The Telegraph
Since 1st March, 1999
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- What Article 45 might have meant to the Constitution-makers

I had written a year back in these columns on the ‘promises’ in the Constitution of India, Part IV (Directive Principles of State Policy), particularly Article 45, on the children’s right to education. I now come back to it with some anxiety. One keeps on hearing some powerful voices raised against it. They are asking, perhaps legitimately in this heyday of market economics, “Why should we feel bound by promises made so many decades ago in other circumstances' If universal school education or primary health was really wanted by the people, was it not simpler and more profitable to sell both in a free market'” I will come back to this interesting speculation after first trying to understand again why we, the people of India, had thought of making these promises nearly sixty years ago.

The space within which Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad, Bhim Rao Ambedkar, K. Munshi and other leaders found themselves working, slated together in the Constituent Assembly of early 1947, must have been very cramped. They had widely different political affiliations — even Indian National Congress was not yet quite a ‘party’. Inside or outside of the Congress, the leaders had divergent visions of emerging India. What must have held many of these leaders (and perhaps the nation) together was their pride in being leaders of a great nation, bent on giving itself a modern, 20th- century look, that had, in some way, placed the task of nation-building in their hands. There must have also been their own personal ambitions.

For some reasons they had found it imperative to build a consensus around a common set of ideals that would win the hearts of all the people. They chose to raise the banner of modernity in every sphere and clothed it with ideas of compassion, social justice and equality. Some were driven by a great sense of idealism, perhaps others had less conviction. Also, in large part, politicians of every hue somehow got the idea that they had to do this in the idiom of the Rights of Man, some because they sincerely believed in it, others probably because that was attractive but vague enough. Also in the background was another cementing factor: the unspoken terror of the disintegration of the infant state.

In building this consensus at that point of history, Mahatma Gandhi’s name was frequently taken but usually in vain. Gandhi’s effectiveness at this stage of Indian history at the level of high politics, whether at New Delhi or Westminster, probably had reached its nadir. Perhaps thoughts of violent riots and group risings in India’s armed forces were weighing more on the minds of our divergent leaders than the fear of moral pressure from Gandhian satyagrahas. It could well be that this appraisal was also reflected in Clement Attlee’s aside made to a past chief justice from India : Gandhi’s role in Britain’s decision to quit in such haste was only “minimal”.

As the magic moment approached at that midnight session of the Constituent Assembly on August 14, 1947, not only the world slept, but most of India also had no clue about what the leaders were thinking and what gifts destiny had promised the Indian people. But answers were already piling up in the Constituent Assembly proceedings. The Constitution drafting committee with B.R. Ambedkar as chairman, had undoubtedly the best experts in the country in it. What the committee did to the rights is illuminating, and also rather ominous. Let me give you a sample from the proceedings of the Constituent Assembly of Tuesday, April 29, 1947. The Hon’ble Sardar Vallabhbhai Patel was explaining it all in his usual straight-forward way, answering a member’s question. The Hon’ble Dr. Rajendra Prasad was in the Chair: “There were two schools of thought in the Committee. One school considered it advisable to include as many rights as possible…rights which could straightaway be enforceable in a court of law. The other school of thought considered it advisable to restrict fundamental rights to a very few essential things that may be considered fundamental...Between the two schools there was a considerable amount of discussion and finally a mean was drawn.” Patel extolled the presence in the committee of “many very eminent lawyers who could scrutinize every word of every sentence”.

How the presence of these very eminent people could also produce bizarre results was made evident the same day. The discussion had gone on to “untouchability”, which had been promptly declared unlawful. The bizarre thing was — not one expert helped produce a workable definition of the crime of untouchability that all had declared unlawful. The chairman was distraught, but could do very little. Obviously the “experts” were not in sync with the people in their perception of the issue. Are they now'

Finally the draft Constitution was produced. Most people came to see it only when it was published in February, 1948. There was very little discussion of the draft in the media. Those were days when super-specialists and ordinary mortals rarely debated together in public. Things have changed since. But are the present leaders not aware that the same fears of violence and disintegration that could force a consensus, even if not a sincere one, sixty years back, are also very real today and that the people are restive, feeling that they had been short-changed all these years'

In any case, let me go back to the role of the private players in the education and health sectors. I do not deny the right of private enterprise, including the largest corporates, to set up their non-profit trusts and foundations to subsidize education and healthcare. Carnegie, Ford, Rockefeller and now Bill Gates have all successfully showed us ways to do this all over the world. One only hopes that our own new billionaires would do the same for Indian children. An altogether different proposition, however, is the prospect of anybody extracting sizeable profits, without breaking the law, out of millions of impoverished families needing primary healthcare and elementary schooling of some quality for their children. I cannot really see how Adam Smith’s “invisible hand” can help the private operators in this business. Nobody is stopping them from trying though, but the State will have to remain watchful here, for its residual constitutional obligations cannot be wished away merely by leaving it to the market.

Two more simple points. First, the promises Nehru probably had in mind may be old but these were regularly revalidated. For the record, take the government’s statement laid before parliament as late as 1992: “Free and compulsory education of satisfactory quality would be provided to all children up to fourteen years of age before the commencement of the twenty-first century.” About that time, too, the Supreme Court had declared the right to education an implicit fundamental right derived from the fundamental right to live.

Second, it may not be in the hands of small groups of the ‘roll-back’ lobbyists any more, for the Constitution (86th Amendment) Act, 2002, made the right to education for children of six to 14 years of age a fundamental right. New activist groups are fighting for extending that right to all children up to 14 years of age, restoring the scope of the old Article 45, and then go even further. I hope the future is with them and not with the new classical economists.

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