P Chidambaram writes: Big blows for the Constitution

BJP’s Emergency Obsession

In the imagination of the anti-Congress political formations, especially the BJP and the right-wing elements, the Congress’ association with the Constitution was with the Emergency that prevailed during June 1975-March 1977 and the suspension of fundamental rights of citizens.  True, it was an odious chapter in the 139-year history of the Congress but Indira Gandhi apologized and vowed that Emergency would never be repeated.  The people accepted her apology and voted her and the Congress back to power with a thumping majority in 1980.

Is there no other association of the Congress in the making of the Constitution and the strengthening of the Constitution?  There is, and that inspiring story is rarely told. Article 368 of the Constitution provides for the power of Parliament to amend the Constitution — a necessary power in the Constitution of any country.  Because a nation goes through vicissitudes; because a nation faces new threats and opportunities; and because a Constitution is interpreted and re-interpreted by judges who hear the case. The Constitution is a living document that has to be adapted to the changing life of a nation.

Amendments Strengthened Constitution

If I had spoken in the debate, I would have recalled some of the amendments made to the Constitution by Congress governments that actually strengthened the Constitution and advanced the lofty goals set out in the Preamble to the Constitution — especially Justice (social, economic and political) and Equality (of status and opportunity).

The Constitution (First Amendment) Act, 1951 was a seminal legislation. It constitutionally protected reservation for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Absent the First Amendment, the entire edifice of reservations could not have been erected.

The First Amendment inserted Article 31A and Article 31B and paved the way for abolition of the oppressive, feudal zamindari system — and emancipated millions of farmers and farm labourers — and facilitated land reforms and land distribution.

The First Amendment also laid the legal foundation for public sector undertakings to carry on any trade, industry, business or service to the exclusion, complete or partial, of citizens.

The Constitution (Forty-second Amendment) Act, 1976 has been reviled for the many changes it made to the Constitution. However, few recall that it made two changes that will be remembered by posterity. The first was the insertion of Article 39-A to legally oblige the State to “provide free legal aid” in order to ensure equal justice. The other was the insertion of Article 48-A to make it obligatory for the State to “protect and improve the “environment” and to safeguard the forests and the wild life.”

The Constitution (Fifty-second Amendment) Act, 1985 that introduced the Tenth Schedule of the Constitution was the first attempt to deal with the perennial problem of aayaram and gayaram (defections). Regrettably, it did not anticipate the craftiness of elected legislators or the connivance of Speakers or the confused verdicts of Courts. The objective of the Tenth Schedule will be achieved only if the Schedule is amended again.

The most far-reaching amendments to the Constitution were the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992 that made separate provisions for Panchayats and Municipalities and deepened and strengthened democracy. Millions of women and members of the Scheduled Castes and Scheduled Tribes were brought into the political mainstream and empowered to exercise democratic power. There is no previous example in history of such a massive devolution and re-distribution of power.

The debate in both Houses was, unfortunately, recriminatory.  It focused on the sole aberration in the 75-year journey of the Constitution that was indeed grave. One Nation One Election and other changes intended by the BJP are worse: they threaten to undermine democracy and federalism. However, I am convinced that the strong spine of the Constitution and its robust and progressive spirit will ultimately prevail.