India has colonial constitution made worse by socialist intervention (Sanjeev Sabhlok)

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India has a colonial Constitution made worse by socialist intervention January 1, 2019 by Sanjeev Sabhlok By the time India became independent, socialism was on the ascendant. Most of our leaders were interventionists – even Rajaji, who supported prohibition. Further, British rule had not been able to separate the jurisdiction of the state from religion – instead, it had engendered confusion through the concept of “juristic personhood” for idols.

Given such conflicted circumstances, we probably did well enough to get our 1950 Constitution for our First Republic. But in comparison with what the Constitution of an ideal liberal state should look like, it leaves much to be desired.

Not to be pedantic about it, but surely it is too long – with around 146,000 words. The British manage well enough without any written Constitution and the Americans run the world’s largest economy with a mere 4,543 words. Ambedkar admitted that around half our Constitution was taken from the India Act 1935 (which had around 117,000 words, noting that the “provisions taken from the Government of India Act 1935, relate mostly to the details of administration”.

But its length is not our Constitution’s primary defect. Its defect is much more fundamental. Since none of our founders understood the concept of liberty they empowered our servant – the government – to do virtually anything. The 1950 Constitution adopts not just the length of the India Act but its colonial approach in which the government is the supreme master.

Let me illustrate. The US Constitution leashes its government tightly. Its 45-word First Amendment states that the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. On the same matter – of freedom of speech – Article 19 in our Constitution has 500 words in which the first clause assures us of this freedom but the second clause takes it all away. No wonder we rank 138 in the world on press freedom. Every second day the government jails people for speaking up their mind, even on social media. Books are banned, movies are banned, there is censorship of movies, and religious bigots, supported by bigots within the government, wreak havoc with impunity against those who speak their mind.

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On top of this fundamental design defect, we had socialist interventions in the Constitution since 1950. Any notional “rights” we had have long since evaporated.

Property was trashed very early in the piece. Today there is not even the pretence of a fundamental right to property.

Our party believes that India needs a Second Republic with a minimalist Constitution focused on liberty. In 2008 I published a 2000-word sketch for such a Constitution. I’ll update and post it on this blog in the coming days.

But gaining consensus for the Second Republic will take time. In the meantime, our party has a plan to review key elements of the Constitution in order to achieve at least a modicum of good governance and freedom.

We must begin by removing the word “socialist” from our Preamble and significantly strengthen our fundamental rights. In particular, Article 31 of the original Constitution should be reinstated and the offensive Article 31B repealed along with the Ninth Schedule. The Ninth Schedule includes 284 laws that directly attack the right to property but are exempt from any judicial scrutiny. Confiscation of land through land ceiling laws was part of the socialist model Nehru forced upon India. Efficient farmers can’t grow in size, even as other businesses are able to hold vast amounts of land. This dooms India to low levels of agricultural productivity. Other problematic acts in the Ninth Schedule include the Essential Commodities Act which attacks our fundamental right to occupation and trade. Amar Habib has written an excellent book called AntiFarmer Laws (freely available on my website) which shows how Indian farmers have been shackled by government through such laws.

The next most problematic part of our Constitution is Part 14 which deals with the civil services such as the IAS. Its main defect is that it protects government employees from any accountability. Corrupt officers are able to hold taxpayers hostage by using Part 14 provisions to appeal adverse findings. India is the only major nation in the world whose Constitution details the service conditions of government employees. The management of government employees should be left to the executive through acts of Parliament and assemblies.

The Directive Principles of State Policy must go, being an affront to liberty – many of them directly contravene fundamental rights. I illustrated this issue in the Times of India on 15 October 2018 with the example of Article 48. A Constitution must focus on restricting government, not on empowering it to interfere in our life and liberty.

Many other provisions such as the fundamental duties and Articles 29, 30, 105, 370, among others, should be reviewed and either repealed or amended. The fundamental duties are ironical, with some of the most criminal elements of India (our political leaders) telling us our duties! But there is a more basic issue here. We the citizens, being sovereign, are supremely and intrinsically free. We have no duties towards anyone other than those we personally determine and seek to fulfil. It is the government, our servant, that has duties.

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Our party’s manifesto details many other such matters. The key principle is that our social contract must restrict our servant, not give it limitless powers.

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