Congress Undemocratic Ideology - 3

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The Emperor's New Dhoti

<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>The Emperor`s new dhoti </b>
T C A Srinivasa-Raghavan / New Delhi January 26, 2008
<b>Not content with mere nip-and-tuck jobs, the Indian Constitution has been amended 104 times. T C A Srinivasa-Raghavan distinguishes the necessary from the repugnant in this special report  </b>
 
In a couple of years from today, India will celebrate 60 years of its Constitution. During that period, the poor dear would have undergone a facelift at least 104 times, which is the current tally of the amendments. 
 
<b>The 104th amendment, by the way, is a rather cheap political ploy</b>, adopted with an eye on votes rather than a clear public purpose. It makes it compulsory for private educational institutions to reserve seats for specific categories such as Dalits, scheduled tribes and other backward castes. 
 
<b>The 103rd amendment, in a similar exhibition of low cunning</b>, has conjured up the notion of a state-wise, rather than a national, minority status for groups of population. 
 
Not all of the amendments have such dubious origins, though.<b> A completely new schedule, the 10th one, was inserted in 1986. It seeks to prevent defections by politicians.</b> It became necessary to ensure that our honourable legislators would not change boats mid-stream, a practice that had assumed pandemic proportions in the two preceding decades, creating political instability and causing moral mayhem. 
 
Then there is <b>the 74th amendment which created a third, village level tier of government.</b> There are many other such amendments — indeed they are the majority — whose purpose was entirely bona fide and which were made in order to make a positive change consistent with the Constitution. 
 
<b>But on nearly two dozen occasions low politics has produced an amendment. Thus, in 1976 India was turned, Constitutionally, into a “socialist” republic. A couple of years later, a supposedly liberal government de-recognised the right to private property. </b>
 
The utter and complete mindlessness of these amendments was matched only by<b> the diabolic 38th amendment that said “Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground” (italics added).</b> 
 
Then there was <b>the amendment that made it binding on the President (or Governor) to accept the Cabinet’s advice, not to mention the aborted one that sought to place Indira Gandhi above the law. The Ninth Schedule ensures that some executive actions will not be open to judicial review.</b> 
 
But early last year, the Supreme Court struck this down on the ground that anything that violates fundamental rights resulting in the violation of the basic features of the Constitution has to be open to judicial review. 
 
Those aberrations aside, for purely practical reasons, new states have been formed. New languages have been Constitutionally recognised. Taxation powers, under a darling little provision called Entry 97 which gives the Centre the power to legislate on anything that is not contained in the state or concurrent lists, have been enlarged. 
 
<b>The result is that services can now be taxed. This is what has brought the bloom in the finance minister’s cheeks.</b> All sorts of changes have also been made to the state and concurrent lists, mostly as enabling amendments to get something positive done. 
 
<b>This implies that the original was impractical, in so far as it didn’t meet the needs of a poor and democratic country. The reason why this was so is not very well known, largely because we have adopted the American “Founding Fathers” pretension. </b>
 
According to this vanity, the Founding Fathers were all knowing and wise beyond question. The truth is very different and has been told by several constitutional experts such as H M Seervai. 
 
<b>The truth that we need to face up to is that for the most part the Constitution of 1950 was a more-or-less verbatim reproduction of the Government of India Act of 1935. The Fundamental Rights and the Directive Principles were added, and there was some tinkering here and there.</b> 
 
But <b>in its essence, it was an imperial Constitution, designed to keep India unified and the power of the Central government unquestioned and unquestionable. So what we got was a Constitution that protected a strong Centre with a large number of mai-baap knobs on it.</b> 
 
But <b>as the years have gone by and the threat to Indian unity and integrity has receded, many of the strong-Centre features have become roadblocks. Several of the amendments reflect the attempt to get a more practical and genuinely federal Constitution working. The 74th amendment is possibly the best intentioned of those attempts.</b> 
 
<b>The design defects of an imperial constitution became apparent in other ways as well. The peoples’ will and the political need in a democracy to deal with inequality and inequity were not something the Government of India Act of 1935 had taken into account. </b>
 
And nowhere was this dilemma more starkly on display than during the 1960s debates on “social” banking. There were several other instances as well where the government wanted to move on but could not because the Constitution needed to be amended first. 
 
When disputes arose and the Supreme Court had to intervene, the dilemmas became even starker. As one Chief Justice of India put it, the Court had to implement the law as it was and if the government wanted change, it would have to change the law first. 
 
Several of the amendments, including the First Amendment (see box), were the result of this. <b>The problem, of course, was that sometimes, as in the First Amendment, the government would slip in something that was not warranted.</b> 
 
In Britain this practice was known as tacking. A particularly good example of such tacking was the provision regarding reasonable restrictions on the freedom of speech to ensure a ragtag bag of things. One of the clauses read: 
 
“Nothing in sub-clause (a) of clause (1) shall… prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence…” 
 
Friendly relations with foreign states? Now how did that get in? What purpose has it served? 
 
Another feature regarding the propensity to amend is that in the beginning, Constitutional amendments did not have a predominantly political motive. This was because the central leadership was very mindful of morality and propriety. 
 
<b>But all this began to change in the late 1960s when the Congress began to lose its pre-eminent position and also acquired a singularly cynical person — Indira Gandhi — to lead it. It is no coincidence that Constitutional amendments after 1969 have generated more moral controversies — privy purses, Golak Nath, Kesava Nand Bharati, to name just three of the better known cases — than the ones before she took over. </b>
 
The numbers tell their own story. <b>Until 1969, the book had been amended 21 times; since then it has been amended 83 times. Of those 38 years, the Congress has been in power for 26. In the remaining 12 non-Congress years the Constitution was amended 20 times, of which 16 times was when the BJP was ruling between 1998 and 2004.</b> 
 
<b>Of the 63 amendments when the Congress ruled, at least 15 have been for highly questionable reasons.</b> The first two non-Congress amendments were to undo the damage of the amendments made during the Emergency. 
 
<b>The point has been made that such a large number of amendments has, for all practical purposes, left us with a Constitution that bears little resemblance to the one that the Constituent Assembly adopted in 1950. </b>
 
The thing has become like those upgraded 386 computers where only the box is original. <b>The polite terms for these developments are flexibility, evolution, pragmatism et cetera. But the much more evocative Indian word — jugaad — perhaps describes it far more effectively.</b> 
 
But wisecracks apart, the real issue is not whether the Constitution we have today is different from the one we were given in 1950. The real issue is whether without the upgrades the thing would have worked as needed, and whether after the upgrades it is working as needed.
 
Unfortunately, there can never be any agreement on the second question, for both sides of the coin can be argued with equal conviction and validity. For example, many amendments have been mala fide. 
 
<b>Amendments after 1975, made by the Congress party either in its quest to maintain the Gandhi family in power, or at least not discomfit it before the law — as in the case of the amendment that tried to put Indira Gandhi above the law and the office of profit Bill to protect Sonia Gandhi in the office of profit controversy — are examples of this. More recently, as stated at the beginning, the Constitution has been amended to woo vote banks.</b> 
 
In a nutshell, then, yes, we do have a Constitution that is very different from the 1950 one. But that does not mean that all the amendments have been for the worse or were not needed. Indeed, barring around 10 amendments that could be called morally repugnant, the rest have been the product of necessity.

Countdown
Reasons stated for the Constitution (First Amendment) Act, 1951, by Jawaharlal Nehru - relevant excerpts:

…The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.

In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.

The citizen’s right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose “in the interests of general public”.

While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6

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