Opinion Pratap Bhanu Mehta writes: In today’s India, can the Constitution protect individual dignity?

The core aspiration of constitutionalism is simple: The entrenchment of individual rights to protect the basic freedom and dignity of individuals; the affirmation of at least the political equality of all citizens; the creation of institutional checks and balances; formally defined limitations on the power of government; the preservation of institutions and practices that allow citizens to exercise political agency (democracy) and engage in practices of political justification for all decisions that affect their common life. This, broadly speaking, is the basic structure of any modern constitutionalism. The rest is diversion.

The real question is vigilance towards all the forces that subvert this aspiration. Lack of trust in people, and measuring each against compulsory identities whether on caste, religion or nation subverts freedom. Most of our significant assaults on free speech and individual freedom are in the name of community identity. The exaltation of executive power subverts checks and balances, and neither party has been vigilant on executive power. The fairness of the franchise so that each one of us can act as political agents has been preserved enough and we still engage in slivers of political justification, though both are under threat. Practices of political justification can be subverted by state power. But it can also be subverted by oligarchic power that comes from concentration of wealth. It can also be subverted by citizens not treating each other as co-agents in the creation of our collective public life, or impugning their standing just because of their identity. The Constitution rightly left questions of economic structure open, because these ought to be matters of ongoing democratic negotiation. But it was informed by a sense that society needed a modicum of economic justice and inclusion for democracy to work, a part where our failures are most egregious. The Constitution also represented a series of political compromises: The tension between individual rights and groups rights, for example. But if we are to overcome these tensions they have to be driven by the lodestar of individual freedom and dignity applied to all communities.

The puzzle about constitutions is deeper though. What is the constitution’s relation to time and society? And one ought to recognise that constitutions are very peculiar things. There is a joke amongst jurists that it was not Francis Fukuyama who pronounced the end of history but the Supreme Court. The Basic Structure Doctrine puts the Constitution out of time as it were. It involves the thought that the Basic Structure can never be changed; in that sense history has been arrested. It is now the horizon within which we operate. Sure, there can be amendments to the Constitution, but they have to operate within the normative constraints of the Basic Structure. In a way, the Basic Structure has now become our Sanatan Dharma. It has to act like our eternal truth. In a way it is a testament to the power of the Constitution that both parties have to act as if the Constitution was this quasi-eternal truth. But like Sanatan Dharma, does it just become a matter of convenient invocation? Or, is there genuine allegiance to its substance?

This is related to a second question. Historically, constitutions explicitly embodied social power. Whether it is pre-modern European constitutions, Roman, or even our own princely constitutions, the function of a constitution was to represent social power. Originally, the concept of checks and balances was one form of actual social power checking another, not formal institutions checking one another. The constitution was effective because it could channel real social power. Constitutional change was understood to be a change in the social power it represented. Constitutions were not eternal forms: They were a way of channelling social forces. Modern constitutions self-consciously abstract away social forms. There are no natural social forms to be represented, no natural classes or ascriptive groups.
Social power is just a series of contingent coalitions carved though politics under conditions of universal suffrage. Modern constitutions therefore rely on pure legal forms for their authority. India makes a concession on this score on the question of caste — it is a social form that has to be represented. Whether this is true provisionally, as a way of creating conditions to include groups to be oppressed, or a permanent condition is a debatable question. But the form of a modern constitution works only when no social force can claim to be a permanent majority. In fact, society is not conceived in terms of majorities and minorities with permanent identities. But the irony is that the Constitution itself partly enabled this entrenchment. Now, we have a politics that has created the sense of a permanent ascriptive majority and minority, with the latter demanding that the Constitution represent it as a social force. Whether we can survive this contradiction, between a Constitution that was meant to liberate individuals, and a politics that pushes them into ascriptive identities is still an open question.

The writer is contributing editor, The Indian Express