My op-ed on the Supreme Court ruling on reservation for OBC was published in the Wall Street Journal Asia a few days ago. You can read it here (subscription not required). Also, on the same day an editorial was carried on the same subject. You can read that here.

Happy Republic Day. This is a rather emotional holiday for me, so I shall meander on with some of the thoughts I feel virtually every year on this day.

A couple of years ago I heard a lecture by Randy Barnett, who was talking about his book The Lost Constitution, a most wonderful read. Barnett asked us to imagine a psychopath who breaks into the National Archives Building and starts destroying the original US Constitution by tearing the document apart. This would be unacceptable. Patriots may even ask for the highest possible punishment for this man. And yet this is what the honorable judges of SCOTUS do each day, and get away with. He went on to explain how the judges have misinterpreted the US Constitution and virtually forgotten some of the original document.

On Republic Day, I feel much of the same sentiment. We have an Executive, which takes such tremendous trouble to organize a parade, put on the best show to showcase emerging India, show off the latest in its military strength and everything that is supposedly patriotic. The same people who also uphold the flag and other such symbols and create a racket when someone wears a tri-colored underwear.

But the original intent of the Republic Day was to celebrate the fact that we are a Republic. That we have a Constitution. That it is the sacred law of the land. That it must be preserved. Because this document preserves and guarantees the very rights and freedoms that we enjoy, even those actions which we use to destroy the Constitution.

I have actually never seen us celebrate our Constitution. Instead of understanding the text and meaning behind it, we elect governments who appoint committees to check if the Constitution is compatible with the current bureaucracy. Instead of seeing whether the current system is in conformity with what the Constitution lays down.

We have a legislature which has made every attempt possible to change the Constitution when it was inconvenient. The deletion of Right to Property under Article 19 and Article 31 are excellent examples. An even better example of subverting the Constitution is the Ninth Schedule. Anything that was feared to be declared unconstitutional by the judiciary could be included in the Ninth Schedule; which was part of the Constitution. This is perhaps the biggest legal absurdity!

An excellent example of imputing new values which never existed in the Constitution is by including the word Socialism in the preamble and justifying every rent seeking and partisan legislation under that ideological label.

The Preamble to the Indian Constitution was inspired by the American Constitution and begins with “We the People of India….” The purpose of the Preamble is to clarify the source of the Constitution, the sanction behind the Constitution and the goals of the people who wrote and sanctioned it. Most importantly the Preamble lays out the basic type of government and polity which is established in the country through the Constitution. So it seems logical that the Preamble is sacred and should not be touched as it changes the nature of the nation the founding fathers hoped to build. Just as the Constitution is sacred. In India, the Supreme Court declared the Preamble as part of the Basic Structure of the Constitution in 1973, which means it is outside the Parliaments power to amend the Constitution. But amend we did, and as early as 1976.

The odd thing is that every person filing an application to stand for election must agree to uphold the values of the Constitution. This is thanks to Section 29A of the RPA Act which requires all political parties to include Socialism in their party mandate to align with the values in the Preamble and Constitution. This seems a bit odd, given that in the past every time the Constitution didn’t align with the Congress Party mandate, it was the Constitution that was amended.

So under this absurd law, which by the way should be unconstitutional, we have every member elected to the legislature under an oath that he would uphold the Constitution. The very same legislature sometimes under super majority amends the Constitution, destroys its spirit, and justifies its own agenda by calling the Constitution outdated and irrelevant. I wonder what kind of society we choose to have when the basic rights and freedoms become “outdated”.

I would give most of the credit for this travesty to the Nehru Gandhi Family. Every member has systematically destroyed the Constitution, and is showing signs of producing more generations who shall carry on that tradition. They were all present today at the parade.

My piece on the Indian Constitution endorsing socialism in the Wall Street Journal Asia appears today. You can read it here. The full text is also reproduced below.
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India is a democracy, but according to the Supreme Court it’s less democratic than you might think. The justices recently shot down a challenge to Indira Gandhi’s 1970s-era ploy to stamp her economic policies on the country in perpetuity. At issue: Does the word “socialism” belong in the Indian Constitution? And is every political party required to be socialist even if such a requirement is antithetical to free speech?

The Good Governance India Foundation, a small think tank, had petitioned to remove “socialism” from the Constitution’s preamble. The text currently opens with: “We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic. . . .” The foundation argued that this wording conflicts with the original intent and the “basic structure” of the Constitution. The court disagreed, choosing to believe that “socialism” has many meanings and its inclusion in the preamble is not antithetical to open debate.

It’s more than a question of semantics. Following the preamble’s lead, the election law, the Representation of the People Act, requires every political party to aver its commitment to socialism. And they do mean “require.” SV Raju’s application to form a free-market party called the Swatantrata Party was rejected by the Election Commission when he refused to include “socialism” as one of the principles of his party. He’s been petitioning to overturn that decision since 1996. The Supreme Court has at least asked the government and Election Commission to reconcile this outcome with the principle of free speech.

India’s Constitution as originally ratified in 1950 didn’t include any mention of socialism, although the idea was proposed. The man who would become the country’s first prime minister, Jawaharlal Nehru, was as socialist as they come in his economic policies. But he was also a political liberal, and he felt that forcing his personal ideology on all Indians through the preamble would be contrary to the broader spirit of the Constitution. Other founding fathers, notably B.R. Ambedkar, agreed.

Sentiments changed in the 1970s. The declaration of a State of Emergency in 1975 gave Nehru’s daughter, Indira Gandhi, a convenient opportunity continue her agenda of nationalization, repaying support from the socialist parties, while expanding her own power. Amid a raft of Constitutional amendments she pushed through parliament to enhance her authority, she included one adding “socialism” to the preamble. She did this despite the Supreme Court’s finding barely three years earlier that the preamble was part of the “basic structure” of the Constitution and thus not subject to amendment. The succession of socialist-leaning governments in subsequent years meant few people were interested in challenging this provision.

Instead, Indira Gandhi’s successors made it worse. Her son, former Prime Minister Rajiv Gandhi, amended the Representation of the People Act in 1989 to require all political parties to include socialism in their party platforms to align with the values espoused in the Constitution’s preamble. Mr. Raju’s new party has run afoul of this provision.

Since the early 1990s, India has been gradually liberalizing its economy. The results are palpable — an average 8% annual growth rate the past few years is just one. But the country’s political underpinnings haven’t kept pace. The Supreme Court has passed up a good opportunity to right a wrong inflicted on Indian politics 30 years ago. Parliament can still fix this mess, but no party is likely to take up the cause because in political circles capitalism and profit are, like Nehru said, “bad words.” India could use the same kind of competition in the ideological sphere that’s starting to work for the economy.

Ms. Rajagopalan is an Erasmus Mundus Scholar pursuing her masters in law and economics at the University of Ghent.