Republic@73: Time to Redesign the Constitution

By Shankkar Aiyar | Published: 23rd January 2022 06:47 AM |

India is celebrating the 75th year of Independence. The framework on which Independence has been anchored is the Constitution which came into effect on January 26, 1950. As the nation celebrates the occasion, the question is whether the Republic of India lived up to the promise of the ‘tryst with destiny’.

There is a lot to celebrate — the preservation of democracy in a nation that began its journey with eight of ten persons poor and unlettered is a glorious achievement. The front end of Brand India sports technological smarts to install the world’s largest biometric identity system and launches a Mars mission at a cost less than what costs Hollywood to make the movie, Martian.

There is much to bemoan. A nation that struggles to deliver the most basic of public services — water, healthcare, education — to its people must do better. The cause of the inadequacies India is wrestling with is largely the consequence of the constitutional architecture the Republic rests on.

Political rhetoric is riveted on two words in the Preamble. Arguably, the republic was deemed ‘secular’ before the word was inserted during the Emergency. Articles 25 and three attendant articles guarantee freedom of faith. And while India may not be ‘socialist’ as defined by the lexicon, the fact is property rights can be constrained. The Directive Principles of State Policy assure state intervention, the government is the largest industrial house and it bears mention that India hosts the world’s largest food security and health insurance programmes.

The angst and attention must move beyond the Preamble. The fundamental issue India must debate as it rises to be the sixth-largest economy hosting over 1.4 billion people, is how to redesign the constitutional framework to address the deficits in governance.?

The basic design of the current structure was inherited from the colonial regime. The construct of the division of responsibilities in Schedule 7 stems from the Government of India Act 1919 and artifacts from the Government of India Act 1935. The confusion about who is responsible for what was worsened by the amendments made during the Emergency.

Last month, MPs asked the government about the high level of anaemia in the populace. The reply: “The primary responsibility for strengthening health care services including implementation of national programs lies with the respective state/UT government”. A fifth of police posts, 5.32 lakh, are vacant in the states. The union government says public order is a state subject. In another query, MPs asked about teacher posts lying vacant in Uttar Pradesh and Bihar. The reply: “Education is in the Concurrent list of Constitution and most of the schools come under the jurisdiction of states and UTs concerned.’’

The accumulated losses of all state discoms add up to Rs 5.07 lakh crore. Discoms owe generating companies over Rs 1.56 lakh crore. The union government wants the states to induct efficiency by opening the last mile of power distribution to competition but they are not in agreement. The issue is being “deliberated upon’’ and reforms depend on “consultations’’. Electricity is in the Concurrent List.

The legislative landscape is punctuated with gaps bridged by innovative circumventions. Consider the management of the pandemic. The Epidemic Diseases Act of 1897 addresses transmission across borders. Health is a state subject. Ergo the pandemic is managed by the Centre under the National Disaster Management Act which as the inimitable Bibek Debroy pointed out recently, rests on the presence of the phrase ‘social security’ in the Union List in Schedule 7.

Justice is delayed and denied by systemic apathy. Across India, over 45 million cases are pending. The delivery of justice is delayed and detained by structural dysfunction and the contentious debate between the political class and the judiciary on appointments. The administration of justice is split across Union, State and Concurrent Lists. As of December 2021, 403 posts for judges in High Courts and 5,193 in subordinate courts are lying vacant.

Efficiency in the delivery of governance is about the structure and it is also about scale. The contours of states have been determined by history, by colonial legacy and by language politics. India’s states are of varying size and scale, in population between Goa and Uttar Pradesh with over 220 million and in size between Sikkim and Rajasthan with over 3.4 lakh sq km. This begs the question as to what is the optimum size, and calls for a study and a complete reorganisation of states.

This divorce in the design and delivery of services, of authority and accountability is the central cause of chaos in governance. This calls for a review to realign intent and outcomes across Union, state and local governments. It is true that the review is deterred by the Supreme Court judgments and the basic structure doctrine. Equally, it can be argued that the percept of a ‘living constitution’ articulated by courts affords room for a review.

As India celebrates its successes this week, it would do well to interrogate the inadequacies and address them. How about a Commission to review and redesign a template ready for adoption when the republic turns 75.

Shankkar Aiyar, political economy analyst, is author of ‘The Gated Republic –India’s Public Policy Failures and Private Solutions’, ‘Aadhaar: A Biometric History of India’s 12-Digit Revolution’; and ‘Accidental India’. You can email him at [email protected] and follow him on Twitter @ShankkarAiyar. His previous columns can be found here. This column was first published here.