While most journalists, news anchors, politicians, jurists, even academicians and scholars always vouch for the Constitution of India and treat it as sacrosanct, the most unique and pro-people treatise of governance in the world, it is the time when we must look deep inside and find if it is really such a document and so praise-worthy.
Even if we brush aside the fact that it has ‘borrowed’ very heavily from the Government of India Act 1935, resulting into heavily tilted into the favour of the centre and from many major constitutions of the world as fundamental rights. federal structure, judicial review and independent judiciary from the USA, rule of law, single citizenship, parliamentary form of government and the procedure established by law from the UK; although it has an unwritten constitution, directive principles of state policy from Ireland, concurrent list from Australia (also the preamble from the US constitution too has a preamble, talking verbatim: ‘We, the people of that upholds the view that the government of the United States exists to serve its citizens) , distribution of powers between centre and state from Canada, fundamental duties from Russia or the erstwhile Soviet Union (where else it could have been from?), emergency provisions from Germany: again what a role model to follow!, amendment of constitution from South Africa and due Process of law from Japan, making it the lengthiest and bulkiest constitution of the world—a paradise for the lawyers and jurists—we will focus just on the preamble and provisions related to fundamental rights, touted as a bible for the equality, fraternity and freedom of citizens.
The preamble to the constitution that talks on lofty words about freedom, equality and justice—besides being borrowed from the US Constitution, is also found in the French Constitution that talks about these lofty ideals to each human being, without distinction of race, religion or creed.
Like the US or French or any other constitution for that matter, the Preamble to the constitution of India is its spirit and backbone and is a pathfinder and core of the constitution.
Preamble to the Indian Constitution states (as after 42nd Amendment):
We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens:
JUSTICE – social, economic and political
LIBERTY – of thought, expression, belief, faith and worship
EQUALITY- of status and opportunity
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and the integrity of the NATION. ”
If we treat it one by one, the biggest question that strikes us is that of justice, liberty, equality and fraternity. In a society where inequality—be it social and economical—was inherent in its genetic character, thanks to the caste and verna system that forms its foundation, equality between castes and gender was no less than a utopia and numerous instances of atrocities against Dalits and Adivasis are reported on a daily basis, making it a rule and not an exception in 21st Century India.
Also, justice is both individual and social. While Indian courts suffer with huge backlog of cases and it years to get justice to the individuals and very often innocent undertrials keep languishing in jails, before they are let off. So is the process of social justice as communities—basically minorities—have never got justice, be it the case of anti-Sikh pogrom of 1984, or anti-Muslim genocide of 2002 and even that of 1984 Union Carbide disaster in Bhopal.
The case of economic justice is even more laughable as it would mean establishing a socialistic pattern of society and the steps taken by Nehru when he established the behemoths like mega dams and steel plants under the public sector and Indira Gandhi nationalising banks appeared like bold steps towards realising this goal, but eventually, they turned out nothing but state capitalism, where people per-se had no role and no voice.
Then began the process of liberalisation and market calls the stot and economy is dominated by the private sector today. Soon, after the word socialism was inserted into the Preamble, Indira Gandhi, its very architect began dismantling it in 1980 as she started liberalising the economy. And, the process was complete by 1991.
Today, it is not the hidden fact that a huge gulf exists between haves and have-nots with the richest 1% of Indians own 58.4% of wealth (and richest 10 % owning 80.7 %), making it the second-most unequal country in the world.
And, this inequality is increasing over the years as the share of the top 1% is up from 53% last year. In the last two years, the share of the top 1% has increased at a cracking pace, from 49% in 2014 to 58.4% in 2016.
The only equality India can be proudly claim is political equality as from the very inception on the Constitution, every individual, rich or poor, male or female; or even trans-gender, lettered or un-lettered, of any caste, religion or faith, have one vote, whereas many ‘developed’ countries look years to grant voting rights to women, un-educated and poor.
But, that equality is also very limited and is a sense, superficial. As People’s Representative Act, 1951. enacted by the provisional parliament under Article 327 of Indian Constitution, before the first general election.
Accordingly, chapter 43 of the General Elections 2014 Reference Handbook bars, undertrial prisoners and persons confined in prison to vote so does Section 62 (5) of the Representation of the People Act, 1951 . However, section 8 of the Representation of the People Act, 1951, bars only convicts to contest elections. Similarly, a person can contest any state assembly or parliament elections from two constituencies , but no one can vote from two constituencies.
Now, let’s talk about the Fundamental Rights, as contained in Part III of the Constitution, considered to be the most sacrosanct part of our Constitution. While, it is true that they don’t sprung from what is called natural law nor are any kind of ‘reserved rights’. They are conferred rights, very much that the US Constitution guarantees and have a kind of permanency and continuum as they symbolize the social values of the generation that guarantees them and generations to come.
While Part III of our Constitution is fairly comprehensive, like all other parts and elaborates the following rights: Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies .
However, The Right to Property, has been repealed by the Forty-Fourth Amendment of the Constitution in1978 with effect from June 20,1979.
Here, I will just focus on the Right to Freedom under Article 19 as they are positive rights conferred by the Constitution so that the ideal of liberty promised in the Preamble could be realised on ground, along with Article 19, Articles 20, 21 and 22, meaning four articles of our Constitution deal with different aspects of this basic right and form a charter of personal liberties, thus being the backbone of the chapter on Fundamental Rights.
These “Six freedoms” under the Constitution that are guaranteed to all citizens are:
(1) Freedom of speech and expression;
(2) Freedom to assemble peaceably and without arms;
(3) Freedom to form associations or unions;
(4) Freedom to move freely throughout the territory of India;
(5) Freedom to reside and settle in any part of the territory of India; and
(6) Freedom to practise any profession, or to carry on any occupation, trade or business .
It is noteworthy that Indian Constitution was being framed years after the inalienable rights of man, according to the Declaration of American Independence, that were “life, liberty and the pursuit of happiness”, was formed, so was the French Constitution talking about liberty, equality and fraternity.
Hence, I’ll focus more on the breach of these ideals than rather actualising it and more than the actual implementation of the Constitution, the very provisions of the Constitution itself, that provides the so-called reasonable restrictions to the state to impose. Inter-alia they are:
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.]
While it is true that no right can be absolute and the state has the prerogative to impose ‘reasonable’ restrictions over them, but the question is who can impose them and what could be called reasonable?
State, as we, the people understand is very often a petty official such as a sub-divisional magistrate or a district magistrate, else s/he could be a secretary, or an MLA or a minister, who is her/his wisdom and often an ‘insight’ study, decides to put some ‘reasonable’ restrictions on people’s fundamental rights, to protest the so-called national-interest as the Constitution itself empowers them in to curb people’s fundamental rights for public order, decency or morality which are highly subjective and open to interpretation as one’s indecency could be someone else’s art and what is immoral for a babu or neta, could be and often is, accepted to people at large. And, countless number of times, great works of art, literature and films have been banned by the state, taking recourse to this logic.
For people, it is the Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) matter more than the provisions of the Constitution as they govern their day-today lives and while it is true that they are not part of the Constitution and were enacted much before the Constitution came into force, but any law is made by government should be according to guidelines set by the Constitution. Meaning, Constitution set laws for the government and IPC is what matters for the common people.
Here, it would be sufficed to discuss three acts, all formulated by the colonial regime, but adopted and implemented as a rule, rather as exception:
First is the Section 144 of the CrPC that empowers a magistrate to prohibit an assembly of more than four people in an area. According to sections 141-149 of the IPC, maximum punishment for engaging in rioting is rigorous imprisonment for 3 years and/or fine. Every member of an unlawful assembly can be held responsible for a crime committed by the group. Obstructing an officer trying to disperse an unlawful assembly may attract further punishment. This section was used for the first time in 1861 by the British Raj, when an officer Raj-Ratna E.F. Deboo (IPS) formulated it, which reduced overall crime in that time in the State of Baroda. He was recognised for his initiative and awarded a gold medal by the Maharaja Gaekwad of Baroda for putting Section 144 in place and reducing overall crime and thereafter became an important tool to stop all nationalist protests during the Indian independence movement, and its use in independent India remains controversial as little has changed. It is often used to prevent protests or demonstrations, even the law doesn’t use the terms, though it does mention “riot”.
Second is the Section 124-A in the Indian Penal Code, named ‘Sedition’, originally drafted by Thomas Macaulay. It explains sedition in wide and magnanimous terms as it says ‘Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India’ shall be punished with life imprisonment and ‘the expression ‘disaffection’ includes disloyalty and all feelings of hate. In reality, it has become to assault all those who express strong disapproval of ‘the measures of the Government, with a view to obtain their desired modifications by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.’
Many Indian freedom fighters, including Mahatma Gandhi, Nehru and Tilak were charged with sedition during freedom struggle and it continues to be used as an instrument to arrest and harass the political opponents by the ruling party and has reached to its ludicrous level at present, where even a cartoonist and a student leader are arrested under this draconian act ignoring all Supreme Court decisions—such as Kedar Nath Singh’s Case, when five judges Constitution bench of the Supreme Court made it clear that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this phrase. In Indra Das v. State of Assam and Arup Bhuyan v. State of Assam, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised. In Shreya Singhal v. Union of India, the famous 66A judgment, the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished—prohibiting its mindless and arbitrary application.
Third is the Section 377 of the Indian Penal Code dating back to 1860, that criminalises sexual activities “against the order of nature”, arguably including homosexual sexual activities. Although, the section was decriminalised with respect to sex between consenting adults by the High Court of Delhi on July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
It would be noteworthy to note that none of these acts exists in the statute book of Britain today, when it enacted them in its colony, that was India!
Recently, the Supreme Court is accused to overreaching its limits and violating the sacred principle of separation on power between the legislature, executive and judiciary as enshrined in our as it keeps directing parliament on several matters it asked the Centre to form Cauvery Water Management Board and had earlier asked the government to frame a law to regulate hawking in towns and cities.
And, recently, it ordered the arrest of Calcutta high court judge C S Karnan for defying its direction to present himself in the court, who is facing contempt proceedings for levelling allegations against the SC and his former colleagues in the Madras high court. and, in an unprecedented decision, issued a bailable warrant against the serving judge.
It must be mentioned here that the Supreme Court has no discipline jurisdiction over the high courts and their judges, as they are not subordinate to the Supreme Court in such matters. Parliament alone has the power to remove a judge. Nor can the conduct of a judge be discussed. The media has also been barred from reporting his statements, so the custodian of our Constitution, itself violating its provisions—right of expression, guaranteed under Art 19.
It is amazing that the Apex Court of the country has the time to decide on cases like these and to direct citizens to ‘furnish’ their proof of nationalism by standing on the national anthem that must be played before a movie show could begin on cinema halls when there are nearly 30 million pending cases in Indian courts, including more than 4,600,000 cases in the high courts and about 67,000 cases in the SC.
It can be argued that our Constitution is a wonderfully written document, but its implementation is shoddy, half-hearted and poor as evident by the vast gap between the fundamental rights guaranteed in the Indian Constitution and reality of these rights in India today. And, as I have pointed out, the very provisions of the Constitution, dealing with the Fundamental Rights, are a hollowed chamber as every fundamental right embodied in the Constitution is riddled with so many exceptions and qualifications that have made the state; meaning the government of the day, too strong placing citizens at its mercy.
And, after all, it is the very implementation of laws matter for the common people, not what is written in it, else it is a thick, fat book to adorn the book-shelves of lawyers, scholars, academicians, politicians and journalist at best and a useless thick wag of toilet paper for its detractors like Maoists and separatists.
In final analysis, it is an abstruse and distant document not easily understood nor of much interest to the people at large, being the longest in the world; too detailed; too pompous and too legalistic, making it a prerogative for lawyers as, it doesn’t talk in a simple language of meaningful things that we can relate to and learn by heart, unlike the crisp and short American constitution where students of even fifth standard study its highlights, particularly its references to freedom. Australians also own their constitution, primarily because it was adopted after a referendum.
On top of that this mediocre product has been amended as many as 122 times (latest by GST Bill), in a short span of 67 years of its implementation, despite of the fact that amendment process is considered rather rigid , whereas the American Constitution has been amended just 27 times since its inception in 1787, some 240 years ago!
See, The Representation of the People Act, 1951 (43 of 1951). lawmin.nic.in/legislative/…/representation%20of%20the%20people%20act,%201951..
See, Election Commission of India: http://eci.nic.in/eci_main1/Contesting.aspx
See, the full text of Part III of the Constitution of India: http://www.lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(6).pdf