The Constitution empowers Parliament to supplement constitutional provisions by passing legislation.
Homage has been paid to the chairman of the drafting committee of our Constitution by our political class in a plenitude of platitudes without applying the creative and critical faculties that were Bhimrao Ramji Ambedkar’s hallmark. India was extremely fortunate that as stringent a critic of mainstream nationalism as Ambedkar placed his intellectual prowess at the service of the nation for five crucial years from December 9, 1946 to October 12, 1951. As the minorities face the cold winds of exclusion from the powers that be in today’s India, it is pertinent to recall what Ambedkar said on the question of minority protection while introducing the draft constitution on November 4, 1948. He said: “Minorities in India have agreed to place their existence in the hands of the majority... They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority. It is for the majority to realise its duty not to discriminate against minorities.”
If Ambedkar had profound insights into universal adult franchise, freedom of conscience, minority protection, adequate representation for Scheduled Castes and Tribes, and constitutional morality, he and the Constituent Assembly (CA) collectively fell short on the question of emergency provisions and federalism. The Constitution was framed under the dark shadow of the dislocations wrought by Partition. Ambedkar candidly acknowledged that the Indian Constitution, unlike the American one, was not cast in the pure federal mould. The Constitution of India, he claimed, “can be both unitary as well as federal according to the requirements of time and circumstances... Once the President issues a proclamation which he is authorised to do under the Provisions of Article 275, the whole scene can become transformed and the State becomes a unitary state”. We now know from subsequent history how this lacuna in the form of emergency provisions can allow authoritarianism to get the better of both federalism and democracy. “Though imbibing the principles of democratic Constitutions,” Asok Chanda wrote in his 1965 book, Federalism in India, “the Indian Constitution is not altogether free from authoritarian trends which it inherited in accepting the basis of the 1935 Act”.
It is this colonial inheritance that has created a tension between the spirit and parts of the letter of the Constitution. The uplifting quality of the Preamble being recited all over the country today is undermined by the menacing potential of certain clauses left as the legacy of colonial authoritarianism.
Did no one in the CA foresee the dangers posed to federalism and democracy by the states of exception written into the Constitution? A few did. But their far-sighted amendments were typically voted down or “negatived”, to use the parliamentary jargon. Hari Vishnu Kamath, a close associate of Subhas Chandra Bose during the freedom struggle, rang the alarm bells during the debate on Article 275 on August 2, 1949: “I have ransacked most of the constitutions of democratic countries of the world — monarchic or republican — and I find no parallel to this chapter on emergency provisions in any of the other constitutions of democratic countries in the world. The closest approximation, to my mind, is reached in the Weimar Constitution of the Third Reich which was destroyed by Hitler taking advantage of the very same provisions contained in that constitution. But those emergency provisions pale into insignificance when compared with the emergency provisions in this chapter of our Constitution.”
The president of the CA, Rajendra Prasad, terminated the debate with a show of some impatience. The CA passed the motion empowering the President to proclaim an Emergency if the security of India was threatened “whether by war or external aggression or internal disturbance” or if he was satisfied there was “imminent danger thereof”.
The next day Kamath rose to the defence of federalism during the debate on Article 277-A that would let the Union government intervene in the internal affairs of states in case of “internal disturbance”. He brought an amendment to replace that phrase with “internal insurrection or chaos”. Kamath received some support from K T Shah, Shibban Lal Saxena, Hirday Nath Kunzru, Renuka Ray and Biswanath Das in taking a stand against the emergency provisions and over-centralising tendencies. They were outvoted and Kamath’s plea to lay “the foundation of a real democracy” sounded like a voice in the wilderness.
“I do not altogether deny,” Ambedkar conceded, “that there is a possibility of these articles being abused or employed for political purposes... the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter.” That was a pious hope waiting to be belied.
In a critique in January 1950 in the Indian Law Review, Sarat Chandra Bose pointed out that Article 21 of the Constitution “does not secure due process of law; it secures procedural process only”. This lacuna enabled the suspension of the fundamental right to life and liberty during the Emergency imposed in 1975 and played a key role in the Supreme Court’s ruling on habeas corpus. The Supreme Court in a 4 to 1 decision with Justice H R Khanna dissenting upheld the government’s position on the inadmissibility of habeas corpus petitions. When the article enabling the suspension of habeas corpus during an emergency was adopted by the CA on August 20, 1949, Kamath had called it “a day of sorrow and shame”, adding “May God help the Indian people.”
Some of the more egregious legal amendments of the Emergency era were reversed by the 42nd amendment of the Constitution. Yet, most of the colonial inheritance of the states of exception remain on the statute books, including the law on sedition enshrined as Section 124A of the 19th century Indian Penal Code. It is deployed today to brand as “anti-national” those expressing disaffection towards a government that has done incalculable harm to the very idea of India. As secularism and socialism lost legitimacy as justificatory ideologies of a centralised post-colonial state, an implicit and then explicit resort was made to Hindu religious majoritarianism to shore up central state authority against myriad regional and subaltern challenges. The relentless onslaught on democratic institutions, including the media and the judiciary, in recent years has led opposition leaders and political commentators to talk darkly about an undeclared emergency in today’s India. The dominance of a democratically elected authoritarian leader along with the organisational muscle provided by the forces of Hindutva poses a far graver challenge to the world’s largest democracy than the one that was overcome in 1977.
The Constitution empowers Parliament to supplement constitutional provisions by passing legislation. This power was invoked at the time of enacting the original Citizenship Act of 1956. The US Constitution, unlike India’s, categorically provides for the indestructibility of states and, as co-equals with the Union, any adjustments require the consent of the legislatures of affected states. The downgrading of the status of a state to that of a union territory by misusing a parliamentary majority, as was done on August 5, 2019, is repugnant to the principles of genuine federalism.
The purpose of this brief lesson in constitutional history is to tell the brave young men and women demonstrating in the streets the importance of resorting to both reason and emotion in upholding the spirit of the Constitution against the cunning use of certain constitutional provisions by a majoritarianism rampant to transform a democracy into a dictatorship and a federation into a unitary state. We must be prepared for years of satyagraha and as many states as possible must resist the machinations of an overweening Centre. There will be no safe anchor until “We, the People” are able to decisively overturn the current parliamentary majority. We must then use the constitutional legacy of Parliament as a living organism with wisdom to strengthen the features of federalism and democracy, and make fundamental rights and habeas corpus inviable, so that India may be free from discrimination along lines of religion, caste, class and gender, and free from the scourge of majoritarian tyranny.
This article first appeared in the print edition on February 6, 2020 under the title "Assault on the edifice." The writer is Gardiner Professor of Oceanic History and Affairs, Harvard University and a former MP.