07 Jan 2020 16:14 IST

Modern India would squirm at Article 51-A

The Constitution should protect the governed from the government, and not the other way around

It happened during one of India’s darkest periods, in 1976. With the Press severely censored — the Indian Express had published a blank editorial page to protest the imposition of the Emergency a year earlier — and All India Radio dutifully reciting everything that the government claimed, there were no checks and balances on Prime Minister Indira Gandhi and her party.

Every Opposition leader was already in prison. There was no internet (or mobile phones or social media) for citizen journalists to debate what was happening in Parliament. Newspapers were prevented, by law, from quoting MPs’ speeches.

The government’s justification for declaring a national emergency was to protect the country which, it said, was about to implode. Opposition leaders, all groomed during India’s fight against the British Raj, were calling for people to practise civil disobedience. If citizens were fighting for something as important as freedom from a colonial power, that would be one thing. But the roots of this unrest were based largely on political and personal differences among our so-called senior leaders.

Presaging turbulent times

The story began a decade earlier, when India’s first Prime Minister, Jawaharlal Nehru, suddenly died after 17 years in power. His trusted ally, Lal Bahadur Shastri, took over as PM, and when he died in 1966, the order of succession should have fallen on then Deputy PM, Morarji Desai. But the erstwhile Congress Party mysteriously chose 49-year-old Indira Gandhi as prime minister, planting the seeds for turbulent times ahead. Desai continued to serve as Deputy PM under Indira Gandhi but not for long.

In 1969, Indira Gandhi took one of the boldest steps in her political career by splitting the party and dismissing everyone in her cabinet that she didn’t agree with, including Desai. Asserting control over the party, she began to rule the government with an iron grip. Leading India to a victory in the 1971 war with Pakistan, her Congress party was re-elected during the 1971 elections in a landslide.

Firmly in the saddle, she began to enjoy the comforts that power alone provides lonely rulers. When Raj Narain, her political rival, filed a suit in the Allahabad High Court alleging corrupt election practices, she brushed the whole thing aside and continued unperturbed. But on June 12, 1975, the High Court found her guilty and held that she could no longer cast votes as a Member of Parliament, although she could remain PM.

The Emergency

Morarji Desai and his ilk, absent from the annals of power for seven years, began to intensify protests nationwide, demanding her resignation. When some, including the scion of the leadership, Jayaprakash Narayan, indirectly called for the military and the police to disobey government’s orders, Indira Gandhi claimed that these actions were akin to orchestrating a coup.

Thirteen days after the Allahabad High Court verdict, she declared a national emergency, rounded up the Opposition leaders and put them in prison. She suspended the Constitution and gave herself sweeping powers to rule by decree. The 1976 general elections never happened. She simply had a Bill passed to suspend elections until such time she was ready to go back to the polls. Every right that citizens had was curbed. India, the world’s largest democracy, was under the control of a dictator.

When no one was watching or listening, she quietly proposed and passed the 42nd Amendment to the Indian Constitution, consisting of only one Article, 51-A.

A Constitution in any democracy worldwide has two primary goals. First, it defines the supreme laws of the land by describing the construct of government, its powers, and its relationship to other bodies, such as State governments. Second, it outlines a list of freedoms — or rights — for citizens which can never be taken away by a rogue government.

Fundamental Duties

Every amendment, until the 42nd, fell into one of these two categories. What was different about the 42nd Amendment was that for the first time, Article 51-A imposed a series of “Duties” on citizens. These “Fundamental Duties” were intended to serve as a constant reminder to every citizen that, while the Constitution specifically conferred on them certain Fundamental Rights, it also required citizens to observe certain basic norms of democratic conduct and behaviour because “rights and duties are like two sides of the same coin.” This concept of Fundamental Duties was taken from the least democratic society at the time, the USSR.

Indira Gandhi died over 35 years ago, but her government’s malpractices during those two dark years continue to be the defining features of her legacy. Because, taken collectively, the Fundamental Duties represent an over-broad assertion of government power over ordinary citizens, cleverly codified into the supreme law of the land, giving the government extraordinary authority that only the Supreme Court of India can limit. The 42nd Amendment could never pass in today’s world dominated by WhatsApp, Instagram, Facebook, and Twitter — yet, any future government can conveniently rely on the 42nd Amendment to bring unruly citizens back in line.

Why? Because each one of us is already guilty of routinely violating some Fundamental Duty or other on a daily basis. Article (f) says that it should be our duty to “value and preserve the rich heritage of our composite culture.” Forty-three years after the adoption of the 42nd Amendment, our culture bears no resemblance to the India of the 1970s. We raise our children to eschew our mother tongues in favour of English. India’s vaunted practices of sexual abstinence have all but vanished. Nuclear families have blossomed, leaving elders to spend their last years alone. Clearly, we, as a nation, are doing little to value and preserve the rich heritage of our composite culture.

Constitutional ideals

In recent months, as the government has taken equally unprecedented steps in Kashmir and with the CAA, practically anyone with a WhatsApp account has violated Article (e) of the 42nd Amendment. This statute requires every citizen “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.”

Article (h) forces citizens “to develop the scientific temper, humanism and the spirit of inquiry and reform.” The 287 million Indians who are functionally illiterate today are behaving in an unconstitutional manner every day. Many millions more — such as the entire organised religious community — have deliberately abandoned Article (h) in favour of other forms of reform, such as spiritual consciousness, arguing that science does not provide all the answers. They, too, could be said to be in violation of the Constitution.

The 42nd Amendment should never have been passed because there are three problems with it.

First, the Constitution should protect the governed from the government, not the other way around.

Second, the idea of Fundamental Duties was taken from the USSR, and that country’s record on human rights was horrendous; this alone should have given our leaders pause. After all, the USSR was a country that operated gulags and sent tens of thousands who opposed government diktats to the Siberian wilderness to be executed. The communist country had no tolerance for dissent. It did not have a free press nor a right for its citizens to assemble freely. How did our leaders embrace ideas from such an oppressive nation and unalterably malign our own fledgling democracy?

Third, the Amendment made the egregious error of codifying human activities — in great detail — as right or wrong. Most of us are openly disobeying one or more articles of the 42nd Amendment every single day. The result is that many of us are guilty of not respecting our Constitution as we willingly — or unknowingly — ignore it. This itself is a violation of Article (a) of the Amendment which stipulates that we should “abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.”

Less is more

In the library of the world’s constitutions, less is always more. The 7,762-word US Constitution has governed one of the world’s wealthiest and most successful nations for a very long time — over 230 years. Despite its problems, America continues to be the land of the free and the home of the brave, attracting millions from around the world to her shores.

India’s 146,385-word constitution is the world’s longest and, at only 70 years, is relatively new. More words have certainly not meant more clarity. On the contrary, they have led to more confusion and, in recent months, even strife.

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