The Constitution at 75: A checklist of casualties

A tableaux at the Republic Day Parade in New Delhi on 26 January 2025.  (Ajay Aggarwal/ Hindustan Times)
A tableaux at the Republic Day Parade in New Delhi on 26 January 2025. (Ajay Aggarwal/ Hindustan Times)

Summary

From its very inception, the Constitution was forced to sacrifice the grand promises of justice, liberty, equality and fraternity at the altar of political whims and exigencies

The Constitution of India promises justice, liberty, equality and fraternity in a ringing Preamble. In 1950, having made these lofty declarations while enacting the Constitution, the Constituent Assembly found itself in a bind. Doubling up as the provisional parliament for independent India, the Assembly now had a nation to govern. Riots had to be quelled, inflation curbed and welfare schemes made to take millions out of poverty. If the Constitution got in the way of these practical exigencies, it needed to give way.

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Justice was the first casualty. The Preventive Detention Act, 1950 was enacted because the constitutional provisions for minimum safeguards for detenus had to be worked around. There were 350 detenus in Calcutta, as well as several more in Bombay, who Sardar Patel claimed were “most dangerous".

Despite the Constitution permitting their detention without following any legal process, a maximum time period had been set for which they could be incarcerated. Now, that time period had to be extended. In many respects, the Preventive Detention Act was reminiscent of the Rowlatt Act, 1919 which Patel himself had led protests against in Ahmedabad. Now that he found himself running the government instead of agitating against it, he also began reluctantly adopting some of its methods.

Torn between their commitment to constitutional justice and the practical demands of governance, members of the Assembly endorsed Patel’s request. Mahavir Tyagi, renowned freedom fighter, who himself had been jailed multiple times by the British, wistfully echoed the views of the Assembly when he said: “I support this Bill, not because it is good in itself…[it] is reactionary and repressive but the circumstances are equally such."

Equality and fraternity were not far behind in the casualty checklist. Assam had a refugee problem with half a million displaced persons from East Pakistan crossing into its territory. The local Assamese population feared being swamped both linguistically, since most migrants were Bengali-speaking, as well as in terms of religion, with the districts of Cachar, Goalpara and Dhubri, now having, or verging on a significant Muslim majority.

The fear of such a demographic shift was the foundation for the Undesirable Migrants (Expulsion from Assam) Bill. The law, which dropped the word “undesirable" from its title, gave the Central and State Governments authority to deport any migrant whose continuance was deemed detrimental to the interests of India, as well as to punish those who assisted such person staying on, with a jail term. A limited exemption was provided for those who were displaced, which as Sucheta Kripalani mentioned in the Assembly, was India’s “moral obligation" primarily towards Hindus of East Pakistan who were being “pushed out". The consonance with some of the justifications offered for the recent Citizenship Amendment Act is striking. Hindus from across the border were welcome, the rest risked deportation.

A genuinely liberal constitution might have prompted the Assembly to treat this problem differently—take positive measures to promote the Assamese language, celebrate Assamese culture and ensure progressive assimilation of all into Assam. That is what equality and fraternity would have demanded. Instead, a more familiar resort to a law-and-order-first approach was taken. Member after member castigated the government for not doing enough to expel migrants. BS Man called the Assam government “impotent" for not being able to protect its borders, SN Buragohain deemed the bill “inadequate" and wanted to institute a permit system for entry into Assam and the minister NG Ayyangar recognised the “very large volume of feeling" that existed and assured Parliament that the government would be vigilant in preventing the “continuous influx of people who come and disturb the economy of one of our states." Politics in Assam today seems to have taken a leaf out of this book.

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The ideal of liberty was next on the chopping block. The Supreme Court had overturned the Government of Madras’ ban on Cross Roads, a left-wing publication, and the Chief Commissioner of Delhi’s on Organiser, the mouthpiece of the Rashtriya Swayamsevak Sangh. The government had failed to demonstrate that the bans were covered by the enumerated grounds under which free speech could be restricted by the Constitution. However, it remained unfazed by the reversal. If the mountain wouldn’t go to Muhammad, Muhammad would come to the mountain.

The First Amendment to the Constitution was introduced in Parliament widening the grounds on which free speech could be restricted. It could now be done in the interest of “public order" or in relation to “incitement to an offence" or “friendly relations with foreign states". The die was cast—if the Constitution did not endorse a particular governmental action, the Constitution itself would have to be amended. It is no surprise that since then, the Constitution has been amended a whopping 106 times, its sanctity sacrificed at the altar of governmental whim and numbers.

Despite this, in recent times, the Constitution has made a comeback of sorts. The Preamble has become a rallying cry for citizens’ movements nationwide. Equally, as was clear from the debate on the Constitution in the last winter session of Parliament, and the 2024 general election campaign, political parties of various ideological hues are jockeying to claim its mantle. It is now no longer a roadblock to progress, it is its new polestar.

On its 75th anniversary, let us welcome this renaissance of the Constitution. Equally, let us not get carried away. After all, its proclaimed values of justice, liberty, equality and fraternity remain pipedreams. There is much work to be done to make them real and meaningful.

Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal.

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