Is “basic structure doctrine of constitution of India” above “Bharat Bodh-the soul of India”?

Is “basic structure doctrine of constitution of India” above  “Bharat Bodh-the soul of India”?

Liberty ,Equality and Fraternity are considered, worldwide, the noble ideas of modern times since French Revolution. These ideas have been unanimously accepted by Nation States across the world. Hence one constitution can govern all the countries aspiring to achieve the ideals of Liberty equality and fraternity. This  can be  the logic.But is it right?  One may read the constitutions of all the countries in the world and would be satisfied that these three ideas are common, in principle, in all the constitutions though word diction, nomenclature ,and drafting may  differ. One  will also observe that no doubt,these ideas are found in all the constitutions of the countries but the ideals are subject to various reasonable restrictions. The restrictions reflect the history, culture, civilization ,heritage, customs, traditions etc of the concerned countries. In fact, it can be concluded that the reasonable restrictions signify the distinct and  unique collective consciousness of the distinct Nations. Now the debate can be concluded that  the three ideas Liberty, Equality and Fraternity  are cherished by the modern nations but the expression and manifestation  of these ideas in different countries in the collective consciousness  remains subjective and respects and upholds the history ,culture, civilization, heritage, tradition and customs of the collectivity consciousness.

Indian Constituent Assembly Debates provide us the best authoritative document to appreciate the soul, aspiration, aim and  object of the Constitution of India. Participation of the Honorable members in the various debates make certain issues clear that  the  Constituent Assembly was fully empowered to draft the constitution of India for the Republic India. Yet considering the level of consciousness of the collectivity at that time, some decisions were not taken like the women reservation, right to education. Gradually women reservation in the jobs has seen the light of the day. Similarly right to education now stands part of Fundamental Rights in the Constitution of India.

  Know Your Constitution through Constituent Assembly Debates(illustrations )

		issues to be decided by Present Generation -"We, the people of India"
sr	Issues decided by Constituent Assembly	Pending issues to be decided by Parliament	Alternate solution  to be decided by Parliament	Issues bad in implementation	Issues to be decided by judiciary
1	Prohibition of  untouchability	Article 370(now removed)	Affirmative action(EWS)	Hindi-State language	scope of  Judicial review
2	Equality of women	Declaration of National song- Vandemataram	Compulsory  NCC training in schools or colleges	Judgment in HC  in mother/ state- regional    language	Laxman Rekha on the issues of Faith , tradition and religion
3	Universal adult suffrage	Uniform Civil Code	Minimum education qualification for legislatures	Right to Education	Balance between freedom of Speech and Unity & integrity of India

 

It is said that the jurisprudence of basic structure doctrine is debatable, while some say it is a pole star without explaining the reasoning . Everyone has freedom to express. This citizen has also freedom to express thoughts and opinion. Origin of this doctrine is attributed to German thinker Dieter Conrad .German constitution explicitly mentions that the Article 1 to 20 are not subject to any amendments. Also the expounder of this Doctrine believe that there are implicit restrictions on the amending power of the Legislature.In 1973 13-judges Constitution Bench ruled in Kesavananda Bharati v. State of Kerala that Article 368 of the Constitution does not enable Parliament to amend the basic framework of the document. The historic ruling came to be known as the “basic structure” doctrine. — a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed by amendments by Parliament

So,  the basic structure of the Constitution can not be changed by the amending  powers in the constitution. Relevant question to be asked his whether the constitution is mean or an end? Also what constitutes the basic structure in the constitution?Also whether the ideals of the Liberty, equality and fraternity as defined, understood and explained by the expounder of the implicit restrictions on amending powers of the legislature,in India termed as  basic structure Doctrine,is the final word. Whether the followers of the basic structure doctrine are allowed to assimilate this Doctrine as per  the collective consciousness  reflected in the constitution of the concerned nation- state.

Hence this Doctrine warrants debate on  the objective resolution  which makes clear the aim object in the aspiration of the Constitution of India. For ready reference the final objective resolution is reproduced below.

 Objective Resolution  passed by Constituent Assembly  On 22 January, 1947

 

“(1)This Constituent Assembly declares its firm and solemn resolve to proclaim India as an independent Sovereign Republic and to draw up for her future governance a Constitution :`

 (2)WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India shall be a Union of them all; and

 (3)WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to law of the Constitution shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom-, and

 (4)WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

(5)WHEREIN shall be guaranteed and secured ;to all the people of India justice, social, economic, and political; equality of status, of opportunity, and before the law;freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

 (6)WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

 (7)WHEREBY shall be'-maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilised nations; and

(8)this ancient land attain its rightful and honoured place in the world -and make its full and willing contribution to the promotion of world peace and the welfare of mankind.”

 It is often declared, that the Preamble of the Constitution represent the soul of objective resolution. Therefore interpretation of the basic structure doctrine can be better understood with the help of the Preamble of the Constitution. But the problem is  some amendments have been made in the Preamble .Also  whether those amendments are  legitimate? This  could be asked. Another point of introspection is how to decide what is basic structure in Indian Constitution.? There can be two approaches one begins with the understanding that India came into existence after 15th August 1947 or 26 January 1950. In this case the understanding , comprehension and application of the basic structure doctrine will be different. Alternatively another approach takes us back to 5000 years old Civilization which is best seen in the illustration of civilization of India in  the original constitution of India duly signed by the honorable members of the constituent assembly. Therefore the basic structure Doctrine needs to be understood in the above classification

The best way for  interpretation for Indian constitution will be the synthesis of these two approaches where the soul of India the best expressed in terms of Dharma ,here in constitution language, it is the rajdharm. Indian epics like the Ramayan and Mahabharat provides the light on the Raj Dharma as well as   the individual Dharma and the collective Dharma.This approach is  practical as the Indian system provides Yug Dharma also which accepts  the changes, transitions and transformation with  time without compromising the eternal law- Sanatan Dharm in the modern times. While dealing the concept of the basic structure doctrine, without reference to Bharat Ratna Professor  Bharat  PV Kane the author of History of Dharamshastra whole debate would be unfair and futile exercise. His comment on the Indian Constitution highlights and underlines that the basic approach of the Indian Constitution is in direct contradiction with the basic structure of the Dharma of citizens of India and Dharma of. foundations of the Indian culture. Indian philosophy schools of thoughts are duty oriented not right based.

 Now another feature of the Indian way of living is the historical process of a assimilation which cannot be overlooked during the application of basic structure doctrine . It is relevant to mention the debate dated  8 Dec1948

      The Honourable Shri K. Santhanam –“At the same time, we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical processes should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there. Otherwise they will be aliens, as it were, in those provinces. Therefore, we should not have rigid provisions by which every child is automatically protected in what may be called his mother-tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education—primary education—in their own mother-tongue. At the same time, they should be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people.”

  Basic structure doctrine can be better understood by reference to debate of the objective resolution where S Radhakrishnan said that “Dharma is King of Kings”. Debate should be what is Dharma? But due to Western understanding of secularism, mentioning of the term Dharma in Indian Judiciary and the political discourse is found untouchable. The truth is such attitude bears the seal of inferiority complex.It is often debated that the secularism is the part of the basic structure doctrine. But the fact is the Assembly debates mentions that the Honorable members of the constant assembly refused to incorporate secular in the constitution. The debate is worth mentioning.

It is relevant to mention the debate dated 27 December 1948 of Constituent Assembly  for the amendment no 1146 standing in the name of  H .V. Kamath. Debates on the  Amendment no 1146 clearly, explicitly and precisely underlines in the meaning of secularism in the India.

 

Amendment No. 1146, as moved and adopted , was as follows:-

"That in the affirmation or oath in article 49, for the words 'I, A. B. do solemnly affirm (or swear)', the following be substituted:-

'In the name of God, I, A. B, do swear'

or alternatively,

'I, A. B. do solemnly affirm'."

...The more, Sir, we avoid God, the more we try to flee from Him, the more He pursues us.There is a beautiful poem,"The Hound of Heaven" by Francis Thompson, which describes the state of mind of one who tried to flee from God.

"I fled Him down the nights
And down the days,
I fled Him down the arches of the years, etc."

and so he goes on: then he says:

"But with unhurrying chase, unperturbed pace
The feet of God pursued him,
"And a voice beat more instant than the feet,
All things betray thee
Who betrayest me."...

...The Governor-General, Sir, on Thanks-giving Day after the Hyderabad operations, in his speech, stated:

"Ministers, Generals, Soldiers, Police and Citizens, all are entitled to our gratitude. But nothing moves in this world but God moves it. We imagine we have done great things."...

...Our President, Dr. Rajendra Prasad, last year when he broadcast a message on Independence Day, said:

"With the help of God and under the leadership of Gandhiji we have won the battle of freedom and gained our objective."...

...Netaji Subhas Chandra Bose in Singapore, when he became the Commander-in-Chief and  Provincial President of the Arzee Hukumat-e-Azad Hind, took the oath which ran thus:

"Ishwar ke nam par main pratigy karta hun."...

Sardar Patel recently in Bombay declared:

"We are grateful to God that we have succeeded in stablishing stabilized conditions in our country to a certain extent."  

  Therefore, Sir, in the end, I would appeal to the House that we are heirs to an immortal and a spiritual heritage, a heritage Which is not physical, nor material nor temporal: a heritage which is of the spirit--a spirit that is, ever was, and ever shall be, a heritage that is eternal. Let us not squander this invaluable heritage. Let us not dissipate this heritage: let us remain true to our ancient heritage, our spiritual genius. Let us not lightly cast away the torch that has been handed down to us from time immemorial. Let us in the words of Swami Vivekananda aspire to conquer the world spiritually. Let us blaze forth a trail that will be the light of the world as long as the sun and moon and stars endure. I shall only end with the words which were ever on Mahatma Gandhi's lips: "Ishwar Allah tere nam  Sabko sanmati de Bhagvan."

...Some vain kind of politicians in their attempt to imitate some fashionable slogans of the West have allowed themselves to believe that in a secular State God is taboo. A secular State means the state of Truth and God and eternity without prejudice to any particular religion. In India all our culture, and all our policy and civilization has been spun and woven round the one nucleus, God, and if God is banished I do not know what Swaraj will mean to India. Personally I along with so many others, seniors and juniors, and millions of people fought for thirty years for Swaraj. The Swaraj of my conception was Ram Raj. It was not the political freedom alone that mattered. If I may be permitted to say so, I care a tuppence for political freedom. India did not only mourn the loss of her political freedom but her real grief has been the loss of her freedom of spirit. Our spiritual freedom was first hit when Somnath was attacked.Since that time, all these hundreds of years, India has not been feeling free. Real Swaraj means "Ram Raj" How this idea of secularity has been misinterpreted, I will not be going out of the subject if I take the house into confidence and inform them that very recently at a conference of A. I. R. officials they came to the unanimous decision that the recitation of the Gita and the Ramayana, the Koran and the Bible should now be stopped. If secular State means that our children will not know about the Ramayana or listen to the Gita or the Koran or the Granth what is political freedom worth? This is stretching the meaning too far. If God is banished from this "Ram Rajya", India will become Ayodhya without Ram....

"...Even in the British Parliament, when they assemble, they do so only after prayers. They hold prayers. In the proceedings you will find that the Parliament met at such and such an hour and after 'prayer' began their proceedings. Theirs is not a communal State too. In Ireland, as also in many other places, God is not forgotten.... We worship God and our faith must be recorded. India believes in God and therefore the Indian State must remain a State of God. It must be a godly State and not a godless State. This is our meaning of secularity..."

 Similarly, it is also necessary to understand the motto of the Supreme Court of India. The motto of the Supreme Court of India is – Yato Dharmastato Jayah, which is taken from Mahabharata. It means where there is Dharma there is victory. The meaning and significance of the word Dharma  in Indian culture, philosophy, history and scriptures is completely different from the secular concept of the West. Debate is often created regarding the word Dharma  . The reason for this is that there is lack of understanding of the word Dharma  and its true meaning. Due to this, there is a distance between Indian culture and scriptures. At the time of Emperor Ashoka, the word Dharma was understood from the Greek word eusebeia, which was limited to moral conduct. For this reason the West could never understand the true meaning of the word Dharma  used in India. This mistake continued in modern times and today the word religion has been used in the West for the word Dharma  which is incomplete because the word religion is limited to sect. The error has been perpetuated for 2500 years, first through the word eusebeia and today through the word religion. Both the western words covered the word religion, due to which neither the westerners could understand the true meaning of the word religion nor the modern education of India could give a comprehensive understanding of Dharma  . Another example of misuse of the word religion is the use of the word secular in Hindi. Despite knowing that the word panthnirpeksh has been used for secular in the Constitution. Out of the four Purushartha, fourth  Purushartha -Dharma has been mentioned. To understand India, knowledge of three words is necessary: Karman, Brahma and Dharma. In India, Dharma  means a person's behavior according to the country, time and situation, which is based on spirituality i.e the eternal laws of the cosmos. Therefore, Dharama is not limited to eusebeia and religion.

Only way forward  is that instead of removing secular word from the preamble ,it is desirable that the secularism be defined and explained in the light of the spirituality where the whole creation is considered manifestation of the absolute, thereby, upholding the doctrine of Vasudev Kutumbakam.

 Basic structure Doctrine debate must be based on the foundation that change with continuity in  history of India does not need the Western interpretation of renaissance and the enlightenment. This is best reflected in the illustrations of the civilization of India designed by the Acharya Nandlal Bose and duly signed by the Honorable members of the Constituent Assembly on 24 Jan 1950. Illustrations of the civilization in the original authoritative copy of the Constitution of India is the base for understanding the culture and   civilization  of India. There is an attempt  by the Constituent Assembly members to convey message for the future generation of India. As a matter of fact  it is  microcosm of the civilization of India from Harrapa Civilization to modern times in the form of Mahatma Gandhi  and Neta Ji Subhash Chandra Bose.Also it conveys that the cultural values of the oldest civilization on earth  can be best understood as Dharma. Each illumination represents Yugadharam of that era. Indeed, it is the embodiment of change with continuity.

Last but not the least , raison dêtre of the illustrations can be best appreciated in the light of verse from Mahabharata -

 

इतिहासपुराणाभ्यां वेदं समुपबृंहयेत्।
बिभेत्यल्पश्रुताद्वेदो मामयं प्रहरिष्यति।।

 

"One should strengthen the Veda by(the study and application of)Itihas and Purana. The Veda is afraid of the man of meager learning (with the thought) that he (the man of little learning ) may injure it .

 

 This citizen of India is of the opinion that the problem is not with the basic structure doctrine but with the way this doctrine  is interpreted. If basic structure doctrine respects the foundations of the oldest Civilization then it is welcomed in India. Be it Judiciary or Parliament. Therefore it is high time for introspection that the debates on adultery, live- in relationship, same sex marriage ,secularism, Uniform Civil Code, democracy , electoral reforms, sovereignty, Judicial review, marital rape ,conversion, language etc be discussed so that the basic structure of the Civilization be upheld, protected, preserved and nurtured for future generations.

Indian Judiciary seeking affidavit for the proof of the existence of the Maryada purushotam ShriRam bears seal of  bankruptcy of our system regarding the understanding of the basic foundation of Indian culture. Despite the depiction of the Lord Shri Rama in the constitution of India duly  signed by the Honorable members of the constituent assembly.

Concept of the welfare state which also includes welfare schemes can be best appreciated by following the principle of the sankhya which divide the conscious of the stakeholders in Sat, Raj and Tam. That welfare schemes  which would help the beneficiaries in attaining the status above tamas nature should be promoted .This should be the Lakshman Rekha for the welfare state. The doctrine of basic structure doctrine be employed intelligently invoking the principle of  “not throwing the baby out with water”.Hence Bharat Bodh must be the foundation of the basic structure doctrine of the constitution of India. This approach underlining respecting , upholding  Bharat Bodh will be better  termed as basic structure doctrine  of constitution of Bharat.

 

 

Any attempt to remain exactly what we were before the European invasion or to ignore in future the claims of a modern environment and necessity is foredoomed to an obvious failure. However much we may deplore some of the characteristics of that intervening period in which we were dominated by the Western standpoint or move away from the standpoint back to our own characteristic way of seeing existence, we cannot get rid of a certain element of inevitable change it has produced upon us, any more than a man can go back in life to what he was some years ago and recover entire and unaffected a past mentality. Time and its influences have not only passed over him, but carried him forward in their stream. We cannot go backward to a past form of our being, but we can go forward to a large repossession of ourselves in which we shall make a better, more living, more real, more self-possessed use of the intervening experience. We can still think in the essential sense of the great spirit and ideals of our past, but the form of our thinking, our speaking, our development of them has changed by the very fact of new thought and experience; we see them not  only in the old, but in new lights, we support them by the added strength of new view-points, even the old words we use acquire for us a modified, more extended and richer significance.  Sri Aurobindo