Towards a constitution culture

The prime minister’s gesture after winning the elections was welcome.But we need to go beyond rhetoric

Published: 12th June 2019 04:00 AM  |   Last Updated: 12th June 2019 02:55 AM   |  A+A-

Prime Minister Narendra Modi bowed before a copy of the Constitution in Parliament after his party’s victory in the Lok Sabha elections. Congress president Rahul Gandhi tweeted that his party MPs would strive “to protect (the) Constitution and institutions.” It is now time to reflect on our socio-political document.

John Marshall, who was the Chief Justice of the US from 1801 to 1835, famously said that the Constitution of a country is one “framed for ages to come” and “designed to approach immortality as near as human institutions can approach.”

India’s Constituent Assembly debates were fecund with imaginative deliberations. Apart from Dr Ambedkar, the mastermind, the discourse also included, among others, the optimist Nehru arguing for fundamental rights, Sardar Patel talking about limits to freedom, Rajagopalachari pleading for Gandhian Swaraj and K M Munshi emphasising personal liberty.

No Constitution can protect itself. But it can engage and perpetuate a political culture necessary for its own preservation. In the words of constitutional law scholar Mark Tushnet, “It’s politics, not ‘the Constitution’, that is the ultimate—and sometimes the proximate—source for whatever protection we have for our fundamental rights” (from his book Why the Constitution matters).

The ruling coalition and the opposition have a political obligation to the country’s fundamental law. But we need to travel beyond the rhetoric. The prime minister’s gesture and Rahul’s tweet pose more questions than they answer.

The Constitution is also a cultural document. Unlike a religious text, it is intended for its non-believers as well, as the great human rights lawyer K G Kannabiran once remarked. Building up a constitutional culture is, however, not an easy task. Dr Ambedkar warned that “democracy in India is only a top dressing” and that the Indian society is “essentially undemocratic.” He reminded us about the great Indian “contradiction” of how even while having political equality, the country struggles with social and economic inequality.

Article 21 of the Constitution promises a dignified life and Article 14, dealing with equality, is the legal equivalent to socialism. As Nobel laureate Amartya Sen said, “Poverty is not just a lack of money; it is not having the capability to realise one’s full potential as a human being.”

Jurist Ronald Dworkin was quoted by journalist Stuart Jeffries in The Guardian as saying: “I’m talking about dignity. It’s a term overused by politicians, but any moral theory worth its salt needs to proceed from it.” Dworkin’s remarks indicate the true spirit of ‘constitutional morality’, a phrase India’s top court has repeatedly invoked in different cases in recent times. We need to expand the idea of constitutional morality to address the fundamental issues of the country like poverty, illiteracy, unemployment and environmental degradation.

Jean Dreze says that “the dismal living conditions of the Indian poor call for immediate intervention” and “not a passive wait for economic growth to raise their per capita income” (Sense and Solidarity). This would mean that poverty needs to be addressed as a severe threat to the country’s Constitution that bears a socialist preamble offering “justice, social, economic and political”. Good governance that focuses on improving people’s living conditions alone would do justice to the intent and content of the basic law.

Dr Ambedkar envisaged a plan for “State socialism by the law of the Constitution.” While proposing this idea, he rejected the possible criticism that the idea transcends “the usual type of fundamental rights”. He indicated that the very purpose of enacting fundamental rights is to protect liberty and to evolve a fair economic structure.

Part IV of the Constitution, by way of the Directive Principles of State Policy, reflects the aspirations of the nation. Article 38 speaks about a just social order and people’s welfare. Equal justice based on equal opportunity is the dream emanating from Article 39A. Article 41 mandates the state to ensure the citizen’s right to work and education. This is followed by Article 42 that calls for just and humane conditions of work and Article 43 that pleads for a decent living wage. Themes under this part, ranging from agriculture to environmental protection, are all different facets of India’s constitutional yearning. Dr Ambedkar wanted these principles to be “the basis of all executive and legislative actions” and thus of governance.

It needs an imaginative project to connect the citizen with the affairs of governance. The term inclusive development is multifaceted. In a country of diversity where federalism and secularism are not just legal requirements, but historical necessities, the political executive should guard against any kind of alienation, based on religion, territory or language. National integration must be rooted in the basic philosophy of socio-economic equality.

Political eloquence does not erase poverty or unemployment. It needs a constitutional praxis. Therefore, despite the gratifying gestures of the PM and the Congress leader, the citizens need to be skeptical, critical and also argumentative. The new regime needs to follow what former US Supreme Court justice Robert Jackson said: “It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.”

KALEESWARAM RAJ
Lawyer in the Supreme Court of India
Email: kaleeswaramraj@gmail.com

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