Ashok Desai, Madhav Khosla and Pratap Bhanu Mehta in conversation
with Chintan Chandrachud
Apekshita Varshney, Official ZEE Jaipur Literature Festival Blogger
What is the one thing that separates Indians from Americans? If a lousy white joke came to mind, you’re wrong. It is having a basic knowledge about their country’s constitution. Most Indians stop thinking about the constitution after civic classes in school and stay oblivious, usually uninterested, of its implications in everyday life. Although the Indian constitution is one of the world’s most masterly political texts, it is not without its flaws. The final session of the first day of Jaipur Literature Festival brought together social philosophers, constitutional experts, political theorists and academics to discuss its interpretation and implementation in the world’s largest democracy.
Pratap Bhanu Mehta, President of Centre for Policy Research, a leading think tank in India opened the session with an obvious joke: “This is We The People, but I’m not Barkha Dutt.” He introduced a sound discussion on constitutional morality by remembering B.R. Ambedkar’s wish to accommodate differences of all kinds: “Ambedkar’s definition of constitutional morality was neither socialist, nor capitalist. It was meant to be a mode of association that will allow all the opinions to coexist.’ Ambedkar did not want anyone to claim monopoly over the constitution, yet reading the Indian Constitution has eluded most Indians. As Ashok Desai, senior advocate with Supreme Court put it, “Indian constitution is far too long and meant for lawyers.’
Madhav Khosla, the author of The Indian Constitution observed that the size of the text repeatedly surfaced in debates. While some critics compare India’s elaborate laws with those of America, Khosla feels that ‘Nothing in India is a given. We have to take a text to explicate principles that others take for granted.’
Perhaps there has never been a time when the relationship between the executive and judiciary was as conflicted as today. It raises the question, who does have custodianship over India’s Constitution? In a succinct overview of the current situation, Desai observed, ‘Historically, judiciary was compliant and hence fundamental rights were compromised during Mrs. Gandhi’s rule. But today, executive is not prompt, parliament doesn’t want to function as parliament, and courts are handling functions that don’t belong to them.’
Chintan Chandrachur, author of Balanced Constitutionalism – Courts and Legislatures in India and the United Kingdom pointed out changing patterns in court judgments, “If there is conflict, it means that the constitution is working.’ He said that the courts are following a sort of ‘Panchayti Adjudication,’ where they ‘sit in panels without any reference to doctrine and come up with incoherent judgments’. “There is a classic example of the Naaz foundation v National Legal Service Authority where one court upholds Section 377 (that criminalises homosexuality) and the other says that transgender persons need protection.’
What is worrying is that the constitution isn’t a rusted book that is locked up in vaults. Personal and property laws, the fear of violation of fundamental rights and a uniform civil code grip every Indian. Desai explained that due to pressure from Jawaharlal Nehru, the Hindu Code Bill was passed, but it is difficult to replicate that with other communities. Khosla agreed, saying that ‘Personal law reform in India is unlikely unless there is political will outside of the constitution.’ When it comes to matters of Indian politics, both the judiciary and executive are far from being holier-than-thou. While politicians use vote-bank politics, a judicial judgement has said that reservations can’t be more than 50%. Democracy is saved when enough checks-and-balances exist and as Khosla concluded, ‘Indian Constitution is a living document.’ It seems abundantly clear that the future of India Constitution will continue to depend on Indian political will and not the people, since it is based on a document that most people cannot penetrate.
Photo Credit: Chetan Singh Gill