When a Fundamental Right Became Conditional

These words by BR Ambedkar surprised me:

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

How can “good” people compensate for a “bad” constitution – were they expected to violate the constitution?! Conversely, doesn’t a “good” constitution prevent make it harder for “not good” people to do harm? And since making changes to a constitution is hard, surely a well written constitution is very critical, right? What was Ambedkar thinking, I wondered.

 

Bibhudutta Pani wrote this piece on some interesting tidbits of the Indian constitution. While the Indian constitution allows for amendments, it also has a Basic Structure Doctrine, i.e., a Lakshman Rekha – the legislature should not meddle with those parts. (They include the preamble, rule of law, fundamental rights, federalism, and secularism).

 

While there are obvious benefits of such a setup, it creates a risk – what if the view of the country changes over time wrt some aspect of the Basic Structure Doctrine? Can it never be changed because it was originally put under the Doctrine? That sounds problematic.

 

And in fact, the country ran into exactly that situation in 1978 when the 44th Amendment was passed. That amendment contradicted a fundamental right – the right to property. The 44th amendment made the right to property conditional – the state could take away the property of a citizen, if there was a law that allowed for it under specific circumstances.

 

So why wasn’t there an uproar when a fundamental right was diluted, when the Lakshman Rekha was breached? To borrow a phrase from physics, the reason was “path dependence”. On the one hand, to end the evils of the zamindari system, successive governments had introduced provisions like land ceiling measures. On the other hand, forcible land seizures under the call of nationalization had evoked a backlash. Thus, by the time the 44th Amendment came in, the public mood on the topic of the right to property was nuanced –arbitrary seizure was not OK, but exceptions had to be made e.g. to end the zamindari system.

 

The courts too recognized the changed mood of the country on the topic compared to what it was at independence. That is why they never struck down the 44th Amendment even though it had crossed the Lakshman Rekha.

 

I guess this is what Ambedkar meant when he talked of “good” people compensating for flaws in the constitution. Exceptions are inevitably needed to any rule. But the dangers of such a system are too obvious to need stating, esp. if “not good” people drive such decisions.

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