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Modi government is deliberately misinterpreting the Constitution

Kamal Mitra Chenoy
Kamal Mitra ChenoyNov 13, 2017 | 17:08

Modi government is deliberately misinterpreting the Constitution

Indian democracy was famous for the strength of its democratic institutions. Most of them were inherited from the British colonial system.

The judiciary, the precursor to Parliament, the police and Army, and the media were all initially built by the British. Even the spread of English was a consequence of Macaulay’s famous note on the importance of English language as the lingua franca of British colonialism.

Universities such as the Aligarh Muslim University, University of Delhi, University of Allahabad and Banaras Hindu University, all were favoured by the British, though nationalist students became increasingly active in the 1930s.

The Quit India movement of 1942 was largely fuelled by university and high school students, many of whom believed that British type democratic institutions could be modified to suit Indian institutions.

The most important political set of mechanisms was parliamentary democracy. An elected Parliament, directly in the Lok Sabha and indirectly in the Rajya Sabha, along with an independent judiciary and an executive under an elected prime minister, with the prime minister being the most powerful single individual in the government and the country. Not all that different from the British political system.

But India, unlike the UK, had a very detailed Constitution, including Fundamental Rights and the Directive Principles of State Policy.

constitution-preambl_111317042606.jpgImage: Wikimedia Commons

But the way Constitutional rights are being violated or misinterpreted is shocking. For example, the Constitution in Article 48 in order to preserve and promote [cattle] breeds bans cow/calf slaughter, but also bans the killing of milch and draught cattle which includes the buffalo, mithun (Bos frontalis), yak, etc.

However, PM Narendra Modi has stated that there is a Constitutional basis against cow slaughter. But this is an incomplete reading of Article 48. The Constitution bans all slaughter of all cattle, not just of cows. That would be very difficult for the NDA government to accept. Nor could the NDA stop the slaughter of buffaloes, mithuns and yaks. So Article 48 is clearly not stating what the BJP wants to hear.

Others like UP CM Yogi Adityanath also have misread Article 48. Furthermore, Article 48 is a directive principle, which unlike a fundamental right is not binding. So, the hullabaloo created over cow slaughter is motivated and a violation of the Constitution.

Similarly, there is a deliberate misinterpretation of Article 25, a fundamental right, which states that "all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion".

To “propagate religion” includes to spread a particular religious faith. This is also conversion. What the BJP and Congress claimed was that innocent tribals and others were being persuaded to convert by inducements of money, paid work, etc. Laws were passed to this effect. Some of these laws were very strict.

BJP leaders like the (late) Dilip Singh Judeo called the re-conversion of say a Christian to a Hindu as "ghar wapsi". That implied that tribals were originally Hindus. This is often not true. Misusing Article 25 is illegal and cheating of Adivasis and others.

What about Article 44 on the Uniform Civil Code?

It is virtually impossible. There is Muslim personal law, Hindu personal law, Christian personal law, Naga personal law and Mizo personal law. It is impossible to codify all these personal laws into one Uniform Civil Code. There can only be one pro-woman solution: make gender just personal laws, so that no woman/man is subject to any unacceptable personal law.

Ironically, since 1950 no solution to this fundamental right has been found. This is not the mistake of the Constitution. It is the mistake of short-sighted, if not bigoted, politicians and ultra-religious priests/sadhus.

What does this discussion tell us? This shows how ignorant people, including politicians, are misreading the Constitution, and in several cases creating problems for principled people who respect and understand the real meaning of the text of the Constitution.

The Constitution is too important to be misinterpreted. It should be made a compulsory reading along with social sciences in high schools and/or undergraduate classes.

Last updated: November 13, 2017 | 17:08
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