Counter view: Why we the people don’t need a ‘New Constitution’

By Nida Fatima

On August 14th, 2023, an article titled “There’s a Case for ‘We the People’ to Embrace a New Constitution” was published on The author of this piece is Bibek Debroy, who serves as the Chairman of the Economic Advisory Council to the Prime Minister of India. The idea of replacing the current constitution with a new one is, without a doubt, quite concerning. What adds an extra layer of concern is that this suggestion is coming from an individual who is involved in directly advising the Prime Minister of the nation.

He writes: Present India has handled covid and a recovery from it remarkably well, and our macro fundamentals are robust and strong compared with many other countries. Thereafter he discusses medium-term real growth rate of 6.5 – 7 % and the ‘carpe diem’ about the ‘template and trajectory’ for Amrit Kaal. He also duly informs the readers that Roman poet Horace’s 23 BC quote is only partially applicable to India because to quote Mr. Debroy: ‘Horace’s complete quote was sceptical about the future. That’s not for India, where the future is laced with pride, optimism and the aspirational goal of becoming a ‘developed’ country by 2047. ‘Developed’ has no precise definition, unless one means membership of the OECD. There is the aggregate size of the economy, measured in official exchange rates or purchasing-power-parity terms, and there is per capita income, also measured either way. There are other indicators of human development: the human development index (HDI), multi-dimensional poverty index (MDPI), and so on. Depending on assumptions about real GDP and population growth, inflation and the exchange rate, there are various projections for 2047, all suggesting a transition to upper middle-income status and a transformation in the nature of poverty. (Witness recent changes in the old BIMARU states.)

Mr. Debroy’s words are music to the ears. Who wouldn’t want to witness the transition to upper-middle class income status? But how this optimistic projection for 2047 warrants a new constitution is utterly baffling. Mr. Debroy had started the write-up by enunciating that India stands at a good place in terms of crisis management and macro fundamentals and had supported his words with empirical data. How is it possible then for a man of Mr. Debroy’s standing to overlook the basic fact the current attainments have taken place while working within the framework of the present constitution.

Mr. Debroy further writes: We no longer possess the one we inherited in 1950. It has been amended, not always for the better, though since 1973 we have been told its ‘basic structure’ cannot be altered, irrespective of what democracy desires through Parliament; whether there is a violation will be interpreted by courts. To the extent I understand it, the 1973 judgement applies to amendments to the existing Constitution, not a fresh one. University of Chicago Law School did a cross-country study of written constitutions and found their average life-span to be just 17 years. This is 2023, 73 years after 1950. Our current Constitution is largely based on the Government of India Act of 1935. In that sense, it is also a colonial legacy. In 2002, there was a report by a commission set up to review the working of the Constitution, but it was a half-hearted effort. As with many aspects of law reform, a tweak here and another there won’t do. We should start with first principles, as in the Constituent Assembly debates. What Constitution does India need for 2047?

The paragraph quoted above is a desperate attempt to discredit what in Mr. Debroy’s words is the ‘bedrock.’ This attempt is fraught with logical as well as factual fallacies. Irrespective of what Mr. Debroy wants the readers to believe, we did not ‘inherit’ the constitution from anyone. It was drafted by the Constituent Assembly of India under Dr. Bhim Rao Ambedkar. It was a long and arduous process with the country’s best legal and political minds at work that Mr. Debroy so casually seeks to disregard. As for the amendments, there have been 105 of them as of August 2021. Amendment is what makes an institution/ organization/ idea sustainable in the long run. Also, it’s true that the basic structure of the constitution cannot be tampered with. There can hardly be a valid argument against the two. Amendments while keeping the basic structure intact is a law of nature. To call the constitution a ‘colonial legacy’ merely because it borrows from the Government of India Act 1935 is yet another attempt to twist facts to serve a narrative. The Reserve Bank of India too was established through the Government of India Act of 1935. Would Mr. Debroy call the RBI a ‘colonial legacy’ as well? Would he seek to replace India’s apex bank with a new institution? Mr. Debroy himself is the product of Trinity College, Cambridge. How does he intend to do away with the legacy of Cambridge in his thought process?

Further down the article he argues: How many states do we need? Governance is about providing public goods and there is an optimal level at which these can be provided. Above a threshold of population size or geographical area, a state is sub-optimal, as today’s configuration of states is. The State Reorganization Commission in 1955 enunciated these logical principles, but state formation has followed anything but that.

Articles 2,3 and 4 of the Constitution of India deal with the matter of state formation. The articles delve into the matter deeply and take care of every minute detail of state formation. It is unclear why it is the constitution that Mr. Debroy holds responsible if the logical principles enunciated in the State Reorganization Commission were not followed for state formation. Also, he fails to mention how a new constitution will resolve the problem.

Further he writes: In similar vein, what about the Seventh Schedule and local bodies? If development is correlated with urbanization, why have we set up these rural-urban silos, exemplified in the 73rd and 74th amendments? A major component of governance is law and order and swift dispute resolution. The three recent Bills address the criminal side, partially. The broader aspects of addressing a backlog have been discussed ad nauseam. But what’s the Supreme Court’s role and how much supervisory control does it have over high courts? Little, if we go by the Constitution. What about judicial appointments? What about the Governor’s role?

What about the seventh schedule, if I may ask. It is the schedule that deals with the distribution of power and function between the union and the state. Mr. Debroy should have spelled out the objection he has to the seventh schedule rather than taking the reader on a riddle ride.

He goes on to ask that if development is correlated with urbanization, why have we set up these rural-urban silos, exemplified in the 73rd and 74th amendments?

These amendments brought Panchayati Raj System to rural India and Municipality system to urban India. Once again Mr. Debroy fails to clearly state the objection, he has to the formation of local bodies at urban and rural level. They help in more effective governance and practically resolve the issue that Mr. Debroy had in the previous paragraph – that of states becoming sub-optimal above a threshold of population. It’s a pity that an eminent economist like Mr. Debroy should correlate development to urbanization alone and seek to undermine the role of local rural bodies in a country where 70% of the working population resides in rural areas. He raises the issue of law and order, swift resolution of dispute, backlog of cases, the role of the Supreme Court and its supervisory control over the high courts. His chief lament here seems to be the little supervisory control of the Supreme Court if we go by the constitution. Once again Mr. Debroy fails to explain how granting greater supervisory control to the High Court will resolve the above-stated problems and why an amendment will not suffice for the same.

Near the closing of the article he writes: The state’s three organs are the Executive, Legislature and Judiciary. There are articles in the Constitution that impede executive efficiency, at least for all-India services.

The constitution of India provides a system of checks and balances between the three organs of the state. It is wrong to say that the constitution impedes executive efficiency. It would be more just to say that it prevents all the organs of the state from overriding each other.

Mr. Debroy asks about electoral reform, and the Rajya Sabha’s role then leaves the rest to the readers’ imagination. He also asks if special geographical areas should be subjected to special laws thereby never mainstreaming them? Perhaps the geographical and cultural diversity of the nation has escaped Mr. Debroy’s notice. Thankfully it hadn’t escaped the knowledge and regard of the makers of the constitution. Having special laws for special geographical areas is a form of respect for the nation’s diversity.

He further asks that if reforms are about markets and a refocused and reduced role for government, what sense do we make of the Directive Principles of State Policy?

Once again Mr. Debroy did not deem it important to specify the ‘reforms’ he is referring to and left much to the readers’ imagination. Throughout the article Mr. Debroy has rationed his words so strictly as if he had procured them not through his top-notch education but at a PDS outlet.

At last he writes: Much of what we debate begins and ends with the Constitution. A few amendments won’t do. We should go back to the drawing board and start from first principles, asking what these words in the Preamble mean now: socialist, secular, democratic, justice, liberty and equality.

Mr. Debroy wants to reassess the meaning of socialist, secular, democratic, justice, liberty and equality. Words don’t change their meaning in seven decades. The dictionary still defines them as it did seven decades ago. It’s the understanding of these words that has been systematically corrupted over the last nine years. Therefore, it’s the understanding that needs to be rectified and the practice that needs to be reinstated.

In the very last line, he reiterates that We the People have to give ourselves a new Constitution.

No, we don’t have to. Mr. Debroy has not been able to bring forth a single convincing argument in favor of a new constitution. No one can because such an argument doesn’t exist.

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