JANUARY 17, 2018

By Naresh Minocha, Consulting Editor

"LOOK at our new constitution drafted by Dr. Ambedkar. There is nothing new in it. He has mostly copied out either the Government of India Act of 1935 or, as admitted by himself, has drawn from the constitutions of other countries. A bit from here and a bit from there-it is a Pandora's Box…. My biggest complaint on this account is that if for the purpose of drafting a constitution he had to copy out the constitutions of other countries, then why did he not embody the latest and the best constitution?....He has retained all the bad points that he could lay his hands upon".

Thank God. This is not an outburst from Union Minister of State for Employment and Skill Development, Anant Kumar Hegde. He was last month hounded out by self-styled sentinels of democracy. Mr. Hegde was forced to apologize in Parliament for hinting at a rally that BJP-led NDA Government would amend the Constitution.

The quoted harsh words were uttered by Maulana Hasrat Mohani in the Constituent Assembly (CA) on 4th November 1948. And this was neither an isolated attack on the drafted constitution nor on Dr. B.R. Ambedkar, the Chief Architect of the Constitution and Messiah of Dalits.

Certain other CA members too picked holes in the Draft. A few even questioned the competence and legitimacy of non-elected CA to frame a constitution, representing ostensibly as the will of the people.

Before discussing the need of framing a new Constitution, one more quote from Constituent Assembly Debates (CAD) would make discourse meaningful.

On 18th November 1949, Mr.Ramnarayan Singh observed: "Some people say that it (Constitution) is very good and have gone to the length of giving Dr. Ambedkar the title of Manu of Kaliyug. A section of the people has this opinion and other say that it is very bad and worthless".

Mr. Singh added: "fantastic mixture of the various Constitutions obtaining in the world".

This fantastic mixture has been enriched over the years with more than 100 amendments to the Constitution. It became effective on 26th January 1950, when India became a Republic. Many more amendments are in the pipeline. As of today, 101 constitution amendment bills are pending. One of the oldest pending bills, of 1998 vintage, mooted transformation of India as restrictions-free single agricultural market.

Of the pending constitution amendment pending bills, 19 bills were introduced by different MPs on 29 th December 2017. Such bills are referred to as private members' bills. No one raised hue and cry at this deluge. No one did that in March 2002 when National Commission to Review the Working of the Constitution (NCRWC) recommended 58 amendments to the Constitution. There is perhaps no action taken report on NCRWC's recommendations as the Government left it to individual ministries to take a call on recommendations falling in their domain.

The 19 new bills were introduced in Parliament two days after Mr. Hegde was forced to render an official apology for thinking loud his intent to amend the Constitution. He implied the intent to remove the ‘secular' tag that was introduced in the Constitution by Indira Gandhi Government during the Emergency.

It is galling to find that those who speak for democracy are the ones who questioned his right to seek amendment to the Constitution. Mr. Hegde is as much entitled as any other MP to formally move a Constitution amendment bill.

The self-anointed guardians of the Constitution, however, did not cry foul over the 19 bills. This is notwithstanding the fact that one of the bills, moved by Om Birla, can be viewed by them as an attempt to weaken the secular character of the Constitution. The Bill seeks insertion of a new Article in the Constitution to impart education related to Hindu religion in wholly Government-funded institutions, if majority of the students studying in those institutions are Hindus.

Another Bill, moved by DarshanaVikramJardosh, seeks amendment to the Constitution to protect police personnel from arrest on the basis of allegations relating to their duties in tackling militants, etc.

Yet another Bill, introduced by Gopal Chinayya Shetty, seeks incorporation of new article to strip persons of their citizenship after their conviction by the Court on charges of activities that harm national security.

Such initiatives for constitutional reforms show that the Constitution has to be aligned with the changing needs and situation in the society.

The basic problem with the Constitution is that it has not been implemented in a holistic manner to strengthen, empower and enrich India. It does not provide equal opportunity to all to exercise their fundamental rights.

The Constitution's implementation has failed to provide equal opportunity to all to contribute to the wholesome development of the nation. The Constitution has been misused and abused by certain sections of society. They have collectively reduced democracy to a dangerous cocktail of muscle & mouth power, demographic politics and activism, which includes individual rights-obsessed judicial activism.

The secondary problem with the Constitution is that it has partly outlived its utility. It should be rewritten afresh to save the country from anarchy by explicitly articulating rights of the Nation (collective rights of 134 crore Indians).

There is a need to shift certain provisions of Directive Principles of State Policy (DPSP) to list of fundamental rights. The two notable DPSP elements that require shift are the right to work and the requirement for uniform civil code.

Spineless power-hungry politicians have paid only lip service to DPSP or cherry-picked points for votebank politics. No doubt, certain principles have been enacted into new laws or incorporated in the existing ones. A case in point is environment protection, animal welfare and protection of monuments. Laws have been enacted in these three domains. The Judiciary has elevated environment protection laws as safeguards for right to life.

Eco-terrorists have misused this emerging provision to smother economic development on which depends the right to work, which is not fundamental one but is specified in DPSP. Shift of environment protection from DPSP to an enactment and its subsequent articulation as instrument for a fundament al right has spelt doom for the right to work.

The contents of DPSP are not enforceable by any court. They merely constitute the fundamentals of good governance. It is for the Executive and the Legislature to transform the principles into laws.

There is also a need to constitutionally redefine centre-State relations. This subject has been dealt at length by Commission on Centre-State Relations (CCSR) that submitted its report in April 2010.

Apart from this, there is a need to remove contradictions that have crept in due to varied interpretation of the Constitution by the judiciary or due to inherent limitations such as the one relating to banning slaughter of cows.

DPSP says: "The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle."

This Article conflicts with the power to legislate on cow slaughter/protection, which comes under the domain of the State List. State Legislatures can thus enact laws on this subject under Article 246(3) of the Constitution. The Centre is thus powerless on this turf.

Large-scale amendments to the Constitution would make it more confusing, cumbersome and difficult to implement in an integrated manner.

There is thus a need to draft a new Constitution keeping in mind the aspirations and pent-up frustration of the masses. The dream of inclusive growth can be realized only constitutional provision of restricting State welfare to only families that comply with population control norms as specified by law.

India requires a constitution that can manage worsening conflict for natural resources fought by unsustainable growth of population.

The Constitution must relegate certain hyped rights such as right to embrace and practice any religion as right to be exercised in private. The public performance of religious rights should not clash with the rights of other citizens. A religious procession, for instance, should not eclipse a patient's right to rush to hospital, which is an extension to right to life.

The Constitution must specify hierarchy of rights of citizens and the Nation. It must specify mechanism to resolve the conflict of rights of different entities keeping in view overall collective interest of the society.

It must draw clear turf lines between the Judiciary, Executive and the Legislature. More ideas would flow from all quarters if the Government issues a white paper on the need for framing a new Constitution.

This task can be assigned to Inter-State Council. The new Constitution should either be put through referendum or approved by Parliament and a majority of State Assemblies.

It would be apt to wrap discourse on constitutional reforms with a quote from India's first Prime Minister Jawaharlal Nehru.

While speaking on the Constitution (First Amendment) Bill, 1951, in Parliament during June 1951, Mr. Nehru stated: "if you wish to kill this Constitution, make it sacred and sacrosanct – certainly. If you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realizing that that is the best way of stabbing it in the front and in the back."

He added: "A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable…. Therefore, it is a desirable and a good thing for people to realize that this very fine Constitution that we have fashioned after years of labour, is good in so far as it goes, but as society changes as conditions change, we amend it in the proper way. It is not like the unalterable law of the Medes and Persians that it cannot be changed, although the world around may change."