India Needs an Actually New Constitution

“Why India Needs a New Constitution.” is the title of the chapter I contributed to a Festschrift published in November 2016 by the Center for Civil Society in Delhi.

That idea rubs Indians the wrong way because Indians generally believe that the constitution is a fine work. Not that they have examined it for themselves. They think that it must be so because politicians praise the constitution and uncritically accept their verdict.

It is like the fable of the emperor’s new clothes, except in this case the people have not themselves seen the emperor in his new clothes. They have only heard of reports that the emperor has a new set of clothes, and experts who have seen the new clothes have declared them to be wonderful. The belief has been implanted in the people, and they will vehemently oppose any suggestions to the contrary.

I argue that the emperor’s new clothes are in fact his old clothes, and therefore the “new” clothes do an equally bad job of hiding his unsightly nakedness as his old clothes did.

To persuade you to read the chapter in the book Liberalism in India (link at the end), here are a few excerpts below. 

The factors that affect and determine the prosperity or poverty of nations are many. Some of them are necessary although none of them individually or severally are sufficient.1 The heterogeneity of people in various nations, the diverse geographical and environmental conditions, the different historical routes followed, the diversity of cultural practices, the technology available to them, and the nature of competition for resources, all differ in space and time for individual nations. This partly explains why it is so difficult to arrive at some formula for the economic growth and development of any particular nation.

I argue that rules matter in a nation’s prosperity:

An economy essentially is a collection of interacting human beings. For any group of two or more people, this collective interaction requires rules. These rules could have evolved naturally, in which case they are part of the culture, or they could have been codified through some formal procedure, which itself could have been arrived at organically or by borrowing from others. In all cases, however, there always are rules.

I go on to note that all political entities are defined and distinguished by the rules they create, implement and follow. Rules determine national trajectories.

 If the rules don’t change, the trajectory does not change. This fact simply explains the persistence of prosperity or poverty of nations. Generally, the rules persist and therefore the trajectory persists.

People make the rules. But in a bit of circular causation, rules make the people. Of course, it is only the “leaders” of the group make the rules. But the rules themselves determine who the leaders are. Rules provide the constraints within which the rules are made and by whom. Rules choose leaders and leaders choose rules (although this is not simultaneous.)

The constitution of a country lays out the basic rules of the great game that the people — meaning citizens, bureaucrats and politicians — play. These rules have to be consistent and in some limited sense, complete.

The constitution of a modern constitutional republic is sovereign.

In a monarchy, the king is supreme and therefore they have ‘God Save the King’. In a constitutional republic, the constitution is the king. We need to note that a monarch is omnipotent and sovereign. The constitution is sovereign but not omnipotent. The people have rights that even the constitution cannot take away.

The constitution is a set of fundamental rules. It defines the structure of the government or the state, the duties of those representing the state, and powers they shall have to discharge those responsibilities.

The most important function of a constitution is to limit the powers of the state so that the state cannot rule tyrannically over the citizens. That is, the constitution defines the relationship between the state and the people.

That can be a master-servant (or a principal-agent) relationship. It is evident that the US constitution places the people as the principals and the state as their agent. The Indian constitution has the reverse: the government is the master and people are the servants of the state. (Being in “government service” is highly prized because it puts elevates one from the servant class to the master class.)

I argue that Indians are generally ignorant of this sad fact because they have not read the Indian constitution. It’s too big, too complicated, and written in a language that ordinary people find confusing. It’s incomprehensible.

James Madison, who drafted the US constitution in 1787 (that’s 230 years ago) had this to say about why constitutions have to be brief and to the point:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?

The Constitution of the United States was just four handwritten pages. The full text of the US constitution is around 4,300 words. The Indian constitution has over 80,000 words. I haven’t read it cover to cover, and neither have you.

In its essence, the Indian constitution is a rule book for the rulers to subjugate the citizens. It’s an offspring of British colonial rule.

The Indian Constitution is a collection of rules and regulations that the British had crafted as the colonial rulers of India. The Government of India Act of 1935, crafted by the British, is largely incorporated in the Indian Constitution. There were some changes but essentially the same set of rules continued to be in effect after 1947 as before. The rules that the British had created naturally placed the government over the people, and the same relationship continued after 1947. The same old set of rules, and the same old direction, the same old dismal outcome.

I have consistently argued that India is ruled by dead Britishers and that for all the hoopla about India’s independence, Indians are still not free. India became independent of the British Crown but India did not become free.

For India to become free, Indians have to become free. For that to happen, India needs a new constitution. I have drafted a Constitution for a free India. (PDF–click to read, right click to download.)

Here’s the full text of the chapter “Why India Needs a New Constitution” (pdf) The LiveMint column where I summarize the book chapter in 800 words.