The Contradictions of the Indian Constitution
Posted by Jerry on August 15, 2007
In my previous post challenging the notion that Indians have something to be properly *proud* of about their nation, I made the following statement:
Political power wielded through violence is the predominant medium of “democratic” expression in this corrupt nation–a nation founded upon a ridiculously long, obtuse, and inept constitution that guarantees no rights to any citizens.
My astute readers might have wondered if the above statement were merely hyperbolic or did I have some substantial argument behind it. I believe I have. My previous post adequately demonstrates the ground realities of how Indian democracy is practiced, i.e., violence is indeed the means of democratic expression in this country.
This post will substantiate my claim that the long and mangled mess of stated laws in the badly-written Indian constitution precisely makes it possible for the political system to institutionalize the violation of rights on a legal and routine basis, thereby guaranteeing no rights to any of its citizens.
The articles dealing with fundamental rights in the Indian Constitution is broadly structured as follows:
- First, a statement of law guaranteeing a right is asserted.
- Next, several practicable implications of the law is ennumerated.
- Then, a series of exceptions to the “guaranteed” right is highlighted, and the central State is regarded as the final arbiter on all cases of exceptions.
Here is the section of the article dealing with the “Right to Freedom” from the Indian Constitution:
19. Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
The bold and italics in the above “exceptions” are mine; they highlight the direct contradiction and actual impossibility of guaranteeing the right to freedom for any individual–either of speech, expression, or action. If the State is the ultimate arbiter of what constitutes the “interest of the general public” or the interest of some tribe, or what motivates public order and what disrupts it, or what is considered “moral” and “decent” and what is construed immoral and indecent, then how is an individual *guaranteed* the freedom and safety of expression unless he has first gained the official approval of the State? And what if the State itself is constituted by men of clear ideological agendas–be it Socialist, Hinduist, Islamic, or Atheist!
This is the structure, nature, and implication of the articles in the Indian Constitution. This contradictory mess of stating a law and ennumerating exceptions to its enactment make it impossible for any individual to act with the safety and security of knowing that he is acting *within* the law.
Under the current state of affairs, one cannot possibly know that one’s actions are within the law, since the State is the ultimate arbiter of the legality and *morality* of your actions. As evidence, witness the recent attack on the author Taslima Nasreen and the subsequent criminal charges filed against her by the State’s law-enforcement machinery for writing a book. Obviously, since Nasreen did not have her book sanctioned by the government, she had no way of knowing that she failed to meet the State’s interpretation of what constitutes a proper freedom of expression in writing the book; hence, she has criminal charges against her.
All that being said, the matter here is more fundamental than merely not having the confident knowledge of the legality of one’s actions–even though that in itself is a serious issue. The matter is of principle. Human rights are a matter of principle–and as such, there can be no exceptions to principles. You either have a right or you do not. Your right is either violated or it is not. There is no middle ground, no gray area, in the matter of principles.
The celebration of Indian independence should be more than a record-keeping of years. Yes, it is undeniable that India has progressed appreciably in recent years; however, realize that while India rides on the shoulders of foreign giants who lead this march towards prosperity, India simultaneously shackles them under the burden of its contradictory and arbitrary legal dictats. In truth, India’s freedoms are not yet secured; and the greatest threat to it is the Indian government empowered by the Indian Constitution, which is the entire basis upon which this country is founded. We are building castles of concrete and glass upon thin air.
Happy 60th, India.