The Three Republics - How The Liberal Constitution Was Scuttled

The Constitution came under attack from the moment that it came into effect both from the Left and the Socialists, who dominated the polity, as well as the Indian National Congress. They continued to disparage it, as well as chip away at the nature of the Constitution by incorporating continuous amendments. The culmination of this process was the Emergency and the attempt to impose a socialist state by fundamentally changing the liberal Constitution through comprehensive amendments.

A discussion on the amendments during the Emergency years – from the 38^th to the 42^nd – requires a unique and detailed study. The amendments themselves were extremely varied, affecting different constitutional mechanisms. There was, however, one overarching theme in them – the accumulation and accentuation of power. In the late 1970s, India came closest to what the Indian National Congress had been threatening to impose from the time of independence – genuine world-class SOCIALISM.

A quick look at the amendments:

• The 38^th, passed on 1 August 1975, broadly dealt with enhancement of powers of the President and governors to pass ordinances, in other words, creating powers to rule effectively by decree.

• The 39th, passed on 10 August 1975, dealt with making the election of the Prime Minister and the Speaker beyond judicial review, thereby attempting to insulate the leadership from a political challenge. Frankly this was a blatant attempt to get the Allahabad High Court judgment disqualifying Mrs. Indira Gandhi on grounds of electoral malpractices.

• The 40^th, passed on 27 May 1976, allowed Parliament to put certain Acts, including those of land reform, under the Ninth Schedule of the Constitution so as to put them beyond judicial scrutiny. This was clearly an attempt to ensure socialist economic legislation trumped individual rights.

• The most famous one, the 42^nd, passed on 1 April 1977, brought in very wide scale changes into the Constitution including curtailment of Fundamental Rights, enumeration of fundamental duties and the incorporation of the two most famous words which haunt us to the present day “socialist and secular” into the preamble.

Without going into the broader details, even a cursory glance at the sequence of amendments would show that it was almost a domino effect whereby the Congress government incrementally imposed a truly socialist experiment on the people of India. Some would say that there was an attempt to fundamentally change the Constitution of India. Others would contend that the attempt was to mount a constitutional coup. Whatever it was, the sad fact is India has not recovered from it yet.

In different countries of the world, fundamental changes in the Constitution results in the creation of new republics. The demarcation of the number of republics indicates the times when a new Constitution has been framed for the purposes of governance of the state. At the present moment, France is in its fifth Republic. Germany also has gone through numerous governmental models as indeed constitutions. In the United States, the present Constitution is effectively the second; the first being the Confederation of states which preceded it.

In the United Kingdom, because of the flexibility of the Constitution and the absence of a written document, instead of a clear break between different constitutions there has been continuous evolution through judicial pronouncements and statutory legislation. In India, it seems that we have, in keeping with the British method of evolution, gone through three phases of the Constitution rather than making a clean break. I like to think that we are in effect in the third Republic, subsequent to the framing of the Constitution.

(This piece is part of our coverage of the 40th anniversary of the proclamation of Emergency)

The first Republic, as I like to call it, was a liberal Constitution. After coming out from the struggle for independence and a traumatic partition of the country, there was a large consensus that India needed a liberal government to succeed. The consensus across the board at the time of the framing of the Constitution was both for social liberalism as well as economic freedom. This is apparent from looking at the Constituent Assembly debates. The consistent message of the framing of the Constitution was that the consensus was for a liberal Constitution and state as apparent from the provisions which were incorporated into the Constitution.

When Babasaheb Ambedkar famously rejected the amendments to insert socialism and secularism on the ground that he did not want to impose a value system on the Constitution, he articulated the dominant ideology of the members of the Constituent Assembly – that of social and economic liberalism.

The fact that all the so-called controversial provisions indicating any position of any ideology were shifted to a non-binding part of the Constitution – the Directive Principles of State Policy – even as Fundamental Rights, affirmative action and the right to property, were entrenched left no doubt as to what the orientation of the majority of the Constitution makers was.

However, sadly, the liberal Constitution came under attack from the moment that it came into effect both from the Left and the Socialists, who dominated the polity, as well as the Indian National Congress. They continued to disparage it, as well as chip away at the nature of the Constitution by incorporating continuous amendments. The culmination of this process was the Emergency and the attempt to impose a socialist state by fundamentally changing the liberal Constitution through comprehensive amendments.

The flagship amendment was, of course, the incorporation of the words, socialist and secular, into the Preamble, thereby retrospectively attempting to create a new consensus for the formation of the Constitution. The other changes which were incorporated into the Constitution as part and parcel of the socialist amendments were intended clearly to replicate a socialist state. The objective was to create a centralised political and economic structure, snuff out all forms of political dissent, prioritise socialist economic development over civil and political rights, create a society which was apparently non-religious and insulate the overarching leader and the political party which governed the country from any political challenge.

In other words, it was an attempt to replicate a Soviet model with Indian characteristics. This was not unusual in its age. All across the world, this attempt to create one-party socialist governments had become the norm. The failed experiment of Sheikh Mujibur Rahman in Bangladesh next door at around the same time clearly shows that Mrs Gandhi was not alone in thinking the way she did.

As we all know that attempt ended in a spectacular failure. After Mrs Indira Gandhi lost in 1977 and after the Janata government made substantial changes in the Constitution in the 44th Amendment, there was a sigh of relief that India had got rid of its socialist nightmare. However, the Janata government amendments and the subsequent amendments till date have created the third Republic after the short-lived second Republic of Mrs Indira Gandhi.

The present constitutional model has increasingly resembled the “consociational model”, whereby the Constitution has been a structure on basis of which different interest groups have been accommodated at a political level. The attempt of the present constitutional model, it seems, is to deliberately create a weak state so that different competing groups – social, political and economic, can have their payoffs.

The worst sufferers of this model have been the individual and the rule of law. Power groups which have come to dominate the present state have attempted to discredit both individual rights and the rule of law at various levels. While individual rights have been argued to be against group identity, the rule of law has been posited against democracy. It has been argued that the rule of law is a recipe for dictatorship, wrongly citing, as an example, the socialist state imposed by Mrs Indira Gandhi.

The judiciary has increasingly become the referee and the arbiter in this competition amongst groups, thereby effectively becoming the only strong wing of the state. The executive has become ineffective, being continuously trumped by group demands, and the legislatures have become yet another tool to work out power sharing arrangements. Governance has, therefore, suffered massively.

In many ways, most of us who are fed up of the non-governance and mis-governance of the third Republic hope that the outcome of the 2014 elections will give rise to a fourth Constitutional consensus or indeed a fourth Republic. It is our hope that the fourth Republic will hark back to the founders of the Constitution and the original constitutional consensus of the first Republic. The path to the future, as always, lies in being inspired by the past.

(This article was submitted to us on May 24, around the time the Narendra Modi government was completing its first anniversary. But Swarajya decided to keep it back for another anniversary a month later the 40th anniversary of the Emergency.)