India: Understanding our Constitution a little bit better

In less than a week, we celebrate our Republic Day.

But what exactly is a republic? How is it different from a democracy – which begs the question, what is a democracy?

One of the definitions of democracy, given by Google, is this: “control of an organization or group by the majority of its members.”.

Or, as children in India have been saying for years at around 5.30 in the evening, “majority wins” (Extra points for reading this in that wonderfully evocative sing-song cadence.) But hey, there’s so much more to it than that!

So what is a republic? Once again, Google to the rescue: “a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch.”

So when we celebrate Republic Day, we’re really celebrating the fact that we’re not ruled by a monarch anymore, but rather by ourselves. Except that we elect some people to do the job for us.

So when we appoint somebody, what powers do we give them? What powers do we not give them? Do we give them the power to change the powers that we give them – if you see what I mean?

That is where the constitution comes in. Again, our old pal Google: “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.”

The Constitution, sets the maryadas of the government in power. This you can and should do, this, uh, not so much. That, not at all. The Constitution does so much more than that, but that is certainly one of its main purposes.

Which begs the question: who came up with the idea of constitutions? Who, in India’s specific case, was appointed to write India’s Constitution? On what basis? What were their ideas and motivating principles? And that is the direction in which today’s post will go.

Disclaimer: I don’t pretend to be anywhere near an expert on this topic. This is on the basis of stuff I have been reading in order to teach myself. If you have links to share that will broaden my understanding of this topic, please do share.

Many thanks to Murali Neelakantan for providing a ton of helpful suggestions!

1. “To understand the first conceptualisation, that of constitution-as-function, we should clarify what scholars view to be the traditional purposes of constitutions. A central idea here is the limitation of government power. Constitutions generate a set of inviolable principles and more specific provisions to which future law and government activity more generally must conform. This function, commonly termed constitutionalism, is vital to the functioning of democracy. Without a commitment to higher law, the state can operate for the short-term benefit of those in power or the current majority. Those who find themselves out of power may find that they are virtually unprotected, which in turn may make them more likely to resort to extra-constitutional means of securing power. By limiting the scope of government and precommitting politicians to respect certain limits, constitutions make government possible.”
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   That’s the whole maryada angle we were talking about earlier. That is from the UCL website, and the website is worth a detailed look.
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2. So if the idea of the Constitution is to, in this case, set up the framework for the operation of the government, that makes it pretty darn important. Who did we give the job to, and how?
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   “”India was still under British rule when the Constituent Assembly was established following negotiations between Indian leaders and members of the 1946 Cabinet Mission to India from the United Kingdom. Provincial assembly elections were held in mid 1946. Constituent Assembly members were elected indirectly by members of the newly elected provincial assemblies, and initially included representatives for those provinces that formed part of Pakistan (some of which are now in Bangladesh). The Constituent Assembly had 299 representatives, including fifteen women.”
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   Note that we didn’t really give the job to anybody. There were provincial assembly elections, and the Constituent Assembly members were elected indirectly by members of these provincial assemblies. But that may be a good thing! As Vijay Kelkar and Ajay Shah note in their recent book, In The Service Of The Republic: “The Constitution of India my not have won a referendum either in 1950 or today.” (Emphasis added).
   I really wish we had the time to explore this question in more detail: who frames the rules by which we agree to live as a country, and on what basis. But I promise to get to it in later posts. For the moment, we move on.
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3. “(1) This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;(2) WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

   (3) WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the Law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and

   (4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

   (5) WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action, subject to law and public morality; and

   (6) WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

   (7) WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to Justice and the law of civilised nations, and

   (8) this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.”
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   This is the famous Objectives Resolution, put forth by Jawaharlal Nehru on the 13th of December, 1946, in one of the first few (the very first?) meetings of the Constituent Assembly. (5) and (6), to me, are the most crucial parts of the resolution. If the question is, what were the aims and aspirations of the members of the Constituent Assembly in terms of what they hoped the Constitution would achieve, this is the best answer I could find.
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4. “It was here that the enduring distinction between “justiciable” and “non-justiciable” rights (Directive Principles) was first mooted, much to the consternation of K.T. Shah. It was in the Sub-Committee that Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur argued strongly for a right to inter-religious marriages and to a uniform civil code (with Ambedkar’s support), but were voted down. It was in the Advisory Committee that the right to privacy (secrecy of correspondence and prohibition of unreasonable searches and seizures) was dropped from the draft bill of rights, as was the right to vote. Here you find Ambedkar’s eloquent arguments for the link between constitutional rights and the economic structure, and K.T. Shah’s radical proposals to make remuneration for housework a fundamental right. In short, endlessly fascinating stuff.”
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   All of that comes from Gautam Bhatia’s blog, written in collaboration with Vasudev Devadasan. The blog is worth subscribing to, and reading this post (part 1 of 3, no less) makes me want to burrow into this topic for a long time to come. Alas, accursed economics!
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5. And finally, from a column written in 2018 by Gautam Bhatia, this excerpt – but do read the whole thing!
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   “In hearing and deciding these cases, the court has an opportunity to affirm the words of one of its greatest civil rights judges, Justice Vivian Bose, who recognised the deeply transformative character of the Constitution when he said: “Is not the sanctity of the individual recognised and emphasised again and again? Is not our Constitution in violent contrast to those of states where the state is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power?” How India Became Democratic helps us to understand that the answer to both those questions is an unambiguous “yes.””

 

It shames me to realize how little I know about India’s constitution, and the history of that constitution. We live by a set of rules whose origins, aims and framers are largely unknown to most of us. This post was my attempt to begin to change my own status quo, and I hope to dedicate at least one Monday a month to writing a post that helps me learn more about the Indian Constitution.

And on that aspirational note, a very happy Republic Day to you all!