From colonial legacy to indigenous identity: Redefining India's constitution

[Note: This article is based on multiple chapters in a book titled – “A New Democratic Republic Constitution for India”]

India, a nation with a rich history and diverse cultural heritage, has long been regarded as the world's largest democracy. The Constitution of India, adopted on January 26, 1950, was a remarkable document of its time, providing a framework for governance in a newly formed Dominion State under the British circle of power. It united a diverse and fragmented post-colonial nation under a single framework of governance. The Constitution of India was envisioned as a beacon of hope, a guide for a sovereign nation committed to the principles of justice, liberty, equality, and fraternity. Yet, as the decades have passed, questions have arisen about the Constitution's ability to fully embody and uphold these ideals in the face of evolving societal challenges.

A constitution of a modern constitutional republic is sovereign

In a monarchy, the king is supreme, hence the phrase 'God Save the King.' In a constitutional republic, the constitution is the supreme authority. However, while a monarch is invincible and sovereign, a constitution is sovereign but not invincible. The people possess inherent rights that even the Constitution cannot infringe upon.The "people" hold the ultimate sovereign power; their consent is the source of all governmental authority, including the Constitution itself; essentially, the Constitution acts as a framework for how the people's power is exercised by the government.

A constitution is a set of fundamental rules that define the structure of the government or the state, the duties of those representing the state, and the powers they hold to discharge those responsibilities. The most crucial function of a constitution is to limit the powers of the state, preventing it from ruling tyrannically over its citizens. Essentially, the Constitution delineates the relationship between the state and the people.

This relationship can be viewed as a master-servant (or principal-agent) dynamic. The United States Constitution unmistakably places the people as the principals and the state as their agent. In contrast, the Indian Constitution crafted primarily from the British rule book of 1935 that originated from prior British rule books including the codes of the British East India Company, reverses this relationship, positioning the government as the master and the people as servants of the state. This is a typical model of colonial government (a non-democratic system) where invading colonial rulers of the country serve as lords and treat the people as their servants. India has been continuing the British colonial ruler’s model even today.

This article is an overview of a critical examination of India's Constitution that explores whether the framework, originally shaped by the legacies of colonialism, had truly allowed India to realize its sovereign potential. Through a deep dive into the historical, legal, and cultural contexts, this work argues for the need to revisit and possibly re-imagine the Constitution, making it more reflective of India's indigenous values, traditions, and aspirations of its people.

The Indian Constitution Was Not Truly "By the People"

The Indian Constitution was not directly approved by the people through a referendum or a direct vote. Instead, it was framed and adopted by a Constituent Assembly whose members were elected through a limited and indirect process, thus raising questions about the legitimacy of the claim that it was "by the people."

Indirect Representation and Limited Franchise:

1. The Constituent Assembly, which drafted the Indian Constitution, was not elected by universal adult suffrage. Instead, its members were elected by the provincial legislative assemblies, whose members were elected by a limited electorate based on property, education, and tax-paying criteria. This meant that a significant portion of the population, particularly the poorer and less educated segments, had no direct say in electing the representatives who would draft the Constitution.
2. The electorate for the provincial assemblies was restricted, excluding large sections of society, including women (except those meeting property or educational criteria), lower castes, and economically disadvantaged groups.

Lack of Direct Referendum:

1. Unlike some countries that have held referendums to allow the entire population to directly vote on the adoption of their constitution, India did not have such a process. The Constitution was adopted by the Constituent Assembly without a direct popular mandate from the general populace.
2. This lack of direct approval can be seen as a democratic deficit, where the foundational legal document of the country was established without direct input or consent from the majority of its citizens.

Ineffectiveness of the Indian Constitution in Establishing a True Socialist, Secular, and Democratic Republic

The Indian Constitution, celebrated as a cornerstone of Indian democracy, pledges to establish a "Socialist, Secular, and Democratic Republic." However, despite its noble intentions, the effectiveness of the Constitution in achieving these goals has been a subject of intense debate. The inherent deficiencies of the Indian Constitution hindered the realization of a true socialist, secular, and democratic society.

Socialist Aspirations and Economic Inequalities

The preamble of the Indian Constitution declares India to be a socialist republic, aiming for an equitable distribution of wealth and resources. Yet, the reality presents a stark contrast. India grapples with vast economic inequalities, where the wealth gap between the rich and the poor continues to widen. The concentration of wealth in the hands of a few industrialists, corporate entities, politicians, government ministers, and bureaucrats undermines the socialist ideals envisioned by the Constitution. The structural inadequacies within the Constitution failed to address these disparities effectively.

Secularism and Religious Tensions

Secularism, as enshrined in the Indian Constitution, demands equal treatment of all religions by the state. However, India's socio-political landscape is often marred by religious tensions and communal conflicts. The rise of clan politics and the politicization of religion challenge the secular fabric of the nation. The constitutional provisions or the lack thereof contributed to the erosion of secularism.

Democratic Republic and Political Realities

While the Indian Constitution establishes a democratic framework, the functioning of democracy in practice reveals significant flaws. Issues such as electoral malpractices, political corruption, and the marginalization of common people’s voices undermine the democratic process. The constitutional mechanisms failed to safeguard democratic values and ineffectiveness in taking measures to strengthen democratic institutions and ensure inclusive governance.

The Articles of Wealth and Progress Inequalities in the Indian Constitution

The Constitution of India contains several articles aimed at promoting social justice and reducing economic disparities. However, the implementation of these provisions often falls short, leading to persistent inequalities. The key constitutional articles related to wealth and progress inequalities are unable to address the need to achieve true social and economic justice.

The structural deficiencies and gaps within the Constitution have contributed to the persistence of economic inequalities, religious tensions, and democratic shortcomings for over 74 years. For India to progress towards a truly inclusive and equitable society, it is imperative to undertake comprehensive constitutional reforms and overhauls that align with the nation's evolving socio-political landscape.

For further understanding of this need for an overhaul of the Indian Constitution, below is a comparative analysis of two major constitutions of the world – the constitutions of the United States, the oldest active democratic constitution, and India, the largest democracy.

1. Complexity vs. Simplicity in Constitutions

The Constitution of the United States effective since 1789 is a concise document, just four handwritten pages long, containing approximately 4,300 words, comprising just seven articles and 27 amendments, and is deceptively simple. In stark contrast, the Indian Constitution spans over 80,000 words with over 450 articles and 106 amendments. It is overly lengthy, overly complicated, and written in language that ordinary citizens find bewildering and incomprehensible. As a result, few Indians have read the Constitution, and even fewer government officials, politicians, and ministers can fully explain its content. This disconnect is a major failure of the nation.

The Pursuit Sophistication of Simplicity in Governance

Simplicity in governance requires hard work and vision. A constitution’s purpose is to serve its people, to be a living document that evolves yet remains grounded in its principles. The U.S. Constitution, with its concise structure, exemplifies this balance. Its simplicity invites participation and understanding, fostering a sense of unity and purpose.

Why the Indian Constitution Risks Losing Its Citizens While the U.S. Constitution Still Resonates

The connection between a nation's constitution and its citizens is a measure of its relevance, accessibility, and ability to inspire a sense of shared identity and purpose. While the Indian Constitution was drafted with the laudable intent of addressing the diversity and complexity of the nation, its intricate nature has created barriers to understanding and connection for the average citizen. In contrast, the U.S. Constitution, though far from perfect, continues to matter deeply to Americans due to its simplicity, adaptability, and symbolic power.

The Indian Constitution, while comprehensive, risks losing this connection. Its complexity, though reflective of India’s diversity, can create barriers to comprehension and engagement. It requires a process of refinement to strip away the unnecessary and reveal the essential. It can not be achieved through shortcuts but through relentless effort, a willingness to confront complexity, and the courage to let go of the inessential. Simplicity is a tool for connection and understanding that every constitution should aspire to achieve.

James Madison, who drafted the US Constitution in 1787, had this to say about why constitutions must be brief and to the point:

"It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?"

A constitution defines the state or the nation. It determines what the nation is and what it aspires to be. A country's fortunes are intrinsically linked to the quality of its constitution.

The Indian Constitution is, in essence, a collection of rules and regulations crafted by the British during their colonial rule. The Government of India Act of 1935, formulated by the British, forms a significant portion of the Indian Constitution. While there were some changes made post-independence, the core rules remained unchanged. The British-crafted rules naturally placed the government above the people, and this hierarchical relationship continued unabated after 1947. Consequently, one can argue that Indians are still not truly free. India gained independence from the British Crown, but it did not achieve freedom. Essentially, India transitioned from British rule to a form of 'self-governance' that is reminiscent of British Raj 2.0. For India to attain true freedom, Indians must first be liberated from the colonial legacy. This necessitates a new constitution.

2. Accessibility and Connection

Indian Constitution: The Indian Constitution’s dense language and legal jargon make it difficult for ordinary citizens to engage with it. While the Preamble is inspiring, the broader text feels distant, more like a document for lawyers and judges than for the people.

U.S. Constitution: The U.S. Constitution uses clear and straightforward language, making it accessible to citizens without specialized legal knowledge. It has become a touchstone in American civic life, with foundational principles like free speech, due process, and equal protection enshrined in ways that citizens can readily understand and rally around.

The Indian Constitution, though ambitious, risks alienating its citizens with its complexity and inaccessibility. By contrast, the U.S. Constitution thrives because of its simplicity, adaptability, and cultural integration. For a constitution to truly matter, it must not only govern but also inspire. India’s challenge lies in bridging the gap between its Constitution’s lofty ideals and its citizens’ lived realities.

3. Relevance to Everyday Life

Indian Constitution: While it guarantees fundamental rights, the practical experience of these rights often feels out of reach for many Indians due to systemic corruption, judicial inefficiencies, and government overreach. Citizens frequently feel alienated from the Constitution, viewing it as a lofty document disconnected from their daily struggles.

U.S. Constitution: The Bill of Rights, a core component of the U.S. Constitution, has been central to shaping Americans' everyday lives. Protections like freedom of speech, the right to bear arms, and freedom of religion are fiercely debated and defended, reinforcing the Constitution’s presence in public consciousness.

4. Symbolic Power

Indian Constitution: While the Constitution represents India’s independence and aspirations, it has not become a unifying symbol of national pride. Political factions often manipulate its provisions for short-term gains, further eroding its moral authority.

U.S. Constitution: The Constitution is often described as the “supreme law of the land” and serves as a symbol of unity and democracy. Even during crises, Americans across the political spectrum invoke its principles, demonstrating its enduring relevance.

5. Adaptability and Rigidness

Indian Constitution: The detailed nature of the Indian Constitution makes amendments frequent but often controversial. These changes can feel reactive rather than reflective of a cohesive national vision. For example, quotas and reservations, while addressing historical injustices, have also led to debates about fairness and equality.

U.S. Constitution: The U.S. Constitution is intentionally flexible, with a broad framework that allows for interpretation and evolution over time. Landmark Supreme Court rulings, such as Brown v. Board of Education and Miranda v. Arizona, have demonstrated its ability to adapt to changing societal values without losing its foundational principles.

6. Civic Education and Awareness

Indian Constitution: Many Indians are unaware of the rights and responsibilities enshrined in their Constitution. Civic education often takes a backseat, leaving citizens disconnected from the document that defines their democracy.

U.S. Constitution: From the Pledge of Allegiance to high school civics classes, American education instills a sense of pride and ownership in the Constitution. Public discourse frequently references constitutional rights, ensuring its continued presence in citizens’ lives.

The current Indian Constitution has fundamental deficiencies. Despite claims in the preamble, it has failed to uphold secularism, democracy, and true sovereignty. Over the decades, it has been amended numerous times to serve the interests of a few while leaving most of the citizens lingering behind, a demonstration of its selective and discriminatory flexibility. However, this selective flexibility is not suitable to address the challenges of a rapidly evolving society, advancements in technology, and the aspirations of a young, dynamic population. It is time to go beyond selective piecemeal amendments and re-imagine the Constitution for the 21st century—a transformative overhaul that resonates with the present and anticipates the future. Draft a new constitution.

The Case for Change: Why an Overhaul is Necessary

1. An Outdated Framework:

The Constitution reflects a colonial hangover, emphasizing state control and governance structures modeled on the Government of India Act of 1935, which prioritized administrative convenience over people’s aspirations.

The lack of alignment with India’s civilizational values, such as its historical focus on decentralization, community-based governance, and dharmic principles, has created a cultural and governance disconnect.

2. Generational Equity:

A fundamental principle of democracy is that each generation should have a say in shaping the social contract that governs them. Binding today’s youth to a document crafted by an earlier generation risks alienating them from governance. The Constitution should not be seen as a static relic but as a living framework that evolves with the times.

Periodic constitutional renewal is the idea that the constitution should be updated at regular intervals to reflect the values and needs of each generation. In 1789, Thomas Jefferson proposed this idea, arguing that the Constitution should be rewritten every 19 or 20 years if it is not to become “an act of force and not of right”. He believed that each generation should have the right to choose the form of government that best promotes their happiness.

3. Learning from Science and Philosophy:

Scientific theories, no matter how well-established, are constantly revised or replaced in light of new evidence. Similarly, Indian philosophy embraces renewal and adaptability through concepts like kalachakra (the cycle of time). A Constitution that does not embrace change risks becoming an obstacle rather than a facilitator of progress.

4. Inflexibility in Addressing Modern Challenges:

The rigid amendment process in Article 368 stifles the ability to adapt to evolving societal needs.

Current provisions have created a governance bottleneck, often leading to judicial activism, which undermines the balance of power.

5. Unfulfilled Aspirations of Justice, Liberty, Equality, and Fraternity:

Rising inequalities, caste-based politics, religious appeasement, and corruption demonstrate the failure of the Constitution to fulfill its own lofty promises.

6. A Need for Periodic Renewal:

Modern democracies require constitutions that are flexible and adaptable. A mechanism for periodic review and renewal could ensure the Constitution remains relevant, progressive, and aligned with the will of the people.

The Obstacles to Change: Article 368 and the Judiciary

1. Rigid Amendment Procedure:

Article 368 requires a special majority in Parliament and, for certain amendments, ratification by half the states, making it nearly impossible to enact substantial changes.

The complexity of this process discourages political consensus and fosters inertia, even for necessary reforms.

2. Judicial Constraints:

The basic structure doctrine, established in the Kesavananda Bharati case (1973), limits Parliament’s power to amend fundamental aspects of the Constitution. While it safeguards key principles, it also creates an insurmountable barrier to transformative changes.

Judicial overreach often places courts as arbiters of political decisions, further stalling reform initiatives.

3. Political Fragmentation:

A fragmented political landscape, driven by regionalism and identity-based politics, further complicates efforts to build consensus for sweeping constitutional changes.

The Solution: Amending Article 368 to Enable Overhauls

The current administration has the unique opportunity to lead India into a new era by reforming Article 368 itself. This could involve the following steps:

1. Simplifying the Amendment Process:

Modify Article 368 to reduce the required majority thresholds, particularly for fundamental reforms or overhauls.

Remove the need for state ratifications for national-level changes that do not affect the federal structure.

2. Institutionalizing Periodic Reviews:

Introduce a provision in Article 368 for a mandatory constitutional review commission every 20 years.

Empower this body to evaluate the Constitution’s relevance and propose comprehensive reforms, including overhauls, with structured mechanisms for public participation.

3. Referendum and Public Engagement:

Amend Article 368 to include public referendums for major constitutional reforms, ensuring citizen participation and legitimacy.

4. Aligning with the Basic Structure Doctrine:

Ensure that the new provisions for periodic overhauls respect the basic structure doctrine, retaining India’s core values while allowing for substantial updates.

Benefits of Regular Constitutional Overhauls

1. Adaptability:

A periodic review mechanism ensures that the Constitution remains a living document, responsive to societal, technological, and geopolitical changes.

2. Democratic Renewal:

Regular reviews provide an opportunity to reaffirm democratic ideals and address emerging inequalities or governance challenges.

3. Cultural Reconnection:

A reimagined Constitution can integrate India’s indigenous values and traditions, making governance more inclusive and culturally aligned.

4. Reduced Judicial Overreach:

By making the Constitution more dynamic and adaptable, judicial interventions can be minimized, restoring the balance of power among the branches of government.

Drafting a New Constitution

To draft an Indigenous constitution, the citizens must begin by acknowledging the unique values, philosophy, and heritage that have shaped India for millennia. Ancient Indian civilization was guided by the principles of dharma (righteousness), karma (duties), artha (prosperity), and moksha (liberation). These principles can form the bedrock of a new constitution, ensuring that governance aligns with the spiritual and cultural ethos of the land.

An Indigenous constitution must prioritize the welfare of all citizens, ensuring that economic, social, and cultural rights are protected. This involves a commitment to reducing inequalities and promoting inclusive growth. The principles of ahimsa (non-violence) and Sarvodaya (welfare of all) should guide policymaking, fostering a society that values harmony and collective progress.

Moreover, the new constitution should emphasize the decentralization of power, empowering local governments and communities. This approach aligns with the traditional Indian concept of panchayati raj, where local self-governance was a cornerstone of societal organization. Decentralization ensures that governance is more responsive and accountable to the needs of the people.

Education and healthcare should be enshrined as fundamental rights, with the state bearing the responsibility to provide accessible and quality services. An educated and healthy populace is essential for the nation's progress and prosperity.

Incorporating sustainable development principles is also crucial. Ancient Indian wisdom emphasized living in harmony with nature, and this ethos should guide modern environmental policies. The new constitution should mandate the protection of natural resources and promote sustainable practices to ensure the well-being of future generations.

Finally, the drafting process itself must be inclusive and participatory. Citizens from diverse backgrounds, including marginalized communities, should have a voice in shaping the new constitution. This participatory approach will ensure that the constitution reflects the aspirations and needs of all Indians.

Even with all good intentions, no provision should be made to favor or punish any specific group. This provision cannot be changed or amended by any future legislatures or government bodies.

Final Thought

India stands at a crossroads. The current constitution, rooted in colonial history, has significant deficiencies that hinder true progress and prosperity. For India to realize its full potential, it needs an Indigenous constitution—one that embodies its values, philosophy, culture, heritage, and rich history. This new constitution must prioritize individual freedom, inclusive growth, decentralization, education, healthcare, and sustainable development. By embracing these principles, India can build a prosperous and just society for all its citizens. Now is the time to lay the foundation for a truly free and flourishing India.

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References

Historical Context and Comparisons:

Government of India Act 1935: Jain, M. P. (2010). Indian Constitutional Law. LexisNexis.

Drafting of the Indian Constitution:

Granville, A. (2000). The Indian Constitution: Cornerstone of a Nation. Oxford University Press.

Comparison with the US Constitution:

Madison, J. (1787). The Federalist Papers. Penguin Classics.

Fundamental Deficiencies:

Length and Complexity: Austin, G. (1999). Working a Democratic Constitution: The Indian Experience. Oxford University Press.

Colonial Legacy: Sarkar, S. (1983). Modern India: 1885–1947. Macmillan.

Centralized Power: Khilnani, S. (1999). The Idea of India. Farrar, Straus and Giroux.

Individual Rights and Social Inequality: Beteille, A. (2007). Democracy and its Institutions. Oxford University Press.

Indigenous Values and Principles:

Ancient Indian Principles: Sharma, R. S. (2005). India's Ancient Past. Oxford University Press.

Ahimsa and Sarvodaya: Gandhi, M. K. (1958). The Story of My Experiments with Truth. Beacon Press.

Panchayati Raj: Mathew, G. (1994). Panchayati Raj in India: An Overview. Institute of Social Sciences.

Modern Issues and Recommendations:

Education and Healthcare: Dreze, J., & Sen, A. (2013). An Uncertain Glory: India and its Contradictions. Princeton University Press.

Sustainable Development: Guha, R. (2006). How Much Should a Person Consume? Environmentalism in India and the United States. University of California Press.

Participatory Constitution-Drafting: Elster, J. (1995). The Roundtable Talks and the Breakdown of Communism. University of Chicago Press.

Additional Resources:

Philosophical and Historical Documents: Radhakrishnan, S. (1996). Indian Philosophy: Volume 1. Oxford University Press.

Contemporary Analysis: Chatterjee, P. (1993). The Nation and Its Fragments: Colonial and Postcolonial Histories. Princeton University Press.