January 26, 2001


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Ashwin Mahesh

The common-sense fix

The preamble to the Constitution of India reads as follows.

We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic, and to secure to all its citizens justice (social, economic and political) liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation, in our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.

All very predictable stuff, really. Apart from the nod to socialism, infused by the astute Mrs Gandhi, nothing that wouldn't find acceptance in any other democracy around the world. Take away "India" and the dates, and the original preamble could pass for that of several other countries. And some measure of all of this has even come to pass. We have courts, plurality, some increases in opportunity, etc. Yes, there are glaring deficiencies too, and we'll get to those in a while. The preamble merely assures us that we have a specific intent, and that the Constitution shall provide the means to attaining it.

Indeed, the first few articles in the Constitution follow quite naturally from the preamble, listing who we are (citizenship), where we live (territory), our rights and responsibilities, etc. Later, the Constitution outlines the nature of our government, the various public offices, the powers vested in the office-holders, and how those powers are shared. To the casual reader, and with the hindsight of 50+ years, the entire document appears to be a well-reasoned and detailed framework for government and social organisation, and rightly so. I have no quarrel with much of it, and like many others, I find the intent and diligence of the original framers laudable.

But where has this document brought us? Today, whereas we have maintained the appearance of representative government, with elections galore, and promises upon promises to eradicate poverty, remove illiteracy and in short order recreate heaven on earth, in fact India boasts the world's largest number of poor people assembled under one government, in history! Disparities of income have turned the quest for economic utopia into a joke, religious rivalry has rendered the secular state of harmonious fraternity notional at best, our criminals aspire to legislate and our worthy seek nothing so much as to remove themselves from Indian public life. More than half a century since the eloquent imagination of those early days, there is much promised in the Constitution that is far from reality.

But, you say, the Constitution is only a piece of paper, and no matter that we may inscribe upon it glorious truths, reality must nonetheless reflect what we have actually done in pursuing them. The ideals haven't eroded, you reason, it is that those empowered to promote them bear no resemblance to the visionary men and women of integrity that the framers thought would be at the helm. Instead, our leaders have been unqualified disasters, placing their self-interest regularly ahead of any national good.

Perhaps. And yet, by some combination of luck and will, we have arrived at a time when calls to reconsider the original document are regularly heard. It is true that many of those attempting this revision have a political agenda, despite the appointment of several non-partisan people to the commission now in place to suggest a revised edition. Senior justices appointed by different governments, experts in constitutional law, and socio-economic geniuses alike find some place in this experiment, and it is likely that not all of them will permit themselves to be swayed by their political leanings alone. The issue before us, really, is two-fold. One, that the original framework and its practice have not led to the desired outcomes, and two, that the longer this remains true, the more political the process of altering the framework will become.

There is, however, a middle path. Along this journey, we may continue to aspire to the goals originally laid out, and yet reach towards a more cherished end than we have witnessed so far. Doing so will mean that we must acknowledge that incremental attempts at change have been easily subverted in the past, and accept that there is no gain from continuing down that road. The change that is required must be dramatic, it must be significant and it must represent, despite that, a compromise which a wide spectrum of political opinion will embrace. All of those objectives are served well by the simplest of procedures, the mere addition of one sentence to the existing Constitution, or, alternately by the removal of one line from it.

Articles 36 to 51 outline an important part of the framers' vision, which has subsequently been discarded by the state, either from economic limitation or by deliberate political choice. Together, these are known as the Directive Principles of State Policy. And the original sin to which much of today's decay can be traced, as well as the inspiration for moving forward and away from today's lamentable state, are both ironically contained in the same article (37) within the Directive Principles, and it runs as follows.

The provisions contained in this Part [ie, Part IV, the Directive Principles] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.

The dichotomy of that provision is telling. To understand why, one needs only to look at the directives in these articles, which run the gamut of a good society. The state shall secure a social order for the promotion of the welfare of the people (38), the state shall guard against exploitation of the infirm and weak and promote the distribution of material wealth for the common good (39), the state shall ensure that employment obtains a living wage (43), and that children are provided free and compulsory education (45), the state shall guard the natural environment of the territory (48A), etc. The language of the directive principles reads like a laundry list that a civil liberties union would compose. It is remarkable, then, that these inspiring objectives should be circumvented by the provision that the state's duty to obtain these ends shall not be enforceable by law.

Why? How can that which is "fundamental in the governance of the country" be something that does not merit this sensible protection? What sort of ideal is one that is immediately disavowed in compromise? The framers, doubtless, had their reasons. And in some of the articles, these reasons are indicated. The state has limited economic capacities (it costs a lot of money to educate 300 million children), and certain social norms may require time to muster the needed political and social capital (the controversial Article 44, urging the state to enact one law for all citizens, comes to mind). But these limitations aren't in perpetuity, and the framers knew that only too well. Universal education, for example, was considered do-able in 10 years' time. And yet, four of ten Indians are illiterate, with over five times this period behind us.

That is unfortunate, but remediable. Although the state (at various levels) has professed inability to engineer these directive principles, it repeatedly claims to stand by them. Most political parties find substantive value in the Constitution, and notwithstanding their differences with parts of it, are reluctant to call for widespread changes, partly from fear that their pet vote-banks may be eradicated by new social policy. Also, the incremental changes we have sought in legislation have not promoted the ends so vigorously proclaimed in the directive principles. We've stumbled along the way, lost the direction we were exhorted to proceed along, and are for various reasons wary of altering course substantially.

A one-line fix to the Constitution can alter this, changing the ground rules without substantially modifying the framework of social organization as envisaged in the Constitution. It will require no controversial commission to study the merits of new laws for months together, will involve no charge of being particularly motivated by a specific political goal, and to the degree that all parties place some faith in constitutional government, it will represent a continuity with the past.

Let the Directive Principles of State Policy have the force of law and be enforceable in the courts.

If necessary, we can debate a suitable time over which this transition needs to take place, and set definite and automatic triggers to the process of creating such change. But, fundamentally, the provisions contained in the directive principles are sound (the Constitution already proclaims the virtue of these principles) and they merit the full force of the law behind them. Obliging the government to steer a specific course makes it answerable to the charge it is given. The absence of accountability remains the single biggest obstacle to positive change in India, and in many regards, the absence of legal provisions to back the directive principles is responsible.

Every child must go to school, this is not an option that the government may permit or merely support, but an obligation it must fulfill. In every civilized corner of the world, for example, children are guaranteed a secondary-level education; in India we are still debating the enactment of the 83rd Amendment to bring this about, and in doing so admitting that we have neglected the charge to bring this about 40+ years ago. If you could have sued your state government for not fulfilling this obligation in the 1960s, a few million more Indians might be literate today, there may well have been several million fewer of us, and the goal of economic opportunity to all might be more real. Instead, without the threat of being held to account for failing to meet this obligation, every successive government has paid lip service to this basic need, with shocks felt everywhere in society.

And so it is with other aspects of our lives. Every working person must make a living wage. Every citizen is entitled to equal justice under a uniform set of laws. Every person performing a certain job is entitled to equal pay without discrimination. I didn't dream these up in a fit of political scheming. Fifty-two years ago, the framers of the Constitution found these notions to be sufficiently exalted that they directed the state to function in pursuit of them, permitting only that a finite and small period of time may be necessary to give them the force of law. That time has long since passed, both by the measure they themselves instituted (ten years) and by the yardstick of merely looking around us to witness the horror of our failure to reach the desired ends.

Honest respect for the Constitution demands that its ideals be enshrined in the laws of the land. Republic Day must be more than the might of our armed forces on display, and more than a fleeting celebration of diversity in our culture. Let's make a common-sense fix to the Constitution -- the document that marks this annual event -- which construes a real nation with shared destinies in law, and is built with public policy that is universal. Let the Directive Principles of State Policy be more than a set of ideals to which we profess homage. Instead, let them have the force of law, and be enforceable in the courts.

Ashwin Mahesh

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