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Common constitutional defects

Everyone has the right to physical, mental and spiritual development.


But all constitutions have been written in such a way that they do not
ensure the all-round welfare of all citizens. A constitution should be
fair and just. The least bias on the part of the framers towards any
particular ethnic, linguistic or religious group may undermine the
unity and solidarity of the concerning country and thus disturb the
peace and prosperity of the society as a whole.

Judged from this perspective some of the defects of national


constitutions are easily discernible. Many countries require a new
constitution to establish unity in diversity in a multi- lingual,
multi-social and multi-national country. While drafting the
constitution of a country the framers should keep in mind the
population structure of the concerning country. The population of many
countries is now a blended population of, for example, the Austric,
Mongolian, Negroid and Aryan races. But national constitutions, due to
inherent defects, have not helped establish social amity, cultural
legacy, equality and unity among these races. As a result fissiparous
tendencies have developed in the country.

There are several fiscal and psychological loopholes in many national


constitutions.

The fiscal loopholes include the following. First, there is no check on


unbarred capitalist exploitation. This is because the leaders of the
independence struggles did not give any economic sentiment. For
example, in India, the only sentiment was an anti- British sentiment.
Thus the independence struggle was only a political movement and not an
economic movement. After 1947 instead of white exploitation brown
exploitation came up. So, 1947 only brought capitalist political
liberty but not economic freedom. As a result unbarred economic
exploitation continues today. Secondly, the constitution gives no
guarantee for increasing the purchasing capacity of every individual.
Thirdly, the president has no constitutional power to check financial
or fiscal matters. A few business houses control the national economy
of many countries, eg through influences through some chambers of
commerce. The president has no constitutional power to check either the
price level or the level of exploitation. Neither the president nor the
prime minister can check these. Fourthly, there is no provision for
inter-block planning for development. Fifthly, no clear concept of
balanced economy is found.

The psychological loopholes in national constitutions include the


following.

The first is the imposition of national languages which are flawed. For
example, in India English imperialism has been followed by Hindi
imperialism. Hindi is a regional language. The selection of one such
regional language as the official language adversely affects the
psychology of other non-Hindi-speaking people. As the consequence of
such a defective language policy in the constitution, the
non-Hindi-speaking people face unequal competition at the national
level and they are forced to use a language, either Hindi or English,
which is not their natural language. Hence they are relegated to "B
class" citizens. No regional languages should be selected as an
official language in a multi-national, multi-linguistic and
multi-cultural country. Such a selection would affect the minds of
other language speaking people. A regional language should not be so
used. Even if a good language it should not be forcibly imposed on
others.

Imposition should not be done. The spirit of secularism provides equal


scope and equal avenues to all for the maximum psycho-social-economical
development of every individual.

Looking at India again. Sanskrit may be the national language of India


- even if not spoken. It is the grandmother of almost all the modern
languages of India and has a great influence on the languages of India.
It may take 5, 10, 50 or 100 years to take this language to all people.
Roman script should be used for the language, as Samskrta has no script
of its own. All groups of people including linguists of India should
get together and decide this controversial matter.

The second psychological loophole is that there are several disparities


in the law. The constitutions of many nations proclaim that all are
equal in the eye of the law. But in practice, this principle is not
followed, and as a result disparity is growing in the arena of law and
justice. Such disparity is adversely affecting the different groups of
people in the country. For example, in India there are disparities
between the Hindu Code and the Muslim Code. Hindu women and Muslim
women, although they are all Indian citizens, do not get equal
advantages in law. In Hindu law, men cannot have more than one wife but
under Muslim law men can have two, three, four, etc, wives. Both Hindu
wives and husbands have to go to get a divorce, but Muslim men can say
"Talak, talak, talak" and divorce their wife. Thus Muslim men don't
have to go to court to secure a divorce. Moreover Muslim men can
divorce their wives but Muslim women cannot divorce their husbands.
Also it is not necessary for Muslim men to give any reason for their
divorce.

Disparity in the eye of the law is creating all these problems. The
root of all these evils lies in the psychological loopholes of the
constitution. Why are constitutions allowing this - different codes to
stand side by side? Let there be only one code. This Code should be
based on cardinal human values, with a universal approach and
neo-Humanistic spirit. Then only equality before the law can be
established in practice, and equal protection of the law for all can be
guaranteed. So the constitutions should remove the psychological
loopholes by eradicating existing disparities in the eye of the law.

The third psychological loophole is that there is no law against the


indiscriminate destruction of flora and fauna due to the absence of
Neo-humanistic sentiment. In the Cosmic Family of the Universe, humans,
animals, plants, and inanimate objects exist together and maintain a
harmonious balance. However, human beings, because of their superior
intellect, are indiscriminately destroying plants and animals for their
own narrow, selfish ends. In the constitutions, there is no provision
for the safeguard of the plants and animals. In a constitution, there
should be safeguards for the lives of plants and animals. The absence
of such provisions in the constitution creates psychological loopholes,
which should be corrected without delay.

Fourthly, the relation between the centre and the states in a


confederation should be clearly defined in the constitution. Otherwise,
there will be centre-state conflict and the whole country will be
psychologically affected. State boundaries may need to be redrawn to
reflect communities and states may need to be abolished or made into
regional governments to best meet the needs of the people. Among all
other aspects of this relation two important aspects should be clearly
defined - the right of self-determination, and the right of secession
of a particular component of the confederation. In many constitutions
these are not clearly stated. As a result, the relation between the
centre and the states is always strained and under pressure.

Fifthly, in the constitutions, there may be no clear definitions of


indigenous cultures or tribes. Rather, these cultures remain
disadvantaged on the basis of racial considerations. Instead of this
unscientific approach, cultures and tribes should be given preferential
treatment to remedy their educational and economic backwardness. Once
those problems are cured, then non-discriminatory and non-preferential
treatment is to be afforded to all. Non-discriminatory treatment
should, of course, exist from the beginning for all peoples.

Adapted from a discourse by P.R. Sarkar given on 22 September 1986 at


Calcutta