The Republic @ 74: In The Crossroad between Rights and Goals
When the Indian Constitution was being drafted, there was complete unanimity amongst the founding fathers that the fundamental rights would be the conscience of the Constitution. Influenced by the Bill of Rights of the USA (1791), four cardinal concepts viz freedom of speech, the right to life, and liberty and right to property were unequivocally boxed into the original Constitution as Part III. Equality before the law, a British Concept, and equal protection of the law, an American concept were part of equality jurisprudence (Article 14) of Part III. Articles 14 (Equality), Article 19 (Right to Freedom), and Art 21 (Protection of Life and Liberty) became the golden triangle. In the words of CJI YV Chandrachud “Three articles 14, 19, answered 21 stands between the heaven of freedom conjured by the Nobel Laureate Tagore and the abyss of unrestrained power’, which was practiced by the British imperialists, like the Rowlatt Act which led to the genocide of innocents in Jallianwala Bagh in the sweltering summer of 1919.
While Part III inked the architecture of individual political and cultural rights, the founding fathers were also mindful of the grinding poverty, and high levels of illiteracy that afflicted a large section of Indian polity. The Directive Principles in Part IV of the Constitution delineated the quest for socio-economic justice, which the state should try to achieve. Modeled after the Irish Constitution of 1937, the principles laid down in this Part were ‘fundamental in the governance of the country’. But unlike the fundamental rights, which are justiciable in nature, the directive principles were not enforceable by any court. Part IV is an amalgam of three ideologies that were prevalent in the Indian Congress. The socialists wanted the right to work and education, the distribution of material resources to serve the common good, and raising the level of nutrition. The Gandhians batted for village Panchayats and prohibition of cow slaughter, while the cultural nationalists wanted homogenization of personal law through a Uniform Civil Code throughout the country, and the promotion of Hindi as the national language for all. While Ambedkar derided the Gandhian idea of promoting villages, because of the casteist character, TT Krishnamachari felt it was a ‘veritable dustbin of sentiments. This dichotomy between how individual rights and the goals of socio-economic justice for all has witnessed some acrimonious debates in the Supreme Court, which was mandated to be the final interpreter of the Constitution and custodian of fundamental rights.
The opening salvo was fired when the reservation of seats in government medical and engineering colleges by the Madras government was struck down by the Supreme Court in Champakam Dorairajan case (1951) as violating the equal right of admission in publicly funded institutions under Art 29(2). The promotion of education of weaker sections of society under Article 46, being a nonjusticiable directive, the Supreme Court ruled, cannot override a fundamental right. However, when the government added 31C to the Constitution to promote distributive justice Article 39(b), by trumping the right to equality under Article 14 was upheld by the Court in Keshavananda Bharati Case (1973). The Minerva Mills Case (1980) restored a becalming balance between Part III and IV, ‘calling them two wheels of a chariot ‘, which should move harmoniously.
However, this idyllic construct of harmony between rights and goals masks a few glaring development deficits. Article 38(2) encourages the state to reduce income inequality and glaring gaps in status and opportunity, Article 47 enjoins upon the state to improve the level of nutrition. The ground reality in India brings out a serious mismatch between Constitutional goals and reality on the ground. As per the latest NFHS-V report, stunting among children is as high as 35.5%. This is due to persistent malnutrition and unhygienic ambiance. Anemia amongst children & pregnant women has increased from 58.6% & 50.4% in 2015 respectively to 67.1% & 52.2% in 2021. The World Inequality Report (2022) brings out how the top 10% have become richer with a 57% share of total income as against 40% in 1951. On the other hand, the bottom 50% accounted for only 13.1% of total income as against 20% in 1951. After economic liberalization in 1991, we have an
ironical situation where the Constitution swears by socialism but the economic system is propelled by capitalism and free markets, without sharing prosperity with the bottom 50% of our citizens. Besides, early childhood education and care included in Article 45 have a sorry tale to recount as per NEP 2020. The 14 lakh Anganwadi centres which are mandated to provide such informal education to around 300 million children are not equal to the task. NEP 2020 recommended that ECE should be FR-like for school children in the age group of 6-14 (RTE Act 2009).
Prof T Khaitan in a stirring analysis brings out that the directive principles served as an important device for constitutional consensus building by achieving accommodation of ideological dissenters like the socialists, Gandhians, and cultural nationalists at the time of the drafting of our Constitution. While socialists wanted a full-blown Socialist constitution, Socialism as a goal was incorporated as a goal in the Preamble as late as 1976. So was the goal of promoting Secularism, which was also added to the Preamble in 1976, though the Fundamental rights had thumbnailed freedom of religious belief and practice and protection of religious rights of different religious denominations. Prof Andre Beteille wrote: “A constitution indicates the direction in which we are to move but the social structure will decide how far we can move and at what pace.’ This is where the role of the proactive state assumes salience.
The South African Constitution (1997), drafted under the watchful eyes of Nelson Mandela, a staunch Gandhian, rejected directives as inadequate for its transformative agenda. The thrust was to transform the country in an egalitarian direction. The right to housing, food, water, and health care are part of fundamental rights. Unlike India, economic rights and economic justice move hand in hand with political rights in South Africa. One of India’s progressive judges Justice Krishna Iyer wrote: Social Justice is gibberish when inhuman poverty is widespread and accumulated inequality is wearing the armor of wealth. In the Indian context, we have seen neither the Fabian socialism of Nehru nor the Gandhian model of autonomous village republics nor Ambedkar’s reservation policy SC/ ST have neither promoted high growth, merit-based selection, distributive justice, quality school education, and basic health care for most Indians. Abhijeet Banerjee, the Nobel Laureate, and Thomas Piketty argue that the electoral behavior of Indians brings out how “voters seem to be less driven by straightforward economic interests and government’s social spending than by sectarian interests and cultural priorities. As the Indian republic approaches 74, it is time to use the template of Nelson Mandela’s economic democracy and egalitarianism. Political freedom must walk hand in hand with the economic emancipation of all citizens.