As a dystopia rises to mark India’s 75th anniversary, we must fight to protect our Constitution

Architecture is essentially a utopian project. It gives shape to a dream or a vision. Public architecture is a visual representation of the imagination of the people and their leaders. At a time when India is facing one of its worst humanitarian crises, when people were gasping for oxygen, dying in the thousands for lack of medicines, vaccines and hospital beds, when the dead were being denied of the dignity of a decent burial, to build a utopia by spending thousands of crores of rupees is a gross injustice to the country’s citizens.

The Central Vista project to reconstruct New Delhi’s administrative and parliamentary district might be Narendra Modi’s utopia, but for India’s people, it is a dystopia being constructed to celebrate the dismantling of our Republic in time for two anniversaries – the 75th anniversary of Independence in the next year and that of our republican Constitution in 2025.

Just a year before that, in 2024, we face a crucial parliamentary election, which might determine the fate of this Republic. Such moments in history are not only occasions for remembrance and celebration, but also a time to consider the lessons of our past that will shape our collective futures.

Fundamental ideals

The freedom struggle not only made India independent, but upheld the fundamental ideals of justice, freedom and democracy. These have been enshrined in our Constitution, which lays down the fundamental laws of the Republic. Our Constitution is under siege; its basic institutions, laws and its spirit is continuously being violated. It seems to be a time when our worst fears could come true.

Thus, it is a time to remind ourselves of the ideals of our Republic and why its so important to defend them and protect our freedom, our democracy and our Republic. We have to be cautious and remember that ideals and reality might be poles apart. However, that does not make ideals irrelevant. They give us a public language to decide on our collective destiny and the tools to criticise our reality.

The Indian Constitution is the longest surviving democratic constitution in the Third World. It is often slotted in the liberal category, a kind of a country cousin of western liberal models. Unfortunately, it has frequently been described as a lawyers’ paradise for, save some exceptions, we have not sufficiently appreciated the rich, original political philosophy enshrined in the Constitution. Only when we recognise and celebrate these ideals can we defend this gravely wounded Republic.

The distinctiveness of the Indian Constitution lies in its combination of a set of ideals, which are translated into the fundamental law of the land and another set of ideals, which are promised by the Constitution to be realised in the future. The single ideal that connects the two is the centrality of justice, in conjunction with liberty, equality and democracy.

This is unlike the American or other liberal constitutions, where the rich sense of justice found in ours is absent. Even democracy was limited in the early years of liberal constitutionalism. In fact, long after ours, the US constitution guaranteed full democracy to all.

So on the 75th anniversary of freedom and the Constitution, should we not only remind ourselves of the ideals of our founders, but, more important, demand that the promises made in our Constitution be redeemed? Constitutional promises are the most solemn pledges and they cannot be allowed to remain unrealised even after 75 years of independence. Ideals are central to the life of a people: they not only guide our destiny but provide us with the gold standard to judge the working of the government, the state and public life generally.

Ideals and promises

The Preamble to the Constitution makes the promise of Justice, Liberty, Equality and Fraternity. These words might sound familiar to liberals, but the Constitution elaborates them in radical ways. Justice is extended to the “social, economic and political” spheres. The Indian discourse on social justice is legion but we have not been as vocal on the ideal of economic justice. Likewise, equality is described as “equality of status and of opportunity”. It transcends the limits of the liberal ideal of formal equality or equality before the law.

Anticipating Amartya Sen’s key question, “Equality of what?”, it has a definite answer – “equality of status and of opportunity”. Unfortunately, like social justice, equality of opportunity, in our public discourse has been reduced to reservations for oppressed and backward castes and classes. The ideals of justice and equality as found in our Constitution are full of immense possibilities, yet to be explored adequately.

The second unique feature of our Constitution is the chapter on Directive Principles of State Policy. Though not enforceable in any court of law, its “principles…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”, as Article 37 states. This chapter elaborates the two crucial ideals of justice and democracy and in its light promises new rights to realise these goals.

The guiding principle of justice is laid down in Article 38, which states, “The State shall strive to promote the welfare of the people by securing and protecting … a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” It elaborates the idea of economic justice by promising “to minimise the inequalities in income … in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas of engaged in different vocations”.

The property question is central to any ideal of economic justice, so the Constitution makes two promises. First, in Article 38, Clause 2, “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; [and] that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”.

Informed by this rich sense of justice, the Directive Principles elaborates on new rights beyond liberal conceptions. Central to them are the right to “an adequate means of livelihood” (Article 39a) and the right “to work, to education and to public assistance” in cases of undeserved want (Article 41). It also lays down the “raising of the level of nutrition …. the standard of living of its people and the improvement of public health” as among the “primary duties” of the state.

Next, the ideal of a decentralised democracy is upheld by the promise in Article 40 that “the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government”.

Before we move on to the next section, where I will discuss the contestations and changes brought about in the Constitution, let me highlight the contentious issue of banning cow slaughter and consuming beef as some of kind of constitutional mandate. What exactly does our Constitution say on the protection of cows? This comes in the context of the state’s role in organising agriculture and animal husbandry on scientific lines and not for any religious reason. Article 48 states:

  “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”  

It does not offer any religious reasons, but in the same breath talks of prohibiting the slaughter of all other milch and draught cattle. To single out cows is not only a violation of the basic principles of secularism, it is also a gross form of discrimination against other milch and draught cattle, a violation of the right to equality.

Contestations over ideals

The freedom struggle in India brought together many different ideologies and ideals. This was reflected in the Constituent Assembly, where liberals, socialists, Gandhians and others worked under the chairmanship of the greatest voice of Dalit liberation, BR Ambedkar, to draft the Constitution. In independent India, democracy further enabled these conflicting ideals to engage with each other. As a result of these contestations under a democracy the state could retain its legitimacy by further radicalising these ideals and giving justice priority over other ideals.

Under Jawaharlal Nehru, there was a sharp conflict between the ideals of social and economic justice and the fundamental right to property. It came into the open when the government enacted laws to abolish the zamindari system and feudal landlordism. It was also evident when, in its pursuit of planned economic development, India nationalised some industries and when it introduced reservations in educational institutions and government jobs for oppressed castes and classes.

Initially, the Supreme Court upheld standard liberal ideals and rights as enunciated in the chapter of the Constitution on Fundamental Rights. But democratic pressure and the compulsion of justice in the Indian situation ultimately led Parliament to uphold its supremacy, wherein it amended the Constitution to nullify conservative judicial pronouncements.

In fact, the fundamental right to property was repeatedly amended to restrict it and ultimately in the late 1970s it was even removed from the list of fundamental rights. It fundamentally radicalised the character of the Constitution and put the ideal of justice on top. In other words, the ideals of the Directive Principles trumped the right to property.

In another important move, the Constitution was amended to put the Directive Principles at par with Fundamental Rights, if any conflict were to occur between them, by incorporating a new clause to Article 31. In fact, it gave an edge to the Directive Principles over Fundamental Rights. Given the way the Supreme Court has upheld the indestructibility of the basic structure of the Constitution, it now has a very difficult task balancing the two sets of ideals. Whatever position the Supreme Court takes, it will find it almost impossible to down play the ideals of justice as it had done in the early days of independence.

Under a democracy, the conservative Supreme Court was increasingly radicalised, especially given the pressure of the public discourse on justice and the reality of gross injustice in the lives of millions of people. From the 1980s, the Supreme Court entertained public interest litigations and responded to the growing collective concern and action over gross forms of deprivation and injustice in various spheres of human existence. The Supreme Court now showed more awareness of the spirit of the Constitution and the ideals embodied in the Preamble and Directive Principles.

It made a major departure from standard liberal interpretations of the right to life and liberty (Article 21) and now upheld the position that a right to life and liberty with dignity is possible only if it includes the right to livelihood; the right to education; right to health and medical care of workers and the right to pollution-free air and water. This resulted in a series of legislations to provide for food, work, education and environmental protection. However limited the scope of these laws, they are definitely a step towards the recognition of the primacy of justice.

The amended Constitution read with these judicial pronouncements went a long way in upholding the ideals of justice and democracy. Here we must make a distinction between the occasion and intentions of the amendments and focus on the radical possibilities it opened up in the political process.

So before I conclude, let me mention that the amended Preamble now includes the ideals of socialism, democracy and secularism. Secondly, panchayats, from the village to district level, are now a constitutionally recognised level of government, formally geared for justice. Finally, protection of the environment (Article 48A) and non-violence (Artcile 51A, Clause i) and promotion of international peace (Artcile 51) are part of our constitutional obligations.

Contemporary relevance

In the present conjuncture of history, India is at a crossroad. The architecture of our Republic is being redesigned and the prime minister is presiding over the consecration of a Supreme Court-sanctioned Ram temple at a time when the political fortunes of the ruling party seems to be on a particular low. Authoritarian leaders always resort to spectacular interventions to draw away the attention of the people from the unbearable realities of the present.

Given the Bharatiya Janata Party’s intense determination to win every election and its record of throwing all Constitutional solemnities to the wind, I am afraid that the next parliamentary election in the wake of the redesigned Republic and the new Ram temple might be an occasion to promise a new constitution replacing the ideals of justice, democracy and peace with that of the Hindu rashtra. After all, the ideological core of the BJP is grounded in the belief of a Hindu rashtra.

The Constitutional idea of India has already been violated by dissolving the state of Jammu and Kashmir. This is contrary to the dominant nationalist imagination of India being characterised as having an eternal unity in the midst of all diversity. This idea of unity in diversity believes in two things – that some essence pervades the whole of India giving it a indestructible unity and hence unity is prior and superior to any diversity.

However, the Constitution defines “India, that is Bharat, shall be a Union of States.” (Article 1) It also describes the government in Delhi headed by the president and the prime minister as the Union government and not what we routinely call, namely, the Central government. The word “central” refers to it being the centre of the political life of India or its essence.

The Constitution is a carefully worded document for it is meant to survive several generations. So what do the words “a Union of states” mean? It simply means that the states have come together to form a union, the way a man and a woman come together to form a new union. The components of any union is prior to the union and hence indestructible.

States, it is assumed, are unities based on a common language, culture and history. Hence they can be reorganised, as was done to conform to these commonalities. The re-organisation of any state is not equivalent to its dissolution or its down grading into a Union Territory, which is not entitled to a democratic government; again another basic constitutional ideal and obligation. The basis of my fear of a new constitution is this destruction of the constitutional idea of India, along with a series of such gross disregard for constitutional norms, practices and institutions.

This is the reason why we need to remind ourselves of our constitutional ideals and promises and make the 75th anniversary of freedom and the republic an occasion to realise the solemn promises made by our Constitution to the people. Will our political leadership rise to the situation to fulfil these promises in the 2024 parliamentary elections? Can we turn the next parliamentary elections into a referendum on the future of our Republic? A future, where democracy, justice and peace prevails.

Sanjeeb Mukherjee has taught politics at the University of Calcutta.