Incongruities in the Constitution

Aasif Mujtaba

“If I find the Constitution being misused, I shall be the first to burn it.”
Bhimrao Ramji Ambedkar,

During the entire course of the protest against the nefariously designed and inherently diabolical Citizenship Amendment Act (CAA), one slogan was common at all the protest platforms, “Samvidhan bachane nikle hain, aao hamare saath chalo” ( we are out to safeguard the Constitution, come with us). The Constitution was quoted as if it was some divine document and like “secularism” every Muslim is duty-bound to safeguard every letter of this book too. Well, I knew indispensably that a day would come when the minority would need a revisit on this ill visioned call, and with the clear motive of the state for pushing for the Uniform Civil Code (UCC), it seems the worst fears are about to come.

From the first day of the beginning of the Shaheen Bagh Movement in mid-December till the media trial and arrest of Sharjeel Imam, we would always emphasise resting our whole movement not on the Constitutional texts but on the Constitutional spirit. Even the last article that me and Imam wrote talks clearly about the differences between the two and it listed various reasons why Muslims are protesting.

The Constitution

I think the problem arises because of sleazy understanding of the Constitution. The Constitution which is an organic document divides the power among the organs of the state ( legislature, executive, and judiciary) . It also limits the powers of the state. It is indeed the Constitution that hinders the state from becoming all might and oppressor and changes the state from becoming ” rex lex (the king is the law) to lex rex (the law is the king).

The Constitution we often quote consists of three parts:

1) The Constitution of India 1950 as adopted on November 26, 1949, and implemented on January 26, 1950.

2) Various Conventions adopted by the Indian Parliament.

3) Various Constitutional interpretation by the Supreme Court ( just the supreme, not infallible)

Well, the Constitution though considered as supreme and of the highest importance, is not any divine document and has no hallow sanctity. It is prone to a plethora of incongruities. The Constitution is a book to guide the society and also acts as a touchstone for all the laws made by the state and since laws are made for the society that keeps on changing with time, there must be scope for changes in the Constitution itself. The Constitution makers were well aware of this fact and for the same reason, they left the scope for its correction.

1) The Constitution of India 1950 can be corrected by various amendments either through a simple majority or under article 368. As of January 2020, it has been amended 104 times and from an original of 395 article, it currently has 448 articles.

2) The conventions that have been adopted can be dropped or more can be adopted. The concept of “no-confidence motion” is nowhere in the Constitution and is, therefore, an adopted convention and finds in place as 198 of Lok Sabha rules. Similarly, the appointment of Prime Minister by the President is governed by the convention and in case of a hung assembly, this convention ensures a greater discretionary power upon the President. This convention can easily be changed.

3) The interpretations by the Supreme Court may vary. There have been multitudinous examples. The most striking is article 21, whose scope has been greatly magnified over the years by the court. The right to privacy, Right to access of a clean environment, Right to livelihood, etc. are now part of the Right to life. Another interesting example is the Right of the Parliament to amend the Constitution using article 368. In a series of judgment ( Shankari Prasad Vs Union of India 1951, Sajjan Singh Vs State of Rajasthan 1965, Golak Nath Vs State of Punjab 1967, Keshvananda Bharti Vs State of Kerala 1971, Minerva Mills Vs Union of India 1980 ) the Supreme Court often contradicted its earlier verdict and thus the Constitution kept of changing.

Having cleared that Consitution is not any divine book and may have lapsed or may need a paradigm overhaul, one may consider articles 44 ( uniform civil code), article 48( cow protection), centre state relations, First Past The Post (FPTP) system of elections ( article 81), putting delimitation as out of judicial review, etc. as inconsistent with the current society. As Dr. Ambedkar rightly points out that Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered. These anomalies need to change with suitable amendments.

The Constitutional spirit

Like any organic entity ( humans for example) , the body may have deformities but the spirit is pure. A body may not be able to walk or see but the spirit is free of such redundancies. Spirit is free of deformities. In a similar way, the spirit of the Constitution as enshrined in the “Preamble” should be our guiding light and not the Constitution. Some may argue as to how can one consider the Preamble as the spirit when it has also been subjected to amendment ( 42nd amendment). Well, the keystone words ” Sovereign, Socialist, Secular, Democratic, Republic” can be considered as what makes the Constitutional spirit. In the landmark judgment of Keshvananda Bharati Sripadagalvaru & others Vs State of Kerala, 1973, the honourable Supreme court has outlined the ” Basic Structure Doctrine ” of the Constitution. The basic structure doctrine is somewhat similar to the spirit of the Constitution.

Way forward

Despite being a secular state as envisioned in the Constitution and as spoken in the Preamble, there have been innumerable instances when there is an attack on the minorities and their institutions. The “out of judicial review” delimitation and the first past the post (FPTP) system of the electorate has resulted in the political marginalisation of minorities. The insertion of Cow protection in the Directive Principle of State policies ( DPSP) has often led to poor framing of cow protection laws by various state legislatures and have given way to uncounted instances of mob lynching. Under the garb of the Uniform Civil Code, minorities are often threatened to take away the very little freedom they enjoy in their personal laws. Through the presidential order of 1950, Dalit Muslims and Christians are kept out of the reservation net ( though the paragraph 3 of the original Presidential order limited the classification of schedule caste only to Hindus, it expanded to include Sikhs in 1956 and Buddhists in 1990 due to political activism ).

It has been more than seven decades of independence. Even now the minorities are still fighting for their mere existence. They have been made invisible from various social and political spheres. Mob lynching, custodial killings, kept as undertrials for an indefinite period, being abhorred, and mocked has become a daily routine for minorities in the country. There must lie some faults in the Constitution that we are seeing this day. It is high time to introspect as to how this supreme book has failed to ensure a dignified living to a large section of the society. There must be some errors because of which the Constitutional texts have failed to replicate in spirit. As Benjamin Franklin said that Justice will not be served until those who are unaffected are as outraged as those who are, there is a clamant need for all the sections of the society to come forward and raise their voices against such incongruities in the Constitution.

Aasif Mujtaba is a research scholar at IIT Delhi.