Civil Service and The Constitution (Part 2)

Part 1 of this series concluded with

“The Indian constitution grants parliament almost unlimited powers to enact laws. It is this that allows politicians and thus the bureaucracy to get away with anything. It is this that breeds corruption.”

This post seeks to elaborate. A constitution is a document that establishes the structure, procedures, powers and duties of a government by means of principles. A constitution is the standard to which enacted laws must confirm and by which they are to be interpreted. For a constitution to be meaningful, it must be unambiguous and consistent. For a constitution to be successful, its principles must be valid.

Here are some articles from the Indian constitution (available here and here)

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

31A. Saving of laws providing for acquisition of estates, etc.—
(1) Notwithstanding anything contained in article 13, no law providing for—
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property

(2) In this article,—
(a) the expression ‘‘estate’’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement

The Indian Constitution is for the most part not a codification of principles at all, but an attempt to solve some of the social problems (such as untouchability, feudal land holdings, extreme backwardness in most sections of society etc) at the time it was written. Most of the articles follow a pattern of expressing a principle and then laying out conditions under which it can be violated by the state (Also see Ergo’s post as an example of this). This mess of contradictory and concrete-bound articles institutionalizes an approach of rampant pragmatism to governance. It institutionalizes the idea that there are no absolute rights, no absolute principles and no absolute limits to the actions governments can take. The Indian constitution is not a document that protects individuals from the misuse of power by the state. It is a document that protects the state from any legal challenges that individuals might raise (Perhaps the most common phrase in the constitution is “Nothing in this article shall prevent the State…“)

Part 3 will examine the relation between civil service and the constitution.

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7 Responses

  1. Nice writing style. I look forward to reading more in the future.

  2. A lot of these “nothing in the above shall apply to area-X.y.Z” were inserted as amendments to the constitution, starting from the very first amendment. http://indiacode.nic.in/coiweb/amend/amend1.htm

    At this point, one really needs a thorough clean-up.

  3. It is a document that was created as a please-all, something that no one in his right mind can take seriously, but which has in turn endangered the lives of the citizens of the country. Nothing in this article shall prevent the State… Indeed.

    PS: You might want to post a link to Ayn Rand’s essay on The Nature of Government so that readers can understand her views on the issue. A pdf file is available from the Centre for Civil Society and I believe they have reprinted it with permission.

  4. SoftwareNerd,
    Thanks for the very interesting link. At one point it says
    “…the following clause shall be substituted, and the said clause shall be deemed always to have been enacted in the following form…”
    I wonder what made them say that.

  5. Aristotle The Geek,
    I don’t think it was created as a please-all. Look at the link in SoftwareNerd’s comment. It indicates that the constitution makers were using the constitution as a tool to defend the laws they wanted to enact.

    Thanks for the tip. I was not aware that the essay was available online. I will post it in my concluding post in this series.

  6. I so completely agree. A Constitution is a set of principles, and a principle within its context, allows no exceptions. Its true that the Constitution is merely a tool to emphasize “social justice” and all the nonsensical drama that comes along with it.

    Eventually, I don’t think Indians have the right to complain about the state of affairs, they should have stood up against those “reasonable” restrictions to fundamental rights a long time ago. Also notice how their claim that fundamental rights are not absolute but restrictive. Nonsense.

  7. Arkansas: Under 18 requires consent of both sets of parents. Yet, many couples who got married after being in a relationship for almost a decade either end in divorce or a lifetime of ‘silent war’. Indiana: A certified copy of your birth certificate is required. They debate with their spouses, tell them why they are wrong to want to split up, attempt to make them feel guilty, and do everything that they can to change the spouse’s mind. Can’t wait to see what she comes up with! my friend swears by mariage freres tea.

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