Thursday, February 05, 2015

The death wish of the Constitution?

Guest Post by Arvind Narrain

Over the last few days, there has been considerable discussion of the controversial use by the BJP of the original, unamended Preamble to the Constitution of India in an advertisement campaign.  See, for instance, the views of Upendra Baxi and Salil Tripathi on this issue.  In the following guest post, Arvind Narrain of the Alternative Law Forum sets out his view on the questions involved. 

The present political dispensation hinting that they would go by the unamended version of the preamble (which did not have the words socialist and secular in it) has stirred  the pot of controversy.

The intellectual support for this move has been articulated by Ravi Shankar Prasad who as reported by the Hindu (29.1.15) argued that the amended preamble is inauthentic. The inauthenticity according to Ravi Shankar Prasad resides in two factors: the first being that the framers of the Constitution did not deem the two words in controversy, socialism and secularism, necessary and secondly that the words came in as part of the emergency during Indira Gandhi’s authoritarian rule. Under pressure from various quarters for his statement as reported in the Hindu, Ravi Shankar Prasad claimed  in a clarificatory statement that he had been misquoted. However regardless of  the withdrawal, the reasons articulated by the Minister in his initial reported statement need to be critiqued as those reasons continue to be cited in support of the demand to replace the preamble with the unamended version.  

The question of whether the preamble can at all be amended has been answered by the Supreme Court in Kesavananda Bharti where the Court held that all parts of the Constitution including the Preamble can be amended save what is “the basic structure or framework of the Constitution.”

The philosophical justification for recognizing the legitimacy of  constitutional amendment was well articulated by Justice Khanna in Kesavananda who quotes Thomas Jefferson to opine that:

Each generation according to Jefferson should be considered as a distinct nation and with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitants of another country. The earth belongs in usufruct to the living and the dead have neither power nor the right over it.

The caveat introduced by Kesavananda in this otherwise unlimited power of each generation to change the constitution is the limitation imposed by the basic structure doctrine. One way of understanding the doctrine of basic structure is that it is a way of limiting parliamentary power in a country which has minorities of many stripes and hues.   By limiting the power of parliament to amend, the Court is recognizing that giving unlimited power to an institution which functions on the basis of the power of the majority, will put minority rights at the mercy of majority whims and fancies.  Kesavananda is deeply concerned about the dangers of unbridled majoritarianism and what it can do to the concept of a diverse and plural India.

As Justice Sikri observed in Kesavananda:

There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of the Minorities Sub- Committee, the Advisory Committee and the proceedings of these committees as well as the proceedings of the Constituent Assembly mentioned above, it is possible to read the expression ‘amendment of the Constitution’ as empowering parliament to abrogate the rights of minorities.

Justices Hegde and Mukerjea have observed that:

Our constitution was framed on the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless.

 Kesavananda is equally concerned about what those with economic power can do to those who lack economic resources. Within Kesavananda’s perspective, a political  majority  which is based upon the wealth of the few can be deeply injurious to the lives of the many. To protect those who would otherwise be at the receiving end of an economically powerful  political majority, Kesavananda recognises egalitarianism and the welfare state as part of the basic structure.

As Justices Hegde and Mukerjea opined:

On a careful consideration of the various aspects of the case, we are convinced that the parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our poli[t]y, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the parliament the power to revoke the mandate to build a welfare state and egalitarian society.

The recognition of minority rights as part of the basic structure necessarily implies a defence of secularism by Kesavananda. The recognition of egalitarianism and the welfare state as part of the basic structure implicitly recognizes  that socialism too is part of the basic structure. As such, the introduction of the words secularism and socialism through constitutional amendments is not destructive of the Constitution but rather explicates the basic structure of the Constitution and hence come within the power of the parliament’s power of amendment.

What are prohibited are amendments which destroy the Constitution. As Justices Hegde and Mukerjea opine:

Despite these limitations, however, there can be no question the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligations imposed on the state. It can also be used to reshape the Constitution within the limits mentioned earlier to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a welfare state, it is necessary to destroy some of the human freedoms. That at any rate is not the perspective of our Constitution.

Going by a close reading of Kesavananda, clearly the proponents of the unamended preamble cannot make the case that the amendments introducing the words socialism and secularism are tantamount to tampering with the basic features of the Constitution. In fact the introduction of these words merely  makes explicit what is implicit in the Constitution.  This is the unequivocal conclusion of the Supreme Court in S.R. Bommai where Justice Ahmedi pronounced that:

Notwithstanding the fact that socialist and secular were added in 1976 by Constitutional amendment, concept of secularism was embedded in our constitutional philosophy. The amendment made explicit what was implicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. The Constitutional abhorred discrimination on grounds of religion....

 The hearkening by Ravi Shankar Prasad to what the Constitution meant originally is disingenuous as there is no conflict between the original ideals in the preamble and the introduction of the words secular and socialist through the 42ndamendment.

 The insistence on the ‘original preamble’ is not out of any real love for the Constitution. What the current ruling dispensation wants to say is they have a  problem with the notion of both secularism and socialism. To invoke the dubious legacy of the 42nd  amendment is to instrumentalize history, with the sole objective of destroying what they claim to protect. As such the bluff should be called.

 Again the last word rests with Justice Khanna (of the famous dissent in the Habeus Corpus case) who in Kesavananda observed that:

Provision regarding the amendment of the constitution does not furnish a pretence for subverting the structure of the constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful hara-kiri?

 Does this clamour for the unamended preamble  ‘embody the death wish of the Constitution’  and are those in the forefront  of this demand nothing more than the executioners of the Constitutional idea of India? 
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