On 26 November 2016, I took part in a panel at the Consulate-General of India in Sydney to celebrate Constitution Day. I’ve provided my speech notes below. I was told to avoid controversy and to make my speech interesting and comprehensible for a non-legal audience. (Most of the questions after the speech were about the Uniform Civil Code and/or Kashmir, which made it quite difficult at times to stick to those instructions!) There are, of course, substantial shortcomings and blind spots to the Indian Constitution – ADM Jabalpur, Koushal, Ranjit Udeshi, Rajbala v State of Haryana, etc, etc. But I’m nonetheless proud to celebrate the Indian Constitution and its accomplishments, and very glad to have had the chance to sing its praises. As overly rosy or Pollyannaish as the speech below may read, it is, after all, a way of saying happy birthday.
I am greatly honoured to have been invited to speak today, and to be able to be with you today to celebrate Constitution Day, and the life of Dr Ambedkar.
The Constitution of India is more than a set of articles and schedules. It does more than merely establish institutions for the governance of India. Instead, scholars call the Indian Constitution a transformative Constitution. Its provisions are not just concerned with India as it is, but with the fulfilment of social and economic justice for all of India’s citizens.
It was this transformative purpose that first drew me to India, and to Indian constitutional studies. When I was 20 years old, I was offered a chance to apply for the Prime Minister’s Australia Asia Award, a predecessor to the current New Colombo Plan which allowed recipients to study and work in Asia. I chose to apply to go to India, and ended up staying more than a year.
I’d never been to India. I’d never lived outside Australia. My wife, who came to Bangalore with me, had never left Australia before.
I chose India because of its Constitution, and because of what that Constitution represents. Let me explain why this Constitution is so significant, both to me and, much more importantly, to the Indian people.
As is well known, India faced extraordinary challenges at Independence, including ensuring the safety and well-being of millions displaced by Partition. Amid violence and uncertainty, the Constituent Assembly convened to draft a Constitution suited to a nation of exceptional diversity, divided by language, race, caste and class. In facing this challenge, members of the Constituent Assembly drew encouragement and inspiration from the experiences of other nations – including the UK, the US, Canada, Ireland and even Australia. They looked both to what other nations had done well and what other nations had done poorly, and tried to create, from all these different strands and all these different schools of thought, a document suited to Indian conditions and Indian challenges.
More than merely reflecting the nation in which they lived, the framers of the Indian Constitution – Dr Ambedkar chief among them – sought to create a document that would address and combat inequalities and injustice in Indian society. Against a backdrop of intolerance and communal divisions, the Indian Constitution prohibits discrimination by the state on the basis of religion, race, caste, sex, or place of birth, and guarantees freedom of religion. Against ingrained prejudice and severe discrimination against India’s Dalit population, the Constitution abolishes Untouchability. Following the suppression of human rights and dissent by the British, the Constitution protects civil and political liberties.
The Indian Constitution is not flawless and not beyond controversy. It is very long, and it has become much longer over the course of over one hundred amendments since India’s independence. The Constitution contains a mixture of Fundamental Rights, protecting individual civil rights, and Directive Principles, expressed as broad aspirations setting out the ideals and goals of the Indian state. The relationship between Rights and Principles has prompted decades’ worth of arguments, legal challenges, protests, controversies and further amendments. The aspirations declared by the Directive Principles have not yet been met. The fact that these aspirations are embodied in the Constitution provides no answer, in itself, to hunger, or sickness, or poverty. Similarly, the fact that the Constitution contains guarantees of Fundamental Rights is meaningless without institutions to enforce those rights and willingness by the Indian public to assert those rights.
But it is not my purpose today to focus on the great amount that remains undone. The reason why I’m here today is to celebrate the extraordinary achievements of the 66 years since the Constitution was promulgated.
Indians have strived to ensure that the promises and guarantees of the Constitution are reflected in practice. Where appropriate, the courts have worked in collaboration with India’s government to ensure that the promises of the Constitution are upheld; where necessary, they have struck down laws, policies and even amendments to the Constitution itself, in order to uphold the basic structure of the text.
The courts have not acted alone in defence of the Constitution. Indians from all walks of life have stood up to claim the rights bestowed upon them by the Constitution. They have constantly pushed to make the nation fairer, more responsive, more democratic. The Constitution does not just belong to the lawyers or politicians of India. Its interpretation has been shaped and transformed by cases brought by activists and NGOs, by religious leaders and by atheists, by prisoners and by princes. Indians from every background have claimed protection under the Constitution – something that would be impossible without a rare shared public faith in the Constitution’s potential and in the goals for which it stands.
The Constituent Assembly that enacted the Constitution consisted of men and women, Muslims, Christians, Hindus, Sikhs, Parsis and non-believers, drawn from different races, different language groups, different cultures, and different castes; some delegates were leftists, others were conservatives. Like India itself, the Constitution does not belong to any single religion or any single language or any single point of view, and no one group can claim a monopoly over its meaning. It belongs to India.
This is what I find so inspiring about the Indian Constitution – why I went to India, why I lived, studied and worked there, and why I am so glad to be here today to celebrate this Constitution. Because in its openness to difference and diversity, in its acceptance and employment of intellectual traditions and lessons from around the world, in its commitment to social welfare and uplift, even in its size, that which is great about the Indian Constitution mirrors that which is great about India itself.