Common Constitutional Defects

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