We, the people of South Asia

This is turning out to be a year of Constitutions in South Asia. Prime Minister K.P. Sharma Oli of Nepal is in India with a newly amended Constitution that seeks to allay opposition to the previous draft, whose adoption four months ago led to widespread and violent ethnic protest in Nepal’s plains. Earlier in the year President Maithripala Sirisena unveiled plans for an amended Sri Lankan Constitution which would “heal the wounds” of the four-decade-long Sinhala-Tamil conflict that ended seven years ago. Here in India, last year we held the first parliamentary debate for decades on our own Constitution, prompted by fear of its erosion, and the debate rages on.

Unlike the debate in India, which is focussed on upholding the Constitution, the changes being proposed in both Nepal and Sri Lanka arise from peace processes and aim to accommodate diverse ethnic and group aspirations. Constitution-drafting has taken an inordinate amount of time in Nepal, eight years thus far. Its successive iterations reflect different stages of Nepali peacemaking, from ideological reconciliation to integration of the Maoist army to a democratic republic to pluralism, gender equality and devolution. The task has been especially difficult because of the complex and seemingly contradictory elements that the Constitution has to incorporate — Nepal as a secular socialist state with a Hindu identity, more equitable power-sharing between hill people and plains people, upper and lower castes, linguistic and cultural groups, inclusiveness, social justice and devolution. The last challenge was how to satisfy the demands of the Madhesis, plains people of the Eastern Terai who share a border and common familial and cultural bonds with Bihar. Whether they will be satisfied with the new amendments remains to be seen.

Sri Lanka’s process of constitutional change began last year with the Amendment 19 which reduced the powers of the Presidency, transferring them to the Prime Minister and Parliament. The amendment was hailed as a return to the parliamentary democracy of the original Constitution, and was to pave the ground for further change that would acknowledge Tamil aspirations. On January 9, 2016, Mr. Sirisena announced that the Sri Lankan legislature would begin drafting and debating Amendment 20 to grant greater devolution to provinces and districts, and Prime Minister Ranil Wickremesinghe convened a session of the “Constitutional Assembly” to kick-start discussion of the amendment over the weekend. If passed, it will go a large part of the way towards reassuring the Tamil community that it will not be even more vulnerable after the defeat of the Liberation Tigers of Tamil Eelam (LTTE). But ethnic and majoritarian opposition to the amendment has begun even before it has been drafted, and whether Sri Lanka’s new government will be able to push it through is unclear.

Constitution as a unifier

Yet the governments of both countries have a magnificent opportunity today to unite their people around a national agenda. The soul of a constitution lies in its vision of the kind of society that the country will seek to build through its institutions. The powerful and inspiring debates that fed the drafting of the Indian Constitution united its people in a common endeavour, as the films, literature, music and other records of the time show. That we are currently engaged in debates on how best to defend our Constitution testifies to the enduring strength of what was achieved in those years, despite the constitutional corrosion of subsequent decades.

Mr. Sirisena appears to have seen the opportunity. “We must ensure reconciliation and harmony so that we will never go back to war,” he said in Parliament. “I believe now, through our past bitter experiences, we must prepare ourselves for future challenges.” Certainly, Sri Lanka could not ask for more propitious circumstances; the defeat of the LTTE created the space for the country to embark on lasting reconciliation and may be the first time since Sri Lanka’s independence that such an opportunity has presented itself. That it has taken six long years to emerge is sobering but also underlines that it is not an opportunity that can be missed.

By contrast, the Constitution-drafting process in Nepal has degenerated into hard bargaining instead of vision. The key issue remaining is demarcation of provincial borders — while the main political parties would prefer to use geographical and economic criteria for demarcation, the Madhesis and some of the Maoists prioritise ethnic and cultural criteria. The issue will now be dealt with by a Commission to decide provincial borders within three months, but politically the two sides appear to be inching towards agreement that the criteria can be combined.

India’s own States’ reorganisation in the 1950s and 1960s did much the same, using ethnic and cultural criteria as a base while ensuring that economic and geographic factors were not ignored; similar principles were followed in the subsequent creation of new States. Indeed, the problem does not lie in internal demarcation since all citizens will have freedom of movement and residence; it lies in uneven administrative, growth and development capacity, the absence of which gives rise to chauvinism and conflict. This will be the bigger problem for Madhesis and in several other of Nepal’s provinces, and it would be wise to expand training and preparation programmes for local and provincial administrators as soon as possible.

Vision and implementation

Many of the stresses to our own Constitution stem from gaps in governance and weak imposition of the rule of law. In the past decade we have seen open flouting of the Constitution by those sworn to uphold it — for example, State-wise legislation that restricts the rights of Indians to buy property in the mountain States, or Members of Parliament asserting that religious laws stand above fundamental rights — and worse. As I write, Delhi is roiled by police attempts to slap sedition charges on a JNU student leader on what is now turning out to be fake evidence, while allowing extremist lawyers to physically attack protesters. Rather than castigating the police for their clearly partisan behaviour and ensuring the charges against the JNU student are dropped, the Home Ministry has sought to justify them and the Lieutenant-Governor has remained silent.

A Constitution is only as good as its implementation, goes the tag. However, it is more. A really good Constitution holds up the mirror to government and enables the public as well as leadership to identify shortfalls. Our Constitution was a post-war one, like the current Nepali and Sri Lankan drafts, and it was bound by similar imperatives of post-war reconstruction, reconciliation and unification. But it also held out the vision of what we would like to become, that is to say it envisaged a time when post-war tasks would have been completed, as they were in large part decades ago. What we face today are tensions arising from the failure to move to the next stage of implementation of the Directive Principles of the Constitution, to provide common citizen rights across the country.

Lessons from India

Our experience holds out both good and bad examples for drafters of the Nepal and Sri Lankan constitutional amendments. The two countries are moving to the parliamentary democracy that has stood India in good stead, and they too are exploring devolution as a means of reconciliation and unification. Nepal is looking at a more federal model resembling ours; Sri Lanka at something between federal and our Panchayati Raj institutions. On the negative side, we have made only slow progress in creating uniform delivery of rights and justice, partly because law and order falls under the State administrations, which have little incentive to work together and with the Centre, partly because the civil services are not insulated from political interference, and most of all because the carefully structured formula of Central training and States’ forces, for example in the police, did not work because of large variations in political and administrative culture across States.

The point to be drawn is that sometimes too much detail in a Constitution hinders rather than helps administration and may even detract from the rights that form its core vision. Our own Constitution-drafters did have doubts on whether they were acting wisely in laying down so many details on what would be under the Centre’s purview and what under the States’, but felt they had little choice given they had to bargain with close to 600 Indian princes to get them to join the new India. Nepal faces a similar problem on a much smaller scale and our example might prove illuminating for all sides in that country. Sri Lanka is fortunate in facing only small elements of this problem — their legislature has a rare opportunity to combine reconciliation with vision. As a devout believer in our own Constitution, I can only wish them the very best in their invigorating national endeavour.

(Radha Kumar is Director-General of the Delhi Policy Group. The views expressed here are her own.)