India After Independence: 1947-2000 (8 page)

The third session was held from 28 April to 2 May 1947 and the League still did not join. On 3 June, the Mountbatten Plan was announced which made it clear that India was to be partitioned. This completely altered the perspective of the Constituent Assembly, as the Cabinet Mission Plan, the essence of which was a compromise with the League, was no longer relevant.

With India becoming independent on 15 August 1947, the Constituent Assembly became a sovereign body, and also doubled as the legislature for the new state. It was responsible for framing the Constitution as well as making ordinary laws. That its function as a legislature as well as its
large size did not come in the way of its effectively performing its duties as a constitution-making body is due to the enormous preparatory work as well as organizational skills and hard work of its leading members. The work was organized into five stages: first, committees were asked to present reports on basic issues; second, B.N. Rau, the constitutional adviser, prepared an initial draft on the basis of the reports of these committees and his own research into the constitutions of other countries; third, the drafting committee, chaired by Dr Ambedkar presented a detailed draft constitution which was published for public discussion and comments; fourth, the draft constitution was discussed and amendments proposed; fifth, and lastly the Constitution was adopted.

In addition, a critical role was played by the Congress party. It had asked a Committee of Experts to prepare material and proposals for the Constitution as early as 4 July 1946. The Committee was chaired by Nehru and had Asaf Ali, K.T. Shah, D.R. Gadgil, K.M. Munshi, Humayun Kabir, R. Santhanam and N. Gopalaswamy Ayyangar as members. Nehru drafted the Objectives Resolution and the Congress Working Committee and AICC ratified it on 20 and 21 November 1946 well in time for its introduction in the first session of the Assembly. This practice continued till the Constitution was adopted, with the Congressmen thoroughly discussing and examining each provision in their party forums, in addition to participating fully in the debates in the Assembly. The party’s deep involvement in the process even made it open to the charge, made by one of its own members, Shibban Lal Saxena, that this reduced the proceedings in the Assembly to a formality! The overwhelming opinion, however, shared by Dr Ambedkar as well, was that its role had been all to the good as it ensured that every detail in the constitution was thoroughly scrutinized. To quote Austin:
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The Congress Assembly Party was the unofficial, private forum that debated every provision of the Constitution, and in most cases decided its fate before it reached the floor of the House. Everyone elected to the Assembly on the Congress ticket could attend the meetings whether or not he was a member of the party or even close to it.

Jawaharlal Nehru, who drafted the Objectives Resolution, which spelt out the philosophy and basic features of the Constitution, set a formidable example by his keen involvement in every aspect of the process. Sardar Patel’s interest was second, if at all, only to Nehru’s. He played the decisive part in bringing in the representatives of the erstwhile princely states into the Constituent Assembly, in seeing to it that separate electorates were eliminated and in scotching any move for reservation of seats for religious minorities. Rajendra Prasad won acclaim for his impartiality and dignity as President of the Assembly. Maulana Azad brought his formidable scholarship and philosophical mind to bear on many issues of grave importance.

But perhaps above all, the Congress brought great credit to itself and enormous benefit to the nation by adopting a completely non-sectarian approach, freely recruiting the best available talent, always striving for consensus rather than imposing its will through numbers. Informed by a strong sense of its historic role in laying the foundations of independent India, the Congress party tried hard to do its best by the people it had led to freedom. In the words of Granville Austin, chronicler of the history of constitution-making in India:
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The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India. There was a third point that completed a tight triangle, the government (meaning the apparatus of elected government both provincial and national), for the Congress was the government too.... One might assume, aware of the character of monolithic political systems in other countries, that a mass-party in India would be rigid and narrow in outlook and that its powerful leadership would silence dissent and confine policy and decision-making to the hands of the select few. In India the reverse was the case. The membership of the Congress in the Constituent Assembly and outside held social, economic, and political views ranging from the reactionary to the revolutionary, and it did not hesitate to voice them. The leaders of the Assembly, who played the same role in the Congress and in the Union Government, were national heroes and had almost unlimited power; yet decision-making in the Assembly was democratic. The Indian Constitution expresses the will of the many rather than the needs of the few.

The Constitution of India lays down a set of rules to which the ordinary laws of the country must conform. It provides a framework for a democratic and parliamentary form of government. The Constitution also includes a list of Fundamental Rights and Directive Principles, the first, a guarantee against encroachments by the state and the second, a set of directives to the state to introduce reforms to make those rights effective.

Though the decision to give India a parliamentary system was not taken without serious debate, yet the alternative—of panchayat-based indirect elections and decentralized government—did not have widespread support. Espoused by some Gandhians, notably Shriman Narayan, this alternative was discarded decisively in favour of a centralized parliamentary constitution.

The intellectual or emotional commitment of many members to socialism also confirmed the conviction about parliamentary government. What most members desired ‘was not that socialism be embodied in the Constitution, but that a democratic constitution with a socialist bias be
framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded.’
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The Congress had demanded adult suffrage since the twenties. It was hardly likely to hesitate now that it had the opportunity to realize its dreams. A few voices advocated confining of adult suffrage to elections to the panchayats at the village level, and then indirect elections to higher level bodies, but the overwhelming consensus was in favour of direct elections by adult suffrage—not a small achievement in a Brahmanical, upper-caste dominated, male-oriented, elitist, largely illiterate, society!

Alladi Krishnaswami Ayyar, a foremost constitutional expert, who played a crucial role in the framing of the Constitution, said:
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The Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule . . . The only alternative to adult suffrage was some kind of indirect election based upon village community or local bodies . . . That was not found feasible.

Austin has called direct election by adult suffrage the ‘gong, the single note, whose reverberations might awaken—or at least stir—sleeping India.’
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A very perceptive observation was also made by K.M. Panikkar who said that ‘adult suffrage has social implications far beyond its political significance . . . Many social groups previously unaware of their strength and barely touched by the political changes that had taken place, suddenly realized that they were in a position to wield power. ’
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The impact of adult suffrage is even now being felt, as new groups at the lower end of the social hierarchy learn to experiment with different political parties and candidates for securing their felt needs. The beauty of adult suffrage is that it forces the most elitist of candidates to seek the favour of the vote of the humblest voter.

The extent of the leap made by the Constitution can be fathomed only if it is recalled that till the end of British rule, ‘the franchise was restricted by property, educational, and other qualifications to approximately 15 per cent of the country’s population.’
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The basic philosophy of the Constitution, its moving spirit, is to be found in the Preamble. The Preamble itself was based on the Objectives Resolution drafted by Nehru and introduced in the Assembly in its first session on 13 December 1946 and adopted on 22 January 1947. The Preamble states that the people of India in the Constituent Assembly made a solemn resolve to secure to all citizens, ‘Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity; and to promote among them all, Fraternity assuring the dignity of the individual and the unity of the nation.’ It has been pointed out that the priority given to the concept of justice as compared to liberty, equality, fraternity, and to social and economic as compared to political justice, was deliberate. The order of the words indicate that the concept of social and economic justice was perhaps considered ‘the most fundamental norm’ of the Constitution of India.
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The core of the commitment to the social revolution lies in parts Ill and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution.
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While Fundamental Rights are justiciable and Directive Principles are not, the latter are no less important for that reason. The Universal Declaration of Human Rights also contains two sets of rights, the traditional civil and political rights and the new economic and social rights. In the Indian Constitution, the first kind is included under Fundamental Rights and the second under Directive Principles. The reason for the distinction between the two is very simply that while the state could straightaway guarantee political and civil liberties contained under ‘Fundamental Rights’, it could only secure economic and social justice over a period of time as the economy developed and social change took place. The latter set of rights could not therefore be made justiciable, i.e., a citizen could not go to a court of law in case of denial. But nonetheless, the state was enjoined upon to do its utmost to apply these precepts when making laws. By this process, rights contained in the Directive Principles could become justiciable as and when they were incorporated into laws.

The decision to have written rights, a list of rights, a declaration of rights in the Constitution marked a sharp break with British constitutional tradition and practice. The British had consistently rejected Indian demands for a list of rights. Indians, on the other hand, because of their colonial experience, had developed a healthy suspicion of government and preferred rights to be written down. Their preference was in keeping with international trends as well. Following the suppression of human rights in Germany, Soviet Union, and other places, the Atlantic Charter, and the United Nations Charter had been drawn up and the United Nations Human Rights Commission established.

The inclusion of fundamental rights in the Constitution was imperative also because the first Constitution of India Bill framed in 1895 had contained this concept in embryo, and it had figured prominently in the Motilal Nehru Report of 1928. Further, it not only represented ‘advanced democratic thought’ but was also ‘a convenient way of setting at rest the fears of minorities.’
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Stung by the British claim that they had stayed on in India to protect the minorities who would otherwise be suppressed by
the majority, the Congress was determined to show how patently false was this assertion. As Patel said:
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It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested than us in India, in the protection of our minorities. Our mission is to satisfy every one of them . . .

At no point did the Assembly doubt the need for fundamental rights. The only question was, how to distinguish between those rights that could be granted immediately, such as political rights, and those that should be there as ideals to be reached and could be granted only over time, such as social and economic rights. The solution was found by borrowing a concept from the Irish Constitution and encoding the socioeconomic rights as ‘Directive Principles of State Policy’. These were made non-justiciable. The possibility of creating two kinds of rights, justiciable and nonjusticiable, was suggested by the Sapru Report of 1945 (though not in the context of positive and negative rights) and the idea was possibly taken from there.

The Fundamental Rights are divided into seven parts: the right of equality, the right of freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, the right to property and the right to constitutional remedies. These rights, which are incorporated in Articles 12 to 35 of the Constitution, primarily protect individuals and minority groups from arbitrary state action. But three of the articles protect the individual against the action of other private citizens: Article 17 abolishes untouchability, Article 15(2) says that no citizen shall suffer any disability in the use of shops, restaurants, wells, roads, and other public places on account of his religion, race, caste, sex, or place of birth; and Article 23 prohibits forced labour, which, though it was also extracted by the colonial state and the princely states, was more commonly a characteristic of the exploitation by big, semi-feudal landlords. These rights of citizens had to be protected by the state from encroachment by other citizens. Thus, the state had to not only avoid encroaching on the citizen’s liberties, it had to ensure that other citizens did not do so either. A citizen whose fundamental right has been infringed or abridged could apply to the Supreme Court or High Court for relief and this right cannot be suspended except in case of declaration of Emergency. The courts have the right to decide whether these rights have indeed been infringed and to employ effective remedies including issuing of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.