On March 7, a court in Maharashtra sentenced Prof GN Saibaba to life imprisonment for involvement with the banned Maoists. In the inaugural issue of Governance Now in January 2010, Saibaba had written an article, taking a hard look at the Constitution of India and searching the answer to the question why millions of the underprivileged are deprived their rights. We reproduce that article below:

My rights? Not in this constitution
 
It is the state that the constitution empowers. People’s rights don’t figure in it, or figure only to be denied. The rights it gives with one hand it takes away with the other.
 
GN Saibaba
 
India’s self-portrayal imagined and propagated by her ruling elite among the world’s countries is that it is the largest democracy with a fat constitution. India is projected as an emerging superpower that is soon to reach 10 percent growth rate. It also goes that she proved to be a successful democracy while many post-colonial states slipped very often into military rule or anarchic polities.

Contrary to this self-representation by India’s ruling oligarchy, the country houses a huge chunk of the world’s poor. A staggering 77 percent of her population lives under most inhuman conditions with an abysmally low income of Rs.20 per day per person on average in a year. India also witnesses a large number of bloody internal revolts against the state reflecting the way the democratic governance is structured in the last six decades of its existence. To explore this problem we need to go into the trajectory of the post-colonial Indian state that has been constructed with the paraphernalia of a large constitution, highly proliferated ‘democratic’ institutions giving a facade of democracy.
 
Who framed the constitution?

Though the Indian constitution seeks to represent the people, it wasn’t framed by them. The Constituent Assembly (CA) that framed our constitution was formed with the permission of the British in 1946. Initially about 70 percent of its members were Congressmen. After 1947, the Congress representation in the CA went up to 84 percent. The Muslim League refused to participate in the CA as Jinnah called for the formation of two constituent assemblies in 1945. The Communists and Socialists had no representation. In 1947, when the Socialists decided to participate in the CA, Nehru refused to accommodate them!

Thus the CA was dominated by the oligarchy of prominent Congress leaders comprising princes, big zamindars, some Hindu revivalist leaders and a few representatives of the industrial houses. Only the people were missing.
 
Colonial origins

What is more surprising is that the members of the CA were not elected by the people on the basis of universal adult suffrage. It was elected by an abysmally small percentage of the adult population as per the 1935 Government of India Act of the British colonial regime. Several democratic forces such as the CPI, the Socialists and others called for the reconstitution of the CA on the basis of universal adult suffrage and outside the colonial inheritance. But the Congressmen who already constituted an overwhelming majority in the CA refused to reconstitute it.

The CA met with the permission of the British government. Later it was accorded legal status by the Indian Independence Act passed by the British parliament. It had to work under the limitations of the Cabinet Mission Plan. Even Gandhi initially believed that it was not sovereign but later accepted it.

The Indian constitution has been described as the cornerstone of our democracy. But the way it was framed by keeping the majority of the people of the country out, it turned out to be a great fraud on the people. No doubt that the Indian constitution borrowed the best of the various written and unwritten constitutions of the world, but it is essentially modelled on the basis of the 1935 Government of India Act which was designed to give limited power-sharing to the native ruling elite under the colonial government. The Indian constitution faithfully retains some of the worst features of the 1935 Act!

The colonialist nature of our constitution manifests not only in the process of its framing but also in its structure and in the way it functions. A closer look at various aspects of the constitution reveals how our ‘democracy’ is modulated through inherent contradictions stemming out of this leviathan constitution.
 
The fundamental rights or fundamental contradictions?

The Indian constitution with much fanfare sets forth the fundamental rights which are said to codify and make legally enforceable the inalienable rights of the human species.

The fundamental rights begin with Article 14 which states that “the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”. But we all know in our daily life that equality of all before the law is denied in most obnoxious ways. Does the law treat a political leader or a bureaucrat in the same way as it treats a tribal person in Bastar or Jharkhand or an illiterate dalit for the same offence?

Articles 15 and 16 prohibit discrimination on the grounds of sex, caste, religion or place of origin and declare the equality of opportunity for all. These articles have sub-clauses to protect the special provisions of the scheduled castes and tribes, backward classes, women and children. Article 17 abolishes untouchability. All these articles remained paper declarations in the past 60 years but the decades of struggles of the people forced the ruling elite to frame some laws to enforce these constitutional provisions. But everyone knows today the fate of these laws. For instance, till today many states have not even constituted special courts to try offences against dalits and tribals, which is required under the Scheduled Castes and Tribes (Prevention of Atrocities) Act. Every year we witness a growing number of atrocities against scheduled castes and tribal people through the annual reports of the commissions on SCs and STs.

Article 18 abolishes titles. Then we come to Article 19, one of the most important of the fundamental rights. The first three clauses under Article 19(1) provide basic rights like freedom of speech and expression, the right to assemble and the right to form associations or unions to all citizens of the country.

These rights are the basic political freedoms. They are crucial for the existence and maintenance of all the other rights. Yet what the constitution gives, it itself takes away! Clauses 2 to 6 of Article 19 take back every basic right that has been granted to the citizens. These clauses declare that the fundamental rights as set down in the first clause shall not affect the operation of any existing law or affect the enactment of new laws, which place reasonable restrictions on the operation of these rights in the interests of public order, security of the state, and friendly relations with foreign states etc.

This fundamental contradiction in-built in the constitution made possible for the state machinery to violate the basic rights guaranteed to the people by legislating a huge number of draconian laws. For instance, laws like TADA or POTA punished people for giving a speech or writing an essay in which one advocated social transformation or the federal re-organisation of India. Sixty years of history is witness to a huge number of internal security laws that smashed the very concept of fundamental rights. The fact is that these draconian laws are perfectly permissible within the framework of the constitution.

Similarly, the right to form associations or unions is restricted by laws both at the state and central levels by which the state can declare any organisation unlawful on the flimsiest grounds. For instance, the Unlawful Activities Prevention Act, 2008 bans a number of organisations including some of the most grassroots movements like those of the tribal people under the leadership of Naxalites or organisations which represent the aspirations of people for self-determination in Kashmir or the northeast. The restrictions on Article 19 allow the state to make laws on apprehension of disorder or threat to the security of the state on arbitrary grounds.

Article 21 says that the state will not deny any citizen the right to life except by the due process of law. That’s why the Armed Forces (Special Powers) Act can allow armed personnel to open fire indiscriminately and kill people without violating the constitution.

In a highly unequal society like ours, Articles 14, 15, 16 and 21 do not mean much for the people particularly when the constitution doesn’t provide any mechanism to guarantee these rights but provides enough space to restrict them.
The fundamental rights section of the constitution is prefaced by Article 13, which lays down that no law that violates these rights can remain on the statute books. However, the first amendment to the constitution modifies Article 19 by imposing restrictions on rights. As many as 185 pieces of colonial legislation, most of them of highly undemocratic type, continue to remain on the statute books.

The fundamental rights as enshrined in the constitution supposedly function as the bedrock of our ‘democratic’ polity. But each of the rights has been accompanied by one or more provisions for restricting it. Sixty years of our constitutional practice clearly establishes that the democratic space provided by our constitution can at best be understood as fragile and in reality a mirage.
 
How the oligarchic hegemony builds

In a real sense, the Indian constitution prioritises the executive – the prime minister, the cabinet of ministers and the bureaucracy – over the legislature, though formally we are told that real power rests in the legislature. That’s why the government can take such decisions that could impact the future of the country in irreversible ways without going to parliament. For example, the signing of the WTO agreements or initiation of the globalisation policies or the nuclear agreement with the US was not decided in parliament. This feature of the constitution renders the legislature a mere law-passing body. But even what law should be made is decided by the executive. The executive can even make laws outside the legislature in the form of ordinances. The executive can decide everything and can control the legislature through the instrument of whip on the legislators of the ruling party or coalitions. The executive has complete control over crucial expenditures, foreign relations, foreign trade and commerce and foreign loans.

The seemingly independent judiciary at higher levels is also appointed by the executive in real terms within the framework of the constitution. The rest of the judiciary functions under the control of the higher judiciary.

All policy matters including the crucial ones which may totally change the face of the country the executive need never to decide in parliament. Even the economic policies, the five-year plans or bilateral or multilateral agreements with other countries need not be decided in parliament. Only some debates could be done on the floor of legislative houses when members ask questions about the decisions of the government or the annual ritual of passing the budget and financial bill. Ultimately, parliament is a mere talking shop! By concentrating all powers in the hands of the executive, the constitution turns the ‘representative democracy’ into a rule of oligarchy. Quite often, even this executive degenerates by leaving the crucial decisions to the high command of the ruling party.
 
Centralised authoritative structure

The constitution has such provisions that completely restrict the power of state governments and legislatures. The centre can, through Article 356, impose president’s rule—in real terms the centre’s rule. It can legislate on matters including those under the purview of the states. Central legislation prevails over the state legislation if the centre legislates on the same subject. The legislation made by the states has to be sent for the assent of the president who cannot act without the consent of the real executive—the cabinet of ministers. All the natural resources of the states are under the control of the centre. The states can use these only with permission from the centre. Thus, the constitution throws up a unitary state contrary to the projection that Indian polity is constructed on a semi-federal structure. In other words, the constitution forms a highly centralised authoritative structure, not a decentralised democratic one.
 
A new republic is the answer

The nature of those who framed the constitution defined its undemocratic structure. A democratic minded person like Babasaheb Ambedkar couldn’t bring in democratic features that he fought for amid the overwhelming majority of feudal minds in the Constituent Assembly. Nothing is more incongruous than characterising India as a democratic, secular and socialist republic. Six decades of travails to set right this home left the struggling masses of people with misery and grief. It’s time to build a new republic with a new constitution establishing people’s power in the place of oligarchic rule that passes off for democracy.