LAW RESOURCE INDIA

A people’s Constitution

Posted in CONSTITUTION, DEMOCRACY by NNLRJ INDIA on January 22, 2012
Nehru and Gandhi at the opening of the Indian ...

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SALIL MISHRA IN THE DECCAN HERALD

This Thursday, as we celebrate our Republic Day, Salil Misra reminds us of the struggle that went behind the framing and adoption of a Constitution that has stood the test of time and ensured equality and justice to one and all.

By and large, it can be said that most constitutions of the world have been made in two different ways — the democratic-consensual way and the elite-bureaucratic way. In the first way, the Constitution is made by the genuine representatives of people, keeping in mind popular aspirations. In the second way, the Constitution is made by specialists and experts, keeping in mind legal and technical points and necessities. The second exercise is necessarily an elite one and the accomplishment of a tiny minority. The experts decide in their own wisdom what is best for the people. The Constitution made thus is for the people, but not necessarily by the people.

Quite characteristically, the Indian constitution was a combination of the two. Both the impulses, the democratic-consensual, and the technical expertise of the specialists, were equally active during the making of the Indian Constitution. The document carried the mandate of a Constituent Assembly which was a large body consisting of over 300 members who were elected by the representatives of the people from India’s central and provincial legislatures. But the choice of the elected representatives was deliberately done in such a way as to bring some of the best constitutional minds into the Assembly. Experts like B R Ambedkar, K T Shah, K M Munshi and N Gopalaswami Ayyangar were thus brought into the Assembly. Ambedkar’s election was ensured by not fielding any candidate against him from Bombay presidency. Above all, the expertise of top Congress leaders — Jawaharlal Nehru, Sardar Patel, Maulana Azad and Rajendra Prasad — was constantly pressed into service during 1946-49 to prepare a blueprint for modern India that would be both — the best and the most representative.

Question of relevance

There is no doubt that some of the success, durability and tenacity of the Indian Constitution can easily be attributed to this combination. The Indian Constitution continues to be a relevant and vibrant document today, even after 60 years. No fundamental changes have occurred in its structure. In its basic spirit, it continues to be the same document that it was in 1950. To fully understand the relevance of this, a comparison with India’s neighbours would be instructive. Sri Lanka acquired a Constitution immediately after its independence in 1948, through the elite-bureaucratic way. In less than five years’ time, the Constitution was heading towards obsolescence.

By now, Sri Lanka has had three different constitutions. Pakistan acquired a Constitution as late as in 1956, nine years after its birth. The Pakistani Constitution too was made by legal experts without seeking any democratic mandate. It was abolished in two years’ time, in 1958, and was replaced by another Constitution in 1962. The second Constitution too did not last long and was replaced by yet another one in 1973. In the first three decades of its existence, Pakistan had as many as three different constitutions. The Indian Constitution, by comparison, has continued uninterrupted and has retained its basic features. Except for three major amendments, first, 42nd and 73rd-74th, all the amendments have been in the nature of nuts-and-bolts, without really altering its basic character.

The story of the making of the Indian Constitution is long and goes back to the beginning of the 20th century. The actual making of the Constitution during 1946-49 constitutes a small, though significant, part of its long story. The earliest documents resembling a Constitution for India were the various Council Acts passed by the British parliament for India as its colony. These Acts enabled the British to rule India. The early nationalist leadership accepted this right of the British and only demanded that better Acts be passed by the British parliament for India. In the 1920s, leaders like Motilal Nehru and C R Das  added a new dimension to this by insisting that an Indian Constitution should be made only by Indians. The Indian leaders followed this demand by actually preparing a full-fledged Constitution for India in 1928. It was known as Nehru Report, after Motilal Nehru, one of its architects. Representatives from all the major political parties had participated in preparing this report.

The Nehru Report was a remarkable document. It recommended fundamental rights for the people, a parliamentary form of government, a bi-cameral legislature, universal adult franchise, administrative units to be formed on linguistic basis and an independent judiciary with a Supreme Court at the apex. None of the British Acts, both before and after the Nehru Report, ever talked about either adult franchise or fundamental rights of the people. The British granted voting rights only to the rich and powerful and did not consider any mention of the fundamental rights of the people as necessary at all.
As was to be expected, the British government refused to accept the Nehru Report.

Unfortunately, some of the Indian political parties, Muslim League in particular, also withdrew their support. As a result, the Nehru Report was reduced to being a mere paper document and not a powerful and vibrant constitutional alternative for a modern India that it was expected to be. Yet, if we look at the Nehru Report and the Indian Constitution closely, we would find that the Indian Constitution was profoundly inspired by the Nehru Report. The report had enlisted 19 human rights of the people, 10 of which were included in the Indian Constitution.

Behind the scene

The next major step towards the making of an Indian Constitution was the birth of the idea of a Constituent Assembly in the 1930s. The Nehru Report had been prepared in a conference mode. It was young Jawaharlal Nehru who expressed his dissatisfaction with this method of making a Constitution. He started insisting from 1933 onwards that an Indian Constitution should be prepared by a Constituent Assembly, elected for that purpose, on the basis of the widest franchise possible. The idea of a Constituent Assembly soon began to gather momentum. In 1934, the Congress Working Committee rejected the British constitutional proposal and resolved that the only satisfactory alternative to the British proposal “is a Constitution drawn up by a Constituent Assembly elected on the basis of adult suffrage or as near it as possible.” From this point onwards the demand for a Constituent Assembly became the linchpin of the demand of the national movement led by Nehru. In an interesting debate between Nehru and Gandhi in Wardha in 1940, while Nehru insisted that the British must first declare India independent and then call for a Constituent Assembly, Gandhi argued that the Assembly should be called first and be left free to decide on the question of independence.

It was as late as in August 1940 that the British government conceded for the first time the idea of a Constituent Assembly. The second world war had broken out and, desperately needing Indian support in the war effort, Lord Linlithgow, the Viceroy, declared that the framing of the new Constitution should be primarily the responsibility of Indians themselves. The government offered to set up, after the end of the war, a Constituent Assembly consisting of representative Indians. It was still not spelt out how this Assembly would be constituted — by direct or indirect elections, based on adult or a restricted franchise. The proposals in their totality were found to be unsatisfactory and rejected by all the major political parties.

In the meanwhile, the war came close to the Indian shores. The possibility of a Japanese invasion of India appeared imminent. Growing increasingly frustrated by the British effort and restless at the thought of India becoming a major site of the war, Indians, under Gandhi’s leadership, launched the Quit India movement in August 1942. A panic-stricken British government arrested all Congress leaders and ruthlessly suppressed the movement. Congress was banned, the national movement came to a standstill and all talk of a Constituent Assembly faded into the background.

The end of the war and the victory of the Labour party in the British elections in 1945 once again brought the Constituent Assembly proposal back to life. By this time, Indian independence had begun to be seen as inevitable. The question was not whether, but when, India would become free. It was in these circumstances that the Viceroy Lord Wavell, announcing the India policy of the new Labour government, promised to convene a Constitution making body for India as soon as possible. The British government declared that a Cabinet Mission would be sent to India to resolve the two questions of freedom for India and Constitution making. The Cabinet Mission arrived in March 1946 with a blueprint for both.

By consensus

It was finally in July-August 1946 that a Constituent Assembly was set up through indirect elections. It was envisaged as a large body consisting of 389 members (296 from British India and 93 from princely states). Initially, only the members from British India were included. The first session of the Assembly was held on December 9, 1946. This indeed was a historic day for independent India. Initially, only 207 members attended the first session as the Muslim League had decided to boycott the Assembly. Rajendra Prasad was elected as the president of the Assembly. Nehru moved the famous Objectives Resolution which became the guiding principle for the entire exercise of Constitution making. B R Ambedkar became the head of the drafting committee. With India becoming independent on August 15, 1947, the Constituent Assembly became a sovereign body and doubled up as the Legislative for the newly independent Indian State. It was now responsible for framing the Constitution as well as for making ordinary routine laws.

One of the earliest decisions taken by the leaders of the Assembly was to resolve not to take any decision through the majority vote. The Assembly decided at its floor that the majority decision was not the most satisfactory way of making a Constitution. Once a proposal was moved and there was a minority opinion opposed to it, it was the responsibility of the majority view to appease and satisfy the minority opinion and thus arrive at a consensus. Nothing short of a consensual decision was to be entered into the Constitution. Thus, every effort was made to protect the Constitution by the tyranny of the majority view. This decision not to go only by the majority view and keep trying till a consensus was reached naturally implied that there would be delays in arriving at a decision. It was therefore inevitable that the entire exercise took nearly three years.

A total of 7,635 amendments to various clauses were placed, of which 2,473 were actually moved. Yet, in the end, this procedure produced a Constitution which was owned by the entire Assembly, and through the Assembly, the entire nation. Above all, what made the Indian Constitution truly consensual was that the national movement, during its long life of over three decades, had popularised the ideas of parliamentary democracy, republicanism, civil liberties and social and economic justice. As a result, Indians had begun to look upon these values as their own and not as alien impositions. The Indian Constitution was therefore rightly seen as a document of the people as a whole and not of a few at the top.

Report card

So, how has the Constitution fared as a blueprint for the transformation of Indian society and polity? There is no doubt that the pace of transformation has been slow. But the transformation has to be eventually brought out by the people. The Constitution can only play an enabling role. Constitutions do not work on their own; they have to be worked. It is however undeniable that even though the much-needed transformation has not occurred, the Constitution has created enough space for the socially marginalised people to organise their struggles for a better life and a share in the social benefits.

One success of the Indian Constitution has been its ability to chalk out a middle path between conflicting conditions. One such middle path is between being fixed and unchangeable on the one hand, and being very volatile on the other. The real challenge has been to ensure that the letter of the Constitution should not become an obstacle to genuine social change and the Constitution should be able to modify itself in the light of real societal change. At the same time, if it were to be too volatile and prone to change, it would not really be effective.

Finally, the real big challenge is to find a middle path between being too emancipatory and being completely rooted in the social structure. The real dilemma is this: in order to be transformative, the blueprint has to be emancipatory. A truly emancipatory document would not be fully representative. If, on the other hand, it is rooted in the social structure, it would cease to be transformative.

And this, perhaps, is the biggest strength and achievement of the Indian Constitution. It is sufficiently rooted in the Indian conditions and the people see the Constitution as their own. Yet, it does not represent the conservative side of the Indian social condition. It is sufficiently emancipatory to be able to carry out a transformation of the existing conditions with the help of the people. The Indian Constitution, in this respect, is the finest gift of the national movement to its people. It is truly a Constitution of the Indian people, for the Indian people, and by the Indian people.

(The writer teaches history at the Ambedkar University, Delhi)

http://www.deccanherald.com/content/221060/a-peoples-constitution.html

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