If we accept the basic idea that nations are a state of mind, the idea of what constitutes a state – and what duties it should perform – also needs re

Republic Day thought: Has our constitution failed? Or have we?

R Jagannathan Jan 26, 2012


Republic Day thought: Has our constitution failed? Or have we?

On the 63rd Republic Day, India needs to ask itself: has our constitution failed us, or have we failed the constitution? Or is it a mixture of both? Reuters

This area of the constitution – the division of powers between centre and states – needs to be completely rewritten. In fact, there is scope for each state to have its own constitution, with only the broader goals of free movement of people and commerce and defence being allotted to the centre. Once this happens, we can deal with a Kashmir and Telangana and Nagaland more sensibly.

In the absence of this separation of powers, we have a Mamata threatening the centre on minor issues. We have the centre threatening lawfully-elected governments in opposition-ruled states. We have allowed our flawed constitution to create anarchy and poor governance. In a reworked constitution, a Mayawati would be happy to rule UP instead of aspiring to rule India without really performing in her own state. Only national parties would compete nationally.

In fact, in an ideal constitution with redistributed power, article 356 – which allows the centre to remove state governments – should either be abolished or replaced with a duality of power: the centre should be able to act against states that are not being governed constitutionally; equally, a qualified majority of states should be able to replace the central government if it doing damage to the federation.

Another element of the constitution should be to give people the right to limited internal secession: any territory or people should have the right of self-government within the broader India, and this process should be mediated through constitutionally-valid referendums.

The purpose of this evaluation is not to criticise the old constitution or its provisions, but to modernise it in the context of the completely different world we live in.

Our constitution-writers lived in a world of nation-states, a world emerging from the clutches of colonialism. India’s constitution was modern for the mid-20th century. It isn’t now. Of course, the US has a constitution that has been practically remained unchanged for 200 years. But this is not relevant. The US had a modern society even then – the constitution thus merely upheld what the people wanted. We don’t have modern minds even now. And we are more diverse than what the US was even in the 18th century. We need a different constitution that meets our current needs.

Moreover, the world too has changed dramatically.

Today, we live in a virtual world, where instant access to information makes nonsense of the old territorial idea of a nation. Nations are states of mind and affinity – they require physical borders only in order to enforce law and order and make administration technically feasible. You can’t really administer cyberspace, virtual worlds and independent minds – however hard Kapil Sibal and Markandeya Katju may want it.

The communities we connect to are not just the old groupings of race, religion, caste, gender and language, but communities of interest and active association and involvement. As Amartya Sen points out, we all have multiple identities, but the idea of multiple identities is terrible. Only schizophrenics have multiple-identities; individuals have only one identity, but with many dimensions to it. Our minds live in separate virtual universes simultaneously — I could be a journalist, a father, an internationalist, and a nationalist and many more things at the same time.

If we accept the basic idea that nations are a state of mind, the idea of what constitutes a state – and what duties it should perform – also needs redefinition.

Should the state be an all-powerful entity that can regulate all aspects of its citizens’ lives, or should it be only a facilitator in important areas?

This question is important not only in authoritarian regimes, but also in democratic ones. The size of the state in the US and Europe is huge – thanks to the kind of tasks it has taken on, to serve its citizens from cradle to grave. The US and European economies are crumbling because their citizens have over-extended the state and it is crumbling under its own weight and hubris.

This is the kind of state that thinks it can snatch the children from Anurup and Sagarika Bhattacharya on the assumption that it knows best what is good for the kids. And in this same state, which thinks it has all the answers on parenting, we find a misfit called Anders Behring Breivik who killed 77 of his own people in July to teach them a lesson.

Clearly, the state does not have all the answers to the problems of society. In the 21st century, the state should see itself as an enabler except in areas where no one else is willing to step forward. In business, for example, companies compete, governments can only enable. The job of government is to enable companies to compete, not compete itself.

Similarly, we know the fate of how badly social sector schemes are managed in India. If the hungry must be fed, the state must enable the feeding of its people through appropriate laws and tax-breaks, and not necessarily try to do the job itself. It has to help create incomes, and offer safety nets for the poor when there is no one else to do the job; but if there are others willing to do this, the state’s job is to enable, monitor and audit this work.

We can go on and on and on. But 62 years after we became a republic, we have to examine all our premises as a nation. Maybe, we need a new constitution for a different nation by recognising all our sub-nations.