I have been arguing for a while that the fountainhead of India’s troubles is the Indian Constitution. Recently I contributed a chapter to the CCS publication “Liberalism in India: Past, Present and Future“, and also wrote an opinion piece for LiveMint on the same topic “Why India Needs a New Constitution.” The question naturally arises: replace the constitution with what? Here’s my answer.
The constitution must be consistent with a free nation, not one that is colonized by a despotic government that imposes extractive and exploitative policies on an unwilling people. If India is to be a free nation, it can only be so if every individual is free in the most comprehensive sense. No individual is free if he or she is under the authoritarian control of the government. It is meaningless to talk of a free nation in which no individual is free. That’s the case for India although it is not generally recognized.
India’s constitution has to guarantee — indeed must guarantee — that the individual is free and is protected from government oppression. It must restrict the government to its proper role in a free society, namely, the protection of the life, liberty and property of the individual. Note especially that the entity of interest is the individual, not some group or some collective.
The government of a free nation is constituted by the free will of the individuals of the nation to protect each individual from every other individual. The constitution protects the people from a government gone rogue.
The basic set of principles that should govern a nation of free individuals is not very large. Guaranteeing individual freedom — political, civic and economic — can be done in a few sentences that are meaningful to any average person with no formal training in legal verbiage.
Another important principle is what is called “the generality principle.” In law, it means that all people must be treated equally before the law. That principle must be extended to the relationship between the individual and the government. The government must not discriminate against any individual. All must be considered equal in the eyes of the government. The government must be prohibited from treating different people differently.
That means, it does not so much matter what the government does to the people as long as it does so without discrimination. That is, it is only OK for the government to give a bicycle to one child if it also gives bicycles to all children; it is not OK for the government to give a bicycle based on a child’s religion, caste, sex, etc.
In a constitutional republic (which I believe India should be) the government gains its legitimacy through the consent of the people. That consent is granted by the people by agreeing to the constitution of the republic. It is impossible for the people to grant consent even in principle if the people are unable to read and comprehend the constitution.
India’s massive constitution is unread. It is unreadable. Even if you did take the time — perhaps weeks — to read it, it is unlikely that you would understand it without proper legal training. Go and try to read it. Do call me a liar if you read it in its entirety and find it acceptable.
Therefore I propose that the Indian constitution has to be very brief and has to be comprehensible to the average 10th grade student. All citizens must be required to read the constitution and give or withhold their assent to become eligible to vote. This requirement that citizens have the opportunity and the obligation to record their assent (or lack thereof) is critically important for the nation to understand where it stands as regards its foundational principles. If too many people record their dissent, it means that it is time to review the constitution.
Public debate and discussion of all matters public is an essential feature of an open and free society. Not just that, it is public debate and discussion itself that leads to an open and free society. India is not really free today in the sense that some topics are taboo and are not open to public debate and discussion. It seems merely looking cross-eyed at the Indian Constitution is tantamount to high treason. It is the holiest of holy books. Casting the merest doubt that it is not of divine provenance is the most heinous blasphemy. How dare you challenge the unalterable word of the Supreme Makers.
Here is a proposed Constitution for a free India. (PDF–click to read, right click to download.)
My submission is this: read this proposed constitution and compare it to the existing constitution. Which one makes more sense? Which one is likely to be read and understood? Which one is more consistent with a nation of free individuals? Which one encodes general principles and limits the power of the government? Which one leaves out the specifics of how the nation is to be governed to in-period political decision and only lays out the broad outlines of what the government must and must not do? Which one is not derived from the legacy of colonial British rules? Which one would you like to support?
It’s a great opportunity for us to build the foundation on which India’s prosperity can be built. That foundation is one of freedom of the individual. India became independent of British but Indians never became free of the colonial British rule and consequently India never became a free country. It’s true that the British no longer rule India but the laws made by dead Britishers are still imposed on India by their brown-skinned (with a few Italian exceptions) successors. The Indian constitution is a derivative work of British rules. India needs an Indian constitution that is universally applicable and of Indian origin.
It’s all karma, neh?
Life is a Random Draw 
Dear Atanu, Love the simplicity. Only one suggestion–Why not have every constituency as a two member one. With a male and female candidate.
2nd Pl inform if you’ve left out the president deliberately?
3rd I feel you should also add local self Government to the constitution also, as we need an executive Mayor for all municipalities.
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Bhaaratiya,
I was aiming for simplicity in that exercise of drafting a constitution.
To your point about one male and one female candidate: I would not support that proposition because I think one’s gender does not matter when it comes to representation of a population. What matters is whether a person is qualified to do the job. In keeping with the principle of treating every individual equally regardless of their sex, religion, etc etc, putting quotas based on group membership (remember that distinguishing people on the basis of their sex is group discrimination) is wrong.
I don’t understand what you mean by “left out the president deliberately”.
Your point about local self government. What we have here is a constitution for the federal (or central) government. All lower level governments — statee, municipalities — should have their own constitutions. This allows scope for different kinds of local governments, which is a good thing because different systems can be tried out and we can learn what works and what doesn’t.
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I don’t understand what you mean by “left out the president deliberately”
I meant, If the PM is the head of Govt then who’s the head of the state?
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Bhaaratiya,
The head of the government can also be the head of the state. There is no reason to separate the two functions: the head of the state is a mere hold-over from the outdated monarchical times when you had to have some divinely ordained “father” figure taking care of the state. In modern times, people are required to be more responsible and not depend on a father to take care of them.
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Have you considered Milton Friedman’s suggestion of putting an upper limit on how much taxes government can extracts from its citizens ?
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Akshar,
There are two variables we should consider: one, how much the government taxes and spends; and two, what activities the government is required (and restricted) to engage in. Controlling both would over-determine the system. Only one or the other needs to be specified. I am in favor of restricting what the government can spend on and letting the other variable (the amount it needs in revenues) be determined by that. That way, the revenue requirements are the dependent variable which is dictated by the expenses.
Instead of that, if the government was given a revenue target, its expenses would always rise to meet the target. That’s Parkinson’s Law: expenses always rise to meet the money available.
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liked the constitution. will spread as much as i can.
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Thanks.
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I commend your thinking. I enjoyed reading your proposal and thinking further about it.
Several times I thought I had recognized something you overlooked, only to search the document and realize you might have considered it, and worked hard on keeping the constitution as minimal as possible, while keeping it a readable and enforceable document: your very goal in the first place!
I still have a few things I would like you to kindly elaborate on. I’d like to consider 3 industries that have thrived in the US and the fall out of the free market operation of these industries on the citizenry:
The Health Insurance industry is an agent of evil. It grievously hurts large sections of the population, especially the most vulnerable. I have noticed that health insurance in India has started to slowly mimic the American model. What’s terrible about allowing an unfettered free market system to determine health insurance coverage is that it results in perverted incentives with bad consequences. Once a company lists itself on the stock exchange, there is a need to demonstrate growth to keep the stock price buoyant, resulting in escalating premium costs, given the comprehensive coverage goal of the ACA. The insurance companies right now continue to take the government for a ride. If there was no ACA, like in the past, all the companies in the market would not be forced to cover pre-existing conditions. There would be lifetime maximum coverage limits and all sorts of exclusions that would cause a lot of sick people to not get care they need.
The pharmaceutical industry is perhaps the worst of them all. Surely you must be aware of the bilking of the US consumer by Mylan, the maker of the Epipen, a life saver for many kids with serious food allergies. The cost of epinephrine is really low, but the IP and other exclusive distribution rights owned by Mylan allow for pricing it at an unconscionable markup. The price of prescription medicines is in general ridiculous across the board, easily 20-50x more than it ought to be, even with company profit as a goal. All to fund the exorbitant corporate salaries and falsely justify the ludicrous costs as “research”. Today, US TV is replete with ads for lifestyle marketed drugs with consumers being urged to “ask your doctor if it is right for you”, creating a dangerously messed up and misleading medical system.
Corporate excesses and Wall Street. You must be familiar with the graphs that show how out of whack executive salary has been with respect to the average worker in companies, and how this gap has widened severely over time (see http://www.epi.org/publication/ceo-pay-has-grown-90-times-faster-than-typical-worker-pay-since-1978/ ). The structure of company boards and the AGMs are charades to justify flawed and unfair compensation models, because the average shareholder doesn’t have time and resources to make his case. The ordinary shareholder community ignores these imbalances when the going is good, only to be left holding the bag when the company goes through the inevitable troughs. The executives will have taken off with their loot, all acquired legally.
I’m taking examples of what’s gone horribly wrong in corporate USA. India apes the US as it slowly opens up its markets. Rapacious multi-national companies will also prey in these markets and there is this steady propagation of the US business model. Alan Greenspan infamously followed Ayn Rand’s philosophy of allowing the market to handle itself without interference, and his oversight or more accurately a conscious lack of it, was a catalyst to the worst financial meltdown of our lifetimes.
Shouldn’t the proposed constitution reflect learnings from recent US history and build safeguards against the sizable risk of a Laissez-faire system? If your answer is that these are not fundamental constitutional issues, and the balanced budget requirement will ensure that bailouts are difficult to engineer and hard lessons will be learned (unlike what happened in the US), I fear that large scale scandals in these industries will be inevitable due to human greed. The collateral damage to the citizenry during the period following the crisis will be too severe for the less wealthy to bear. Also, leaving a subjective “extraordinary” (Article 4a, 5) for violating the requirement of a balanced budget will definitely result in abuse of the intended meaning of that term 🙂
What about spelling out the need to regulate a few critical industries like this explicitly in the constitution, including details of what within can be regulated and what can’t?
Further, given the astonishing progress of technology and digitization, I believe any new constitution would need to clarify the extent of privacy the individual has a right to. Your proposal has just a single sentence re. privacy in Article 3(b), 9: “The right to privacy of correspondence, mail and telecommunications”. Is this stated right adequate to thwart an NSA like dragnet environment in the interests of real national security threats? Or is this a decision that will be left to the Supreme Court, if aggrieved citizens complain against actions of a government? I’m just using the lessons learned from recent US history to ask if direct constitutional law can be established to prevent subjective interpretations along a cleave that is inevitable.
Finally, given what India continues to go through, does it make sense to have a constitutionally imposed requirement for courts deliver a judgement on cases within a defined maximum period of time? Also, what about a requirement to declassify every official government secret and communication record after a period of 25 years, unless they directly and imminently continue to compromise national security.
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Vrooh,
Your comment is very long and involved but is welcome. Thanks for taking the time to post it.
You write: “I’d like to consider 3 industries that have thrived in the US and the fall out of the free market operation of these industries on the citizenry . . . ”
I’d like to stop you right there and ask, “What do you mean by the free market, and are the examples you cite examples of free markets?” Markets in which the government interferes is not a free market. It is never helpful to start analysis with incorrect assumptions. There is no free market in health insurance. The pharmaceutical industry is heavily regulated.
Here are a few points that you may wish to ponder. What is the need for regulation? What kind of regulations are imposed on what industries? What the intended effects of those regulations, what the real outcomes of those regulations, what are the professed reasons for those regulations? The fact is that those three — the professed reasons, the intended effects, and the real effects — are nearly always distinct.
Most times, the professed reason for regulations is to ensure fairness and to prevent fraud. But the real outcome is too often that it helps the incumbents by erecting barriers to entry. A free market is one in which there are no non-technical barriers to entry. So why do they do that? Because the regulators (politicians and the bureaucrats) are usually hand in glove with the regulated industries. That is known as “regulatory capture.”
All the three examples you cite — health care, pharma, and corporate excesses — are a consequence of the government interference in the free market. That interference lies at the root of those (and many other) problems that are misattributed to free markets. Once we understand what is meant by “free markets”, it will be evident that the deviations from the free market ideas that lead to the dismal outcomes.
You mention “risk of a laissez faire” system. We would get into a lot of arguments if we don’t properly define the term laissez faire, As I define the term (which I am not going to do here), there are no risks in it that are even remotely comparable to the risks of the alternative system. The alternative to a LF system is a command-and-control system. That system fails and fails spectacularly the larger the stage on which it is implemented. (Note to self: write a note defining the term laissez faire.)
BTW, I recommend that instead of a comment in which you raise multiple different issues, you write separate comments. That way it is easier to reply and easier for readers to get the point.
As this reply to your comment has become too long, I will leave the rest for a different post. Thanks.
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Thank you for your response, Atanu. In the future, I will break longer comments into multiple smaller ones, per your suggestion.
I took the case of the US because I’ve spent all my adult life in the US and have experienced the harmful aspects of health care and pharma, first hand. I am under the impression that when it comes to a free market, the US happens to offer the most open market in each of the 3 sectors I mentioned, relative to other developed countries. Is that observation flawed: is there another country that could serve as an exemplar, to understand your point better? I don’t realize how US government interference is a root cause of our major woes in these 3 sectors, especially health care and pharma. I am sure your view is well thought out and informed. So I would love to learn more and correct my misconceptions. Are there any articles that you agree with, that you can point us to, to better understand how US government interference has hurt us in health care and pharma?
Beyond my bugbears, I am trying to understand where regulation of industry makes sense and where it doesn’t. Where should an ideal government draw the line? If there are valid cases for regulation, can something common be drawn out across industries, and is it worth promoting as supreme law, in the proposed constitution?
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What is the need of fourth branch? Why budget should not pass by legislative branch ?
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It’s called “separation of powers” — people who are making laws should not be in charge of money. The police should not be judges, jailers should not be the jury, etc. Conflict of interests.
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Dear Atanu saheb, thanks for such an effort. 1) I am concerned why this constitution doesn’t include right to safe & friendly environment under right to life.. Why has right to life not been mentioned in this constitution?
ex: daily/extremely regular irritation of 5times x 365days (irrespective of current supreme court’s order/verdict) caused by loudspeakers. Can’t right to environment & right to silence be under right to life with respect to right to environment?
2) Why there’s no mention of a common criminal procedure code, common civil code for all?
3) Why law(s) favoring pro sustainability of resources are not mentioned?
4) Will blasphemy be outlawed under this constitution?
5) Will government control over temples withdrawn? And will the funds & gold of the temple only belong to the believers & the Hindu community?
6) Will Polygamy be outlawed for a particular group of people? If no, then will polygamy be also validly recognised in Hindus, Sikhs, Jains, Buddhists & Parsis as well then?
7) Will WAKF & Church lands’ ownership be void and null / also be taken by the government?
8) Will illegal property holders, temples and temple land encroachers , common property & public property encroaches be given compensation just like how now in India happens?
9) Will Halal certification be mandatory/valid MUST for all citizens who are forbidden to consume Halal meat & Halal certified products?
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