August 08, 2020
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The Book Handed Down

Gimlet-eyed essays on the Constitution ask crucial questions

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The Book Handed Down
The Book Handed Down
The Oxford Handbook Of The Indian Constitution

Edited By Sujit Choudhry , Madhav Khosla and Pratap Bhanu Mehta
Oxford University Press | Pages: 1031 | Rs. 1,195

Not just RSS ideologues but seve­ral important scholars too believe that the Indian Constitution has delivered an imperfect democracy, that it is not ‘suited to Indian needs’, that it is distant from Indian society and political culture. There are, of course, those who believe the Constitution has deepened democracy. Even Granville Austin, who hailed the Constitution as a bold and brave experiment, developed sufficient doubts by 2010 to wonder in an essay: “Can India be a great democracy, strong in itself and in the eyes of the world, so long as so many of its people are denied the promise of the Preamble?” It’s worth recalling what the founding fathers had held out in the Preamble. They had promised India would ensure for every citizen “Justice: social, economic and political; Liberty: of thought, expression, belief, faith and worship; and Equality: of status and of opportunity”.

His doubts were not misplaced. Inequality is at an all-time high and the 16th Lok Sabha boasts of 442 crorepatis, with as many as 237 of them from the BJP. In other words, MPs of the Indian Parliament are increasingly well-heeled and represent increasingly smaller interest groups.

Six-and-a-half decades after adopting the Constitution, debates on communalism, secularism, the uniform civil code, religious freedom, individual liberty etc remain inconclusive. The relationship between the executive, legislature and the judiciary continues to be uneasy and Centre-state relations are far from settled. The Supreme Court itself has occasionally added to the prevailing confusion by alternately expanding and restricting fundamental rights.

The volume under review, an anthology of ess­­­ays, throws up interesting explanations, such as the ‘low capacity’ of the state while dwelling on judicial activism. The judiciary, inadequately staffed and funded, is stretched to compensate for massive ‘state failures’, it argues.

The founding fathers and the judiciary were inclined towards a ‘strong Centre’ but there are contradictions.

The introductory essay reminds us that the Muslim League had in fact boycotted the Constituent Assembly, which comprised mostly of Con­gr­es­smen and the elite, and that large sections of Muslims, Dalits and conservative Hindus harbo­ured serious reservations about the Constitution from the beginning. Thus, the Congress had little difficulty in moulding the Constitution after the values of liberalism, secularism, equality etc that the party cherished.

Similarly, another essay reminds readers that the Constitution does not once mention the terms ‘federal’ or ‘federation’. And while the founding fathers and the judiciary seemed inc­lined towards a ‘strong Centre’, there are enough contradictions that can’t be papered over. One such contradiction is the constitution of the Council of States or the Rajya Sabha. Till 2003, one had to be an elector ‘in that state or territory’ to be eligible for election to the RS.  But an amendment replaced the phrase “in that state or territory” with “in India”. It must be pointed out that even before 2003, politicians found ways of circumventing the spirit by enrolling themselves in the local voters’ list. That’s how Man­mohan Singh, a resident of New Delhi, rep­­­r­­esented the Rajya Sabha from Assam since 1991. Des­pite the provision having been upheld by the Supreme Court, the trend of nominating ‘outsiders’  to the RS continues to raise political and ethical questions. Not too long ago, the ele­ction of an industrialist from Chandigarh and a corporate executive from Gujarat to the upper house from Jharkhand caused a furore. Alle­ga­tions of votes being bought were raised and obs­ervers wondered if the duo represented the state or merely the state assembly?

With increasing attacks on the judiciary and the Rajya Sabha and powerful voices like the Union finance minister Arun Jaitley questioning the need for the upper house and declaring that the judiciary is “dismantling the legislature brick by brick”, the Handbook is a timely addition to the subject. Insights the essays provide should be useful to not just scholars and lawyers but to lay readers too. The only caveat is its size, which makes it difficult to read. Dividing it in two volumes might have helped.

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