without a diagnosis.
If the "ideology and conduct" of our political parties do not reflect the democratic character of the republic, we need to know why our people and parties have collectively subverted the constitution. Our politicians cannot subvert the constitution without wider electoral sanction.
The committee quotes Ambedkar to suggest that the constitution is fine, but we messed up as a people. Ambedkar said at the time of the constitution’s adoption: "I feel that the constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new constitution, the reason will not be that we had a bad constitution. What we will have to say is that man was vile."
Two conclusions can be drawn from Ambedkar’s statement: if men are vile, then it is our attitudes as a people that need fixing first, not the constitution. On the other hand, if we assume that constitutions are meant to define what is acceptable in terms of citizen’s behaviour, it is not possible to assume that we have the right constitution to enable behaviour change either.
Put another way, the state has failed, the constitution has not lived up to expectation, and we as a people have failed to make either the state or the constitution work.
In fact, over the years we have made our laws more and more draconian and rigorous in the hope that we will fix our polity. But the pace of change has been slow, excruciatingly slow. We have seen over 100 constitutional amendments, and we have several draconian laws (the Armed Forces Special Powers Act, the Unlawful Activities Prevention Act) to protect our people, and many others specifically to protect the weak and poor – for Dalits, for women, for tribals, etc – but we continue to see more failures than success.
We are surely missing something here since constitutional changes, special laws and man-making has failed.
This writer believes that that missing something is decentralisation. We are simply too centralised to make our polity work.
A nation of 1,210 million and with such diversity is simply too big to be run from Delhi, or even some of the state capitals. Uttar Pradesh would be the fifth biggest country in the world. It is probably one of the least efficiently run states. A mid-sized Indian state like Kerala with a population of 33 million is as big as Canada or Iraq. Maybe it needs to become two states.
Given this reality, the prime constitutional change we need is to super-federate both in terms of division of powers, and reduction in the average sizes of states.
A super-federation would mean the following:
One, the role of the centre would be reduced to defence, foreign affairs, a unifying fiscal and monetary policy with in-built constitutional provisions for the redistribution of resources from rich to poor states, administration of central taxation, managing the federal judiciary, and some broad responsibilities that cannot be delegated to states.
Two, the average state has to be empowered to make most of its own laws, complete with its own Supreme Court – as in the United States. It should not have a population of more than 20-50 million, depending on administrative ease.
Three, the big cities must become independent city-states within the Indian Union so that they can be drivers of growth. The Delhi National Capital Region has 22 million people, and Mumbai over 18 million. There are more than 100 countries in the world with fewer people. These are huge numbers to manage. City-states need a different kind of government than states that are a mix of urban and rural centres because they tend to attract a lot more talent and are very commercial in orientation – especially the coastal cities.
As we have noted before, growth is often driven by what can be called charter-cities – cities that are run to different rules than their hinterland. Cities like Dubai, Singapore, Hongkong, and even Shanghai. Mumbai can be a charter-city within Maharashtra – a mini-state within a state with its own administrative and governance rules and taxes. The same can be proposed for Delhi, Bangalore, Chennai, etc.
The point is simple: we are simply too big for us to be a successful republic. A huge population of 1.2 billion, or states with tens of millions of people, most of them poor, cannot be governed centrally. This is the prime cause of bad governance, where no successful economic or political governance model can ever be established since our differences over caste, religion, ethnicity and region tend to neutralise all experiments and initiatives.
An example would suffice: can we ever have consensus on even a simple idea like reservations for women in parliament? Vested interests will use caste and religion to scuttle the idea – and they have done so. But we have had no problem in reserving seats for women at the panchayat level. It’s working, but panchayats have too little powers.
The solution is to push decisions with day-to-day impact on ordinary people’s lives to the lowest possible level where vested interests cannot operate and defeat everybody.
Big changes in society of the kind envisaged by Justice Verma are difficult to manage topdown – unless we are talking very small societies.
Superfederalism is one part of the answer. Our constitution does not work because it cannot be enforced uniformly over such a diverse land. Implementing any law is impossible with centralisation.
Justice Verma’s report on constitutionalism, republicanism and gender justice will remain a dead letter till we are able to push governance responsibilities down to the most logical level.
Justice Verma has made his suggestions to the centre, but the law is effectively administered by the states. A changed law would not work without a changed mindset in the states. He has thus addressed the problem at the wrong end.