I was a young lad once and like most kids was susceptible to the perceived infallibility of the written word. To give a relevant example, it wasn’t apparent to me that our civics text-books were less fact and more a bunch of Nehruvian platitudes. But even then, I often wondered about the role of the Constitution in a democracy. It seemed to be – contrary to the importance my book seemed to give it – little more than just a symbol or a guidance, not of much more significance than Gandhi’s “My experiments with truth”. After all, if the real authority was the democratically elected government, what role could a bulky book which no one reads have?
I was both right and wrong. I was wrong because I failed to realise that a Constitution is intended to be a check on what the government can do; it is a well thought out document that lays down certain core values which no law can violate. By its very nature it is much harder to amend the Constitution than it is to pass a law. In the US and other Western democracies, many laws – passed by the government of the day – have been deemed unconstitutional and overturned. The American government will find it impossible to ban a controversial book – without repealing the First Amendment, an unthinkability. Indeed the Constitution is a device for freedom, a vital muscle that makes a democracy tick strongly and prevents it from turning into a tyranny by the majority. We all know that mobs can be manipulated and fooled, not all of them and not for all time, but certainly temporarily. The Constitution keeps the flag of freedom flying at those times – it prevents the passage of parochial laws by extremist parties, it curbs populism, it can arrest collectivism.
Unfortunately, I was right in that none of the above is true in the Indian setup. The freedoms granted by our Constitution were peppered with so many caveats as to render them almost useless and successive governments have further eroded it through amendments that have taken away much of what remained. Today our Constitution is truly what it once seemed to me and probably seems to most other Indians – a mere symbol. And the real tragedy is that most people are unaware it can be anything else.
Could not agree with you more! You have articulated the core purpose of the constituition very well.
The state of the Indian constitution is a matter of grave concern. It is ironic that the constitution as passed in its original form guaranteed maximum individual freedom both in terms of speech and property, only to be slowly but surely circumscribed ever since.
Girish
A quick thought. The first amendment of the US Constitution is quite categorical, that the Congress shall make no law abridging freedom of expression. Yet, for about 175 years, various battles were fought in the US courts in an attempt to decide where to draw the line. And only after such a struggle, it began to dawn that drawing that line is next to impossible, particularly for the US Supreme Court. And the issue has now completely slipped in to the jurisdiction of the local courts and communities to draw their own line on the basis of their own property and contracts.
In India, we are going though a similar battle, with one difference, in our Constitution, the fundamental rights are all qualified by reasonableness, etc. It was interesting that on the IPC 377 ruling, the Delhi HC did not invoke right to property and freedom of expressions, the cornerstones of freedom.
I have a couple of items on this verdict, which you will find on http://www.InDefenceofLiberty.org
Two points: It is true that the courts played an important role in the whole process but without such a clear cut statement of the First amendment, the thing could have easily gone in the other direction; which is what has happened in most other Western countries (which have hate speech exceptions, blasphemy exceptions, holocause denial laws, etc). The fact is that the First Amendment is an amazing law, almost unique in its scope and foresight and is the primary reason why free speech protection in the US still exceed those of those nations.
Secondly, it is misleading to just say the issue has now slipped to the local courts. The authority of the First amendment extends to any public property anywhere in the US and every local court and local government has to respect it. There are several cases where curtailing of speech by local jurisdictions have been overturned on appeal on First amendment grounds.