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Does the constitution matter?

Perhaps not, as dictatorships render laws redundant while courts in democracies interpret them according to the national mood

Babasaheb Ambedkar presenting the final draft of the Indian Constitution to then President of the Constituent Assembly Rajendra Prasad in November 1949. Alamy
Babasaheb Ambedkar presenting the final draft of the Indian Constitution to then President of the Constituent Assembly Rajendra Prasad in November 1949. Alamy

I attempted to read the Indian Constitution at one go in Berlin’s State Library on 15 August 1992. I had visited the Staatsbibliothek, designed by Hans Scharoun, not for its books, but because it was a favourite hangout for angels in a film called Wings Of Desire. The poetic movie directed by Wim Wenders tells of an angel who, having fallen in love with a lonely trapeze artist, takes material form to experience pleasure, pain and human relationships. The State Library’s dramatic reading room, a giant open hall with floors projecting from the sides, allows Henri Alekan’s camera to swoop from one level to another, mimicking an angel or a trapeze artist.

When Wings Of Desire was released in 1987, only angels could move freely between East and West Berlin. By the time I walked into the reading room a mere five years later, the Iron Curtain had been torn down, the Wall had fallen, and Germany was once again a unified country. On that Independence Day, in that optimistic moment in history, a mix of sentimentality and homesickness impelled me to read something connected to India.

Constitutions tend to place their best bits up top, and getting through later sections can be a slog. India’s is no exception, and since it is the longest national constitution in the world, I was skipping unimportant-sounding clauses by lunchtime. By evening, though terribly bored, I was reassured that the text optimally amalgamated a still-young nation’s quest to secure liberty as well as social justice for its citizens.

As the years passed, I grew less certain of that being the case. The limiting clauses that had seemed like distractions or sideshows on first reading now appeared insurmountable obstacles placed on the path to freedom. They gave the state extraordinarily wide powers to abrogate citizens’ rights, and there was little evidence those powers would ever be used judiciously.

A tale of two First Amendments encapsulates my disillusionment with the guiding text of modern India. India’s First Amendment of 1951 hobbled the right to freedom of speech and expression contained in Article 19 (1). The amendment allowed the government to impose “reasonable restrictions on the exercise of the right…in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence". In other words, free expression could be curbed for almost any imaginable reason.

The First Amendment to the Constitution of the US, on the other hand, prevented the state from curtailing citizens’ rights. It read, “Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". The clarity of the US’ Bill of Rights struck me as a bracing contrast to India’s muddled and half-hearted acknowledgement of liberty.

Reading the US Constitution alongside that nation’s judicial history, however, eventually led me to question whether words and texts mattered at all. For decades, America’s freedoms were available, tautologically, only to free persons. Women denied the right to vote, Native Americans denied citizenship, and slaves denied the dignity of humanhood did not qualify. The anti-war protests, the civil rights movement and the push for gender equality of the 1960s finally made the US a nation whose citizens possessed most of their constitutionally guaranteed rights. And yet, gay petitioners seeking equal rights to marry in 1969 would have had their case summarily dismissed.

Speech acts were restricted in practice in the US long after the First Amendment was adopted in 1791. It was only in 1937, 146 years after the legislation was passed, that the US Supreme Court overturned a conviction on First Amendment grounds, when it ruled that a meeting organized by an activist of the Communist Party named Dirk de Jonge was protected free speech.

The Communists, meanwhile, invented their own perversions of constitutional rights. The Soviet Constitution of 1936, which put in place direct elections based on universal adult franchise, and guaranteed freedom of religion, press and assembly, was adopted the very year Joseph Stalin initiated the Great Purge, which claimed among its hundreds of thousands of victims many of the Constitution’s framers. Vladimir Putin’s toying with the Russian Constitution in our time, shifting from president to prime minister and back to dodge term limits, may not compare to the horrors of Stalinism, but does mock the dignity of his country’s charter.

If dictatorships and quasi-dictatorships render constitutions redundant, courts in democracies invariably interpret laws to approximate the national mood. And what better indicator of a nation’s mood than a general election? It is no surprise, then, that following the Bharatiya Janata Party’s triumph last year, we have witnessed the highest court hand over to Hindu petitioners a parcel of land where a mosque stood for over 450 years, and twiddle its thumbs while the state of Jammu and Kashmir was cut up and deprived of its constitutionally guaranteed autonomy, and Kashmiri politicians detained for months without any suggestion that they have committed crimes.

That is why the marches against the Citizenship (Amendment) Act (CAA) and the proposed National Register of Citizens (NRC) under the banner of the Constitution matter so much. By themselves, the CAA and NRC could pass muster in court. They are like two liquids that are merely foul smelling in isolation but become explosive when shaken together. It is being inferred from many statements made by Union home minister Amit Shah that his party aims at an incendiary mix of the two.

The CAA-NRC blend betrays the ideals of Babasaheb Ambedkar and Jawaharlal Nehru, the two men most responsible for the Constitution’s form, but harping on that will have no effect. What matters is changing the perception of the national mood to nudge the Supreme Court into viewing the CAA and NRC in context rather than separately, and concluding on that basis that the former is a discriminatory provision violative of the Constitution’s guarantee of equality. To those who ask, “Why protest when the matter will be decided by the Supreme Court?", the response must be, “Protest is necessary precisely because the matter will be decided by the Supreme Court."

Girish Shahane writes on politics, history and art.

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