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| What, Revision of the Constitution? Milind Thatte 8th September 1998 Most, Indians would ask that question when they hear the Union Home Minister announcing the sooner-or-later appointment of a Constitution Revision Commission. There is no talk of this topic, no news, no hot debates......! Then, where from did this concept of review of the Constitution arise? The fact is that this topic is such that it has to be discussed without getting hot. Every people have to review what their forefathers slated in their law-books, and that too in a cool-headed discussion. Review of the Constitution is going to be a no-news issue, and that is the way it should be. It is not a petty political issue, and it should not be looked at in that manner. India had its first experience of a democratic constitution fifty years ago. But India has a tradition of over two thousand years of constitution law. The first traits of it could be found in a pre-coronation oath that every King had to take: "I shall rule only in accordance with the rules of Dharmashastra and Dandaniti and will not rule according to my wishes". The Rajpurohit (bishop) would hit the King?s head lightly with a baton in that ceremony and chant thrice that "Dharma dandyosi", that means "the law shall rule'. This was not a mere ritual, Kings like Vena and Brihadratha had to lose thrones for evading Dharmashastra laws. Dharma (law) was expressed in charters called "Smriti". The smritis kept changing as the time demanded. Manu was a celebrity among smriti-writers. After the first one, there were 16 lawmakers who called themselves Manus. In many states Manuvian laws were later replaced by Yajnavalkya smriti. Kautilya's Arthastra was a bible of kings for many centuries. King's ordinances and other rules ? if they went against the smriti ? were declared void by the elite. In a sense, the principle that 'an ordinary law can not go against the constitutional law' was practised in India. Smritis have been progressive as well as regressive, as per the forces in that state. Manu and Mahabharat allow the shudras only the functions of servitude of the higher castes. Shukraniti allow the shudras other low-prestige professions also. And being the most rational of all, Kautilya allows shudras to do business in commerce, animal husbandry, and agriculture. He dose not include servitude in their functions. Also, there was a difference in the mentality of the smriti-writers. Manu, Yajnavalkya, Brihaspati, and Mahabharat-writer were constitutional experts (Dharmashastris). On the contrary, Shukracharya, Kautilya, and Kamandaka were political scientists, (Arthashastris and Rajnitishastris). The latter were more pragmatic and liberal than the former. Arthashastris before Kautilya, assigned the king the functions of a protector and a policeman, whereas Kautilya included the Yogakshema (welfare) of the people in the King's functions. Smritis were not written by popularly elected committees, they were highly controlled by the dominant castes and classes. Isn't it paradoxical that even the democratic constitutions are controlled and shaped by the dominant classes? Even the U.S.A, the father of - and inspiration for - many modern constitutions, has had no female President, no black nor brown, and only one catholic (JFK) could become the President. Dominant classes have always controlled the state and its machinations. So this can not be said to be a demerit of Smritis. Also, it is important that the executive (the King) was never the law-maker. He had to accept the laws made by others. India did not venture into these constitutional traditions because they were already fossilised. The highly anti-egalitarian code of Manu can not be accepted by any modern person. Manu was criticised and should be criticised, but that does not mean that we should deny our moorings. We had a tradition, and we should be proud that we were always dynamic. Manu smriti was always used to suppress lower castes and women and our society has suffered great cleavages due to the smriti?s arrogant presence. It happened because that Smriti was not replaced by a better one. The tradition of change should be revived so that we do not suffer another Manusmriti. Our present smriti should therefore, be revised from time to time. Some pessimists have said there will be a disaster and a socio-political topsy-turvy if Constitution is changed. They should see that a revision by itself does not mean change. We do not mean to throw the baby out and keep the tub-water. 50 years is a good time and overhauling is necessary. Or else, we would never know when we walked into another fossil of a modern smriti. copyright:bharatonline.com |
