The informed public is beginning to realise the ambiguity, contradiction and conditionality in the Constitution. This problem was apparent even when drafting the Constitution. Much of it was derived from the British Government of India Act, 1935. The overlay was lifted from the United States Constitution and constitutions of other democratic states caused more confusion. Successive amendments further complicated the major contradiction between a libertarian overlay and an authoritarian base by distorting an already complex and contradictory text.
Apart from successive parliamentary intervention, over time, the Supreme Court further complicated the matter by contributing its views and judgments in trying to resolve the contradictions. Seventy years later, we find a constitutional confusion which allows for everything and defends nothing.Take, for example, the fundamental rights. These fundamental rights were lifted largely from the US Constitution and made our Constitution look modern, secular and progressive.
Yet, the Constituent Assembly, full of lawyers, was aware of the contradiction between these modern views and the provisions adopted from Government of India Act, 1935 and existing colonial laws in force. To cope with this contradiction, the Constitution-drafters limited the grandeur of the fundamental rights by specific provisions which allowed for their limitation based on “public order, decency or morality” without any definition of these terms. Defining these terms was left to government and the courts.
Provisos to the Articles granting other fundamental rights limited these rights by expressions such as, “Nothing in this Article shall prevent the State from making any special provision”, “Notwithstanding anything in Articles...”, “Provided that nothing in this Article shall apply...”, “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament”, “Nothing in this Article shall prevent Parliament from making any law prescribing”, “Nothing in this Article shall affect the operation of any law”, “...subject to public order, morality and health” etc.
In 1971, Parliament asserted its supremacy by adding Article 368: “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article”. What’s more, under the same Article, it was further stated, “No amendment of this Constitution... shall be called in question in any court on any ground”. This last was mercifully struck down by the Supreme Court in the Minerva Mills case. Even more egregious has been the protection from judicial scrutiny of nearly 300 laws in the Ninth Schedule of the Constitution.
Only one significant fundamental right did not have a proviso and seemed unconditional and applicable to all persons (not only citizens). This right is the essential and critical part of any society. Article 14 says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
The Article’s legacy is more than 800 years old, dating back to the Magna Carta of 1215, which formed the basis of English freedoms. It stated very simply: “We will sell to no man; we will not deny or defer to any man either Justice or Right”. Elsewhere, it referred to “freemen”, but here it was any person — free or slave. Our Constitution also makes a distinction between a “citizen” and a “person” and confers differential rights on each. Currently, Article 14 is critical to the conferment of full constitutional rights on non-citizens — including the right to vote in the context of the Citizenship Amendment Act.
While there is no proviso to Article 14, there are other Articles and other fundamental rights which detract from its impressive and all-encompassing statement. The Constitution enshrined this right in the full knowledge that the country was diverse and its society was discriminatory. In inserting this Article, the Constitution makers went in the face of all social, political and economic reality. It seemed more of a wish and a hope for the future. It is naturally a critical part of the “basic structure” of the Constitution, which cannot be amended by Parliament as per the decision in the historic Keshavananada Bharti case. Yet, this vital and unconditional right was diluted by Parliament with the active approval of the Supreme Court which allowed for exceptions on many grounds.
Thus the Constitution permitted other laws under other articles which were discriminatory and treated groups of people differently from other groups. While the Constitution ostensibly recognises only the individual, it permitted laws and policy aimed at specific social groups as in the case of reservations in education and public employment. An individual’s right was dependent on his membership in a social group, and he or she inevitably lost or gained depending on the privileges conferred on one social group as opposed to others. The Constitution also treated citizens, resident in various regions, differently as in Article 371.
Parliamentary and judicial intervention is permitted in the constitutional order as long as there are parliamentary majorities – simple in most cases; in specific cases, two-thirds majorities; in some cases, concurrence of half the States. The Constitution is malleable to the will of Parliament, and the Parliament is the voice of the electorate.