After reviewing the Constitution, the NCRWC have made a total of 249 recommendations. Fifty-eight of them suggest amendments to the present Constitution. Other recommendations entail legislative changes or executive action. In the book, we shall take cognisance of only the recommendations involving substantive amendments to the Constitution. In the present Chapter we consider the Preamble.

The Preamble to our Constitution reads as under:

“WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all citizens:

JUSTICE, social, economic, and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and opportunity;

and to promote among them all;

FRATERNITY assuring the dignity of the individual and the Unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November, Nineteen Hundred and Forty Nine, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

The Preamble is essentially the same as originally adopted in 1949, barring the insertion of the words “Socialist” and “Secular” in the opening clause and the word “integrity” in the penultimate clause, by the Constitution (Forty Second Amendment) Act, 1976. It was part of a large number of changes brought about during the Emergency declared in 1975.  The Emergency ended in 1977, through a democratic process we may proudly recall. The new Parliament reviewed the whole position and in most cases restored the pre-Emergency position through the Forty-Fourth Amendment. However, the changes made to the Preamble and the new Article 51A prescribing the Fundamental Duties of the citizens emerged unscathed.[1] 

Not only the new words inserted but also words like ‘nation’ incorporated in the Preamble admit of varying interpretations. It, therefore, seems desirable to define them on the basis of national consensus, so as to inform the operative parts of the Constitution as well as the day-to-day governance.

Nation

Throughout history, the term nation and the associate term citizen have been as much about exclusion as about inclusion, boundary-drawing terms setting apart some people from others.[2] Citizens have an overriding loyalty to the nation especially at the time of a crisis.

A modern nation fulfils either or both of the following criteria, namely,

1. All or most of the members comprising the nation belong to a homogenous ethnic, linguistic, religious, or other social group.

2. For whatever historical reason, the members have lived in a politically well-defined geographical area.

In the case of India, only the second criterion is satisfied. The first is simply not satisfied because India has always been a multi-ethnic, multi-religious, and multi-lingual society. Indeed, many of the groups have several sub-divisions, to wit, the caste groups among the Hindus, the Sunni and Shia sects among the Muslims, or the different denominations among the Christians. So much so, at the time of adopting the present Constitution, Dr. Ambedkar said, “I am of the opinion that in believing that we are a Nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a Nation? The sooner we realise that we are not yet a nation in the social and psychological sense of the word, the better for us.”

What Babasaheb meant was that merely securing Independence or adopting the Constitution would not make India a nation. Only when the various ethnic, linguistic, religious, and caste groups transcended their parochial loyalties in the overriding cause of the welfare of all the groups could we call ourselves a nation. The task of nation building was, and is, unfinished business.

Without a shared commitment to the common good rooted in the realities of mutual interdependence there can be no nation in the modern world.[3] Patriotism should not be a matter of indoctrination but of choice, a voluntary act by free and independent people. A sense of community should flow from a sense of justice rather than the other way around.[4]

In the West, modern democracy is predicated on the concept of nationhood. In ancient India it was not so; there was never a Hindu Ra ştra (Hindu nation), only a Bharata Varş a (Bharata’s continent) that encompassed an open, pluralistic and ethical society. This was at once its greatest strength as well as its greatest weakness. Granting that India went under in the Second Millennium due to this weakness[5], we should not harp on any fixed notion of nationhood. With globalisation the concept of nationhood itself is in the melting pot. We should thus consider defining the term nation in a workmanlike manner somewhat like the following:

Nation is a politically unified geographical entity that commands the overriding loyalty of its members over all other claims to individual allegiance subject to the principle that the whole humanity belongs to one family.

Sovereignty

Sovereignty is the ultimate authority on the social, political and economic order in a nation. According to the Preamble the sovereignty in our country rests with the people. The Objectives Resolution moved by Jawaharlal Nehru prior to taking up the work of drafting the Constitution said: ”Whereas all power of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people,” (Objective 4).

The modern Western state was born as a result of struggles against sovereign but despotic kings (‘the sole organ of the collective will and personality, the supreme source of fiats and laws, and the ultimate seat of power and authority’). This was radically different from the Indian tradition where several “intermediary groups and institutions, functional, local and voluntary, with their own dharma, their special codes, and customaries" each pursuing its own dharma, mediated between the state and the individual citizens. In the West the king was the head of the state as well as the society; in ancient India he was the head of the state but not of the society.[6]

The Anglo-Saxon jurisprudence has been based on the Western notion of a sovereign monarch. This was how the Government of India Act, 1935, the forerunner to the present Constitution, was framed. This is also the underlying notion of the various Articles in the present Constitution notwithstanding what was intended and said in the Preamble about the sovereignty of the people.

If we were to make a difference to the way we govern ourselves we need to turn this notion of centralised sovereign power on its head. We must first demarcate the areas of governance that the people reserve for their self-governance as it were. Only the remaining areas would be entrusted to the different tiers of government though the instrument of the Constitution. Adopting this approach, sovereignty may be defined thus -

Sovereignty is the ultimate authority on the social, political and economic order in a nation. It rests with the people except to the extent expressly surrendered by them through voluntary and mutual consent.

Secularism

The Western tradition lays undue emphasis on mutually exclusive domains for the state and the religion for historical reasons. There is some risk in the uncritical adoption of this notion of secularism as it could make people irreligious. Ambedkar said: “Some people think that religion is not essential to the society. I do not hold this view. I consider the foundations of religion are essential to the society.” Gandhiji said, “I draw no hard and fast line of demarcation between political, social, religious and other questions.”

Only a deeply religious person like Gandhiji could be truly secular. Religion has a powerful hold on the Indian people. [7] History has proved time and again that religion is fundamental to human existence anywhere and everywhere. And, religion is the foundation of ethics and good ethics lay the foundation for good governance.

There in no gainsaying that Hindu religion as it is practised today needs to be reformed. However, it would be a blunder not to co-opt the religious institutions in promoting social reforms and good governance. Government pursuing a ‘secular’ agenda ignoring the religious institutions would only encourage the latter to pursue their own limited agendas.

The co-option of religious institutions and practices suggested is not for pursuing the narrow political interests of the rulers, as cynically suggested in Artha śāstra [8] . It is for the larger purpose of ushering in the social, political and economic transformation envisaged in the Constitution. According to the Indian traditions, the political and spiritual powers are expected to work in harmony for the common good. [9] The state and the religion have never been antithetic as has been the case in the West historically. [10]

In the Islamic tradition too, the religion and state are intertwined, religion acting as a check against the arbitrariness of the ruler. A basic restraint is placed upon him by the Shariah, under which he holds his authority and which he is duty-bound to execute and defend. However, in Islam, sovereignty is vested in Allah and not the people, who are merely His ‘caliphs’ or representatives. Muslims are expected to follow and obey the Shariah given by the Allah through His Prophet. When a state declares itself to be an Islamic nation, it accepts the precedence of Shariah over the laws passed by the political authorities.

By specifying that we are a secular state, we declare that there can be no overriding precedence to any religious text over the Constitution and the laws framed thereunder. Gandhiji said: “The State should undoubtedly be secular. Everyone living in it should be entitled to profess his religion without let or hindrance, so long as the citizen obeyed the common law of the land.” [11] And the sovereign people should lay down the ‘common law of the land’ from time to time through democratic processes as incorporated in the Constitution.

In any event, the goal of secularism cannot be pursued in isolation. All the objectives must ultimately help and not hinder the harmony and progress of all the people comprising the nation. Against this background, secularism may be defined as under -

Secularism is positive, non-dogmatic, and non-violent pursuit of religious and other beliefs and ideologies to lay a strong ethical foundation for the harmonious living of the people comprising the nation and for the fulfilment of their aspirations.

Socialism

The Sarvodaya leader Jayaprakash Narayan defined a socialist society as “one in which the individual is prepared voluntarily to subordinate his own interest to the larger interest of society”. Gandhiji said: “Real socialism has been handed down to us by our ancestors who taught: All land belongs to Gopal, where then is the boundary line? Man is the maker of that line and he can therefore unmake it.”

Swami Vivekananda said: “The first of everything should go to the poor; we have only a right to what remains. The poor are God’s representatives; anyone that suffers is His representative. Without giving, he who eats and enjoys eating, enjoys sin.”[12]

On the question of inequalities, Vivekananda said, “if there is inequality in nature, still there must be equal chance for all — or if greater for some and for some less — the weaker should be given more chance than the strong. In other words, a Brā hmaņa is not so much in need of education as a Chandā la. If the son of a Br āhmaņa needs one teacher, that of a Chand āla needs ten.”[13]

At the time of framing the Constitution, Ambedkar said: “Our object in framing the Constitution is really two-fold –

·         to lay down the form of political democracy, and

·         to lay down that our ideal is economic democracy and also to prescribe that every Government whatever is in power shall strive to bring about economic democracy.”

Socialism is certainly not about distributing poverty or equalising at a low level of prosperity. Rather, it is about equitable sharing of the fruits of growing prosperity. Thus, socialism may be defined as -

Socialism is provision of the irreducible minimum standard of living to every citizen as befits a civilised society, ensuring realisable equality of opportunity to live in dignity without a sense of deprivation[14] , and enabling every citizen to give of his best to the nation.

 

Democracy and Constitution

The two terms may be appropriately defined as -

Democracy is a system of government based on equal and effective participation of all the people in the formulation of public policy, in electing representatives to implement the policy so formulated, and, in ensuring that the policy yields the intended results.

Constitution is a document approved with near unanimity by the people comprising the nation to enunciate the structures and principles of governance and of the political economy, aimed at fulfilling their fundamental aspirations.

The reasons for suggesting these definitions will be evident from the history of development of modern concepts of democracy in the West, as described in Chapter Nine.

Liberty, Equality and Fraternity

Dr. B R Ambedkar, who piloted the discussion on the draft Constitution, emphasised in his last address on 25^th November 1949: “Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles .. form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. .. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.” What Ambedkar said is entirely in tune with the beliefs and aspirations of the Hindus as elaborated in Chapter Ten.

The Hindus believe: 1) there is one Supreme Being, and 2) that Supreme Being lives in the heart of every living being. As a corollary, the Hindus believe that all living beings belong to one family, vasudhaiva kutumbakam.[15]

Such beliefs as exemplified in the various scriptures, folklore and traditions lay a firm foundation for the ethics that inform the relations among the human beings. They would make people conform to the law of the land more effectively than the most stringent piece of legislation.

As may be seen from Chapter Ten, the approach of the Hindus to religion is highly individualistic. The tradition is that a Hindu is free to select his personal deity (i ştadevata), his guru, and his own mantra for chanting and meditation. It has been rightly asserted that that this fundamental individualism in the Hindu religion is chiefly responsible for the vibrancy of modern day democracy in India.[16]

At the same time, the Hindus believe in the equality of all human beings.[17] Aurobindo said: “The Lord is there equally in all beings; we have to make no essential distinction between ourselves and others, the wise and the ignorant, friend and enemy, man and animal, the saint and the sinner. We must hate none, despise none, be repelled by none.”

Further, the Hindus believe with Marx that ‘man cannot truly be a man unless he actively relates with others’. And, the ‘others’ in the case of the Hindus include those who are even adverse towards their way of life and those who live in foreign lands.[18] A model Hindu treats his friends and foes alike.[19]

The Hindus go even beyond the fellow human beings and say that man must relate to his surroundings and the whole universe (vasudhaiva kutumbakam). As Radhakrishnan said, the Hindus believe: “The individual and the cosmos depend on each other. There is constant interchange between human life and world life.”[20]

Thus, the Indian traditions fully endorse the concepts of

·         the ‘liberty’ of the individual to act in accordance with his aptitude and abilities and as his conscience dictates;

·         the fundamental ‘equality’ of all human beings; and,

·         the ‘fraternity’ of all living beings entailing reciprocal and mutual obligations. 

And, none of the three concepts stands in isolation. The kind of ‘libertarianism’ that emphasises individual rights and freedoms without relating them to the community or to the principle of equality is not for the Hindus.

An integrated approach to liberty, equality and fraternity was the foundation of Babsaheb Ambedkar’s social and economic philosophy; but he refuted the suggestion that he borrowed these concepts from the West and maintained that they were the essence of the Upani şads and the Buddhism, which he embraced later in life. For him, ‘Brahmanism’ symbolised the social and economic oppression, but he defined it thus: “By Brahmanism I do not mean the power, privileges and interests of the Brahmanas as a community. By Brahmanism I mean the negation of the spirit of liberty, equality and fraternity. In that sense it is rampant in all classes and is not confined to the Brahmanas alone though they have been the originators of it.”[21]

The integral relationship among the three concepts is brought out in the dictum: One “should give up an individual for the welfare of the family, a family for that of a village, a village for that of state and the entire earth for pursuing the ultimate reality”.[22] The ultimate loyalty is to the Supreme Being and the universe he permeates. Any social or political institution (like a nation state, for example) commands only subordinate loyalty.

In sum, the principles of liberty, equality and fraternity inscribed in the Preamble to the Constitution deserve to be reaffirmed so as to energise us to fulfil our aspirations in the twenty-first century.

Equality of Opportunity

The equality enshrined in the Preamble to the Constitution is not a state of absolute homogeneity among all the citizens (which is impossible, anyway) but a condition in which individual freedom is not compromised. The man who cannot find work or educate his children and is bowed by want is not really free.[23] Equality is not also intended to undermine the pursuit of excellence so very essential to human progress. It is about creating opportunities for everyone to give of his best.[24]

The question is how to achieve such constructive equality in a democratic context. We can hope to make some progress if we start with the two principles of “ethical individualism”, one emphasizing the equal importance of all the citizens and the other stressing that the final responsibility for shaping his future must rest with the individual citizen.[25] Positive equality should aim at “self-actualizing individualism” that encourages the individual to make the best of himself or herself.[26]

The cutting edge of social, political, or economic equality is ‘equality of opportunity’. The equality of opportunity that needs to be aimed at is not mere absence of discrimination. It is building a set of institutions and processes of governance which would ensure that equality of opportunity is not merely formal but in some serious degree realisable.[27]

The sense of equality of opportunity is best conveyed by the expression ‘level playing field’. Continuing with the metaphor, equality of opportunity is truly meaningful only if the field is levelled before the play starts. For instance, if the voting age is 18 years, the democratic game starts at that age; hence, the voter’s capability to participate in the democratic process should be nurtured before that date. The same applies to all economic activities including employment. All citizens must have equal opportunity to acquire the skills relevant to their participation in the desired social, political, or economic activities.

An opportunity has only that much worth as the capability of the citizen to avail of it. For instance, equal opportunity to college education is predicated on equal opportunity to high school education. If there are wide disparities in the availability of high school education, equal opportunity to college education has little meaning. And, inequalities at successive stages have a cascading effect. Inequality at the stage of elementary education, for example, widens the inequality at the middle school stage; that in the latter widens the inequality at high school stage much wider. The quest for equality of opportunity must thus examine the backward linkages.

According to the Human Development Report of the United Nations, a fifth of the developing world’s population goes hungry every night, a quarter lacks access to safe drinking water and sanitation (and 70% of all diseases in the developing world are due to lack of these amenities), and a third lives in a state of abject poverty without minimum food, shelter, and clothing.

The poor can benefit from economic development only if they understand and participate in the development process. Hence, providing universal primary education is a basic national obligation. The productivity of the poor suffers grievously if they do not enjoy good health. Hence, provision of universal primary health care is another obligation. Much of a child’s development in his adult age is conditioned by the nutrition it has had and the health it maintained, in the womb and in the first five years after birth. Hence, provision of comprehensive maternity services, child nutrition and immunisation from endemic diseases is an equally important obligation.

In meeting these national obligations, the focus should not be on equalisation of money incomes but on equalisation of opportunities to acquire the basic capabilities. As Nobel Laureate Amartya Sen has been arguing, economists focus attention on a very narrow domain of inequality, namely, income inequality.[28]

Gandhiji said: “The economic constitution of India and, for the matter of that, the world should be such that no one should suffer from want of food and clothing. In other words, everybody should be able to get sufficient work to enable him to make the two ends meet.” However, in framing the Constitution we did not deem it fit to specifically incorporate any such entitlement.

The Constitution should now explicitly provide that every citizen has the right to live in dignity as befits a civilised society, with irreducible minimum standards of food, shelter, clothing, health and education. The citizen must accept the reciprocal obligation to pay such taxes, perform such work or render such service as may be stipulated keeping in view his capabilities. We will revert to this in the next Chapter where we discuss the comprehensive Social Compact and in Chapter Four dealing with primary level governance.

Containing Inequalities

Guaranteeing equality of opportunity in the operational sense described above would assure a certain minimum standard of living to every citizen and ensure that all the citizens acquire certain minimum capabilities to get on with their lives. However, the aspiration to equality calls for something more – economic inequalities should be contained.[29]

Rousseau said: “No citizen should be so opulent that he can buy another, and none so poor that he is constrained to sell himself.” Studies of ‘subjective well-being’ in several countries have found that above a certain absolute level of basic income, relative differences matter more than the absolute ones.[30] Thus, it is imperative that gross inequalities are avoided.

Should the objective of avoiding gross inequalities be spelt out in the Constitution? The short answer is ‘yes’. The prevalent view of Constitutional jurisprudence in the United States, and implicitly elsewhere, is that a Constitution is not intended to embody a particular economic theory.[31] This is based on a ‘liberal’ philosophy that the Constitution should be ‘neutral’ as regards the economic objectives to be achieved through its instrumentality. Such a stand would be incontestable were the status quo be acceptable to all sections of the society. Otherwise, it favours those who have a vested interest in not changing it. Moreover, this view is now being contested even in the United States.[32]

Constitution is not just a document for the politicians by the politicians or a document for the jurists by the jurists. Human lives cannot be dealt with in compartments. The fundamental economic aspirations of the people must be tangibly reflected in the Constitution, as much as the social and political aspirations, to secure their active co-operation in the matter of governance.

The Constitution should thus explicitly commit itself to containing the inequalities within an acceptable range. We shall revert to this in the comprehensive Social Compact discussed in the next Chapter and in Chapter Eight dealing with economic management.

Amendment to the Constitution

The following amendment is suggested to the Constitution.

Amendment 1

An Explanation may be added below the Preamble and the definitions of the terms nation, sovereignty, secularism, socialism, democracy, and constitution as given above may be incorporated.