Dispatch #15: Constitution Day Linkfest
On 26th November 1949, the Constituent Assembly adopted the Indian Constitution. Here are a few good articles on Indian Constitution and Dr Ambedkar
1) Why BR Ambedkar's three warnings in his last speech to the Constituent Assembly resonate even today?
“The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.
The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”
2) The charter of liberation:
In this brilliant piece, Pratap Bhanu Mehta writes, “But one of the tragedies of our age is that even practices of reading have devolved into simple declarations of partisanship or group identity. Whose side will a book take? Which quotation from which figure can be deployed as a bludgeon against opponents? Reading of political thought is no longer the refuge from the weaponisation of words, a place for hard won understanding. The men and women who shaped our republic were trying to imagine their way through an uncertain and complex world. They were fighting on many fronts. Some are often right on principles, but mistaken in particular historical judgments they make. Some measure particular men and situations with insight, omly to flounder on the principles at stake. Some, like Ambedkar, have the crystal clarity that comes not only from brilliance, but also from political marginality: he does not have to take someone’s side.”
3) Who wrote the Preamble to the Indian Constitution? That is one of the secrets this book probes:
Aakash Singh Rathore writes, “In what followed, the focus was different: the Preamble was sharply foregrounded and the rest of the Constitution was somewhat blurred. Ideally, a comprehensive book will appear one day utilising “deep focus”, with the Preamble and the body of the Constitution fully explored in all of their entangled richness with nothing blurred.
Until then, it will be valuable to amplify attention on the Preamble in particular, because the message of this truly wondrous and historic set of eighty-one words – both the immediately discernible message as well as the secretly encoded one – merits as wide a dissemination as possible. Stated succinctly, the Preamble trumpets our collective aspirations as a republic; indeed, it articulates the principles that precondition the possibility for our unity as a nation.”
4) In Ambedkar’s ‘Proposed Preamble’ to Indian Constitution, there was no ‘equality’ clause:
Aakash Singh Rathore, in another article on the Preamble writes, “The reason for the lack of an ‘equality’ clause in Dr Ambedkar’s ‘Proposed Preamble’ was the same as the one behind the economy of expression in the Preamble as it reads today. That is because both Dr Ambedkar’s 1947 Constitution from States and Minorities and the 1950 Constitution of India entailed extremely detailed and robust enumerations of the equalities guaranteed therein. Our Constitution—in the main articles beyond the Preamble—among several other guarantees, made illegal the state’s discrimination between citizens on the grounds of religion, race, caste, sex, or place of birth (Article 15); throws open all public spaces to all citizens equally (15[2]); abolishes untouchability (17); abolishes titles of honour (18); offers equality of opportunity in public employment (16); and, guarantees equality before the law and equal protection of the law, as justiciable rights (14). With all of these specific, justiciable rights appearing in the body of the Constitution, the Preamble was relieved of the burden of recounting them. It then only stated their essence in a sparse fashion.”
5) Fraternity- The Missing Link of India’s Democracy:
Harsh Mander in this great piece explains why fraternity is missing in India, “I feel convinced therefore that fraternity – bandhuta – is the most radical and important idea of our times, the necessary foundation to fight all the world’s injustices, hate and inequalities. A fine example of what bandhuta can accomplish in times of hate was offered in the last months of Mahatma Gandhi’s life, which were surely his finest hour. In these months, he cemented powerfully the foundations of India as a humane, inclusive, secular country. He showed us the possibilities of fraternity to imagine - and live – a different India.
Think of it. One million people had died in Hindu- Muslim riots, fourteen million people had been uprooted from their homelands, and a new country had been created amidst rivers of blood on the basis of religion. And yet he was willing to stand even alone, to affirm that India would be a country which belonged equally to all its people, regardless of their religious faith.
In the wake of the bloody communal killings in Noakhali, facing angry murderous mobs. He walked from home to home, reaching out to families who had lost their loved ones, offering them solace and kindness, and restoring peace. He was in Calcutta stemming the fires of communal hatred with his epic 40 day fast, far from the celebrations of India’s independence. Mountbatten went on record to say that what his 55,000 armed-soldiers could not accomplish in Punjab to restore peace, this one man realised with just the weapon of his frail body.
When he reached Delhi, he found it engulfed with the same fires of hatred. Muslims were being driven out of their homes by angry refugees from Pakistan, and mosques and dargahs converted into Hindu temples. His last fast was for the homes to be returned to their Muslim owners, and the mosques and dargahs to be restored to the community. On the fifth day of his fast, a lakh people came out on the streets in his support. Two weeks later, a man reared in ideologies of hate, took his life.
The Mahatma in these last months of his life, showed us the power of radical, fearless love. He also lit our way to a secular, just and kind India of the future, an India founded on iridescent bonds of fraternity.”
6) How to read the Constituent Assembly Debates?
Gautam Bhatia in this post shares tips how can we engage with the CADs. He writes, “The Committee proceedings are available in B. Shiva Rao’s six-volume edited collection titled The Framing of India’s Constitution: Select Documents. However, much like the Debates, the Select Documents cannot be read as self-contained volumes. This is because, as the Assembly drew on what was happening in Committee, the Committees discussed and revised the drafts that they received from the Assembly. A holistic understanding of the framing of India’s Constitution therefore depends on a (somewhat) careful exercise that involves reading together the debates and the committee proceedings. This process is equally important if you’re trying to trace the history of a particular clause or set of clauses. The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates – in Committee and in the Assembly – around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.
What follows is a brief guide to reading the Constituent Assembly Debates, taking the example of the Fundamental Rights chapter (the approach to other parts of the Constitution will be broadly similar).”
7) What did the Constituent Assembly say on the Uniform Civil Code?
This post by The Leaflet explains what the Constituent Assembly said about the UCC. The post explains, “The debate over the Uniform Civil Code in the Constituents Assembly was among the most heated.
In the Constituent Assembly, there was division on the issue of putting the Uniform Civil Code in the fundamental rights chapter. The matter was settled by a vote. By a majority of 5:4, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.
The positions in the assembly were divided into two camps.
On one side were members who wished to use the legal power and status of the Constitution to modify religious customs and advance secularisation and legal uniformity among all religious groups. KM Munshi, for example, called for the restriction of religion to the private sphere and the promotion of unity and societal integration based on civic national identity.
On the other end were those who believed that a constitution should reflect the spirit of the nation as it currently was and should not impose deep social and cultural changes. Kazi Syed Karimuddin and Maulana Hasrat Mohani wanted protection for the personal laws of the minorities.”
8) Why do our constitutional debates matter?
Vikram Raghavan writes, “First, the debates are a large reservoir of material about our founding. They reveal the nation’s highest ideals, common aspirations, and constitutional values. They help us retrace the roads taken along India’s republican journey, even as they shape and define our common political identity as citizens.
Second, the debates reveal a great deal about our founders. Those men and women had conflicting ideological beliefs and political allegiances. Yet, it was this team of rivals that founded a modern constitutional democracy over the Raj’s ruins. They did so under hardly propitious circumstances. Delhi was burning after Partition. Refugees streamed in. India fought a war with Pakistan. And Gandhi was assassinated. Undaunted by these events, the assembly pressed on.
Third, the debates can help resolve recurring controversies such as whether India ought to have a presidential rather than a parliamentary system. Or whether a collegium is necessary for judicial appointments. The debates can supply the form and content of the Constitution’s basic features, which lie beyond the reach of constitutional amendments.
Finally, as much as they shine a light on the past, the debates can help address present-day questions that the assembly neither faced nor foresaw. Take, for instance, the controversy over government restrictions on social media. Meeting in the late 1940s, assembly members could not have imagined a world with Twitter or Facebook. Yet, their passionate colloquies about the importance of free expression remain sobering admonitions to legislators and policymakers.”
9) Our ‘un-Indian’ Constitution:
Sujit Choudhary, Khosla and P B Mehta write, “The Indian constitutional project can be described in many ways. For its most prominent historian, Granville Austin, the project was about “social revolution". For others, it was a political project, an expression of the fact that the Indian people were finally sovereign and dedicating themselves to the universal values of liberty, equality, and fraternity. The project does, in some ways, further all these goals. But the backdrop of those substantive aims contains two meta-aims of the Constitution, as it were, that often go unremarked. When the Constitution was enacted, there was a self-conscious sense that in writing a text, India was finding a way to resolve major substantive debates and disputes over norms and values. The task of constitutionalism was a morality that transcended positions and disagreements on particular issues; indeed, its strength was that it gave a framework for having a common institutional life despite disagreements. The second aspect of constitutionalism was the ambition that while the Constitution would serve Indian needs, it would not be bound by any particular tradition. It would, rather, reflect and be in the service of a global conversation on law and values. In the debates over particular doctrines, it is easy to miss the distinctiveness of these two ambitions, and the way in which they have informed the practice of constitutionalism in India. In some ways, more than particular achievements, it is the institutionalisation of these practices, against the odds, that constitutes the greatest achievement and challenge of Indian constitutionalism.”
10) What is constitutional morality?
In Seminar, P B Mehta writes about Constitutional Morality. He writes, “THE phrase ‘constitutional morality’ has, of late, begun to be widely used. Yet the phrase rarely crops up in discussions around the Constituent Assembly. Of the three or four scattered uses of the phrase, only one reference has any intellectual significance. This is, of course, Ambedkar’s famous invocation of the phrase in his speech ‘The Draft Constitution’, delivered on 4 November 1948. In the context of defending the decision to include the structure of the administration in the Constitution, he quotes at great length the classicist, George Grote. The quotation is worth reproducing in full:
The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.1
What did Grote mean by ‘constitutional morality’? Ambedkar quotes Grote again:
By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.”
11) Beyond the social contract:
Rohit De writes, “The Indian constitutional compact, unlike its American counterpart to which it is often compared, was not centred on the question of protecting individual rights from the tyranny of the state, but rather sought to empower the state to bring about the sweeping social and economic changes that the Congress-led political struggle had aimed for. Rights were thus limited, for instance the right to liberty granted in the Constitution was subject to permissible restrictions ‘in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’4
Apart from general commitments to social and economic justice and reducing disparities of income, it also contained specific commitments to create a system of social security, enact a uniform civil code for all communities, redistribute wealth, prohibit intoxicating drinks and drugs, and even to ‘organize agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cows, calves other milch and draught cattle.’5 This agenda for modernization, industrialization and secularism led to a massive increase in the powers of the federal government. The Constitution empowered the state to create a ‘command economy’ through nationalization and regulation.”
12) Constitutional durability:
Sudhir Krishnaswamy writes about the ‘durability’ of Indian Constitution. He writes, “While on the face of it, it appears that the Constitution of India 1950 is neither too flexible nor too rigid in practice; it has been amended almost 100 times in 60 years. The flexibility of the Indian Constitution has often been criticized as being the bane of our constitutional system. Academic and political commentators often lament the incapacity of the government and the political class to govern in accordance with the constitution as being the primary motive for the frequency of amendment.
In the light of the evidence and argument in this comparative study of all modern constitutions, the flexibility of constitutional change may well be an important reason for the survival of the Indian Constitution. The attachment to an unchanging constitution appears to be a romantic, but essentially unfounded, aspiration that no enduring constitution is likely to satisfy. Moreover, the Indian experience suggests that political struggles find expression in the formal constitution amending process more readily than in the informal modes through which a constitution may be changed. However, the extent of flexibility embraced by a constitution has to be balanced by a need to preserve its normative character as a higher law that restrains temporary parliamentary majorities.
The evolution and practice of the basic structure doctrine in India responds to this normative concern to preserve the sanctity of the constitution as a higher law. In this part of the essay I examine the development and use of the basic structure doctrine in India and its effect on the flexibility of the constitution. The basic structure doctrine was developed by the Indian Supreme Court in Kesavananda v. State of Kerala (AIR 1973 SC 1461) where the court held that the constitutional amending power was subject to implied limitations – basic features of the constitution. There is a significant body of literature on the evolution and history of the doctrine (G. Austin 2003, M.K. Bhandari 1993) and some recent efforts to evaluate and justify the doctrine (S. Sen 2008, S. Krishnaswamy 2009). In this essay I will not revisit or assess this literature, or comprehensively survey the cases, but instead examine some aspects of the doctrine which offers useful insights into the relationship between flexibility and constitutional survival.”
13) The Indian Constitution, in numbers:
“Scholars attribute the Indian Constitution’s endurance to its design and the care with which it was crafted. Starting before independence in 1946, an elected constituent assembly of nearly 300 members spent four years debating and defining every aspect of the Constitution—from the idea of India itself to the finer intricacies of federalism. The final product reflected these lengthy deliberations. India’s Constitution is a 146,385-word tome, longer than most novels and comfortably longer than any other Constitution in the world, according to data from the Comparative Constitutions Project (CCP), an international non-profit database on global Constitutions.
In India, the choice between a parliamentary system and presidential system was debated by the constituent assembly. In his book, India After Gandhi: The History of the World’s Largest Democracy, historian Ramachandra Guha suggests that the framers believed that given its diversity, the country needed a strong government. They felt only a parliamentary system could provide this. So, based largely on the UK parliament, India adopted a system where the elected legislature is responsible for enacting laws, the executive serves as the administrative head of the government, and an independent judiciary is responsible for upholding laws.”
Prasar Bharati has compiled some brilliant archival videos that tell the story of the Indian Constitution.
