A new Constitution for rāṣṭram
Constitutional philosophyshould be redefined as merely documentation of a social contract, constraining the role of a state in the affairs of the people (society).
Constitution as a social contract document should have the principal objective of protecting dharma, the inviolate cosmic, consciousness principle.
Constitution as a social contract document has been used to place on record society’s “consent to the exercise of state authority in order to acquire security for their natural rights to life, liberty and estate.”
Constitution institutionalizes sovereignty of the society in a written contract. Some constitutions evolve as a product of revolutions, as in the case of American Revolution or Indian Revolution for Independence from colonial rule.
Constitution of India is a product of the historical experience dominated by the interregnum of colonial rule which suffocated the society’s sovereignty with alien schools of thought. So was the Constitution of United States a product of the historical experience dominated by a truncated understanding of ‘natural rights,’ coupled with republicanism and constitutionalism.
A review of the workings of the world constitutions so far necessitate a questioning of the tenets on which constitutions are based as social contract documents.
The fundamental error in the framing of constitutions is the assumption that ‘individual natural rights’ are inviolate and need to be safeguarded by the state apparatus. This is a basic flaw which denies the very existence of the society and puts ‘invidual’ on a top pedestal.
A radical re-write of Constitutions demands that the basic assumption should be ‘society’s natural rights’ for abhyudayam, ‘general welfare’. The social contract should only be limited to outlining the responsibilities of the state to safeguard this: ‘society’s natural rights’ for abhyudayam.
The positing of the ‘individual’ as the center-piece of Constitutionalism is the fundamental flaw in almost all the Constitutions of the world. I find only one splendid exception, though partly articulated and that is in the Constitution of the Socialist Republic of Vietnam. “Among the innovative features of the 1980 document is the concept of "collective mastery" of society, a frequently used expression attributed to the late party secretary, Le Duan (1908- 1986). The concept is a Vietnamese version of popular sovereignty that advocates an active role for the people so that they may become their own masters as well as masters of society, nature, and the nation. It states that the people's collective mastery in all fields is assured by the state and is implemented by permitting the participation in state affairs of mass organizations. On paper, these organizations, to which almost all citizens belong, play an active role in government and have the right to introduce bills before the National Assembly.” The Vietnam Constitution also lays down duties of citizens in parallel with the responsibilities of the state. The objective is to achive synchronization between the interests of the state and the people (society).
When Indira Gandhi tried to re-define the basic structure of the Constitution of India, by introducing the word, ‘secular’ in the Preaamble, she missed out on the opportunity to enshrine fundamental duties of the state to safeguard and protect dharma for abhyudayam, ‘social welfare’. A later event occurred, the incorporation of a section ‘Fundamental Duties’ as an afterthought and this section was not made justiciable. This means that ‘Fundamental Duties’ are not fundamental to the responsibilities of the State which enshrines a false entity called ‘Fundamental Rights’ and a bogus discourse on ‘secularism’ which in effect, is interference by the state in the cultural affairs of the society and the path chosen by people for nihs’reyas. What path is chosen by the people to attain nihs’reyas should be no business of the state. Thus, the mere inclusion of the word ‘secular’ has simply made the Indian Constitution a pseudo-secular document which should be abandoned in its present form.
There ain’t no ‘fundamental rights’ without performance of ‘fundamental duties’.
Rights inhere in and emanate from the performance of ‘fundamental duties’.
A Constitution for the rāṣṭram, the Union of States of Indian Ocean, should be based on ‘fundamental responsibilities’ of the individuals in society and the duty of the state to safeguard the exercise of these responsibilities. The Constitution as a social contract should ensure that the twin facets, abhyudayam and nihs’reyas are inviolate. This means that the individuals are free to profess their paths for nihs’reyas and the State has no role in meddling with these paths. The role of the State is restricted to be a supporting institution for abhyudayam, ‘general social welfare’ on a path which will be chalked out by the people themselves.
A Constitution for rāṣṭram should be founded on ‘fundamental duties of the state’ and ‘fundamental duties of citizens’ and both should be justiciable.
Indian Constitution should be re-drawn by incorporating the Directive Principles of State Policy which now also includes a section of ‘fundamental duties of citizens’ into a parallel justiciable part of the Constitution together with the section on ‘Fundamental rights’. The section on ‘Fundamental rights’ should be redrawn as the rights of the society and individual responsibilities to protect and sustain these rights of the society, thus rendering dharma as the inviolate principle, the constitutional philosophy of the social contract document.
S. Kalyanaraman November 16, 2013