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The republic of compromise

LiveMint logoLiveMint 08-06-2017 Sidin Vadukut

Historians-in-training are exhorted to read texts in more than one way. They are told that texts must be read both “with and against the grain”. In other words, you read it both as it was meant to be read by the author, but also in other somewhat indirect ways that are insightful. Let me illustrate with a somewhat flippant example. Consider Article 60 of the Constitution, which gives the format of the oath of office that is to be taken by anyone before entering the office of President. The individual can choose from two options. She can either “swear in the name of God” or “solemnly affirm”. In the original handwritten Constitution, the options are displayed as a fraction with “swear in the name of God” sitting atop “solemnly affirm” with a long “fraction slash” in between.

An example of two “against the grain” questions possible here are: Why was there a “godless” option at all, and why was the theistic option placed above the atheistic one?

This might seem trivial. But as we have mentioned in these pages before, the text of the oath of office was a matter of some discussion in the constituent assembly. B.R. Ambedkar was specifically asked to design the text in such a way that the “god” option enjoyed precedence and sat above the “godless” one. The enterprising historian could use these ideas to launch into a study of theism and atheism within the founding mothers and fathers, and in newly independent India as a whole.

Thus there are texts, and there are texts. There is reading, and there is reading.

Today let us briefly talk, against the grain if you will, about a part of the Constitution that tends to make fleeting cameo appearances in Indian public life every once in a while—especially when the issue of cattle slaughter is in question. The directive principles of state policy (DPSP).

I am not a constitutional scholar or lawyer, of course. But to me the DPSPs seem to represent the best and worst aspects of the Indian republic’s tendency to compromise. A tendency that very much persists with us to this day. Where we see the government suggesting it wants to do something high and lofty, but then in a lower voice admits “maybe not right now” but please “bhavnaon ko samjho (understand the sentiments)”.

Why, otherwise, write in a principled intention to ban cow slaughter, and then sit on it for decades without providing closure?

Where did these DPSPs come from? Like so many great things in general, and in the Indian Constitution in particular: Ireland. Article 45 of the 1937 constitution of the Republic of Ireland features a set of directive principles of social policy. The first of which is the immeasurably vague “The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.” The others are about as vague.

Yet even before listing out these principles, the Irish constitution makes it clear that these “principles are for general guidance” and “shall not be cognisable by any Court under any of the provisions of this Constitution”. In other words, you can’t use the principles themselves to disqualify legislation in court.

India, when it borrowed the idea of directive principles, did so in similar spirit. Part IV of the Constitution states that “the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country…” And then goes on to mention a facsimile of the Irish principle mentioned above as the first DPSP. Followed by several others, including maternity benefits and a ban on cow slaughter.

(Indeed a comparative reading of the Irish and Indian sets of principles itself will tell you much about the overriding concerns facing India’s constituent assembly.)

In Ireland, the directive principles have played almost no role in lawmaking and state policy. In India, things have turned out differently. As Gautam Bhatia writes in a brilliant four-part analysis of the principles on his website Indconlawphil.wordpress.com, “It began life in the 1950s completely sidelined by the Courts. In 2014, however, virtually every socially-oriented constitutional or statutory judgment of the Courts contains an obligatory reference to the DPSPs.”

Thus all these years after the drafting of the Constitution, the exact role of the directive principles appears to still challenge courts and legal scholars. As Bhatia writes: “With the increasing role of the Directive Principles, the need for judicial discipline cannot be overstated. If the DPSPs are interpreted to mean everything, then they will end up meaning nothing.”

Taking a broader historical look, the problem of the DPSPs is of a piece with a host of problems that thrive upon the Indian republic’s historical tendency towards compromise. A cynic could point fingers at the intransigence of the founding mothers and fathers. After all, we live in a time when there appears to be renewed appetite for uncompromising democratic demagogues.

But an optimist, if there is such a thing in Indian public life, could read things a little against the grain. Perhaps the founders were saying: “Look we just got freedom, suffered murderous riots, we hate each other, we are poor, everyone is starving and The Economist already hates us probably. We have tried our best. Now you fellows sit down and have a proper chat about how the republic should constantly keep changing as things change.”

Déjà View is a fortnightly conversation on history. Read Sidin Vadukut’s Mint columns at www.livemint.com/dejaview

Comments are welcome at views@livemint.com

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