What the United States can learn from the evolution of the Indian Constitution

Interpreting The Constitution

The histories of the US and Indian constitutions show two related political and legal systems evolving over time.


First day of Constituent Assembly of India. From Left: BG Kher and Sardar Vallabhbhai Patel. KM Munshi is seated behind Patel | Wikimedia Commons

Samir Chopra, Aeon

The United States and India, two of the world’s largest and oldest democracies, are both governed on the basis of written constitutions. One of the inspirations for the Constitution of India, drafted between 1947 and 1950, was the US Constitution. Both Indians and Americans revere their “constitutional rights” – especially the “fundamental right” of free speech, and the separation of state and religion. Both countries support critical traditions that focus on particular clauses of the constitution.

In India, Article 356, which allows for the suspension of state legislative assemblies to permit “direct rule by the Centre”, has provoked considerable critique, while in the US, the Second Amendment is a source of perpetual political and legal discord. The Indian and US supreme courts both enjoy the power of judicial review, to declare acts of other branches of government illegitimate, and so a measure of “supremacy” over their respective legislative branches. For this reason, both constitutions are “undemocratic” in their arrogation of too much political power to the judicial bench – a group of unelected public servants.

The US and Indian constitutions diverge in their stability or flexibility. The US Constitution is very difficult to change and, thanks to a religious American sensibility that treats it as a sacral document, it has simply not evolved, impervious to the changing needs of a growing and progressing nation and world. The Constitution of India suffers from the converse flaw; in less than 75 years, it has been amended, at last count, 103 times. This kind of recipe for political instability is precisely the worry cited by those who resist attempts to make it easier to amend the US Constitution.

Stability versus change

How flexible should constitutions be? How often, and how, should they change? Is a written constitution – unlike the unwritten British one – an invitation to the political polarities of instability or stasis? There is no simple answer to these questions. But history offers some guidance. Law, when it emerged in the great ancient Mesopotamian civilisations, was a “tool of government’” Such a demystified, pragmatic view of law suggests legal constitutions are technologies for governing, designed and implemented to bring about socially negotiated outcomes. Depending on the histories and needs of their “parent societies”, different kinds of constitutions come about, generating histories of political, legal and economic evolution, and being altered by them in turn. The histories of the US and Indian constitutions show two related political and legal systems evolving over time, their variations underwritten by their country’s historical experiences. The history of the Indian state and constitution includes a pragmatic American influence, with which the US would now benefit being reacquainted.

In 1947, Justice Felix Frankfurter wrote to a member of India’s drafting committee, Sir Benegal Narsing Rau, advising him to delete references to “the due process of law” from the working draft of the Constitution of India. Justice Frankfurter’s logic was simple. In the so-called “Lochner era” (1897-1937), the US Supreme Court, by utilising its power of judicial review, had often struck down social welfare legislation enacted by a busy US legislature. The legislature’s social welfare programmes were responses to the needs of an economically desperate polity; the court answered by reasserting the needs of the “business class” and the “haves”. Such antidemocratic inclinations were arrested only by the “switch in time that saved nine”. That was how Thomas Reed Powell of the Harvard Law School characterised the US Supreme Court’s reversal of its rulings in this domain in the face of President Franklin Roosevelt’s threat to place additional judges more sympathetic to his legislative initiatives on the Supreme Court. Politics, in other words, compelled a historic constitutional transformation.

Lessons from India

In 1947, as India looked ahead to its nascent republic status, its new Constituent Assembly planned extensive land reforms. These reforms sought to reduce the entrenched power of India’s landlords and bring relief to their serfs in India’s provinces; they would, at a minimum, involve some “seizures” or “takings” of landed property. An Indian landlord equipped with a copy of the American due process clause might expect to find the new Indian Supreme Court willing to stand by him and, as the US Supreme Court first tried to do with the New Deal, thwart the democratic reforms of the legislature. Such judicial intervention, likely in the name of “due process”, would threaten India’s post-independence progress toward the eventual realisation of a republic that ensured the wellbeing of all its citizens. The drafters of the Indian constitution paid heed to Frankfurter’s advice.

The first version of the due process clause in the Constitution of India had read: “Nor shall any State deprive any person of life, liberty and property without due process of law”. Soon, the word “property” was deleted. Moreover, to prevent the broad interpretation of “liberty” that the US Supreme Court had shown in Lochner v New York, when it had struck down minimum-wage legislation, “liberty” was qualified as “personal liberty” – not corporate. Lastly, to minimise the expressive impact of ‘due process of law’, that phrase was replaced by ‘procedure established by law’. Finally, Article 21 of the Constitution of India read: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ India’s land reforms went through – partially – helping a newly independent democracy, the world’s largest, move beyond feudalism.

The US can learn something from this little history lesson. Every constitution offers a particular set of solutions to a social, economic and cultural context. India did not copy the US Constitution; it took what worked for it and no more. Moreover, if constitutions are tools for governance, then they simply must change over time, through trial and error. Constitutions should be changed as often as their subjects want to change them, to bring about the results they want for their political community. Thomas Jefferson suggested that every generation of Americans should draft its own version to meet the particularities of its time. Jefferson calculated, using actuarial tables, how often this should be: 19 years. Americans pride themselves on their pragmatic and innovative nature; that self-image should suggest that the all-American thing to do is to desacralise the US Constitution, remove it from the pulpit, and put it in its place, a toolbox of governance, there to be used and modified to – as the US framers of the constitution put it – “make a more perfect union”.

Article: scrollin

Panchayat undemocracy

In an unequal society, exclusions from the democratic process based on social indicators reflect elitist bias.

Written by Brinda Karat | Published:September 30, 2015 12:15 am

According to the perverted logic of these governments, it is perfectly acceptable to get elected by taking the votes of those who are educationally deprived, but when it is their right to contest elections in their own villages and blocks, they are deemed too ignorant.

Rules to sanction official snooping on WhatsApp, a state government circular that redefines sedition to prevent criticism of the administration, another state government’s defence of an extremist Hindutva organisation implicated in the murder of communist leader Govind Pansare and other progressive rationalists, meat bans in three states, a call to reconsider the issue of reservations — it would appear that a competition is on within the Sangh Parivar in achhe-din India on how best to reshape democracy, as ordained by the wise men in Nagpur.

Authoritarian moves by the right also have a clear elitist bias. It includes diluting the rights of the poor, minorities, oppressed castes and women. Recently, the BJP-led governments in Rajasthan and Haryana have made precisely such moves. The two governments have adopted the most outrageous amendments to their respective state panchayat acts in spite of the judgment of the Punjab and Haryana High Court that stayed the Haryana proposal.

According to these amendments, no one can contest elections for the post of sarpanch or member of the panchayat samiti or zilla parishad if they have not passed Class X. For women and Scheduled Castes, the literacy requirement is middle school. Going by Census 2011, if this is implemented in Haryana, it will mean more than half the population, 56.8 per cent, will be disqualified on the first count, and a shocking 79.76 per cent made ineligible because of the second condition. In Rajasthan, the exclusions are more extensive. Minimum literacy qualifications will disproportionately hit poorer sections.

An argument is advanced that such conditions will encourage people to go to school. This is rubbing salt in deep wounds. Was it Dalits who did not want knowledge when molten lead was poured in their ears? Was it women who chose to be enslaved in their homes by upper-caste patriarchal norms? The burden of historical injustice lies heavy in today’s India precisely because we have not only failed to eliminate injustices but have continued discriminatory practices, reflected in the statistics above. Without free education and the full implementation of the Right to Education Act, amendments such as these are nothing but punishing the poor for their poverty. It also means poor women, who have been denied education, will be excluded from the 50 per cent reservations meant for all women.

According to the perverted logic of these governments, it is perfectly acceptable to get elected by taking the votes of those who are educationally deprived, but when it is their right to contest elections in their own villages and blocks, they are deemed too ignorant. Even more bizarre, these very people who are ineligible to fight panchayat elections are eligible to fight assembly and parliamentary elections. The blatant elitist arrogance, that only those with educational qualifications can serve the people and fulfil their duties as elected representatives, comes at a time when corruption scandals of the rich and famous and highly qualified, including in Rajasthan, have brought shame to India. But the assault does not stop there.

It is common knowledge that farmers, particularly farmers with land under five acres, are caught in a terrible crisis of spiralling debt, driven not least by the increasing cost of farm inputs, while price support for crops remains abysmally low. The need is for a comprehensive package and sustained government intervention, including debt relief, to contain what is clearly an increasing trend in farmer suicides. Instead, these two governments have adopted amendments that disqualify a farmer from contesting if there are pending loan arrears to any banking institution, or if electricity bills are unpaid. By this amendment, only rich farmers or landlords can contest panchayat elections. Yet another condition is the need to have a fully functional toilet, at a time when it is calculated that over one-fourth of households do not have such a facility.

It means that a fundamental democratic right is being subordinated to the implementation of government policy, such as recovery of loans or building toilets. Earlier, some governments had adopted the two-child norm as a condition for contesting elections. It was later withdrawn in some states. In an economically and socially unequal society, exclusion from the democratic process on the basis of social indicators is tampering with the basic structure of the Constitution.

In Rajasthan, the panchayat elections that disqualified as candidates more than half of the population have already been held. If the disqualification had not been in operation, the results, which favoured the ruling party, may also have been different. In Haryana, the elections have been stayed by the Supreme Court, which is at present hearing a petition moved by three women, presently elected members, who will be disqualified as candidates if the amendments are upheld.

For Indian democracy, the implications of such amendments are ominous signs of a takeover of even panchayat institutions by those who have money. Panchayats have an important role to play in critical areas like village plans for development and consent for projects requiring land acquisition. If panchayats are packed with people who are better-off, it will severely impact the decision-making process. It is worth recalling that it was the unlettered Kondh tribal communities of Odisha, and their elected panchayat representatives and gram sabhas, who refused to give consent for a project to one of the most powerful mining companies.

We have seen the way corporations and their representatives are taking over Parliament and state assemblies. The amendments to the panchayat act will facilitate such a takeover in rural areas too. It will be just a matter of time before other BJP-ruled states introduce such anti-democratic measures to subvert panchayat institutions.

A century ago, in many countries, electoral franchise was limited to an exclusive section of male property owners. Citizens’ movements forced a reversal and introduced the concept of universal suffrage, which combines the universal right to vote with the universal right to contest elections. Independent India accepted this basic democratic norm. It is sought to be reversed today.

The writer is a member of the CPM politburo.

Source: indianexpress