Quotas, Art 370: Why BR Ambedkar would not recognise our Constitution today

It is perhaps just a coincidence that around the same time when Prime Minister Narendra Modi emphasised the permanency of the quota system in India, the Jammu & Kashmir High Court claimed that Article 370 was not a temporary provision in the Constitution, but a permanent one.

Modi, possibly with an eye on the Dalit and OBC vote in the ongoing Bihar elections, said in Mumbai on Sunday, "We believe in the principles of Dr Ambedkar and his teachings of inclusive growth. The reservation policy is something Dr Ambedkar has given to the country, and no power can take it away."

 Quotas, Art 370: Why BR Ambedkar would not recognise our Constitution today

BR Ambedkar. AFP

It is worth recalling that BR Ambedkar never intended the Constitution’s provisions to be cast in stone – especially provisions that are not central to basic values and fundamental rights. But even he may not have realised how making things super-flexible could end up subverting the core liberal ideas behind the original Constitution. With 100 amendments in 68 years, what we have today is not Ambedkar's constitution. It is closer to Stalin's ideals than Ambedkar's.

It is one thing to focus on uplifting the poor and backward, quite another to presume that permanent reservations and continued extension of the quota system to more and more communities is the right, or even the only, way to achieve social justice. With every community now demanding quotas, including the Patels of Gujarat and even some Brahmins, in due course the quota system will soon become a monster at odds with the basic principles of social justice. Modi may not be able to tinker with the quota system much, but quotas cannot be the only medicine for social injustice.

The J&K High Court last week pandered to another political constituency – the Kashmir Valley’s fixation on Article 370, which gives the state special powers that other Indian states do not enjoy. "Article 370, though titled 'Temporary provision' and included in Para XXI titled 'Temporary, Transitional and Special Provisions', has assumed a place of permanence in the constitution," the high court bench said on Saturday (10 October). The court added for good measure: "It (article 370) is beyond amendment, repeal or abrogation in as much as the constituent assembly of the state, before its dissolution, did not recommend its amendment or repeal.” (Italics mine)

This interpretation is truly a travesty. If the word "temporary" can be equated with “permanent", we might as well burn all dictionaries, as every word can be given the meaning any individual desires to give it. No one can then understand what anyone else is saying.

Just as Modi should not presume that any idea inserted into the original Indian Constitution – beyond fundamental rights – is inviolate, there is absolutely no need to think Article 370 is cast in stone. Of course, it is possible to argue in favour of more powers for all states, but a plain reading of Article 370 leaves us with no alternative but to assert that it was inserted only as a temporary measure.

Unfortunately in India, bad ideas – even when accepted temporarily – tend to become permanent in a constitutional scheme of things as even minuscule minorities have the power to block good legislation, but not the power to act positively in the national interest. The Constitution, as it now stands, thus needs a complete overhaul.

Much as we would like to pretend that whatever Ambedkar did with the Constitution was the last word in law-making, the great man himself had no illusions about what he had created. Speaking in a debate in parliament in 1953, he made it plain that much of what was written into the Constitution was the result of a broader consensus. His precise words were that he did what he was asked to do. This is what he said in reply to a member: “Now sir, we have inherited a tradition. People always keep saying to me 'oh, you are the maker of the Constitution.' My answer is I was a hack. What I was asked to do I did much against my will.”

Later on, he said quite clearly: "My friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it. I do not want it. It does not suit anybody...".

If Ambedkar could have said this barely three years after the Constitution was ratified, surely he would be the first one to take a matchbox to it. This is not to say he will want the Constitution or quotas to be dumped; just that he believed the Constitution could be changed when needed if it did not serve any purpose.

Ambedkar gave India a flexible Constitution partly because he felt that he should not tie the hands of future generations, when the needs of the country may be different from the one he was preparing the initial Constitution for. His mistake, if any, was possibly to make amendment of the Constitution too easy, and in just over 68 years of independence, we managed 100 amendments, with another couple of scores of them being lined up for the future. The US, after 240 years of freedom, has managed all of 27 amendments.

Any Constitution must be built on two ideas: a bedrock of values (like free speech, free association, freedom to carry on a profession, trade or business, equality before the law, etc) that must remain fairly unalterable over long periods in a country’s life; we can also have other (good to have) constitutional or legislative amendments that can be added or subtracted over time (right to food, education, etc) provided these do not transgress any of first set of basic values and fundamental rights of citizens. The right to quotas and free food belong to the latter category. They are not central to our constitutional scheme of things. The right to dignity and affirmative action to help the historically disadvantaged does not mean a permanent right to quotas.

But what we have seen is a consistent effort to devalue fundamental rights even while we have proliferated laws, including constitutional amendments, to further the cause of non-freedom and politically-induced freebie culture.

The first amendment to the Constitution, which put a limit on free speech, came even before the ink had dried on Ambedkar’s document. Since then, we have whittled down rights (privacy rights, property rights), even religious rights of the majority community, with the state meddling in the same. We are now a free Republic with little chains attached to every limb.

As Shruti Rajagopalan, Assistant Professor of Purchase College, State University of New York, noted, the pursuit of socialism has had the net effect of curtailing the rule of law and fundamental rights. In a paper titled “Incompatible institutions: socialism versus constitutionalism in India,” she says that the “formal institutions of socialist planning were fundamentally incompatible with the constraints imposed by the Indian Constitution. This incompatibility led to frequent amendments to the Constitution, especially in the area of Fundamental Rights. Consequently, pursuit of socialist policies gradually undermined the Constitution. The contradictory mixture of socialism and constitutionalism led to economic and political deprivations.” (You can hear her views on Youtube here.)

By passing 100 constitutional amendments in the name of socialism and the poor, what we essentially have today is not Ambedkar’s original tome, but a mish-mash of illiberal ideas masquerading as pro-poor law. It bears no resemblance to what was originally intended by our founding fathers.

Many of these amendments were carried out when the Congress party ruled both houses of parliament and in most of the states. They thus emasculated states, reduced the citizen’s rights to equality, and ground the rule of law to dust. The judiciary was thwarted with the creation of the Ninth Schedule (laws put into this schedule cannot be constitutionality challenged). During Indira Gandhi’s emergency, parliament even inserted two new ideas in the preamble to the Constitution – the words “Secular” and “Socialist.” Even if one need not quarrel with the word secular, surely socialism cannot be decreed to be an over-arching goal for the Republic? Freedom is incompatible with state direction of economic activities.

So what we essentially need today is a new Constitution that protects basic values strongly, and also realigns it to new realities. For example, it makes no sense to have a concurrent list where both Centre and state can legislate. The grey area of concurrent legislation ensures that only the worst laws will find a consensus between Centre and states – like the UPA’s Food Security Act, and Right to Education Act, the Land Acquisition Act etc – which are politically difficult to repudiate.

Our Constitution needs a complete overhaul from the ground up, with socialists mangling it out of shape. We should honour Ambedkar’s innate wish that new realities call for a new Constitution.

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Updated Date: Oct 12, 2015 23:01:46 IST