Editorial 1: The Constitution still thrives, let it show India the way

Context

But a speech that should haunt all Indians is that of its principal draftsman on the eve of the Constitution’s adoption — on people and political parties making it work.

Introduction

This month marks the 75th anniversary of the adoption by the Constituent Assembly of the draft Constitution of India, on November 26, 1949. The Union government has announced that it intends to commemorate this momentous occasion with a special joint sitting of Parliament. There are bound to be several self-congratulatory speeches, from all sides of our fractious political divide. But the speech that should haunt us all is that of the principal draftsman of the Constitution, B.R. Ambedkar, on the eve of the Constitution’s adoption.

• On November 25, 1949, in his magisterial summation of the work of the Drafting Committee he chaired, and before commending its work to the Assembly, he pointedly observed: “however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.
• However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”
• The working of the Constitution, Dr. Ambedkar pointed out, depended on how the people and the political parties applied it. The drafters had made provision for relatively easy amendment, so as to permit the document to keep up with the needs of the times.
• But the rest depended on the way successive generations of its custodians chose to implement it.

The lacunae that B.R. Ambedkar identified

• Dr. Ambedkar highlighted the fact that “there is complete absence of two things in Indian society” — equality and fraternity.
• “On the 26th of January 1950,” he declared, “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.
• Key questions: 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?”

The Absence of Fraternity

• In calling for a social and not merely political democracy to emerge from the Constitution, Dr. Ambedkar stressed the absence of fraternity as the second major ingredient that was missing in India.
• “Fraternity means a sense of common brotherhood of all Indians — of Indians being one people. It is the principle which gives unity and solidarity to social life.”
• But thanks to the caste system — the entire structure of caste, he averred, was ‘anti-national’ — religious divisions and the absence of a common sense of nationhood among some Indians, fraternity had not yet been achieved.
• But it was indispensable, since liberty, equality and fraternity were all intertwined and could not flourish independently of one another.
• “Without equality,” he pointed out, “liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative.
• Without fraternity, liberty would produce the supremacy of the few over the many.
  • Without fraternity, liberty and equality could not become a natural course of things.
  •  It would require a constable to enforce them.”

What has changed: Dr. Ambedkar’s Vision and Progress After 75 Years

• Today, 75 years later, it is well worth asking what progress we have made to achieve the aims of the Constitution’s drafters, and in particular to fill the lacunae that Dr. Ambedkar identified.
• Equality has advanced, no doubt, with the abolition of untouchability being accompanied by the world’s oldest and farthest-reaching affirmative action programme, in the form of reservations, initially for Scheduled Castes and then for the Other Backward Classes (OBC).
• These reservations, which were initially intended to be temporary, have now been entrenched in our system and may be said to be politically unchallengeable.
• But the task of promoting social and economic equality, which Dr. Ambedkar pointed to, is far from complete.
• The clamour for further opportunities for those who believe that Indian society continues to deny them the equality of outcomes that the numbers warrant, continues to roil our politics.
• The escalating demand for a caste census is bound to have further implications for the evolution of India’s constitutional practice.

The State of Fraternity

• As for fraternity, the mobilisation of votes in our contentious democracy in the name of caste, creed, region and language have ensured that the social and psychological sense of oneness that Dr. Ambedkar spoke about, is still, at best, a work in progress.
• But there is no doubt that the sense of nationhood that he felt had not yet come into existence has now become embedded across the country.
• One only needs to look at the crowds at a cricket match involving the Indian team, or the national outrage and mourning after an international conflict such as the Kargil war (1999) or the Galwan incident (2020), to be aware that there is a strong sense of nationhood despite the persistence of local or sectarian identities.

Caste Reservations and Fraternity

• Yet, by reifying caste reservations, India has promoted equality but arguably undermined fraternity.
• Fraternity had a special place in Dr. Ambedkar’s vision; the word was, in many ways, his distinctive contribution to India’s constitutional discourse.
• It also had an economic dimension, with the implicit idea that the assets of the better-off would be used to uplift the untouchables and other unfortunates.
• Fraternity would both result from and lead to the erosion of social and caste hierarchies.
• But, as the sociologist Dipankar Gupta has argued, the extension of reservations to the OBCs saw caste as “an important political resource to be plumbed in perpetuity”.
• Professor Gupta avers that this “is not in the spirit of enlarging fraternity, as the Ambedkar proposals are”; while Dr. Ambedkar’s ultimate aim was the annihilation of caste from Indian society, for Mandal, caste was not to be “removed”, but to be “represented”.
• It entrenched caste rather than eliminating it from public life.

Highs and worrying lows

• This debate may well go on.
•  Still, we can be grateful that the ascent to power of the very elements of Indian politics who had initially rejected the Constitution has not resulted in its abandonment.
• There is a certain irony to a Bharatiya Janata Party government celebrating a document that its forebears in the Rashtriya Swayamsevak Sangh and the Jana Sangh had found “un-Indian” and devoid of soul.
• That soul has evolved over 75 years and 106 amendments, and the Constitution still thrives.
• But the hollowing out of many of the institutions created by the Constitution, the diminishing of Parliament, pressures on the judiciary and the undermining of the democratic spirit — leading to the V-Dem Institute labelling India as an “electoral autocracy”, policed by the “constable” Dr. Ambedkar warned against — mean that much still remains to be done by its custodians.

Conclusion

“Independence,” Dr. Ambedkar said in concluding his memorable speech, “is no doubt a matter of joy. But let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves.” Seventy-five years later, let us vow to the reduce the number of things we need to blame ourselves for — and let the Constitution show us the way.

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Editorial 2: Feminist ideology in India’s constitutional discourse

Context

The fact that the ‘founding mothers’ of the Indian Republic too painstakingly co-authored the Constitution of India has been brushed over.

Introduction

In the Indian scenario, even calling the framers of the Constitution of India as ‘founding fathers’ is very patriarchal and paternalistic. The fact that the ‘founding mothers’ of the Indian Republic, the eminent women in the Constituent Assembly, too painstakingly co-authored the Constitution, has been spitefully hidden from the popular imagination.

Achyut Chetan’s Perspective on Women in the Constituent Assembly (2022)

• Gender Politics of the Framing of the Constitution (2022): “It is through the dynamics of will, consent, and, frequently enough, dissent, that women members carried the feminist movement through and beyond the Constituent Assembly.
• Each article of the Constitution, therefore, is a point of diffraction in the history of Indian feminism.
• The Constitution is drafted not just by the consent of women but also by their will.”

Christine Keating view in her Framing the Postcolonial Sexual Contract:

• Democracy, Fraternalism, and State Authority in India (2007) demonstrated how the ‘founding fathers’ constitutionally subjugated the woman.
• “The Constituent Assembly struggled to reconcile their commitment to an egalitarian polity with their efforts to build consent for the political authority of the new Indian state…
• The assembly settled on a compromise, what I call the postcolonial sexual contract, to resolve that dilemma: they established equality in the public sphere as a fundamental right for women yet sanctioned discriminatory personal laws that maintained women’s subordination in the family in order to secure fraternal acquiescence to the centralized rule.”

The beginnings

• The founding mothers cobbled an intersectional alliance with B.R. Ambedkar for the realisation of social revolution.
• They shared his sceptical attitude towards the romantic celebration of Indian culture which is deeply anchored in the brahmanical patriarchy.
• Amrit Kaur, a prominent founding mother of the Constitution, asserted in 1932 that the women of India were no longer willing to submit to standards, whether local, political, or ethical, which had been set for them by the male conscience of the community.
• The founding mothers laboured in and out of the Constituent Assembly to break the patriarchal ecosystem.
• But the nation has failed them deplorably.

Fight against a goliath

• The Founding Mothers’ concept of Fundamental Rights: The founding mothers conceived the Fundamental Rights not just as injunctions against the state but also as a social charter that restores their inherent freedoms curtailed by the behemoths in the private sphere such as religion and family, which enjoyed privileged insulation from political interventions.
  • Hansa Mehta and Amrit Kaur demanded that a Uniform Civil Code capable of arresting the aggrandising social-patriarchal power must be included in the Fundamental Rights.

Role in the Directive Principles

• When the Uniform Civil Code was relegated to the Directive Principles, the founding mothers played a remarkable role in bringing a prelude to the Directive Principles, that they are “fundamental in the governance of the country and the state has a duty to apply them in making laws.”
• This prelude, incorporated at the behest of the founding mothers, played a vital role in the ascendancy of the Directive Principles in the constitutional jurisprudence of India in the 1980s.

Role of Women

• Begum Aizaz Rasul on secularism: Begum Aizaz Rasul articulated that secularism was the most outstanding feature of the Constitution.
• Hansa Mehta’s Efforts to limit religious rights: In the Sub Committee on Fundamental Rights, Hansa Mehta tried to limit the right to religion as she believed that it would curtail women’s right to equality and social reforms such as the abolition of child marriage.
  • Hansa Mehta and Amrit Kaur demanded the term ‘free practice of religion’ be replaced by ‘freedom of religious worship’ as a constitutional carte blanche for religion would impede Indian women’s emancipation.
• Amrit Kaur’s dissent on the ‘Freedom of Religion’: In Amrit Kaur’s note of dissent on the ‘Freedom of Religion’, she vigorously underscored the anti-woman tendency of religious practices:
  • “[unbridled freedom of religion] would not only bar the future legislation but would even invalidate past legislations such as the Widow Remarriage Act, the Sarda Act or even law abolishing sati.
  • Everyone is aware how many evil practices which one would like to abolish, are carried on in the name of religion, for example, purdah, polygamy…dedication of girls to temples, to mention a few.”
• The Man’s Right to Religion vs. the Woman’s Right to Equality and Dignity: A disheartening chapter in the life of the Indian Republic is that the man’s right to religion conquered the woman’s right to equality and dignity.

Still a struggle

• Kamaladevi Chattopadhyay believed that the Constitution heralded a new beginning for women in India as it guaranteed equality and justice for them. But this euphoria did not last for long.
• The Government of India’s official report, ‘Towards Equality: Report of the Committee on the Status of Women in India’ (1974),
  • concluded that the Indian Republic had failed to achieve equality for its womenfolk even after two decades of the promise made in the Preamble.

Conclusion

After the passing away of the ‘founding mothers’, Indian feminist constitutionalism has been affected. Despite strong women leaders in politics, India has not been blessed with a feminist stateswoman or jurist. Women’s presence in the corridors of power remains abysmal. The Uniform Civil Code designed to dispel gender injustice has been a cheque drawn in favour of the Indian woman by the founding fathers and mothers. But it has been dishonoured by the Republic’s political bankers despite sufficient jurisprudential funds at their disposal.