Need for Reforms to Indian Constitution
Many of the reforms required in Indian constitution such as bringing in a common civil code and making the same law apply to all states of the union, are in public discourse for a while. Assuming that these will be done as soon as the country is blessed with a good leadership (because the electorate does not seem capable of doing so in six decades), this is an attempt to point out the not-so-popularly-known changes that are essential.
Right to Freedom of Religion
Indian constitution as envisioned by its authors, especially in the context that independence was achieved after partition, is sufficiently clear that it treats Bharat as a Hindu nation:
This was why the preamble did not have the word secular – after all a Hindu nation is by nature pluralistic, why do you need to call yourself secular?
The state is given the power to control Hindu religious institutions alone – 25.2(b).
Explanation 2 of the same clause makes it clear that religious minority is a word that refers almost entirely to those that have their origin outside India, since Hinduism is seen as the umbrella that encompasses all the religions that are born within the Indic fold.
Seen in itself, at least conceptually, it is quite consistent. However the introduction of the word ‘secular’ changes a whole lot of things –
When the state is secular, it can no more be authorized to control Hindu religious institutions and must expressly concede that right to the heads of Hindu institutions by abrogating the clause 25.2.The state can interfere with any religious institution only so long as it is equipped with the know-how to do so, and by definition a secular state is not assumed to be aware of and hence not having the authority to interfere with religious institutions.
When the state is secular, the majority-minority distinction made with the Hindu vs. non-Hindu can no more be valid, since the assumption of this as a Hindu nation is given up. Minority privileges henceforth stand invalidated and must be removed from the constitution. Right to freedom of religion should be a fundamental right given to individuals with no catches around any single religion or institution or community.
However Indira-congress made this fundamental change to constitution, without making the corresponding changes that come with this change in outlook. The power-mongering of Indira-congress and subsequent fraud committed on the Hindu nation is enormous and has disadvantaged Hindus in their own nation, constraining their very fundamental right.
As is known, the preamble of Indian constitution says India is a socialist republic –and with changing times it is not being realized by one and many that it is neither going to prosper under a socialist-thinking government nor is it encouraged to implement socialist policies. Nevertheless the preamble encourages a welfare-state kind of populism in the policy makers which is now no more than vote-bank populism, and needs to be removed. It is the fundamental duty of state to implement welfare measures, and it is not required for the republic to be socialist for the state to fulfill such duty. So the preamble should be agnostic of policy, economic or otherwise to the extent possible and hence rid itself of any such qualifiers as socialist.
Equality and Justice
The goals of state and constitution as mentioned in the preamble go – justice, liberty, equality and fraternity. However equality and justice have an inherent inconsistency, which the laws attempt to trade-off or negotiate. For instance, equality in penalizing an individual does not necessarily ensure the same amount of suffering or remorse imposed because of inherent diversity in humans. Fortunately the traditional oriental laws consider many factors like consciousness-quality of persons in question while deciding on punishment, but unfortunately the post-colonial lawmakers hardly have such insights factored in. In fact equality is severely compromised in the present Indian policy under the pretext of justice, sometimes in the name of disproportionate minority rights, sometimes in the name of affirmative action – most of the times resulting in modification of constitution with vote-banks and political ends in mind.
Individual and Collectivity
The constitution as initially envisioned takes good view of collectivities, which is in line with the Indian culture of protecting identities and not just individuals – the caste-groups, religious groups etc. At the same time individual rights are sufficiently protected. However a state can be either agnostic of collectivity or factor it in to ensure justice and equality, but it cannot and should not interfere with collectivities having taken the stand that it is neutral to those. This stands true for caste-groups as much as for religious groups. For instance, the constitution should make the state either de-recognize caste as a state policy (and give freedom to individuals to organize their groups as ensured by right to freedom) and not factor in caste for any of the official decisions – education, jobs, penal code etc. Or it must ensure through affirmative action that none of the groups are underprivileged by the policy. The present policy is inconsistent and unequal, consequently unjust too towards individuals belonging to the groups that are not privileged by constitution, and needs an urgent correction. While this needs a more calibrated change in the law, it is essential nevertheless. In wake of inability to do so, de-recognition of collectivities as a factor in official decision making is the simpler solution. Since discussing the acts and details make the write-up much longer we refrain from doing so.
Protection of Constitution
In fact the state should be free to implement policies, socialist or capitalist, rightist or leftist, without having to modify things as fundamental as the preamble of Indian constitution. The Indian constitution and its basic structure, things like fundamental rights should have protection from short-sightedness and near-term political mileage of people in government. If there is an urgent need for constitutional reform it is this reform of protection of the basic structure of constitution itself.
In cases where there are fundamental changes like making the state secular, the entire constitution needs to be reviewed for internal consistency so that the goals of constitution, fundamental rights and duties do not suffer with such changes. In fact in wake of failure to correct the above inconsistencies, the fundamental changes made by Indira-congress must be revoked to restore the original sense of constitution.
Given that more preposterous laws like ‘anti-superstition’ and ‘prevention of communal violence’ laws are being contemplated at the behest of troublemakers to further mangle the constitution and harm the Hindu nation, the protection of the spirit of constitution is an absolute must and an urgent need of the country.