On Constitution Day : We the people and the Constitution of India

The constitution was to be a living document. It is not supposed to be an abstract set of rules that govern laws, but a moral imperative that infuses itself into society.

Constitution

“Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellow men.” –Dr. Ambedkar from Annihilation of Caste

On 26 November 1949, the Constituent Assembly of India approved the Indian Constitution. The drafting committee was chaired by Dr. Ambedkar, and came into effect on 26 January 1950, after which the Constituent Assembly was disbanded and was replaced with the Parliament of India.

The Constitution is often called a living document. That seems very abstract, because how can a book be alive? We might interpret this metaphorically, saying that the constitution speaks words that are close to our hearts, but the constitution is not poetry. The life of a constitution is different from other forms of life, and while a constitution might not die, it is possible to it to cease living.

What is a constitution? Laws are rules for the people. The constitution is the law for the laws. A constitution must prescribe for laws analogously to how laws prescribe for people. In principle, it governs what laws are needed and what must be prohibited.

Every nation-state is a Utopian project. Usually, the constitution is an expression of that utopia. The state hopes to organize its people into some ideal. A state doesn’t just govern society, but it also tries to make society into something. It might do so with laws, with violence, by directing resources, through education or a combination. In that sense, the Indian state is Utopian as well.

No state has lived up to the letter of their founding documents. The Indian constitution promises that India is a sovereign, socialist, secular, democratic republic and that India is to secure justice, liberty, equality and fraternity to all of its citizens. Many say that a constitution and its laws are just words on paper. India is not truly sovereign, socialist, secular, or democratic. The constitution might promise grand things in principle, but without any way to enforce those principles, those promises are meaningless.

The framers of the Indian constitution saw things differently. The constitution was to be a living document. It is not supposed to be an abstract set of rules that govern laws, but a moral imperative that infuses itself into society. In India, it was recognized that the state only governs part of society. Laws of caste, patriarchy, and capitalism operate side-by-side with the state. While the constitution promises life, liberty, equality, and fraternity, it must exist in a society that practices murder, oppression, hierarchy, and segregation. Even the best of laws must work in a society that discriminates its citizens, enslaves them and isolates them. How does a democratic state fulfill these constitutional promises?

Constitutional values can only work through the people of society, but murder, oppression, hierarchy, and segregation also can only work through people of society. The current balance only exists because members of society are organized in a particular way. People from dominant sections have access to resources and are connected to allow them to be dominant. People from marginalized sections do not have that access or connections. To approach liberty, equality, and fraternity, society needs to be organized differently. The law must break organizations that work against constitutional values, and encourage organizations that promote those values. The Indian constitution is designed to promote that kind of organization. Often there is a failure in meeting the values, sometimes at the level of the state and sometimes at the level of the people. Such organizing need not only be done through the mechanisms of the state. Any organization in society may work for these principles. Ideally the state should encourage such organizations, but in fact, such commitments have often put individuals at odds with the state.

Take the example of lynching. Lynching represents one of the most anti-constitutional forces as it deprives people of life, communities of equality and everyone of liberty. Lynching has risen in society because of changes in how people have organized. Older forms of isolation of marginalized people have made them vulnerable to attack. Newer forms of communication have made organizing violence faster. Organized movements have effectively spread ideologies of hate, fear and violence to many parts of the country. The Constitution may prescribe a solution if it undoes the isolation and vulnerability of marginalized people. If it can organize people from marginalized sections of society, and break the organization of the powerful who have the ability to directly labour and wealth. The state and society should work to reorder society to prevent marginalization and the murder that results.

Today, constitutional values are treated as hurdles, with loopholes to be exploited. If law-givers only treat the values of the constitution as a series of hurdles to work around, then they would not allow the constitution to live in society. The constitution becomes a static document, existing in the abstract. A living constitution is one that is part of the society it governs, rather than standing apart from it. If the constitution is only a set of words, then it can be amended to fit any purpose. The law then can act with brutality, oppressing, invading, and looting people.

If the spirit of the constitution has value, then the constitution ceases to live. When Dr. Ambedkar defined democracy, he called it a form of government where revolution can happen without the spilling of blood. He believed that open warfare in India would spell doom for the most marginalized members of society, and hopes that change in India could be worked out through the institutions and organizations of the state as governed by the constitution. As the state represents only one axis of power in India, it remains to be seen whether India can transition into its Utopian promise of securing justice, equality, liberty, and fraternity from forces of brutality, hierarchy, domination and hate. To give up on that promise is to give up on the state itself.

Views expressed are personal. 

Donate

Independent journalism can’t be independent without your support, contribute by clicking below.

LEAVE A REPLY

Please enter your comment!
Please enter your name here