archive: Fundie, and proud of it
Constitution and its failures
P. V. Indiresan
The Hindu
December 13, 1999
Title: Constitution and
its failures
Author: P. V. Indiresan
Publication: The Hindu
Date: December 13, 1999
MS. MALINI PARTHASARATHY'S
forceful plea (TheHindu, November 29, 1999) to defend the core principles
of the Constitution raises several important issues. She is right in arguing
that the Constitution stood the country well in the difficult years of
the infancy of Indian democracy. She is right once again in pointing out
that the Constitution has fared better than those of many other countries.
At the same time, it would be unwise to brush aside its failures. The list
is long and in several ways alarming too. Year after year, India has been
described as one of the most corrupt countries. It is no secret that our
legislatures have been invaded by criminal elements and they now wield
influence over them. Elections continue to be vitiated by such obnoxious
practices as booth capturing and even murder. The judicial system has virtually
collapsed, with crores of cases pending for decades. People in several
parts have been so badly alienated that the Government has ceased to rule
in those areas. After 50 years, India has more illiterates than ever before.
Cities have become unmanageable with uncontrolled pollution. The poor have
been marginalised with virtually half of urban dwellers forced to live
in appalling slums. The list of wrongs can go on and on. If the Constitution
deserves praise for what it has done well, it also deserves censure for
its failures.
In the past 50 years,
the Constitution has been amended, on an average, every nine months. That
is some 20 times more frequent than the amendments made to the American
Constitution. Why has it been changed so frequently? There can be no reason
other than that each time the Constitution was considered faulty. One of
the earliest amendments followed the Supreme Court judgment that it was
unconstitutional to expropriate private property. Did the Government bow
to the judgment of the Constitution Bench? No, it did not! Instead, it
used its parliamentary majority to extinguish a fundamental right of the
citizens. Thereby, the character of the Constitution was altered beyond
recognition making it possible to impose sweeping socialist reforms. As
a matter of interest, Jawaharlal Nehru got only a minority of the popular
vote. Yet, as the Constitution follows the ``first past the post'' principle,
he had a thundering majority in Parliament. He used that majority to bulldoze
many amendments. If people are worried today that the BJP will indulge
in majoritarianism, that is because Nehru started it all. In the U.S. amending
the Constitution is a laborious process. It involves a prolonged debate
spread over several years and involves State legislatures too. Nehru was
a man in a hurry; he had no patience with such niceties. He used his parliamentary
majority to make it easy to amend the Constitution.
Ms. Parthasarathy lists
three basic features as the core of the Constitution that deserves to be
defended at all costs: (a) protection of minority rights, (b) equal status
for all religions and (c) a scrupulous distancing of the state from any
religious affiliation. Frankly, the first two are self-contradictory. If
religious minorities have special rights there is no equal status for all
religions, and if all religions have the same status, the minorities cannot
have special rights! The ``secularist'' argument is like saying all are
equal but some are more equal than others. It would have been unexceptionable
had the Constitution given special protection to the minorities as and
when the majority community misbehaved. That is not what the Constitution
does. It confers a privilege on the minority whether the majority misuses
its size or not. Thus, the presumption is that the majority community will
always be guilty. Also, this ``majority-community-is-dangerous'' principle
applies only to Hindus. There are parts where the Hindus are in a minority,
even a hopeless minority. They do not get minority rights in such areas.
So, the Hindus and Hindus alone are singled out as a source of danger.
For instance, discrimination against Meitheis, a Vaishnavite cult of Manipur,
has hurt them so much that they no longer want to be known as Hindus, they
no longer want to remain Indians.
It is a fundamental anachronism
of the Constitution that it confers minority privileges as a birthright;
they do not have to be earned. Is that not the same as the Hindu caste
system? Critics of Hinduism never tire of complaining how bad Manu was.
The Constitution is little different. It confers permanent privileges on
some groups and imposes permanent penalty on others purely on the basis
of birth. Maybe, it is poetic justice to use the tenets of Hinduism to
club down the Hindus but that does not make the exercise just, let alone
secular.
It can be argued that
exceptions prove the rule. So, while it would be immoral for the small
minority of Brahmins to enjoy privileges as a birthright, it is socially
desirable to confer special privileges on some other, much larger minorities
as a matter of birthright. The objective of helping out minorities is nice
but has it been achieved? For instance, in proportion to their population,
Muslims should have 60-70 members in the Lok Sabha. They have never got
up to even half that number. That is strange. Secular parties which shout
from rooftops their grave concern for justice to the minorities never seem
to find enough room for the Muslims. If the Muslims are as much disgruntled
as they are today that is because minority privileges have been a mirage.
No doubt, the minorities need help. However, is discriminating against
the majority community the best way to help them? Here is an instance where
the intentions are good, but the remedy is worse than the disease. Had
the Constitution been less partisan, less insulting to the Hindu majority,
a party like the BJP might never have come to power, and there would never
have been any risk from Hindu majoritarianism.
There are many people
who genuinely and sincerely believe that the BJP and its allies are evil.
They have a fundamental right to hold such beliefs and to propagate them
too. No true democrat should take exception if they argue that Hinduism
is anachronistic and harmful to Indian polity. That is a point of view
which any citizen should be free to hold as a constitutional right. By
the same token, other citizens should be free to hold the view, if they
so desire, that Hinduism or Islam or whatever is good for the country.
That is the crux of the matter. Do the Hindus have a right to propagate
their views or not? To be more precise, does the BJP have the fundamental
right to propagate its views on Hinduism? It can be argued that the BJP
is so obnoxious that it should not be allowed to propagate its brand of
Hinduism. If that is the view, say so by all means but do not call that
either secularism or democracy. That would be doublespeak!
One can sympathise with
the dilemma faced by those who are scared out of their wits by the upsurge
of the BJP brand of nationalism. They consider some principles so sacred
that they deserve to be preserved at all costs. Unfortunately, the cost
is to break the very principle they want to preserve. And, when they rail
against the BJP's majoritarian principle, they forget that it is merely
a case of history repeating itself.
The basic principle of
democracy is that while we may disagree to agree, we should agree to disagree.
That is what ``secularists'' will not concede. In a democracy, all citizens
must also be equal. The flaw in the Constitution is that it does not treat
all citizens as equal. It attempts to equalise unequal citizens. While
that is laudable, it makes the mistake of treating inequality as a birth
defect. Our secularists detest the caste system, but when it comes to the
crunch they too believe in unequal birthrights and therefore practise caste
in the same breath they denounce it! Love not anyone so much, nor hate
anyone so much that you become blind to reason!
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