An inconstant Constitution

DIPANKAR GUPTA






When politicians take office they swear by the Constitution, but before long they are swearing at it.

This is what made Arvind Kejriwal's boy-stood-on-the-burning-deck posture a little incongruous. If he meant what he said about defending the Constitution to the last then, quite clearly, he is headed for heartbreak hotel. Imagine promising undying fidelity to something that is about as fickle as the 'inconstant moon'. It can just as easily turn around and say that all those years meant nothing at all.

A Fundamental Right today can disappear by tomorrow; a law in the morning can vanish by teatime. Over the past six decades and some, there have been 98 amendments to the Constitution, but even that is not the full story. Hidden within these are changes that have been made to over 230 Articles we once swore by.






As if that were not enough, our Constitution has been through about 37 amendments to Schedules and the insertion of roughly 41 new Articles. In the 42nd Amendment alone, the Constitution went through a makeover so intense that it put all nips and tucks, from the past till the present, in the shade. In one surgical stroke, 54 of its Articles were trimmed like so much flab.

Protecting the Constitution is a standard phrase that calmly rolls off the lips of politicians when they take office. We see nothing wrong with that, but our state of denial cannot wish away a few unsettling questions.

We fail to ask: which Constitution, in which month of which year, is the one that is being protected? Every government has either slashed or indecently fondled large sections of it. To make matters worse, when it is over 80,000 words (and not around 4,000 as in the US), very few can honestly say that they know what it is they are taking an oath upon.

Let us also consider an added complication. How can one swear by a document that has been touched by human hands? The Constitution is not like the Bible or the Koran where God has spoken and therefore, for the believers, inerrant and perfect in every way.

As all constitutions are contrived and constructed by simple mortals they contain flaws and vanity in equal measure. When these get too obvious, politicians reach for the knife. This is why there is always scope for amending constitutions. Such an option would be meaningless in the case of a holy text.

To conceal this artifice, many countries deliberately strive to give their constitutions a "forever there" look and feel. They do this by rarely tampering with their contents so that, with time, they appear as if they were written in stone in divine calligraphy.

The American Constitution has been around for more than 200 years and yet it has faced only 27 Amendments so far. Even so, American Presidents end their oath with the prayer: 'So help me God.' Clearly, having friends in high places is not enough.

Under these circumstances, the deification of 'founding fathers' becomes a plausible exercise. Though most of them were all too human, with giant-sized feet of clay, yet history recalls them in glowing terms as if they dined and danced with gods.

In India we have deviated far from this norm as every government, without exception, has wrought amendments to our Constitution. This is also why when it comes to recalling our "founding fathers", we have to pause and scratch our heads; they don't come readily to mind.

In Britain, the matter is much simpler. The prime minister's oath is quite straightforward and fuss free; all it requires is loyalty to members of the royal family. Who controls the Highnesses is hidden deep in Britain's unwritten constitution and kept out of discussion. That does not make their governance whimsical for the British have had nearly a thousand years to perfect the art of suggestion.

The French are much more forthright and have cut to the chase. Their President does not take an oath at all: he drives in style to Elysee Palace, shakes hands with his predecessor and guests, shares canapes and drives out.

Yet, if there has to be an oath of office, and a constitution must figure in it, then the Dutch do it the best. All ministers must begin with the pledge that they "have not promised or given, directly or indirectly, any gifts or presents to any person under whatsoever name or pretext" or "accept, directly or indirectly, any promises or presents from anyone whatsoever". After all this is said and done, the Dutch Constitution gets a nod towards the end.

Even a quick read of this text would make us long to adopt it here as well. Our craven hunger for a corruption-free government is hardly surprising given the recent history of the 2G scam, coalgate fiasco and mining mess. As any constitution is only as good as those who operate it, the emphasis should be on locking in politicians from the start to a protocol of honesty.

The Dutch oath might look suspiciously like the manifesto of an Indian start-up party, but the resemblance is unintended and purely accidental. So let's all go Dutch!

The writer is a social scientist.




-TOI