Tuesday, January 27, 2009

History behind the drafting of Constitution of India



WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN DEMOCRATIC REPUBLIC
and
to secure to all its 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.
This is the preamble of India's Constitution approved by the Constituent Assembly in November 26 1949 and came into effect as supreme law of the Nation on January 26 1950.
How this revolutionary and historical document came into being? Is it the legacy of our former rulers,the British?Is it a brain child of few wise men who shut themselves from the World to write a set of laws for the country?

Let us try to look back to understand how the Indian Constitution came into being.

The process of evolution of Constitution began much earlier than 1947.Its origin is closely related to India's struggle for Independence from British rule.
Way back in 1895 the leaders of India's freedom struggle [Annie Besant and Lokmanya Tilak]had put forward a document called Constitution of India Bill [also known as Home Rule Bill] which envisaged freedom of expression and equality before law. In February 1924 Motilal Nehru introduced and passed a resolution outlining the procedure for drafting and adopting a Constitution for India in the Central Legislative Assembly.
In 1927 Lord Birkenhead,the Secretary of State challenged Indian leaders 'to produce a Constitution which carries behind it a fair measure of general agreement among different sections'.

The Indian National Congress accepted the challenge and convened an All Parties Conference in 1928 which appointed a committee under the chairmanship of Motilal Nehru 'to determine the principles of Constitution for India'.
The Nehru Report submitted on 10th August 1928 was in effect an outline of a draft Constitution of India. It envisaged equal rights to men and women regardless of caste.class,religion or region,free elementary education,freedom of expression to all etc.The secular character of the State was listed as a fundamental right.

The revolutionary idea that framing of Constitution should be made by a Constituent assembly elected with widest possible franchise [not by a nominated body of legal experts] first propounded by M.N.Roy and Jawaharlal Nehru began to gain ground. Congress included it in the election manifesto for 1936-37 elections to provincial legislatures.

The British agreed to it only in 1945 after the end of second world war. As an election based on universal adult franchise will require lot of preparations and will take lot of time,[as till then such elections had never been held] Congress had to agree to the Cabinet Mission's scheme of the elected provincial assembly members electing the members of Constituent Assembly.
Congress won a huge majority of seats in the Constituent assembly. The Congress working committee made great effort to see the members form Scheduled Caste and Tribes,Women,Christians.Parsis and Anglo-Indians were among the Congress candidates.There was also an effort to bring in the best available talent what ever be the political affiliations.Thus 30 members who were elected on Congress ticket were not its members.
The Muslim League continued to oppose the Constituent Assembly raising the demand for a separate State.Even though it won a big majority of Muslim seats. it never took part in the deliberations of the Assembly.

The first session of the Constituent Assembly was held on December 9, 1946 and was attended by 207 members.Dr. Rajendra Prasad was elected as Chairman. The Assembly formed different sub committees dealing with different aspects of the Constitution.The most important Drafting Committee was under the Chairmanship of Dr.B.R.Ambedkar. After long and painstaking deliberations and several modifications lasting for 166 days in a period of about 3 years the Constituent Assembly approved the draft Constitution on November 26 1949. The longest written Constitution of the World became law on January 26 1950.

Indian Constitution have several unique features.It also have borrowed freely from many other Constitutions including that of USA, Ireland and Australia and also from the time tested conventions of British Parliament and the Govt of India act of 1935 enacted by the British.
Indian Constitutions 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 from of Government.

The Constitution provides a list of Fundamental Rights and Directive Principles.
Fundamental Rights are a guarantee against encroachments on the rights of citizens by the State or other citizens.If any of the rights are denied a citizen can approach the Courts.
This include Right to Equality,Right to Freedom,Right to practise Religion,Cultural and Educational Rights and Right to Property.

Directive Principles are directives to the State to introduce reforms to make those rights effective.
Let me try to explain various provisions of Indian Constitution in the words of Dr B.R.Ambedkar the principle architect as he addressed the Constituent Assembly.


When asked why India is a Union of States he said
"Some critics have taken objection to the description of India in Article 1 of the Draft Constitution as a Union of States. It is said that the correct phraseology should be a federation of States. The Drafting Committee wanted to make it clear that though India was to be a federation, The Federation is a Union because it is indestructible. The Americans had to wage a civil war to establish that the States have no right of secession and that their Federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute".

On the question of why Parliamentary system was opted Dr Ambedkar said
"The Presidential system of America is based upon the separation of the Executive and the Legislature. So that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognise this doctrine. The Ministers under the Indian Union are members of Parliament. Only members of Parliament can become Ministers. Ministers have the same rights as other members of Parliament, namely, that they can sit in Parliament, take part in debates and vote in its proceedings. Both systems of Government are of course democratic and the choice between the two is not very easy. A democratic executive must satisfy two conditions - (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree. You can have a system which can give you more stability but less responsibility or you can have a system which gives you more responsibility but less stability. The American and the Swiss systems give more stability but less responsibility. The British system on the other hand gives you more responsibility but less stability.The reason for this is obvious. The American Executive is a non-Parliamentary Executive which means that it is not dependent for its existence upon a majority in the Congress,while the British system is a Parliamentary Executive which means that it is dependent upon a majority in Parliament. Being a non-Parliamentary Executive, the Congress of the United States cannot dismiss the Executive. A Parliamentary Government must resign the moment it loses the confidence of a majority of the members of Parliament. Looking at it from the point of view of responsibility, a non-Parliamentary Executive being independent of parliament tends to be less responsible to the Legislature, while a Parliamentary Executive being more dependent upon a majority in Parliament become more responsible. The Parliamentary system differs from a non-Parliamentary system in as much as the former is more responsible than the latter but they also differ as to the time and agency for assessment of their responsibility. Under the non-Parliamentary system, such as the one that exists in U.S.A., the assessment of the responsibility of the Executive is periodic. It is done by the Electorate. In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses.Periodic assessment is done by the Electorate at the time of the election which may take place every five years or earlier. The Daily assessment of responsibility which is not available under the American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability."

Answering the question why the draft constitution do not reflect the ancient polity of India he said
"It is said that the new Constitution should have been drafted on the ancient Hindu model of a State and that instead of incorporating Western theories the new Constitution should have been raised and built upon village Panchayats and District Panchayats. There are others who have taken a more extreme view. They do not want any Central or Provincial Governments. They just want India to contain so many village Governments.
"I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and communalism should come forward as champions of the village.What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit."

When criticised about the safeguards for minorities he replied
"To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority.They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority.It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish."


About Directive Principles he said

"It is a novel feature in a Constitution framed for Parliamentary Democracy. These Directive Principles have also come up for criticism. It is said that they are only pious declarations. They have no binding force. This criticism is of course superfluous. The Constitution itself says so in so many words.
If it is said that the Directive Principle have no legal force behind them, I am prepared to admit it. But I am not prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law.
The Directive Principles are like the Instrument of Instructions which are issued to the Legislature and the Executive. Such a thing is to my mind to be welcomed. Wherever there is a grant of power in general terms for peace, order and good government, it is necessary that it should be accompanied by instructions regulating its exercise.
The Draft Constitution as framed only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power as has been done in some countries. Who should be in power is left to be determined by the people, as it must be,if the system is to satisfy the tests of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time. What great value these directive principles possess will be realized better when the forces of right contrive to capture power. "

About the strength of the Central Government
"Some critics have said that the Centre is too strong.Others have said that it must be made stronger. The Draft Constitution has struck a balance. However much you may deny powers to the Centre, it is difficult to prevent the Centre from becoming strong. Conditions in modern world are such that centralization of powers is inevitable. One has only to consider the growth of the Federal Government in theU.S.A. which, notwithstanding the very limited powers given to it by the Constitution, has out-grown its former self and has overshadowed and eclipsed the State Governments. This is due to modern conditions. The same conditions are sure to operate on the Government of India and nothing that one can do will help to prevent it from being strong. On the other hand, we must resist the tendency to make it stronger. It cannot chew more than it can digest. Its strength must be commensurate with its weight. It would be a folly to make it so strong that it may fall by its own weight. "

About Constitutional amendments Ambedkar said

'It is said that the provisions contained in the Draft make amendment difficult. It is proposed that the Constitution should be amendable by a simple majority at least for some years. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions. Compared to them those contained in the Draft Constitution will be found to be the simplest.The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum. The Powers of amendment are left with the Legislature Central and Provincial. It is only for amendments of specific matters - and they are only few - that the ratification of the State legislatures is required. All other Articles of the Constitution are left to be amended by Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House. It is difficult to conceive a simpler method of amending the Constitution. "

In his final Statement before moving the resolution to approve the Constitution Dr Ambedkar said

"The debates in the Assemblies give me courage to say that the Constitution as settled by the Drafting Committee is good enough to give this country a start with. I feel that it is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution,the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile. Sir, I move".

The Indian Constitution represent the basic principles of the Freedom movement, arguably the largest mass movement in World History.It has all its strengths and Dr Ambedkar and his team tried their best to rectify its weaknesses [like predominantly upper class, urban ,and basically hindu].

When we look back after 60 years we have to agree with its architect that it gave our country a good start and was strong enough to keep it together in war and peace. It is important to realise that at a time when most other institutions of Governance have suffered grave loss of legitimacy, the Constitution have continued to command respect. Its unambiguous commitment to a democratic,secular,equitable civil libertarian society will be the anchor of support on which India can confidently face the coming turbulent times.

20 comments:

  1. Thank You! This was informative!

    And I really appreciate the last part where you have included what Dr Ambedkar said in response to some questions I hear even today!!!

    Aren't we so lucky!!
    Despite everything wrong that is happening - and there is so much - I still feel this Constitution is an eternal silver lining, something I am forever grateful to.

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  2. Yes our constitution is truly special but then we Indians are truly unique. I think We are the citizens of the best country in the world.

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  3. Interesting and informative. :-)

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  4. Thats a lot of things I didnt know bout...

    Thanks !

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  5. Vally, best country in the world??? no but we have the potential to be one of the best if we could cut down all these fascist forces like those we saw in Manglore.

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  6. IHM,It was an amazing learning experience when I went thru the speeches made in the Constituent Assembly especially that of Dr Ambedkar.As he predicted things are going wrong because of faulty implementation of the provisions of the Constitution.

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  7. Shilpa,Hitchwriter,thank you for the comments

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  8. Very informative. Glad someone like you put this up..

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  9. am amazed at your commitment.

    i ffound the Q & A session very informative.

    what i have always felt abour our cnstitution:

    1.India would have been better off with the presidential system.it's the dependency of the executive for its survival upon a majority in the parliamemnt that has opened the door wide to the entry of corruption in our system. equally important-an assured stable govt. for 5 years will make governance more effective.

    2.'What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism?'
    this is where his views clashed with gandhi's.much can be said on both sides, but i am with gandhi - tho not all the way. decentralisation of certain functions but a strong centre would have been ideal.

    but yes. amazing. our constitution is a master piece which has factored in all the ground realities of a pluralistic society.

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  10. Pradeep,thank you for the comment.

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  11. Nimmy, oh thank you so much for the award.

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  12. KPJ, Thank you for the nice words.
    I feel Ambedkar and the Constituent Assembly was right in choosing Parliamentary System for such an ethno-linguistically diverse Country as ours. A Presidential System with an unresponsive executive might have resulted in disintegration of India, as it cannot fulfill the sub nationalist aspirations of different States. At the time of framing of the Constitution Indian Union was just a fragile concept. So they were more concerned about the Stability and integrity of the Country than stability of Government in Parliament.
    About Village republics Ambedkar was clearly ridiculing some of Gandhiji's ideas. By that time in History [1940s] I believe that Ambedkar's was the more rational and practical voice.

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  13. Any democracy should have its constitution approved by the people-- in the form of referendums.The Indian constitution was not put for a referendum.The basic tenet here is that democracy cannot be imposed.If it is not put for a referendum it falls short of adoption by free will.People have been saying that in the republican form of government /parliamentary system /westminster no referendums can be held. But before approving such a constitution was it not essential to put it for a public referendum? More and more people are thinking of power back to people even in republics in the form of referendums .As happened recently in N Deal.Otherwise citizens do not have any power in the democracy except to vote and then for another five years doing nothing

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  14. Anonymous,you have some valid points here.Even if there were many logistical problems for conducting a referendum at that point of history,it could have been done later.

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  15. I approve as a whole what an Anonymous has to say. I copy him here-Any democracy should have its constitution approved by the people-- in the form of referendums.The Indian constitution was not put for a referendum.The basic tenet here is that democracy cannot be imposed.If it is not put for a referendum it falls short of adoption by free will.People have been saying that in the republican form of government /parliamentary system /westminster no referendums can be held. But before approving such a constitution was it not essential to put it for a public referendum? More and more people are thinking of power back to people even in republics in the form of referendums .As happened recently in N Deal.Otherwise citizens do not have any power in the democracy except to vote and then for another five years doing nothing

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  16. highly informative. basically the constitution in it's preamble speaks everything...what the constitution is ! preamble is giving the basic idea about the constitution.preamble,,if is understood...than it shall be a good attempt again to go deeper in-side to the constitution of india.

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  17. Very very informative. Every indian should read this

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  18. Constituent assembly BY MONMOHAN DAS ON HIS VIEWS ON VILLAGES'""
    I beg to utter a few words of caution to all honourable
    friends who are so enthusiastic protagonists of the Village
    Panchayat System. Unless and until our village people are
    educated, unless and until they become politically conscious,
    unless they become conscious of their civic rights and
    responsibilities, and unless they become conscious of their
    rights and privileges, this Village Panchayat System will do more
    harm than good. I know that I am inviting serious harm upon
    myself when I say that the Village Panchayat System has been
    there and was there for centuries and centuries. How much has
    it contributed to the welfare of our country, how much has it
    contributed to our social, political and economic uplift? If this
    system is introduced before our village people are properly
    educated, then I think the local influential classes will absorb to
    themselves all the powers and privileges that will be given by the
    Panchayat System and they will utilise it for their selfish
    motives. This system will enable the village zamindars, the
    village talukdars, the mahajans and the money-lending classes
    to rob, to exploit the less cultured, the less educated, poorer
    classes of the villages.

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Comments are welcome especially if you do not think like me. But anonymous comments behind masks and those not relevant to the post are not encouraged.