Is India faithful to the spirit of Constitution?

On the 26th of January, 1950, the Indian national imagination was given a constitutional form. The Indian constitution is the keenly nurtured fruit of the anti-colonial movement and the extraordinarily nuanced debates of the constituent assembly. Nations are, fundamentally, made up structures of emotions, and nationalism can be one of the most irrational and erratic of all emotional states.

Emotions may conjure the national community, but they are inadequate to the practical tasks of its everyday life. The life of a community that has decided to constitute itself on the principles of equality and justice requires serious consideration to these principles and the constitution is the ‘head’ to the ‘heart’ of the national emotion. Of course, in seeking to ensure that national life is conducted according to just and equitable principles, it is, fundamentally, also a document of the heart: it asks us to ensure that abstract principles (‘dignity’, ‘equality’, ‘justice’. etc.) are translated into living reality.

The constitution is a template of rational Utopianism. However, sixty-four years after it came into being, how much of its promise have we managed to realise? To what extent have we remained true to its injunction to create a society of fair-play?

Constitutions are not, of course, magical documents that can conjure social change simply through stating the need for such change. Constitutional provisions on justice, liberty, equality and fraternity (as enunciated in the preamble) are, actually, exhortations towards creating the conditions for their achievement. Our great republican failure has been to assume that it is enough to have fine words embedded in the Constitution without having to create the condition for a just and equal society.

The most crucial grounds for the kind of society the constitution envisages is the ability to question existing power relations.

The modern Indian nation state — dreamt as a re-configuration of old structures of power — has significantly faltered in creating the conditions of such interrogation.

Ironically, a key reason for this is that the very processes that form the backbone of constitutional democracy — electoral politics — is itself deeply mired in ancient structures of power. Our electoral politics continues to unfold through the dynamics of caste, religious and ethnic and gendered power.

Of course, at one level, it is to be expected that in a society with such asymmetrical power relations, those at the bottom of the pyramid will seek to utilise whatever comes to hand — say, caste identity — to make their way in the world. However, our failure is that we have allowed those conditions to persist where caste identities continue to be evoked to gain some relief from disadvantage. We have not developed sustained mechanisms for questioning older power hierarchies because these have been put to the service of establishing new ones rather than a genuine commitment to the democratic principles outlined in the constitution.     

The framers of the Constitution were aware of the fact that the social reality that prevailed at the time of its framing would not be the same as, say, sixty-four years later. Hence, ideals of justice are not fixed and new contexts of human rights continue to evolve as our understanding of what it is to be human moves across new territories of debate. It is in this context that we have suffered another disability.

Consider, for example, the manner in which the Supreme Court set aside, in December 2013, the Delhi high court’s 2009 judgment on decriminalising homosexuality. Should we not expect the highest court to interpret constitutional concerns with justice and human rights in the spirit — rather than the letter — of the law? Is this also not a matter of inadequate attention to questioning the right of established power-brokers — in this case, religious leaders — to determine ‘criminal conduct’ in the 21st century?     

We should, of course, be grateful for constitutional mechanisms that do ensure a decent life in a deeply unequal society. However, till our systems of learning enshrine the questioning of norms and power-relations – of caste, gender, sexuality, etc. – as a fundamental and systematic educational goal, the constitution’s rational Utopianism will remain as slowly fading ink upon the national template.

(His books include Constructing Post-colonial India. National Character and the Doon School; Passionate Modernity. Sexuality, Class and Consumption in India)

Sanjay Srivastava
Writer is professor at Institute of Economic Growth, New Delhi, and a leading sociologist