This column is on classics and we must consider whether our Constitution is one. It is certainly regarded as one. Indians have always revered the Constitution, though to be honest, few of us have read it. In that sense it is like a religious text. Recently, there was a controversy over an Opposition leader saying that India was but a Union of States. The ruling party was outraged, although this is exactly what Article 1 of the Constitution says: that India shall be a Union of States.
Indeed, few Indians have read even the operative part that concerns them and not the functioning of government — the dozen and a half points from Article 14 to Article 32. Is the Constitution a classic? The answer to that is ‘no’ and ‘yes’. Let us take the ‘no’ first. The Constitution is not a perfect document, and that is understandable. No document can ever be perfect because the idea of eternal law is flawed. But constitutions survive, largely intact, because so much thought has been put into them about the future.
Contested rights
The U.S. constitution is almost two and a half centuries old but has been amended 27 times, once a decade on average. India’s is much younger but has already been amended four times more than the American one. Amendments indicate flaws and incompleteness and outdatedness.
The second reason for saying ‘no’ is that the Constitution promises much that it does not deliver. Citizens of democratic nations are fond of saying that they have free speech and freedom of peaceful assembly (meaning the right to protest). Article 19 says, “All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practise any profession, or to carry on any occupation, trade or business.”
In 62 words we are told what our freedoms are. And then there are another 400 words on the rights of the state to curb the freedoms of citizens. I will not repeat them here but suffice it to say that they so dominate the 62 words that for all intents and purposes the rights might not as well exist. So many parts of free speech are criminalised — including on grounds of sedition, defamation, contempt and religion — that free speech doesn’t exist in India although it is guaranteed. A fundamental right is defined as one that enjoys high levels of protection from state encroachment. Is that the case in India? No.
The third reason for saying ‘no’ is that because the Constitution gives so many rights to the state through the footnotes, it is open to being undone by wrong interpretation. See Article 19(g). The Supreme Court of India said in the 1950s (and it was the chief justice himself who argued this) that Muslim butchers did not have the right to occupation or trade when it came to cow slaughter. And one of the reasons cited was Hindu sentiment (see Mohd Hanif Qureshi vs State of Bihar, 1958).
One for the ages
Not only has this not been overturned, but the ban has expanded over the decades, all through subterfuge, as I have pointed out in my book, Our Hindu Rashtra.
A similar undoing was experienced by Christians, who specifically asked for, and were given by the Constituent Assembly, the right to propagate their religion. Interpretation has ended this right and today India is bizarrely a nation where the propagation of religious faith is at once a criminal offence and a fundamental right. On the issue of prayer, hijab, mosques and even vending, Muslims across India are feeling the pressure on their rights guaranteed under Article 25, which grants the freedom of conscience, the right to occupation, the freedom to profess, practise and propagate religion.
So, given all this, why do I still say that the Indian Constitution is a classic? It is because the problems lie only in the footnotes and interpretations. The basic book is an exceptional text and one for the ages. Enough space remains for it to still easily reoccupy its rightful position among the world’s greatest documents, when our current passions are behind us.
Aakar Patel is a columnist and translator of Urdu and Gujarati non-fiction works.
