On 16 November, while celebrating the anniversary of the adoption of the Constitution of India, Lok Sabha Speaker Om Birla dutifully lauded our national document for providing everyone the right to equality. It was understandably not the occasion to recount what is the reality in practice. With the advent of the Hindu Code Bill in 1955, polygamy was abolished but not for all men. The Sharia continued to be in vogue, which allows some men to have four wives at a time. When the Constitution permits the practice of two laws in one country, how can there be equality? Article 44 did provide for a uniform civil code to be framed but little has been done so far.
Rather similarly, Article 30 gives a special right to all minorities only for setting up and running educational institution freely whereas the majority community is required to seek the consent of the prescribed authorities. Since the Right to Education Act was passed in 2009, all schools, except the minority ones, must teach 25 per cent children of economically weaker sections without charging fees. Why not also the minority run schools?
If there were no hurry, why was the Government of India Act of 1935 used as a skeleton for framing the Constitution and various other articles added as fat and muscle? The 1935 Act was passed by the British Parliament for governing its Indian empire more effectively and not for developing a free country. If the British laws were satisfactory, someone could ask as why we asked for Independence? In the event the Constitution was a compromise between communities, why should this have been necessary on the morrow of Partition, which gave the Muslims their homeland when no other minority had asked for any special concession?
In any case, Mohammad Ali Jinnah had insisted that Muslims were not a minority but a nation and he stressed his Two-Nation theory in several speeches. Moreover, as early as 1877 and 1878 at Meerut and Lucknow respectively, Sir Sayyid Ahmad Khan had declared that the Hindus and Muslims were separate nations.
In the course of the first 50 years of the life of the Constitution, it was amended 83 times and by January 2020 the total of amendments had reached 104 passed; nearly one and a half amendment per year. The U.S.A. over 239 years has amended its Constitution only 26 times; Japan since 1945 only once. This also indicates that the Indian Constitution was finalized without having sufficient time, thought and homework or was a compromise document, and therefore had to be amended frequently.
Apart from the 140 amendments proposed over the years and 104 of them passed, we have taken the Constitution lightly. Take erstwhile Articles 370 and 35A, abolished a year ago, which were called temporary, passed only by the Cabinet and not even shown to the Parliament. The erstwhile Planning Commission, which was to steer the country’s economic development, was established by a Cabinet decision. These are only some examples which make one wonder whether a tome should not be attempted on the constitutional history of Independent India. Frankly, our national document is so often mentioned in media, especially in television debates, more because of those who wish to overlook the Partition to duck their forefathers’ guilt for causing it. Acharya Durga Das Basu, Padma Bhushan, retired judge of the Calcutta High Court in his book on the Constitution suggested that by the year 2,000, the document be thoroughly revised. It had been amended 83 times on a piecemeal basis over five decades. He felt that a commission should be set up with eminent experts and a comprehensive new draft should be prepared. He exhorted the commission, if and when appointed, to remember that its new draft should be suited to the genius of the Indian people and not be a slavish imitation of the West. Moreover, its 442 Articles (then in 2,000 AD) made it by far the longest such national document in the world.
In 1955, the Congress party resolved to introduce a socialistic pattern of society. In 1976, the 42nd amendment was passed when most leading Opposition leaders were in jail due to the Emergency. The Preamble was amended to state that India is also a “socialist republic”. This was done to probably justify in 1976 the nationalization of general insurance, large banks and the coal industry post facto. Without touching this Constitution or overturning socialism, in 1991, the Government of India abandoned socialism, without saying so, and adopted liberalisation, including globalisation as its policy.
It was called ‘reforms’ which are still continuing. Why treat the Constitution so cavalierly? If the Constitution is found inconvenient, why not rely on conventions, traditions and pass an act of Parliament when necessary as happens in Britain?
The unity of the people of India, professing numerous faiths, has been sought to be achieved by enshrining the ideal of a ‘secular state’, which means that the state protects all religions equally and does not itself uphold any religion as the state religion. The secular objective of the state has been specifically expressed by inserting the word ‘secular’ in the Preamble by the Constitution (42nd Amendment) Act, 1976. On the other hand, the liberty of ‘belief, faith and worship’ promised in the Preamble is implemented by incorporating the fundamental rights of all citizens relating to ‘freedom of religion’ in Articles. 25-29, which guarantee to each individual freedom to profess, practice and propagate religion, assure strict impartiality on the part of the state and its institutions towards all religions.Articles 29 and 30 appear to contradict the promise of secularism in the Preamble as well as what has been written in the above-given paragraph. Furthermore, Article 44 states ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. Nothing has been done towards implementing this provision of the Constitution. No one other than a Muslim can have four wives at a time. All Muslim wives have a Damocles’ sword hanging over their heads that they can be divorced with a notice of three months whereas, all other wives are protected against any such arbitrary treatment. This situation not only violates secularism but all provisions of equality such as Articles 15, 16 etc.The authors of the national document, perhaps due to the hurry, made no attempt to relate to the peculiar genius of Indians. For example, both liberty and equality are promised in the Preamble. The majority of citizens have faith in their karmas leading to their fate; logically they should strive to improve their karmas. On the other hand, equality necessitates equalizing their fates but how? By leveling down the karmas of some as well as pushing up the karmas of others so that equality among citizens is achieved? The introduction of socialism in the Preamble by amending Article 42 in 1976 highlights this contradiction more emphatically.