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Reason as the Leading Motive

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.

==========

Related posts:

Dangerous Democracy and Fundamental Freedoms
What Can Indian be Proud of?

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25 Responses to “The Contradictions of the Indian Constitution”

  1. rambodoc said

    This post is outstanding. Thank you.
    And the sad side-effect of this is that, since childhood, every ‘free’ Indian has grown up admiring this great democratic and secular nation, built on as great a Constitution as the US one. So anything in the Constitution is the ultimate truth. Educated people do not stop to think how absurd some of their premises are. People still support censorship in a ‘limited way,’ for example.

  2. mahendrap said

    Of the 194 countries in the world, where would you list the Indian Constitution, in terms of merit, despite its contradictions?

  3. Ergo said

    Mahendrap, I can’t say; I don’t know anything about the constitutions of other nations. My primary interest in the United States and India stems from the obvious reason that I love the former and currently live in the latter.

  4. James Robinson said

    Bravo!

    Excellent analysis.

    This gives me an idea: a book(s) that analyzes and critiques the constitution and other foundational legal documents of the nations of the world, certainly from an Objectivist perspective.

    The work should include my favorite constitution in the world: “The Constitution of the Individual’s Republic of Atlantis” written by David Gulbraa as a postscript to his fantastic novel “Tales of the Mall Masters”

  5. Bhawna Porwal said

    Indian constitution is full of contradictions so overhaul changes should be done

  6. […] a principle and then laying out conditions under which it can be violated by the state (Also see Ergo’s post as an example of this). This mess of contradictory and concrete-bound articles institutionalizes […]

  7. […] Democracy and Fundamental Freedoms The Contradictions of the Indian Constitution Not a Tourist Brochure: […]

  8. Anwar Shaikh said

    Hi Ergo,
    stumbled upon this blog while searching for “ayn rand and India”.
    Interesting post. Just curious. Does American constitution secure “right to free speech” of an American citizen if he calls all the Americans swine and calls for destruction of America? I am asking this because you have written in your post that “right to free speech” is a matter of principle, and either you have it or you do not have it.
    (On my part, I believe that social conventions and cultural norms are more powerful than any written constitution.)

  9. Ergo said

    Hello Anwar,

    Yes, an American citizen can call Americans–indeed anyone–swines or anything of the sort, even use racial slurs (albeit to his own disadvantage in society for ending up being mocked and ostracized). Although, he cannot call for the “destruction of America” in so far as he explicitly conveys an actionable threat or a call to actionable harm. Any actionable threat or call to actionable threat is not covered under the right to free speech.

  10. Karan Singh said

    Any constitution has its loop holes, and the way you love your country I love mine.
    Point is if all of us choose to act sensibly not going against the law/land or would like to strech the limit till where the protocol allows. I belive in the former.
    Nice post though, seems you’ve done some research.

  11. Catch22 said

    The contradiction is that

    you have a right to freedom of speech and expression AND YET you dont have a right to use speech to disrupt “public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. The premise that causes the contradiction is that you are basing this on the fact that all speech is free – no matter what it is. In the case of India, your premise is wrong. And therefore, the contradiction.

    There was recently a pastor from Florida who wanted to burn a religious book and there was nothing in the American constitution to prevent him from doing that. The Indian constitution, however, tries to prevent cases like these with sub-clauses like the ones you posted above.

    So, the interpretation of our constitution is what makes the case. It is what it is, but it can be interpreted to be what it is not and vice versa. I will agree that we are left at the mercy of the interpretor representing the “state”. But then, isn’t that true for the ideal constitutions as well? Something to ponder about…

  12. Catch22 said

    Four months later, it turns out that the crazy pastor from Florida burnt the holy book because he could. And it got politicized in Afghanistan by a stupid politician because it could be. And that led to the death of 38 people in Afghanistan – whether by justifiable rage or fanaticism, it depends on your point of view.

    But, my point here is – could this have been prevented by “the Contradictions of the Indian Constitution”? Clearly, the clarity and brevity of other constitutions around the world did not help save those 38 lives in this case. And clearly we cannot have horses for courses here – so do the all encompassing huge set of vague laws work better in such a globalized world as the one we have today?

    • Jerry Johnson said

      The end never justifies the means. Can you clarify who exactly murdered the 38 people? The US constitution? The pastor? The politician? Or the guys who actually used a lethal weapon? If you wish, you can pass on the blame as far up the chain or ambiguity as you like.

      • Catch22 said

        To answer your question – the guys who actually used a lethal weapon murdered the 38 people are guilty under any law.

        But, my question remains – do the all encompassing huge set of vague laws work better than a clear and precise set of rules? Or do we prescribe a horses for courses approach?

  13. Catch22 said

    To answer your question – the guys who actually used a lethal weapon murdered the 38 people are guilty under any law.

    But, my question remains – do the all encompassing huge set of vague laws work better than a clear and precise set of rules? Or do we prescribe a horses for courses approach?

    • Jerry Johnson said

      Your use of words to pose the two choices are loaded in its own way. While I presume that you refer to the US Constitution as the “huge set of vague laws,” the fact of the matter is that it is the Indian constitution that is “huge”, “vague” and unclear. The attempt to account for every possible criminal action or violation is a concrete-bound approach that is guaranteed to be mired in a tangle of misinterpretations.

      The nature of the US Constitution is principle-based, not concrete-bound. That’s the key difference. The nature of the human mind is conceptual–not perceptual. We grasp and retain concepts in order to manage the innumerable discrete bits of knowledge about this world. Concepts make this task manageable. A system of laws that are derived from basic principles mimics this conceptual method of grasping reality. They allow us to apply these principles in an innumerable number of situations.

      That’s my answer to your question.

      • Catch22 said

        The Indian constitution is “huge”, “vague” and unclear to a LOT of people. It has a lot of caveats/subclauses or “checks and balances” (read article above) for excesses. Using these “sub-clauses”, it can prevent a case like that of the Florida pastor. At the same time, it also permits a misuse and misconstruing of rules that lead to lesser freedom/rights for citizens – which is a bigger problem in terms of principles.

        The American constitution is clear, precise and very simple. And despite it being the model for all other constitutions, it does not have the provisions to check for excesses. I guess, there in lies the beauty of the American constitution – that it sort of expects the Americans to live up to it. But because there are these elements in society like this pastor – sometimes a “patriot act” is necessary – just because there is nothing in the constitution that prevents these nut cases from “exercising” their rights!

        And that is what I meant by the dual pronged approach. The Indian constitution tries this approach with an “in-built” system and so the above article is IMO wrong to think there are contradictions – I think for a society such as India, it is purposeful and the “sub-clauses” and the “caveats” are not “ideal” but “necessary” at times.

      • Jerry Johnson said

        You views belie a misunderstanding of the concepts of “principles” and “rights.”

        Rights permit no exceptions, by definition. What the Indian constitution does is that it permits these exceptions to the “rights” ennumerated. Hence, this is a contradiction.

        While I agree that the pastor in Florida is a nut, he was a harmless nut. He was well within his rights to burn the Koran. You should have gone and burned the Bible in response. There is–and cannot be–any justification for the violence that ensued in response to the Koran burning. The beauty of the US Constitution is that it makes this principle very clear. You only have rights to your life, your liberty, and your property. You have NO rights over the lives of others. Their lives are NOT yours to take. Simple.

        The framers of our Constitution were not coherent, consistent thinkers of principles; they were pragmatists who tried to account for every possible eventuality of human action. That’s simply impossible, and hence we have a Constitution of loopholes, and where authors who face the violence of a mob in reaction to their books are themselves arrested and accused of sedition.

  14. Catch22 said

    Here is how I understand it and maybe you can help correct me, if I am wrong. Neither do I WANT to burn any religious texts nor do I WANT to resort to violence – those are my principles. Whether I CAN do those or not – are rights. Note that with the rights endowed by “nature”, I may be able to do both but there are restrictions to those rights. So, in my country, I “legally” cannot do both.

    Everyone agrees that “You only have rights to your life, your liberty, and your property. You have NO rights over the lives of others”. But, in some countries “you CANNOT take your own life”. An exception to the right to your own life. And so on.

    So, IS stating a premise as broad as “Rights permit no exceptions, by definition” always correct? Exceptions are set by governments and they change from one country to another. In India, certain natural rights have exceptions. I know what can go wrong with that – but since it is an experiment in the works for the last 60 odd years, let us not yet jump to conclusions.

    • Catch22 said

      Just in – The French government banned women from wearing any face-covering veil, such as the burqa or niqab – which means you can wear what you want with the exception of the burqa or the niqab because of what they represent. They were already banned in “public” places like schools but were permitted on the “street”. Starting today, they are also banned on the “street” or in other “common” spaces which are not really covered under “public” spaces.

      The French now have a right to wear any clothes on the street or in public spaces as long as they don’t represent values/principles that they don’t agree with (the exception).

      • Jerry said

        Thanks for keeping track of the news. Then, you may have also heard that prominent Bollywood actor Anupam Kher’s house was ransacked by a violent mob of the Republican Party of India (RPI) due to something that Anupam Kher said that offended their sentiments.

        Nice work–your model of allowing for “exceptions.”

        If you can’t see what the contradiction is in insisting on having rights but also inserting exceptions, then incidents like Kher’s and the burqa ban are what you will have to tolerate.

        I’m done with this discussion. You keep arguing for allowing “exceptions” to universal principles without offering a rational argument. So, unless you have a particularly ingenious philosophical point to make, which I haven’t already thought of and refuted, then I’m finished with this discussion.

      • Catch22 said

        The Indian model for exceptions is not ideal but necessary at times. I stated this before.

        As for the mob that attacked some actor’s home – if you go by this model – they are guilty and can be punished by law. Nowhere is physical violence endorsed – if they had a problem and felt that the actor was violating a rule, they could have gone to court and the actor would have had to answer in a court of law. And justice would have prevailed based on the interpretation of the constitution.

        If you can’t see that, I am also done discussing this with you.

      • catch22 said

        More news from the world – America had to disregard its constitution and kill its own citizen in Yemen or the middle east or somewhere with its own might and military strength. There was no evidence presented, no courts, no justice, no nothing. He was like the “harmless” religious text burning nut Florida pastor doing the exact same thing. He was using his “fundamental rights” (at least, that is the only evidence we have been shown). But, it was necessary and I would even argue right for the Americans to do what they did. That is exactly what I was suggesting the Indian constitution tries to achieve without having to resort to the killing.

  15. Nachiket said

    Jerry, I appreciate your interest in public and societal welfare and your efforts to read and understand the Constitution. I’d just like to mention one thing (since I have studied the Constitution as a law student) – Yes, our freedom is not absolute and there are certain restrictions imposed. But it is not the Government/Executive that decides whether a certain restriction is reasonable or not but it is the judiciary which has the right to decide whether a certain restriction is reasonable and in accordance with the Constitution. If a book is banned, the author can go to the Court to ask for justice and have faith in the judges for getting justice. It is the Courts which will decide the issue.

    • Jerry said

      Nachiket,

      When I refer to the “state”, I include all the arms of the State as well, which includes the judiciary. Nevertheless, the thrust of my argument is not that the Executive should stay out of deciding exceptions to our rights. My argument was to expose the contradictions inherent in the *foundational* thought that forms the framework of the Indian Constitution. I am not make a case for which arm of the State should legitimately interpret these freedoms or exceptions.

      Further, you said: “If a book is banned, the author can go to the Court to ask for justice and have faith in the judges for getting justice.”

      This is exactly what I am arguing against! Why should a book be *banned* at all!? What right does the government or courts have to decide what ideas an author can bring into existence in the form of a book and what ideas can the lay person consume!? Also, note the inherent elitism in this: In order to ban a book, the State (courts or legislature) will need have read at least parts of the book; somehow, these readers are *immune* to the so-called harmful and deleterious effects of a controversial book. How did they get this intellectual immunity? Just because they happen to be in the State? Just because they happen to be elected? Just because they are in the judiciary? Are they more intelligent that the rest of the citizenry???

      My point is that if one is ennumerating and enshrining “rights” into the Constitution, then one cannot introduce exceptions to them. Because, as I have stated earlier, rights cannot permit exceptions–by definition.

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