The Constitution of India – Miracle, Surrender, Hope
Universal Law Publishing
This book by one of India’s foremost lawyer-intellectuals is based on a lifetime of thinking and reading on the Indian Constitution. The author gives us his views in a crisp and direct manner, unencumbered by scholarly circumlocution. There are no footnotes, just a list of readings at the end that hint at the author’s erudition.
The most striking feature of the book is its unusual proposition that the Indian Constitution is a site of struggle, not just in the sense that the oppressed can use it for their social struggle, but in the deeper sense that the content given to the Constitution itself depends on social struggle.
This proposition turns so-called “constitutionalism” on its head. Dr Ambedkar, in his celebrated “Grammar of Anarchy” speech on November 25, 1949 had said:
“… abandon bloody methods of revolution… civil disobedience, non-cooperation and Satyagraha… [W]here Constitutional methods are open there can be no justification for such unconstitutional methods”. This however presumes that the Constitution is a given thing, through which social change can be effected without recourse to any “unconstitutional struggles”; but if the perceived content of the Constitution is itself dependent on struggles, then these so-called unconstitutional struggles, far from being obviated by the Constitution, become essential for ensuring that it is interpreted in a pro-people manner. The Constitution can have a pro-people orientation only through such unconstitutional struggles.
This does not mean that the Constitution is just a blank document whose content is determined only by such unconstitutional struggles. It has a core which the judiciary has sought to capture under the “basic structure” doctrine. The author, though unhappy that the doctrine makes this core impervious to popular intervention, gives it his qualified support. He does so to prevent this core, expressed in the Preamble, which constitutes the foundational principle of modern India, from being subverted by political elements, especially by the currently dominant Hindutva forces.
But the “basic structure” doctrine, notwithstanding the fact that it emerged through a tussle between the judiciary and the executive under Indira Gandhi, is logically embedded in the author’s own theoretical perception of the Constitution as a site of struggle.
If the Constitution is a site of struggle, then its coming into being, too, must have been the product of a struggle — the one that forced the bourgeoisie and certain sections of the landed interests, all of whom belonged to the upper castes, to make concessions to the oppressed, to enlist their support in the anti-colonial movement.
Hence, once we acknowledge the ontological universality of struggle, then we can see that the awakening of the consciousness of the oppressed, and the resulting struggles by them during the early 20th century, were responsible for their wresting major gains, such as “one person one vote”, in the context of the necessarily multi-class anti-colonial movement.
Implicit in the author’s notion of the Constitution being a site of struggle is the formulation of a sort of “freedom charter” on whose basis alone a multi-class mobilisation could occur against colonial rule. The 1931 Karachi Congress Resolution which underlies the Constitution has this character of a “freedom charter”. And given that power shifted into the hands of the upper classes at the end of colonial rule, notwithstanding the “socialist” inclinations of leaders like Jawaharlal Nehru, a continuous effort by the new ruling classes to renege on this “freedom charter” is inevitable. Holding on to some essential features of it, which is what the “basic structure” doctrine does, is central to the struggle against this continuous attempt at reneging.
The “basic structure” doctrine therefore deserves more than just reluctant support; and it is not surprising that the current government, now ushering in a social counter-revolution in the country, wants to negate the “basic structure” of the Constitution.
One element of this “basic structure” which the author discusses is federalism. He even makes the bold suggestion that the provision for the imposition of President’s rule on states should be done away with. Such imposition, of which the dismissal of the EMS Namboodiripad ministry was the earliest example, is nowadays subject to judicial review. But this, he argues, is not enough; true federalism demands the scrapping of this provision altogether.
Such concern for federalism has become unfashionable these days: state governments themselves, including Left-led ones which once vigorously championed states’ rights, now acquiesce in their abrogation, as the case of the Goods and Services Tax demonstrates. The GST is an unambiguous infringement on the states’ rights but ironically, all the state governments have supported it.
The discussion of the tussle between the executive and the judiciary is a particularly absorbing part of the book. Early after Independence, when Jawaharlal Nehru headed the executive and wanted to bring about certain land reforms, the judiciary was seen as an obstacle, and enjoyed much less popular support. To bypass the judiciary’s insistence on the right to property and on compensation at market value whenever the government takes over private property, Nehru introduced the Ninth Schedule with the objective of taking agrarian legislation out of judicial interference.
Over time, however, the executive has moved so far to the right compared to the Nehru years (the early Seventies perhaps were the dividing line, with Indira Gandhi’s “Left” stance being a camouflage for ushering in dynastic power), that the judiciary now occupies a higher moral ground in the popular perception than the executive and even the legislature. While the use of the Ninth Schedule as a dumping ground for all sorts of legislation including the infamous 42nd Constitutional amendment indicates the bad faith of the executive, the popular anger generated by such use shows the shift in people’s sympathies.
Judicial overreach which would have aroused anger earlier is now openly welcomed. Many progressive persons approve of the judiciary’s making its own appointments so that the government is prevented from putting its nominees as judges of the Supreme Court. The tussle between the executive and the judiciary is thus located, as the author suggests, within a bigger picture of the shifting socio-economic dynamics of the country and its manifestation in the realm of the polity.
Rajeev Dhavan’s book, while apprehensive about the direction the country is currently taking, ends on a note of hope, which is rooted in his faith in the discerning capacity of the Indian people. Given his deep knowledge of Constitutional matters and the number of issues he has raised in passing, one wishes he had written a longer, though not necessarily more prolix, book.