What is the constitution? How did it come into being? Were the people behind the constitution able to foresee the India of today as the India of the future? What measures does the constitution contain to ensure its integrity? Where there are aberrations, who is responsible for correcting those? These and other questions are very important and need to be considered in the light of how the constitution has worked in practice.
A constitution is a contract between people. Different segments of people who were earlier parts of different components which were scattered in a large extent of land occupied by colonising foreign nations came together on the exit of that colonising entity. That conglomerate decided upon the governing principles on which the nation newly formed would move forward. Many minds came together to work on this concept. Drawing from the experience of other countries and keeping in mind the competing claims of various segments of that population and the different religious affiliations cultural and ethnic as well as linguistic differences between them, what was then considered best for this group of people to move forward as a nation was built into this document. The constitution was born.
Enter the basic flaw
It was clear that any law that could be made thereafter would be tested for validity against this constitution. A basic flaw had already crept in in this constitution when, with the laudable objective of improving it as the nation progressed and evolved the possibility of amending the constitution was built into it. The objective was that the constitution as a living document must be able to address the emerging needs of the nation in its progress towards modernity and excellence in all fields of human endeavour for its attaining the status of Vishva Guru.
How the flaw operated in practise
It turned out that this instrument of intended improvement became a tool in the hands of those who wanted not progress but regression. They kept amending the constitution until a stage where new laws were tested not against the constitution as it existed but the constitution as it later became after amendments. Questionable interpretation by various judicial minds caused a severe dilution of its integrity in the process. Measures intended to preserve the integrity and the spirit of the Constitution became tools in the hands of those who thought otherwise.
Were the framers not naïve?
The framers were unable to foresee that there could be people who would want to destroy it, trusting that those coming after them would be enthused by the same noble ideals they held sacrosanct. Sitting today examining the past it is easy for us to criticise those great minds which worked on the constitution but with hindsight we cannot help concluding that they were naïve. In the euphoria of the time everyone was in a celebratory mood thinking that the oppressors of the past had gone. Everyone was now looking at a new dawn, and there was a great deal of camaraderie and trust in the atmosphere. Taking advantage of that, some people started working in a divergent direction destructive of what the constitution stood for.
In versus out, us versus them
Where the constitution sought inclusiveness their intent was to exclude a segment of the population which they believed was responsible for the problems of partition: from inception they harboured a suspicion against that section of the population. Therefore the group of people who were hostile built upon that narrative and set about creating an intense, aggressive, weaponised version of their identity. They fed it with a separate set of institutions and a different view of the history of the subcontinent. This slowly resulted in different sections which held similar views gravitating towards each other and merging to constitute a loosely held political collaboration. This created an exclusivist, supremacist, majoritarian agenda to promote that viewpoint. To get around political constraints and regulatory mechanisms some of these entities projected themselves as academic organizations, some as cultural organizations, and some as social service organizations but they all subscribed to the common agenda, creating an “us” and “them” dichotomy.
Honest versus creative interpretation
It is trite that beneficial provisions are interpreted in favour of the party those are intended to benefit. Whenever there is disagreement between sections of people as to what any contract means, the constitution being a contract between people with competing claims, the courts have to decide what is the correct interpretation. That great responsibility has not been adequately addressed. One has to be very careful in what one says, because we live today in a society where anything can be the subject of a criminal case on the ground that the feelings or sentiments of someone have been hurt.
Enthusiastic magisterial courts take cognizance of cases which ought never to be even entertained.
Interpretation not to destroy effect of another provision
There are two ways in which an interpretative exercise can be proceeded with. One, move in a direction which is consistent with the expressed objectives of the constitution. Another, take a view that goes against that ethos. Cases in which reservation of seats in educational institutions came to be considered is an illustrative example. The Constitution article 15 (1) begins stating the state shall not discriminate against citizens on grounds of various identifiers including religion. Sub article 4 of article 15 holds nothing in that article shall prevent the state from making any provision for socially and educationally backward classes of people. Attempted reservations for Muslims in academic institutions have been repeatedly struck down by courts on the reasoning that while it is true that Muslims are educationally backward Islam does not recognise the caste system. Therefore, while Muslims are educationally backward, they can never be socially backward. The sub article says provision can be for educationally and socially backward, not educationally or socially backward, and the conjunctive and shows that both aspects should be present, not either. Hence as a group Muslims can never be entitled to reservation. The argument that the word “and” is important and must be given its due play begs the question whether the word “against” in the opening sentence (shall not discriminate against any citizen) as the operative word is not equally important. The article prevents hostile discrimination, not restricts positive, affirmative action.
Judicial blind spot
In holding these reservations impermissible, courts have lost sight of the Supreme Court ruling M R Balaji vs State of Mysore reported as AIR 1963 SC 649 that deplorable poverty automatically leads to social backwardness, and therefore very poor Muslims are ipso facto (by that very fact) socially backward as well. (Quote. “Social backwardness is, in the ultimate analysis, the result of poverty… The classes of citizens who are deplorably poor automatically become socially backward.” Unquote.) Obviously the proper interpretative exercise would have been to hold that these reservations were permissible and in fact a constitutional imperative. The interpretation courts have placed on this provision is destructive of the requirement of bringing a backward population on par with the rest of the so-called mainstream. If this happens to constitutional provisions as they existed from inception, apprehensions about provisions likely to come after the constitution is amended are cause for serious concern.
Political camouflage and judicial duty
Politicians can to an extent be forgiven for what they do because democracy is a game of numbers. In order to get elected politicians have to secure a larger number of votes. Therefore they deem it justifiable to do and say things that would ensure that a larger number of people vote for them than for opponents. Consequently politicians make statements and adopt stances likely to ensure success at the hustings rather than patriotically consider national interest. Hence more often than not we see statements destructive of the rule of law being made with abandon. Segments of the population are openly threatened. Legislation is enacted which intrudes upon and erodes to the point of destruction the right to practise and propagate religion, to prevent conversion of religious affiliation camouflaging it as ostensibly an attempt to prevent conversion by force or inducement. Obviously until it is established that something was not done by force or inducement an accused person will spend a number of years in prison destroying his and his family’s lives. Legislation is enacted preventing people from selling their houses to people from another religious group and vice versa aiming at ghettoising of a community. Can Constitutional Courts not see through camouflage? How can such legislation be allowed to stand considering that it is destructive of the guaranteed fundamental rights that all citizens including minorities have under the constitution to practise and propagate religion, buy and sell property as they deem fit, live anywhere in security?
Cannot win ? Change the rules !
When you cannot win, the easy way is to change the rules of engagement. The “inconvenience” of not being able to ride roughshod at will over the rights of minorities can be done away with at one stroke if the constitution itself is amended. It reflects a majoritarian agenda when an action of the state is called into question in Courts that action will be tested against the then prevailing constitution, completely inconsistent with what the framers of the constitution envisaged. However, that being the original Constitution on which the present day politicians took their oaths of allegiance on assuming office, are they not then betraying the constitution? If that be so, can they be allowed to continue to hold those offices? It no longer seems an aberration or an anomaly that those who seek to destroy the Constitution and replace it with something that caters exclusively to the majoritarian exclusivist supremacist ideology, on election take an oath on the very constitution that not only does not allow it, it nurtures inclusion and promotes equality.
In M R Balaji vs State of Mysore Supreme Court said, “The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole.” When PM Manmohan Singh repeated it the uproar was “minority appeasement”. It is clear that so far there has been no appeasement of the Muslim minority. Had that been the case Muslims would as per the Sachar Committee not have fallen below SCs and STs in terms of education, employment, representation in services and political representation.
Suo motu power and its apparent disuse
Constitutional Courts have power to take cognisance of what happens or reports in the press and treating it as a writ petition, issue such orders as they deem fit. Yet, given great reluctance to exercise this power, is it possible some pronouncements of courts inadvertently suggest great if not excessive “judicial restraint” in passing orders at variance with the political narrative of the day?
Shafeeq Rehman Mahajir is a leading lawyer based in Hyderabad. He frequently comments on the constitution and its requirement to remain sacrosanct.
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