The constitution needs to be defended is the buzzword currently as we are faced with the onslaught of the Hindu majoritarian BJP Government on fundamental rights, especially that of the Muslim citizens. However, the constitution itself is fundamentally flawed and has provided the ruling dispensations, whether at the centre or the states, with enough leeway to trample the rights of citizens right from the time of independence and the present BJP government is only the latest in a long line of anti-people governments since independence.
The preamble starts by saying "We the People of India" were adopting and enacting the constitution in 1949 when actually it was a very small set of people indirectly elected from the provincial assemblies and nominated by the princely states that did so. The electorate that elected the members of the provincial assemblies too consisted of the propertied people who constituted just 13% of the total adult population and excluded the vast majority of the people. Consequently, 92 percent of the members were from the Hindu Savarna castes, mostly Brahmins, 5 percent were Muslims and 3 percent were Christians. There were only 2 Dalits, 1 Parsi, 1 Adivasi and 1 from the Other Backward Classes.
The result was that despite the grandiloquent wording of the preamble of securing justice, liberty, and equality for the people of India and promoting fraternity among them, the Constitution itself was so worded that it undermined the promises of the preamble seriously. We will analyse the Constitution in what follows to see how it betrayed the preamble and has brought us to the sorry pass we are in of being a nation of uneducated, unhealthy and poor people torn asunder by religious, caste, ethnic and gender violence.
First of all the Constitution that was adopted in 1949 was 65 percent a verbatim copy of the colonial Government of India Act of 1935 and so retained many of its repressive provisions even though it was repealed with the adoption of this constitution. So much so that the industrialist Ghanshyamdas Birla gloated - " We have embodied large portions of the
1935 Act, as finally passed, in the Constitution which we have framed ourselves
and which shows that in the 1935 Act was cast the pattern of our future
plans". The provisions of the Government of India Act which provided considerable power and protection to government servants vis a vis the citizens were retained in toto creating a very repressive executive that even today can trample the rights of citizens at will.
One especially handy provision was surreptitiously slipped in right at the end of the Constitution to ensure that the colonial scenario would continue. This was Article 372 of the Constitution which provided that all laws that were in force at the time of independence would continue to be so even after the adoption of the Constitution until they were amended or repealed. Thus, such grossly anti-people laws as the Indian Penal Code and Criminal Procedure Code which had many provisions for incarcerating people who protested for their rights, the Indian Forest Act which had draconian provisions for harassing forest dwellers who are mostly Adivasis and the Land Acquisition Act which allowed for the easy displacement of people for various development projects were retained. This was in accordance with the Bombay Plan drawn up by industrialists led by J. R. D. Tata just before independence which envisaged the rapid development of basic infrastructure through heavy state spending garnered from exploitation of the labour of the masses and the vast natural resources. The plan specifically mentioned that the state must intervene to maintain law and order and restrict individual freedoms given the possibility of dissent from the masses against such a policy. So, Gandhi's plan of a bottom up village and community based economy was rejected in toto and a centralised trickle down economic model was adopted. As an activist who has spent close to four decades fighting for local self governance, forest rights and against involuntary displacement and been incarcerated innumerable times for my pains along with my co-fighters, I can vouch that these colonial laws, the impunity of the state officials and the trickle down eoncomic model have effectively scotched the struggles of the poor for their rights and livelihoods.
Thus, the promise of liberty given in the preamble was effectively scotched, especially the right to a dignified life. In the first decade after independence there were massive mobilisations by peasants and workers seeking a better life, mostly led by the Communists and Socialists, throughout India, which were summarily suppressed by the use of anti-people laws. The Telengana peasant's struggle being the most important. People were displaced ruthlessly without rehabilitation and resettlement for projects like steel plants, power plants, dams and mines. People in the Northeast and in Kashmir who did not want to be part of the Indian Union were subjugated by armed force.
The next and possibly even greater betrayal was that the crucial provisions of universal and free, quality public education and health were put in PART IV of the constitution on Directive Principles of State Policy which are non justiciable and not in PART III on Fundamental Rights, the violation of which can be challenged in the higher courts. This was a highly casteist and patriarchal step that deprived the vast majority of the people of India and especially girls and women from access to education and health. All the developed western countries and countries like Japan, China and Korea provide free and quality universal education and health services and this leads to a highly productive and and lesser population. In India's case, the lack of education and health for girls and women meant that child marriages continued and there was a population explosion. Consequently today we have a vast malnourished and uneducated population. Moreover, even if fundamental rights were violated, as for instance the right against exploitation, which was frequently violated even by the state, it was difficult to seek remedies for the poor because approaching the higher courts was hugely expensive and beyond their reach. In fact the whole judicial system is dysfunctional because the Government is the biggest litigant and unnecessarily clogs up the courts with cases and also does not provide enough magistrates and judges. Thus, even if aggrieved poor citizens manage to reach the courts, due to inordinate delays they are denied relief.
Matters were compounded by putting the provision of dignified livelihoods also in the Directive Principles of State Policy. A trickle down policy of development was adopted which combined with an unjust displacement policy and neglect of the agricultural and small industry sectors meant that not only was there a burgeoning, uneducated and unhealthy population but there was not enough dynamism in the economy to provide them with livelihoods and so today we have the highest numbers of poor people on the earth at close to 500 million.
The next big betrayal was the excessive skewing of powers to the central government vis a vis the state governments and a complete neglect of local self government which last was once again relegated to the section on Directive Principles of State Policy. Moreover, article 356 of the Constitution was used to dismiss the democratically elected Communist Government of Kerala which was trying to implement land reforms. This was further compounded by the adoption of the first past the post system of elections instead of the proportional representation system. Ideally the Indian electoral system should have been based on proportional representation to accommodate the vast diversity in the socio-economic characteristics of the population. In this system political parties are allotted seats in the legislature and parliament in proportion to the votes that they get and so even small local parties who can get votes higher than a specified threshold can find representation in the legislature and parliament. A threshold voting percentage, as low as 3 per cent of the total valid votes polled is required to prevent frivolous legislative participation and too much fragmentation. Those parties getting this threshold vote will also be recompensed in proportion of the votes gained for the election campaign expenses on the production of proper bills. There is thus scope for a thousand schools of thought to contend and bring to fruition a much more vibrant and diverse democratic culture than has obtained in India so far.
Instead the first past the post (FPTP) system was adopted in which the candidate getting the most number of the valid votes cast in a constituency is declared elected. This latter system was to the advantage of the Indian National Congress party at the time of independence as it got to rule unhampered on its own without the pulls and pressures of coalition governance that a system of proportional representation usually gives rise to and would certainly have in the diverse Indian context. So the first past the post electoral system of the British and American democracies, which the British had introduced to suit their own agenda of keeping the unruly masses at bay, was retained after independence giving the Congress an undue monopoly of power in the crucial first decade and a half of governance when the socialists and communists despite cumulatively winning about 20 percent of the votes, nevertheless got only about 5 percent of the seats. Thus, governance in India has been concentrated in the hands of a few, mainly the Savarnas and the vast majority have not been able to participate in it in any meaningful way. The promises of justice and equality given in the preamble too have thus been forfeited by the provisions of the Constitution proper.
The lack of education has meant that there is an over reliance on religion and superstition rather than reason and science among the population. Casteism, religious bigotry, patriarchy and superstition have held sway over the population and prevented the building up of communitarian cooperation against the ravages of capitalism. So the last promise of the preamble, fraternity, has also been belied by the Constitution proper.
Over the last seventy years the Constitution and the repressive colonial laws have been amended to a certain extent and many new progressive and people friendly laws have been enacted but the overall anti-people character of the overly centralised Indian state has remained intact and now it is in the control of a Hindu majoritarian party which wants to use its draconian powers to further strengthen its capitalist character by othering Muslims, Dalits, Adivasis and Other Backward Classes. So while cherishing the preamble we have to trash the constitution because as Ambedkar had predicted, it has led to political democracy without social and economic democracy, which has resulted in a hollow republic still dominated by Savarnas steeped in casteism, patriarchy, superstition and bigotry.
The preamble starts by saying "We the People of India" were adopting and enacting the constitution in 1949 when actually it was a very small set of people indirectly elected from the provincial assemblies and nominated by the princely states that did so. The electorate that elected the members of the provincial assemblies too consisted of the propertied people who constituted just 13% of the total adult population and excluded the vast majority of the people. Consequently, 92 percent of the members were from the Hindu Savarna castes, mostly Brahmins, 5 percent were Muslims and 3 percent were Christians. There were only 2 Dalits, 1 Parsi, 1 Adivasi and 1 from the Other Backward Classes.
The result was that despite the grandiloquent wording of the preamble of securing justice, liberty, and equality for the people of India and promoting fraternity among them, the Constitution itself was so worded that it undermined the promises of the preamble seriously. We will analyse the Constitution in what follows to see how it betrayed the preamble and has brought us to the sorry pass we are in of being a nation of uneducated, unhealthy and poor people torn asunder by religious, caste, ethnic and gender violence.
One especially handy provision was surreptitiously slipped in right at the end of the Constitution to ensure that the colonial scenario would continue. This was Article 372 of the Constitution which provided that all laws that were in force at the time of independence would continue to be so even after the adoption of the Constitution until they were amended or repealed. Thus, such grossly anti-people laws as the Indian Penal Code and Criminal Procedure Code which had many provisions for incarcerating people who protested for their rights, the Indian Forest Act which had draconian provisions for harassing forest dwellers who are mostly Adivasis and the Land Acquisition Act which allowed for the easy displacement of people for various development projects were retained. This was in accordance with the Bombay Plan drawn up by industrialists led by J. R. D. Tata just before independence which envisaged the rapid development of basic infrastructure through heavy state spending garnered from exploitation of the labour of the masses and the vast natural resources. The plan specifically mentioned that the state must intervene to maintain law and order and restrict individual freedoms given the possibility of dissent from the masses against such a policy. So, Gandhi's plan of a bottom up village and community based economy was rejected in toto and a centralised trickle down economic model was adopted. As an activist who has spent close to four decades fighting for local self governance, forest rights and against involuntary displacement and been incarcerated innumerable times for my pains along with my co-fighters, I can vouch that these colonial laws, the impunity of the state officials and the trickle down eoncomic model have effectively scotched the struggles of the poor for their rights and livelihoods.
Thus, the promise of liberty given in the preamble was effectively scotched, especially the right to a dignified life. In the first decade after independence there were massive mobilisations by peasants and workers seeking a better life, mostly led by the Communists and Socialists, throughout India, which were summarily suppressed by the use of anti-people laws. The Telengana peasant's struggle being the most important. People were displaced ruthlessly without rehabilitation and resettlement for projects like steel plants, power plants, dams and mines. People in the Northeast and in Kashmir who did not want to be part of the Indian Union were subjugated by armed force.
The next and possibly even greater betrayal was that the crucial provisions of universal and free, quality public education and health were put in PART IV of the constitution on Directive Principles of State Policy which are non justiciable and not in PART III on Fundamental Rights, the violation of which can be challenged in the higher courts. This was a highly casteist and patriarchal step that deprived the vast majority of the people of India and especially girls and women from access to education and health. All the developed western countries and countries like Japan, China and Korea provide free and quality universal education and health services and this leads to a highly productive and and lesser population. In India's case, the lack of education and health for girls and women meant that child marriages continued and there was a population explosion. Consequently today we have a vast malnourished and uneducated population. Moreover, even if fundamental rights were violated, as for instance the right against exploitation, which was frequently violated even by the state, it was difficult to seek remedies for the poor because approaching the higher courts was hugely expensive and beyond their reach. In fact the whole judicial system is dysfunctional because the Government is the biggest litigant and unnecessarily clogs up the courts with cases and also does not provide enough magistrates and judges. Thus, even if aggrieved poor citizens manage to reach the courts, due to inordinate delays they are denied relief.
Matters were compounded by putting the provision of dignified livelihoods also in the Directive Principles of State Policy. A trickle down policy of development was adopted which combined with an unjust displacement policy and neglect of the agricultural and small industry sectors meant that not only was there a burgeoning, uneducated and unhealthy population but there was not enough dynamism in the economy to provide them with livelihoods and so today we have the highest numbers of poor people on the earth at close to 500 million.
The next big betrayal was the excessive skewing of powers to the central government vis a vis the state governments and a complete neglect of local self government which last was once again relegated to the section on Directive Principles of State Policy. Moreover, article 356 of the Constitution was used to dismiss the democratically elected Communist Government of Kerala which was trying to implement land reforms. This was further compounded by the adoption of the first past the post system of elections instead of the proportional representation system. Ideally the Indian electoral system should have been based on proportional representation to accommodate the vast diversity in the socio-economic characteristics of the population. In this system political parties are allotted seats in the legislature and parliament in proportion to the votes that they get and so even small local parties who can get votes higher than a specified threshold can find representation in the legislature and parliament. A threshold voting percentage, as low as 3 per cent of the total valid votes polled is required to prevent frivolous legislative participation and too much fragmentation. Those parties getting this threshold vote will also be recompensed in proportion of the votes gained for the election campaign expenses on the production of proper bills. There is thus scope for a thousand schools of thought to contend and bring to fruition a much more vibrant and diverse democratic culture than has obtained in India so far.
Instead the first past the post (FPTP) system was adopted in which the candidate getting the most number of the valid votes cast in a constituency is declared elected. This latter system was to the advantage of the Indian National Congress party at the time of independence as it got to rule unhampered on its own without the pulls and pressures of coalition governance that a system of proportional representation usually gives rise to and would certainly have in the diverse Indian context. So the first past the post electoral system of the British and American democracies, which the British had introduced to suit their own agenda of keeping the unruly masses at bay, was retained after independence giving the Congress an undue monopoly of power in the crucial first decade and a half of governance when the socialists and communists despite cumulatively winning about 20 percent of the votes, nevertheless got only about 5 percent of the seats. Thus, governance in India has been concentrated in the hands of a few, mainly the Savarnas and the vast majority have not been able to participate in it in any meaningful way. The promises of justice and equality given in the preamble too have thus been forfeited by the provisions of the Constitution proper.
The lack of education has meant that there is an over reliance on religion and superstition rather than reason and science among the population. Casteism, religious bigotry, patriarchy and superstition have held sway over the population and prevented the building up of communitarian cooperation against the ravages of capitalism. So the last promise of the preamble, fraternity, has also been belied by the Constitution proper.
Over the last seventy years the Constitution and the repressive colonial laws have been amended to a certain extent and many new progressive and people friendly laws have been enacted but the overall anti-people character of the overly centralised Indian state has remained intact and now it is in the control of a Hindu majoritarian party which wants to use its draconian powers to further strengthen its capitalist character by othering Muslims, Dalits, Adivasis and Other Backward Classes. So while cherishing the preamble we have to trash the constitution because as Ambedkar had predicted, it has led to political democracy without social and economic democracy, which has resulted in a hollow republic still dominated by Savarnas steeped in casteism, patriarchy, superstition and bigotry.
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