Deepak Kumar
On 26th January 1950, India became a sovereign, socialist, secular and democratic republic. On that day, the Constitution of India was enacted, adopted and given to the Indian people i.e., “we the people of India”. The birth of the Republic on the twenty sixth of January 1950 was a moment of equal, if not greater, importance than the independence of India from the British Raj. The Constitution ushered in many firsts: for the first time, untouchability became illegal, for the first time, all Indians could exercise the right to vote.
The Constitution makes special provision for the upliftment of the deprived sections of the society like SC/STs, women, children and minorities. The Constitution empowers every citizen to contest elections and gives the right to vote irrespective of anything, which makes every individual directly or indirectly a part of the democratic process. No matter which sovereign power ruled India, the question of a dignified life for women and untouchables never echoed in the chambers of power. It was a historical and proud movement for every citizen when Indian adopted its own Constitution. When everyone was celebrating this moment, Dr. B.R. Ambedkar the chairman of drafting committee warned the nation about how long this constitution will survive, in the Constituent Assembly:
“On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In Politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up”i.
Now the question arises: can we just celebrate the Republic Day by watching the national parade held at Janpath or should the State and its citizens analyse their commitment towards the Constitution as well as the nation? About what we did in the last 68 years for saving the democratic features of the nation?
It is the 68th Republic Day since India got its own Constitution and waved away the argument to blame others (i.e. the British) for not developing a social, economic and political democracy. Today the meaning of Republic Day is restricted only to showing India’s capacity to fight with the enemy, as displayed in the parade held at Janpath. All Indians show their respect to the national flag and national anthem on this day. The market is too ready to celebrate Republic Day with an intention to sell products. Though all Indians celebrate this day by just saying “Happy Republic Day” but the essence of “happy” and “republic” somehow are lacking from this celebration. The true meaning of “republic” is missing in today’s India.
Democracy is not limited only to elections but it includes just, fair and reasonable participation of all sections of the society. It is interesting to recall that Dr. Ambedkar defined democracy as: “A form or method of government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed”ii. In the name of democracy India faced national emergency for the politically mileage of one party. The legislative power of the Presidentiii or the Governoriv to promulgate ordinances are generally seen not to fulfil the commitment to the Constitution by these two higher Constitutional posts. “Presidential Rule” or “Failure of Constitutional Machinery in the State” is the best example of cheating the Constitution. This extraordinary provision of the Constitution (Art 356) has become a political tool in the hands of the the centre to ruin the State governments.
The essence of democracy is to make every individual part of it either directly or indirectly through the election process. Sen argued that “Democracy is not just about elections, but the electoral process, obviously, is an important part of it”v. The Indian Parliament passed the 73rd and 74th Constitutional Amendments to introduce a three-tier system under the light of Art 40 of the Constitution i.e. Panchayat Raj Institutions. Initially there was no problem in this process, but as soon as the marginalised sections of the society i.e. SC/ST, women and minorities started participating in the democratic process to rule society, then the State governments tried to take away this power from their hands.
The Haryana state imposed an unconstitutional and unreasonable restriction to contest elections in 2002, stating that “no candidate [can] contest Panchayati election who has more than two living children”vi. This limitation directly or indirectly was against the spirit of the constitution as well as against the interests of the Muslim and Dalit communities because the Constitution does not mention any such kinds of restriction for other elections. Again in 2015, the Haryana state further amended the Panchayati Act and inserted certain qualifications i.e. (1) for contesting election there is requirement to pass high school, (2) and candidate also needs to have a functional toilet. Through these restrictions about 68% of the scheduled caste women and 41% of the scheduled caste men would be ineligible to contest panchayat electionsvii.
On the issue of Secularism, we cannot be satisfied with what the State has been doing to achieve an egalitarian society since the enforcement of the Constitution. The role of the State in preventing riots is insufficient. Whether 1984’s riots or Babri Mosque demolition riots in 1992-93 or Godhra riots in 2002, the State’s silence, and not taking instant and effective measures to curb the situation raised questions about the intentions of the State. It is specifically mentioned in the Preamble and in Part III of the Constitution that the nature of the State will be secular and it will not not indulge or promote any religion. Unfortunately, today the nature of State is not as per the Constitutional guarantees. The current Prime Minister performed Hindu religious worship just immediately after he won the Lok Sabha Election in 2014 at Banaras. Today all religious parties perform various such ceremonies for getting political mileage. Recently, a religious leader Shri Shri Ravi Shankar performed his religious programme with the help of the Central and Delhi governments and even used the Indian Army for this purpose. However, NGT imposed a fine on the religious leader for irregularitiesviii .
There is another grave issue regarding the violation of the secular structure of the nation, that is the Hinduising of educational institutions. There are Hindu temples that exist in premier educational institution, for example: in Banaras Hindu University, Chaudhary Charan Singh University, Meerut, Indian Institute of Mass Communication) IIMC, New Delhi, Indian Institute of Management and Technology in Meerut etc. This privileging of a particular religion (Hindu) in the educational institutions is a threat to the secular feature of the country. The name of some institutions are based on caste and religion and this is also against the spirit of the constitution. For example, Jat college, Jain College (Meerut and Bagpat in UP), Hindu College of Delhi University, Banaras “Hindu” University, Aligarh “Muslim” University etc. Most interestingly, the name of a leading newspaper suggests its religious basis i.e. The Hindu.
In 2016, the Haryana State Assembly was addressed by a religious leader from the Jain religionix. The Maharashtra State Assembly expelled an MLA for not chanting “Bharat Mata Ki Jai” on the basis of public opinion and without any violation of lawx. We can take an example from the Army on the secular point of view that while Indian Army has “Jat Regiment” “Rajput Regiment” then what is the problem in making a regiment in the name of “Muslim Regiment” or “Dalit Regiment” or “Parsi Regiment” etc. Why does India forget that Art 1 of the Constitution says “India that is Bharat” not “India that is Hindu Nation”?
On Judiciary
The Indian judiciary established itself as the most powerful judiciary on earthxi. Indian judiciary expanded the scope of environmental jurisprudence and inserted several new fundamental rights under the umbrella of Art 21 of the Constitution. The apex court interprets ‘the basic structure’ doctrine for saving the basic constitutional features from the legislature and the executive. The higher judiciary suspended the locus standi rule and became the guardian of the fundamental rights of the common people through expanding the extraordinary scope of the PIL.
The object of the judiciary is to find out the Constitutional validity of legislations and check out the legality of the executive decisions. In the name of “independence of judiciary”, the apex court built its own collegium system for the appointment of judges to the High Court and the Supreme Court which is not in accordance with the Constitution. Besides the matter of appointments, there are certain verdicts of the higher judiciary which do not fulfil the expectations of the nation. The Supreme Court validates in Javed Khan v State of Haryanaxii the “two child” policy in the Haryana Panchayati Raj system. In Rajbala v State of Haryanaxiii the apex court validates the minimum educational qualifications and functional toilets for contesting the Panchayat election which make ineligible the majority of the SCs and STs. In Naga People’s Movement of Human rights v. Union of Indiaxiv the Supreme Court declares constitutionally valid the most draconian legislation on the earth that gives the licence to kill anybody during search by armed forces under the AFSPA.
Apart from civil and political rights issues, there are other issues relating to dignity of human beings such as LGBT rights. These communities are the most vulnerable among all vulnerable communities. As the Supreme Court of India denied rights to contest election by some disadvantaged sections, same hands off approach applies in the matter of LGBTs’ fundamental rightsxv.
Recently, in 2016, the apex court made it mandatory to sing the national anthem in cinemas before starting the movie to invoke patriotic feelings in the hearts of the peoplexvi. On the other hand, the apex court’s liberal approach on the “Aadhar” (that it is only mandatory not compulsory) gives opportunity to the centre to make it mandatory. The central government forced people through various notifications to enrol under the UID scheme, which is already sub judice before the court. The higher judiciary is the only institution in India that has under-representation of the marginalised sections of the society and it is the institution that does not want to come under the preview of the RTI Act.
On Equality and fraternity
Constitutional historian Granville Austin said that the transcendent goal of the Indian Constitution was to promote “social revolution”xvii. Rajeev Bhargava in his book Politics and Ethics of the Indian Constitution has argued that the Constitution is a socially constructed object, and therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It is high time we identified these interpretations and debated their moral adequacyxviii.
It was a radical movement in the history of India that all citizens came under one umbrella before the law irrespective of religion, race, caste, sex and place of birth, through enforcement of the Constitution. Untouchability was an unending issue in Indian society for thousands of years but through the envisioning of Art 17 it became unconstitutional and is now a crime.
The Parliament codified Hindu law in 1954, and 1955 in four pieces of legislation, but unfortunately the most socially radical bill for the upliftment of Hindu women, in the history of independent India, i.e. the “Hindu Code Bill” was not passed by the Indian Parliament due to radical and orthodox Hindutva ideology. The Civil Rights Act was passed for the prevention of crimes against SC/ST. Domestic Violence Act was passed for the safeguards of women, anti-ragging provisions were introduced for a healthy environment in educational institutions.
Besides the Constitution, there are laws, courts and enforcement agencies for maintaining and preserving the democratic nature of the country, but on the ground level things are not satisfactory. Women are still struggling for their independence within and beyond the family. Dalits are still fighting for equal status. The downtrodden sections of the society are still underrepresented in all social, economic and political positions of the country. Regarding social democracy, Dr. Ambedkar said: “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy”xix.
Conclusion
No doubt what we achieved in last 68 years for a newly independent nation is much better than before, but we should not call this as a great achievement at this point of time. It is a proud moment for every citizen of every nation to celebrate days such as the Republic Day. We must understand the meaning of ‘independence’ and ‘republic day’ in the lives of every Indian, but we must also criticize ourselves as well as the State. In the essence of democracy, the concepts of rights and duties are the foundation. Rights and duties make the individual and the State accountable and responsible to fulfil their commitment.
Indian judiciary inserted many new rights under the periphery of “right to life and liberty” under article 21, which means the State did not fulfil its obligation which is inserted under part IV of the Constitution i.e. DPSP. Therefore, I want to say that neither the State nor the citizen is willing to envisage and cherish the ideological goals of the Indian Constitution. India is a country where the popular morality of a particular religion dominates the whole country, which is essentially against the constitutional morality. Dr. Ambedkar said that, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic” xx. In conclusion, we (citizens and the State) must celebrate a ‘Happy’ Republic Day, but must also ask ourselves: who is “Happy” and how much are we a “Republic” in a true sense?
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References
i. Ambedkar, B.R. Writings and Speeches of Dr. B.R.Ambedkar, Volume 13,1216.
ii. Ambedkar, B.R., Writings and Speeches of Dr. B.R.Ambedkar, Volume 13, VII.
iii. Art 123, The Constitution of India, 1950.
iv. Art 213, The Constitution of India, 1950.
v. Dreze, Jean and Sen, A. (2013). An Uncertain Glory India and Its Contradictions,New Delhi: Penguin Books.249
vi. Javed Khan v State of Haryana (2003) 8 SCC 369.
vii. Rajbala v. State of Haryana (2016) 1 SCC 463.
viii. Indian Express (2016) last accessed on 25 Jan 2017 http://indianexpress.com/article/india/india-news-india/ngt-sri-sri-ravi-shankar-world-culture-festival/
ix. The Wire, (2016), last accede on 25 Jan 2017, https://thewire.in/62138/haryana-assembly-monk-tarun-sagar/
x. Deshpande, Alok,The Hindu,(2016),last acced on Jan 25, 2017, http://www.thehindu.com/news/national/mim-mla-suspended-from-maharashtra-assembly/article8361194.ece
xi. Ramachandran, Raju , Judicial supremacy and the collegium, (last accede on 25 Jan 2017)
http://india-seminar.com/2013/642/642_raju_ramachandran.htm
xii. (2003) 8 SCC 369.
xiii. (2016) 1 SCC 463.
xiv. 1998.
xv. Suresh Kumar Kaushal v Naz Foundation (Civil Appeal No 10972 of 2013).
xvi. Utkrash, Anand, Indian Express (2016), last accessed on Jan 2017, http://indianexpress.com/article/india/india-news-india/national-anthem-national-flag-supreme-court-theater-4402827/
xvii. Austin, Granville, (2000)The Indian Constitution: Cornerstone of a Nation, xi.
xviii. Bhargava Rajeev (2008), Politics And Ethics Of The Indian Constitution, 9.
xix. Ambedkar, Dr. B.R.(2014), Writings and Speeches of Dr. B.R.Ambedkar, Volume 13, 1216.
xx. Ambedkar, Dr. B.R.,(2014) Writings and Speeches of Dr. B.R.Ambedkar, volume 13, 61.
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Deepak Kumar is an M.Phil. student at the Centre for the Study of the Law and Governance, JNU, New Delhi.
