Much energy has been expended on elaborating the constitution of India, more than often in legal terms. It is considered to be a lawyer’s paradise. The argument in this essay suggests that the constitution can be predominantly thought of as a political document. As a political document, it is prescriptive as well as regulatory. The Indian constitution is prescriptive because it institutionalises the ideals of democracy. Left to itself, democracy can go completely haywire. It can be reduced to elections – as it has been in today’s India. Equally, it can descend to mob rule that Greek philosophers were so wary of. Without a constitution, we will never know that there is more to democracy than just elections. Without a constitution that establishes that human beings deserve to be treated in certain ways, with dignity, and not to be treated in other ways – for example, subjected to custodial torture – democracy will come to a standstill after a winning party takes over power.
Elections are essential for democracy, but they are but a moment in the life of a democratic country. The essence of democracy is the right of human beings to live lives they consider worthy. In order to live worthwhile lives, every citizen has to be provided with the necessary preconditions of a good life ranging from the right to life and liberty, the right to political participation, and the right to dissent, to the right to health, income, education, food and shelter. Without sustenance, a human being can hardly be free. Without liberty, an individual – even if she is not hungry – is also not free. All human beings are owed the preconditions of a fulfilling life. Below this, we cannot fall.
The constitution is regulatory because liberal philosophers have been wary of two factors that can cripple democratic life: demagogues and brute majorities. They aspire to contain both these factors. In the Constituent Assembly, on November 25, 1948, Dr B.R. Ambedkar warned that we can only maintain democracy when we observe the warning that the liberal philosopher John Stuart Mill had issued to all who are interested in the maintenance of democracy. People should not “lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions. There is nothing wrong in being grateful to great men who have rendered life-long service to the country but there are limits to gratefulness”. He quoted the Irish Patriot Daniel O’Connel who had said that “no man can be grateful at the cost of his honour… and no nation can be grateful at the cost of its liberty.”
The caution, continued Ambedkar, is even more necessary in India.
“For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”
Ambedkar’s warning was prescient, for Indians have revealed a troublesome propensity to hero-worship leaders they see as strong and decisive. This happens despite the recognition that muscular populists who appeal to people directly over the head of institutions and procedures subvert democracy. Whether it is lawmaking, policy formulation, or justice, democratic procedures demand patience and sobriety, constant awareness of what the impact of policies will be, and constant vigilance against those who wreck constitutional integrity and propriety in impatient pursuit of their own interests. That is why democratic countries provide for bicameral legislatures so that sufficient time elapses between the introduction of a Bill and its final adoption as law. Democracy requires not only patience and care by lawmakers, it requires a Janus-faced civil society that looks towards the state as well as power equations within its own domain. The task of civil society is to bring to light acts of omission and commission by the government as well as oppression within its own domain. The constitution regulates democracy through the institutionalisation of procedures and limits on power.
India’s democracy might have failed us in many ways, but constitutional guarantees of a life of dignity have provided enough political inspiration to social movements to agitate for the realisation of rights. Civil society groups have mobilised for civil liberties since the 1970s, for environment protection since the 1980s, and for social rights in the 1990s and fourteen years of the 21st century. Women’s movements, anti-caste movements, the movement against communalism, and movements for the right to sexual preferences have highlighted urgent issues in the life of our society. Many of these movements have been backed by a supportive Supreme Court. Today, civil society is threatened, and limits on power have been dispensed with. Will this new elite, of a presumably New India, even know how to write a democratic constitution which can be compared favourably to our present one?
Bibek Debroy, the chief of the economic advisory council of the prime minister, has called for a ‘new constitution’. Photo: PTI/Files
The constitution as a political document
The constitution is significant for Indians for several reasons. For one, the Indian constitution was not imposed upon us by a colonial power. It was the product of a mass freedom struggle, the culmination of one the greatest mass movements in the history of the 20th century. The movement brought together members of all religions and creeds, class, caste, and gender. Leaders, public intellectuals, and progressive writers and poets inspired thousands of people to come together and protest against colonial policies, demonstrate against unjust laws, readily go to prison, and sacrifice their lives if necessary for the freedom of the country and the right of Indians to forge their own future. Leaders demanded not only that Indians write their own constitution but that they do so in a Constituent Assembly elected by universal adult suffrage. Indians joined hands and marched together, fired up by passionate speeches and even more inspiring protest poetry in Urdu across the country.
For long, Urdu was the language of informed and cultivated minds – evocative, elegant and beautiful. Today, Urdu is regarded as the language of the enemy, and Urdu speakers are identified as the ‘Other’. The cynical politics of majoritarianism and defenders of Brahmanical and Sanskritic Hindi forget that revolutionary poetry, which mobilised an entire generation of freedom fighters, was written by both Hindu and Muslim poets. For instance, Brij Narain Chakbast (1882-1926) movingly wrote:
“Yeh Khaak e Hind se paide hain josh ke aasar
Himalaya se uthe jaise abr-e-daryabaar”
“From the dust of Hindustan have arisen signs of energy and passion,
the way rivers gush from the Himalayas.”
And Bismil Azimbadi (1901-1978) wrote the marvellous poem in 1921:
“Sarfaroshi Ki tammana ab hamare dil mein hai;
dekhna hai zor kitna baazu-e-katil mein hain”
“We passionately desire to lay down our lives
Now let us see how much courage is there in the arms of the executioner”
Maulana Hasrat Mohani (1875-1951) coined the phrase ‘Inquilab Zindabad’. This became the rallying cry of the freedom struggle, the anthem of revolutionaries. He demanded Azaadi e Kaamil or complete independence in 1921:
“Rasm e jafa kaamyab dekhiye kab tak rahe
Hubb e watan mast e khwab kab tak rahe
Daulat e Hindustan qabzah aghyar mein
Be adad O behisab dekhie kab tak rahe”
“Let us see how long we are oppressed
How long freedom remains but a dream
And how long the British plunder India’s riches”
When Bhagat Singh, Raj Guru, and Sukhdev marched to the gallows, they raised the slogan of Inquilab Zindabad.
Bhagat Singh, Sukhdev and Rajguru.
Revolutionaries were inspired by Chandrashekar Azad’s (1906-1931) poem:
Dushmanon ki goliyan ka hum samna karenge
Azad hi rahe hai, azaad hi rahenge
We will face the bullets of the enemy
We have been free and we will continue to be free
They were equally motivated by the poet of revolution Josh Malihabadi (1894-1982):
Mera naara, inquilab O inquilab O inquilab
My slogan is revolution, revolution, revolution
How can we differentiate between Hindu and Muslim poetry and poets? Both passionately desired freedom to make our own destiny, and both wrote amazing poetry to capture political resistance as well as their dreams of independence. They were supported by writers and theatre and film actors. Bhisham and Balraj Sahni, Prithviraj, Raj and Shammi Kapoor and a number of stars including the debonair Dev Anand, as well poets Jan Nisar Akhtar, Sahir Ludhianvi, and Sardar Jafri among others, spoke up and marched against communalism, poverty and social oppression.
The progressives taught us that society has to look outwards towards imperialism, but it also has to look inward and focus on the many contradictions, oppressions, and tyrannies of our own society. Liberation is incomplete unless Indians liberate themselves from a caste-bound, religiously bigoted and patriarchal society. They radicalised the freedom struggle.
They also radicalised literature and poetry because they showed Indians another way beyond the Hindu-Muslim binary: the domain of sensitivity and solidarity forged by the overpowering need to tackle the ills that beset the human condition. Human beings cannot be essentialised and reduced to their religious identity. They are capable of walking another path: solidarity with the oppressed, compassion for the poor, and sensitivity to the sufferings of their people. The Indian constitution was born out of these sentiments. Recollect that fraternity is stated to be one of the objectives of our secular, socialist, democratic Republic in the Preamble of the Constitution.
When the time came for our leaders, who had passed through the fire of struggle, to write the constitution, India was Partitioned. Destruction and death formed the backdrop to the making of the constitution. Rajendra Prasad, who presided over the deliberations of the assembly, put the matter in a nutshell. On December 11, 1946, he stated:
“The Constituent Assembly is meeting at a most critical time. We all know that other constituent assemblies, whenever and wherever they met, were confronted with similar difficulties. They had also to contend with internal differences which were placed before them with great vehemence. Many of these constituent assemblies were held amidst strife and bloodshed; even their proceedings were conducted amidst quarrels and fights. Their members joined together and with courage, kindness, generosity, tolerance and regard for one another’s feelings framed constitutions which were then readily accepted by the people of the countries for which they were framed.”
This was the specific mandate of the Constituent Assembly, to create a constitution in a spirit of courage, kindness, generosity, tolerance, regard for each one another’s feelings and solidarity. The task was difficult. The horrors of the Partition had reduced Indians to their primeval identities – Hindu, Sikh, and Muslim. The miracle is that a democratic constitution that provided for the rights of minorities was written amidst the debris of destroyed homes, workplaces, temples, gurudwaras, and mosques.
On December 9, 1946 the Constituent Assembly met in the central hall of the magnificently elegant and famed circular building in Delhi, which after independence became India’s (first) Parliament, to draft a constitution for a people headed towards independence. Jawaharlal Nehru took care to emphasise that the Constituent Assembly was not a gift of the colonial government. It was the outcome of a number of initiatives taken by the leaders of the Indian National Congress; it was the product of the intellectual labour of Indian jurists, public intellectuals, and creators of the freedom struggle. Collectively these initiatives had smote the fundamental principles of a democratic polity onto a political stone since the turn of the twentieth century.
Introducing the Objectives Resolution in the Constituent Assembly on December 13, 1946, Nehru memorably remarked in his inimitably elegant prose: “words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion.”
This resolution cannot convey this passion, continued Nehru, it very feebly tells the world of what we have dreamt of and what we now hope to achieve. What the makers of the constitution wished to achieve was nothing less than a stupendous transformation of society, the polity and of the economy after 200 years of colonial rule. The soul of the constitution was the charter of Fundamental Rights, the institutionalisation of checks on the exercise of power, and popular sovereignty.
Group photograph of members of the Constituent Assembly of India (Legislative), 1949.
The day the constitution was promulgated on January 26, 1950, was tinged by sorrow at the tragedies of the Partition. The makers were also overcome by the prime responsibility of the makers of the constitution: to bring together a divided society. The Preamble embodies the ideals of a generation that fought for independence. It was designed for generations that were to follow.
What ideals do people who want to rewrite the constitution represent? What is their ideology or their experiences of solidarity with the oppressed, or even their understanding of what India stands for – pluralism and tolerance, secularism and democracy, freedom, equality and justice for every citizen? The record of the current power elite is not too encouraging when it comes to the democracy that the constitution institutionalises and protects.
Also Read: All Those Demanding a New Constitution Are Fighting for a Less Equal India
What will happen if the constitution is rewritten?
Shall we think about what will happen to us if the constitution is abolished or rewritten in the interests of the ruling class? For one, we will be saddled with a leadership that is not of our choice, which is not even nominally accountable to the political public, and one that disdains popular opinion. Now we know that even if we elect a morally callous leadership, it has to come back to us after five years begging for votes. There have been times when the people of India have given a fitting reply to authoritarian governments. In 1975, Indira Gandhi’s Congress government declared an Internal Emergency. Civil liberties were suspended, the courts and the bureaucracy lost autonomy, and hundreds of political opponents were jailed. In 1977, Mrs Gandhi lifted the Emergency and called for elections. The Congress was spectacularly defeated, and she not only lost her constituency but also her deposit. The people of India knew that the suspension of their rights during the period had violated our democratic constitution.
Two, imagine what would happen if the constitution was rewritten without the Chapter on Fundamental Rights. We will be left helpless, vulnerable to state power and to the power of the dominant classes. We will live in a state of anomie and fear straight out of George Orwell’s 1984. We will be subjected to laws that are neither limited by propriety, nor by legislative procedures. Today, even if the ruling party can push through legislation without submitting Bills to the parliamentary committees because it is in a majority, we know the procedure – and consequently the law – is unjust. We know because the constitution establishes a criterion to judge which law is or is not justifiable. We will lose this criterion, the guide to good legislation, and the measure of justice.
In an India which still remains short of being a good society, our dreams of freedom, our aspirations to be as equal as other fellow citizens, and our passionate desire for justice will remain unfulfilled. We will become subjects of an authoritarian state, no longer citizens of a proud Republic. We need our constitution simply because palpable checks on the propensity of governments to exercise uncontrollable power are necessary. We do not know if a constitution that is written by a party that is dedicated to majoritarianism will ever think of including justice within the Preamble. It is time to worry.
Neera Chandhoke was a professor of political science at Delhi University.
