Opinion: Case against new Constitution

Ambedkar had said: “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good”

By Manish Narwade

The Emergency period in India is often recalled as a time when the country’s constitutional framework faced a breakdown. However, this breakdown was orchestrated by Indira Gandhi through a political approach, where she, as Prime Minister, held responsibility for undermining the constitutional order.

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This is very different from the American constitutional breakdown during the American Civil War (1861 to 1865) when Abraham Lincoln’s electoral victory played a key role in sparking the secession of southern states from the Union. Rather, it was the individuals from southern States who revolted against the backdrop of their interests, breaking the constitution through social terms. The constitutional crisis was from the civil society itself, rather than from political institutions.

Indira Gandhi used a lower court judgement as a pretext for declaring Emergency and jailed her principal parliamentary opponents. Later, the Moraji Desai government passed amendments guaranteeing that there would not be another round of Emergency. The Constitution was placed and later Indira Gandhi won by a landslide and never again dared to challenge the constitutional aspects of democracy.

Judiciary and Constitution

Soon after Prime Minister Narendra Modi was elected, a similar effort was made by bringing the National Judicial Appointments Commission, which was seen as a direct assault on the judiciary and separation of powers enshrined in the Constitution. The Judges did not allow the assault and stuck down by a panel vote of 4 to 1.

Bibek Debroy, chairman of the Prime Minister Economic Advisory Council, recently wrote an article in ‘Live Mint’ stating that ‘There’s a case for we the people to embrace a new constitution.’ He stated that the current Constitution is largely based on the Government of India Act, 1935, giving it a sense of colonial legacy.

In the real sense, the Government of India Act, 1935, was made for Indians. The current Constitution was meticulously crafted by the Constituent Assembly, addressing the country’s complex realities through an extensive and descriptive draft. It has undergone over a hundred constitutional amendments, rendering it a ‘living document.’

Recently, the Chief Justice in the case ‘Article 370’ pointed out that Article 3, made it mandatory for the President to consult the State legislatures before altering the status of a state. Bibek Debroy critically analysed the problems and Vision of 2047 while questioning the Governor’s role. The Supreme Court has analysed the Governor’s role from time to time. For instance, recently in the ‘Sena Vs Sena’ case, the SC slammed and criticised the Governor’s role. The apex court also ruled on the selection of Chief Election Commissioner and directed the setting up of a high-powered committee, consisting of the Prime Minister, Leader of the Opposition and Chief Justice, to appoint the CEC. This shows how the institutions are placed to attain the idea of liberty, equality and fraternity.

Social Liberty

What Constitution does India need for 2047? In this regard, it would be to attain social, economic and political justice, the abolition of untouchability, and building houses for Scheduled Castes in the villages and not on the outskirts. “So long as you do not achieve social liberty, whatever freedom is provided by the law is of no avail to you,” said Dr BR Ambedkar. In the ‘Puttaswamy’ judgement, courts have broadened the definition of liberty.

By nullifying Section 497 of the IPC in the ‘Joseph Shine’ case and legalising same-sex marriage, the court has from time to time with the help of provisions of the Constitution evolved the definition of liberty. The real meaning of the words Secular, Democratic, Justice, Liberty and Equality have only broadened with time. The Constitution has also made provisions for the economic reforms of 1992 by enlarging its view on liberty and equality. Attaining social liberty should be the goal.

Affirmative Action

The Constitution through Article 15(4) has permitted States to make special provisions for the uplift of the socially and backward classes (majorly Scheduled Castes and Scheduled Tribes). This paves the way for affirmative action for the unprivileged classes. The US Constitution which lacks these provisions makes affirmative actions on the will of the legislature or Supreme Court. The US Supreme Court in the case ‘Students for Fair Admission vs. President and fellows of Harvard College’ held that admission does not comply with the principles of equal protection, hence ending the race-based affirmative actions in college admissions.

In India’s case, for instance, the Supreme Court in the judgment ‘A Periakaruppan Vs State of Tamil Nadu’ (1971) held that reservations (affirmative actions) are necessary for improving the conditions of backward classes. This shows the intellectual maturity of the Supreme Court which upheld the provisions made in the Constitution.

Bringing amendments to fix the system is welcome but the idea of embracing a new Constitution does not hold any validity. The indicators of the human development index, sustainable development goals have already been enshrined in the Constitution through Directive Principles, Fundamental Duties and more-or-less Fundamental Rights.

It is through the proper implication of laws and efficient bureaucracies that development can be achieved. BR Ambedkar’s words should be a lighting torch when he says “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good.”