The Honourable Dr. B.R. Ambedkar : Sir, looking back on the work of the Constituent Assembly it will now be two years, eleven months and seventeen days since it first met on the 9th of December 1946. During this period the Constituent Assembly has altogether held eleven sessions. Out of these eleven sessions the first six were spent in passing the Objectives Resolution and the consideration of the Reports of Committees on Fundamental Rights, on Union Constitution, on Union Powers, on Provincial Constitution, on Minorities and on the Scheduled Areas and Scheduled Tribes. The seventh, eighth, ninth, tenth and the eleventh sessions were devoted to the consideration of the Draft Constitution. These eleven sessions of the Constituent Assembly have consumed 165 days. Out of these, the Assembly spent 114 days for the consideration of the Draft Constitution.
Coming to the Drafting Committee, it was elected by the Constituent Assembly on 29th August 1947. It held its first meeting on 30th August. Since August 30th it sat for 141 days during which it was engaged in the preparation of the Draft Constitution. The Draft Constitution as prepared by the Constitutional Adviser as a text for the Draft Committee to work upon, consisted of 243 articles and 13 Schedules. The first Draft Constitution as presented by the Drafting Committee to the Constituent Assembly contained 315 articles and 8 Schedules. At the end of the consideration stage, the number of articles in the Draft Constitution increased to 386. In its final form, the Draft Constitution contains 395 articles and 8 Schedules. The total number of amendments to the Draft Constitution tabled was approximately 7,635. Of them, the total number of amendments actually moved in the House were 2,473.
I mention these facts because at one stage it was being said that the Assembly had taken too long a time to finish its work, that it was going on leisurely and wasting public money. It was said to be a case of Nero fiddling while Rome was burning. Is there any justification for this complaint? Let us note the time consumed by Constituent Assemblies in other countries appointed for framing their Constitutions. To take a few illustrations, the American Convention met on May 25th, 1787 and completed its work on September 17, 1787 i.e., within four months. The Constitutional Convention of Canada met on the 10th October 1864 and the Constitution was passed into law in March 1867 involving a period of two years and five months. The Australian Constitutional Convention assembled in March 1891 and the Constitution became law on the 9th July 1900, consuming a period of nine years. The South African Convention met in October, 1908 and the Constitution became law on the 20th September 1909 involving one year’s labour. It is true that we have taken more time than what the American or South African Conventions did. But we have not taken more time than the Canadian Convention and much less than the Australian Convention. In making comparisons on the basis of time consumed, two things must be remembered. One is that the Constitutions of America, Canada, South Africa and Australia are much smaller than ours. Our Constitution as I said contains 395 articles while the American has just seven articles, the first four of which are divided into sections which total up to 21, the Canadian has 147, Australian 128 and South African 153 sections. The second thing to be remembered is that the makers of the Constitutions of America, Canada, Australia and South Africa did not have to face the problem of amendments. They were passed as moved. On the other hand, this Constituent Assembly had to deal with as many as 2,473 amendments. Having regard to these facts the charge of dilatoriness seems to me quite unfounded and this Assembly may well congratulate itself for having accomplished so formidable a task in so short a time.
Turning to the quality of the work done by the Drafting Committee, Mr. Naziruddin Ahmed felt it his duty to condemn it outright. In his opinion, the work done by the Drafting Committee is not only not worthy of commendation, but is positively below par. Everybody has a right to have his opinion about the work done by the Drafting Committee and Mr. Naziruddin is welcome to have his own. Mr. Naziruddin Ahmed thinks he is a man of greater talents than any member of the Drafting Committee. The Drafting Committee would have welcomed him in their midst if the Assembly had thought him worthy of being appointed to it. If he had no place in the making of the Constitution it is certainly not the fault of the Drafting Committee.
Mr. Naziruddin Ahmed has coined a new name for the Drafting Committee evidently to show his contempt for it. He calls it a Drafting committee. Mr. Naziruddin must no doubt be pleased with his hit. But he evidently does not know that there is a difference between drift without mastery and drift with mastery. If the Drafting Committee was drifting, it was never without mastery over the situation. It was not merely angling with the off chance of catching a fish. It was searching in known waters to find the fish it was after. To be in search of something better is not the same as drifting. Although Mr. Naziruddin Ahmed did not mean it as a compliment to the Drafting committee. I take it as a compliment to the Drafting Committee. The Drafting Committee would have been guilty of gross dereliction of duty and of a false sense of dignity if it had not shown the honesty and the courage to withdraw the amendments which it thought faulty and substitute what it thought was better. If it is a mistake, I am glad the Drafting Committee did not fight shy of admitting such mistakes and coming forward to correct them.
I am glad to find that with the exception of a solitary member, there is a general consensus of appreciation from the members of the Constituent Assembly of the work done by the Drafting Committee. I am sure the Drafting Committee feels happy to find this spontaneous recognition of its labours expressed in such generous terms. As to the compliments that have been showered upon me both by the members of the Assembly as well as by my colleagues of the Drafting Committee I feel so overwhelmed that I cannot find adequate words to express fully my gratitude to them. I came into the Constituent Assembly with no greater aspiration than to safeguard the interests of he Scheduled Castes. I had not the remotest idea that I would be called upon to undertake more responsible functions. I was therefore greatly surprised when the Assembly elected me to the Drafting Committee. I was more than surprised when the Drafting Committee elected me to be its Chairman. There were in the Drafting Committee men bigger, better and more competent than myself such as my friend Sir Alladi Krishnaswami Ayyar. I am grateful to the Constituent Assembly and the Drafting Committee for reposing in me so much trust and confidence and to have chosen me as their instrument and given me this opportunity of serving the country. (Cheers)
The credit that is given to me does not really belong to me. It belongs partly to Sir B.N. Rau, the Constitutional Adviser to the Constituent Assembly who prepared a rough draft of the Constitution for the consideration of the Drafting Committee. A part of the credit must go to the members of the Drafting Committee who, as I have said, have sat for 141 days and without whose ingenuity of devise new formulae and capacity to tolerate and to accommodate different points of view, the task of framing the Constitution could not have come to so successful a conclusion. Much greater, share of the credit must go to Mr. S.N. Mukherjee, the Chief Draftsman of the Constitution. His ability to put the most intricate proposals in the simplest and clearest legal form can rarely be equalled, nor his capacity for hard work. He has been as acquisition tot he Assembly. Without his help, this Assembly would have taken many more years to finalise the Constitution. I must not omit to mention the members of the staff working under Mr. Mukherjee. For, I know how hard they have worked and how long they have toiled sometimes even beyond midnight. I want to thank them all for their effort and their co-operation.(Cheers)
The task of the Drafting Committee would have been a very difficult one if this Constituent Assembly has been merely a motley crowd, a tasseleted pavement without cement, a black stone here and a white stone there is which each member or each group was a law unto itself. There would have been nothing but chaos. This possibility of chaos was reduced to nil by the existence of the Congress Party inside the Assembly which brought into its proceedings a sense of order and discipline. It is because of the discipline of the Congress Party that the Drafting Committee was able to pilot the Constitution in the Assembly with the sure knowledge as to the fate of each article and each amendment. The Congress Party is, therefore, entitled to all the credit for the smooth sailing of the Draft Constitution in the Assembly.
The proceedings of this Constituent Assembly would have been very dull if all members had yielded to the rule of party discipline. Party discipline, in all its rigidity, would have converted this Assembly into a gathering of yes’ men. Fortunately, there were rebels. They were Mr. Kamath, Dr. P.S. Deshmukh, Mr. Sidhva, Prof. K.T. Shah and Pandit Hirday Nath Kunzru. The points they raised were mostly ideological. That I was not prepared to accept their suggestions, does not diminish the value of their suggestions nor lessen the service they have rendered to the Assembly in enlivening its proceedings. I am grateful to them. But for them, I would not have had the opportunity which I got for expounding the principles underlying the Constitution which was more important than the mere mechanical work of passing the Constitution.
Finally, I must thank you Mr. President for the way in which you have conducted the proceedings of this Assembly. The courtesy and the consideration which you have shown to the Members of the Assembly can never be forgotten by those who have taken part in the proceedings of this Assembly. There were occasions when the amendments of the Drafting Committee were sought to be barred on grounds purely technical in their nature. Those were very anxious moments for me. I am, therefore, specially grateful to you for not permitting legalism to defeat the work of Constitution-making.
As much defence as could be offered to the constitution has been offered by my friends Sir Alladi Krishnaswami Ayyar and Mr.. T.T. Krishnamachari. I shall not therefore enter into the merits of the Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However had a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.
The condemnation of the Constitution largely comes from two quarters, the Communist Party and the Socialist Party. Why do they condemn the Constitution? Is it because it is really a bad Constitution? I venture to say no’. The Communist Party want a Constitution based upon the principle of the Dictatorship of the Proletariat. They condemn the Constitution because it is based upon parliamentary democracy. The Socialists want two things. The first thing they want is that if they come in power, the Constitution must give them the freedom to nationalize or socialize all private property without payment of compensation. The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party fails to come into power, they would have the unfettered freedom not merely to criticize, but also to overthrow the State.
These are the main grounds on which the Constitution is being condemned. I do not say that the principle of parliamentary democracy is the only ideal form of political democracy. I do not say that the principle of no acquisition of private property without compensation is so sacrosanct that there can be no departure from it. I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted. What I do say is that the principles embodied in the Constitution are the views of the present generation or if you think this to be an over-statement, I say they are the views of the members of the Constituent Assembly. Why blame the Drafting Committee for embodying them in the Constitution? I say why blame even the Members of the Constituent Assembly? Jefferson, the great American statesman who played so great a part in the making of the American constitution, has expressed some very weighty views which makers of Constitution, can never afford to ignore. In one place he has said:-
“We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”
In another place, he has said :
“The idea that institutions established for the use of the national cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living;”
I admit that what Jefferson has said is not merely true, but is absolutely true. There can be no question about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to condemnation. But I ask, has it? Quite the contrary. One has only to examine the provision relating to the amendment of the Constitution. The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution as in Canada or by making the amendment of the Constitution subject tot he fulfilment of extraordinary terms and conditions as in America or Australia, but has provided a most facile procedure for amending the Constitution. I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has, in the circumstances in which this country finds itself, provided such a facile procedure for the amendment of the Constitution. If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even a two-thirds majority in the parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.
There is only one point of constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our constitution. There can be no mistake about it. It is, therefore, wrong to say that the States have been placed under the Centre. Centre cannot by its own will alter the boundary of that partition. Nor can the Judiciary. For as has been well said:
“Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another.”
The first charge of centralization defeating federalism must therefore fall.
The second charge is that the Centre has been given the power to override the States. This charge must be admitted. But before condemning the Constitution for containing such overriding powers, certain considerations must be borne in mind. The first is that these overriding powers do not form the normal feature of the constitution. Their use and operation are expressly confined to emergencies only. The second consideration is : Could we avoid giving overriding powers to the Centre when an emergency has arisen? Those who do not admit the justification for such overriding powers to the Centre even in an emergency, do not seem to have a clear idea of the problem which lies at the root of the matter. The problem is so clearly set out by a writer in that well-known magazine “The Round Table” in its issue of December 1935 that I offer no apology for quoting the following extract from it. Says the writer :
“Political systems are a complex of rights and duties resting ultimately on the question, to whom, or to what authority, does the citizen owe allegiance. In normal affairs the question is not present, for the law works smoothly, and a man, goes about his business obeying one authority in this set of matters and another authority in that. But in a moment of crisis, a conflict of claims may arise, and it is then apparent that ultimate allegiance cannot be divided. The issue of allegiance cannot be determined in the last resort by a juristic interpretation of statutes. The law must conform to the facts or so much the worse for the law. When all formalism is stripped away, the bare question is, what authority commands the residual loyalty of the citizen. Is it the Centre or the Constituent State ?”
The solution of this problem depends upon one’s answer to this question which is the crux of the problem. There can be no doubt that in the opinion of the vast majority of the people, the residual loyalty of the citizen in an emergency must be to the Centre and not to the Constituent States. For it is only the Centre which can work for a common end and for the general interests of the country as a whole. Herein lies the justification for giving to all Centre certain overriding powers to be used in an emergency. And after all what is the obligation imposed upon the Constituent States by these emergency powers? No more than this – that in an emergency, they should take into consideration alongside their own local interests, the opinions and interests of the nation as a whole. Only those who have not understood the problem, can complain against it.
Here I could have ended. But my mind is so full of the future of our country that I feel I ought to take this occasion to give expression to some of my reflections thereon. On 26th January 1950, India will be an independent country (Cheers). What would happen to her independence? Will she maintain her independence or will she lose it again? This is the first thought that comes to my mind. It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lost it a second time? It is this thought which makes me most anxious for the future. What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people. In the invasion of Sind by Mahommed-Bin-Kasim, the military commanders of King Dahar accepted bribes from the agents of Mahommed-Bin-Kasim and refused to fight on the side of their King. It was Jaichand who invited Mahommed Gohri to invade India and fight against Prithvi Raj and promised him the help of himself and the Solanki Kings. When Shivaji was fighting for the liberation of Hindus, the other Maratha noblemen and the Rajput Kings were fighting the battle on the side of Moghul Emperors. When the British were trying to destroy the Sikh Rulers, Gulab Singh, their principal commander sat silent and did not help to save the Sikh Kingdom. In 1857, when a large part of India had declared a war of independence against the British, the Sikhs stood and watched the event as silent spectators.
Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indian place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.(Cheers)
On the 26th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people. The same thought comes to my mind. What would happen to her democratic Constitution? Will she be able to maintain it or will she lost it again. This is the second thought that comes to my mind and makes me as anxious as the first.
It is not that India did not know what is Democracy. There was a time when India was studded with republics, and even where there were monarchies, they were either elected or limited. They were never absolute. It is not that India did not know Parliaments or Parliamentary Procedure. A study of the Buddhist Bhikshu Sanghas discloses that not only there were Parliaments-for the Sanghas were nothing but Parliaments – but the Sanghas knew and observed all the rules of Parliamentary Procedure known to modern times. They had rules regarding seating arrangements, rules regarding Motions, Resolutions, Quorum, Whip, Counting of Votes, Voting by Ballot, Censure Motion, Regularization, Res Judicata, etc. Although these rules of Parliamentary Procedure were applied by the Buddha to the meetings of the Sanghas, he must have borrowed them from the rules of the Political Assemblies functioning in the country in his time.
This democratic system India lost. Will she lost it a second time? I do not know. But it is quite possible in a country like India – where democracy from its long disuse must be regarded as something quite new – there is danger of democracy giving place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.
If we wish to maintain democracy not merely in form, but also in fact, what must we do? 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. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.
The second thing we are wanting in is recognition of the principle of fraternity. what does fraternity mean? Fraternity means a sense of common brotherhood of all Indians-if Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. How difficult it is, can be realized from the story related by James Bryce in his volume on American Commonwealth about the United States of America.
The story is- I propose to recount it in the words of Bryce himself- that-
“Some years ago the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people, and an eminent New England divine proposed the words `O Lord, bless our nation’. Accepted one afternoon, on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word nation’ as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words `O Lord, bless these United States.”
There was so little solidarity in the U.S.A. at the time when this incident occurred that the people of America did not think that they were a nation. If the people of the United States could not feel that they were a nation, how difficult it is for Indians to think that they are a nation. I remember the days when politically-minded Indians, resented the expression “the people of India”. They preferred the expression “the Indian nation.” I am of opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realize that we are not as yet a nation in the social and psychological sense of the world, the better for us. For then only we shall realize the necessity of becoming a nation and seriously think of ways and means of realizing the goal. The realization of this goal is going to be very difficult – far more difficult than it has been in the United States. The United States has no caste problem. In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity equality and liberty will be no deeper than coats of paint.
These are my reflections about the tasks that lie ahead of us. They may not be very pleasant to some. But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These down-trodden classes are tired of being governed. They are impatient to govern themselves. This urge for self-realization in the down-trodden classes must no be allowed to devolve into a class struggle or class war. It would lead to a division of the House. That would indeed be a day of disaster. For, as has been well said by Abraham Lincoln, a House divided against itself cannot stand very long. Therefore the sooner room is made for the realization of their aspiration, the better for the few, the better for the country, the better for the maintenance for its independence and the better for the continuance of its democratic structure. This can only be done by the establishment of equality and fraternity in all spheres of life. That is why I have laid so much stresses on them.
I do not wish to weary the House any further. Independence is no doubt a matter of joy. But let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of Government by the people. They are prepared to have Governments for the people and are indifferent whether it is Government of the people and by the people. If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better.
what’s a constitution
why should I care
how did it start
Running time: 29 mins (yikes?)
Hi! Welcome to Episode 1 of ‘Basic Structure’ – a friendly guide to the Indian Constitution.
Did you know the Indian Constitution is the longest written constitution in the world? Yep, as of today, it has 448 articles, 12 schedules, 5 appendices and its been amended 101 times!
Don’t you want to know why our Constitution is so long, what it contains? And why it matters to you? That’s the point of this podcast – we’ll read every line of the Constitution and talk about it! Are you ready?
In this episode, we’ll find out what a constitution is – how is it different from a law for example? Then I’ll move to to talk for a few minutes about why I think each of us should know the basics of the constitution. Lastly, we’ll discuss how the Constitution was written.
What is the Constitution?
The preface to the Constitution of India, which you can find on the Ministry of Law and Justice states: “Constitution is a living document, an instrument which makes the government system work.”
The Constitution is a rule-book for the country. It tells you what it means to be an Indian citizen, and what your rights and duties are, if you are a citizen here. It’s important to note here that the Constitution discusses how to deal with non-citizens, but we won’t discuss that point here.
Over and above this, the Constitution also is the rule book for how elections should be held, what the role of the Prime Minister, or the Cabinet is. What the President should do. What a court should do, etc.
Some of you may wonder, is the Constitution a law? What’s the difference between a law like say, the Income Tax Act, and the Constitution?
In a way, the Constitution is a law, but its a Supreme law, like the best of laws. All of the other laws have to follow the rules laid down in the COnstitution. To put it simply, say we are in a classroom setting, the Constitution is a teacher, the laws are class monitors, and the students are us – society.
So the teacher asks you to vote, and whoever wins the vote becomes the class monitor, the class monitors help enforce order in the class, but if the monitor bullies you, or you have a doubt about whether something can be done or not, you can check with the teacher.
So to give you an example: The Constitution will say you have a right to free speech – meaning you have the freedom to broadly say what you want, when you want, however you want. But, the Indian Penal Code, the IPC, will say, it’s an offence if you say something horrible. More specifically, Section 153(A) of the Indian penal code says if someone uses words to create any hatred between different communities, this person shall b punished and they may have to go to jail or pay a fine.
Now you could argue – hey wait a second, I have a right to free speech, but you’re saying if i cause hatred between communities you can jail me – how does that work?
It works in this fashion: The Constitution being the Supreme Law, sets out our rights, and the ways in which we can enjoy these rights. To ensure that our society functions properly, we need laws, and so our government which we elect, in elections every five years, passes certain laws. Now if a citizens feels that a particular law is restricting any right given under the Constitution, it can go to the court and say: Dear Judge, i think this law is restricting my right given to me by the Constitution – please check. Then, the judge will check and say: Oh yeah, this law is not a good law, and tell the Government, I’m disabling the law, you please pass a new one, or apply this law differently. And then its upto the Government to decide what to do.
This is one of the main functions of the Constitution – it sets down our rights, and checks against any abuse of our rights.
Another function of the Constitution is to put in place some rules for how our GOvernment functions – like for example, recently we had a Budget and the Finance Minister announced the Budget in Parliament right? Why did he do this? Why did he have to make a Budget? For that matter why do we have Parliament? All of these structures exist because our Constitution says you have to have them.
Makes sense? And through this podcast, I’ll read out all of these various parts of the Constitution, and hopefully we’ll be able to better understand the idea of India better.
Why does the Constitution matter?
I have this book in my library and it’s called ‘The Framing of India’s Constitution”, and in the preface the author talks about how there has been little concerted effort to disseminate constitutionalism and the nation’s values – and this to me, seems obvious in the events of the day.
Think of some of the questions that are discussed on television:
- Should we have a Uniform Civil Code?
- Can the Supreme Court ban Jallikattu?
- Should women be allowed to enter the Sabarimalai temple?
- Is reservation the best way to fix caste inequality in India? If yes, what about communities like the Patels and the Jats who are asking for reservation – how do we address these issues?
None of these have simple answers, yet in trying to resolve these questions, all of us will have to dig deep to figure out what kind of society we want to live in.
This is where the Constitution comes in.
The Constitution, or really any higher law, draws from philosophy to promotes ideals for how we should function, as a country, and as a society.
Not only is this seen in the way we are created, as a republic – but also in the words used to describe how the Indian people will be – words like justice, liberty, and equality don’t just mean that the State should treat us with fairness in all its actions, but that our conception of what justice is, is grounded in this framework that the Constitution provides. And without understanding what this type of justice looks like – why for example, does it place such emphasis on reservation or why it gave every single person the right to vote – without understanding what went into this indian conception of justice and liberty, it’s not productive to have debates on questions of public policy.
Just to be clear, I don’t think any of us comes to these questions from a position of complete ignorance, because I’m guessing most of you, like me, studied civics at some point and have a broad idea of … some constitutional rights, some governance.
But that’s not the point I’m making – I’m convinced that i) knowledge of the constitution helps non-experts articulate their demands better to politicians, and press for change meaningfully, and ii) knowledge of the constitution brings in nuance and sympathy to discussions facing our society today.
And this knowledge, it matters – it really matters actually – because the Constitution applies to every single act that you and I do as citizens. And we can change it. If we don’t like how a particular kind of justice is done, or how a particular group is treated, we can either say, look this law that hurts this group is against the Constitution, and we can change the effect of that law – or we can amend our Constitution to give this group the justice it deserves – its like magic! Really powerful magic.
In India, because our rights as individuals is codified, or written down in the Constitution – you and I can trace your ability to do, or not do something, to the Constitution first, and to society next. Can you think of a way in which we might want to give a certain group some justice? So think of something like homosexuality. Even if some parts of society disapprove of homosexuality – the most important thing is that the law and ultimately the Constitution gives individuals the right to love and be with anyone they choose, regardless of gender. If this legal protection is not there, then it doesn’t ultimately matter what your family thinks, or your friends think, you are never safe from the State. Scary right? We’ll discuss homosexuaity, and other issues in more detail when we discuss the Fundamental Rights in the upcoming episodes.
But you see the larger point I was trying to make? The wide-ranging effect that the State can have on you, makes it hard for you to ignore what the Constitution says and places your liberties at great peril if you do not constantly engage with questions that chip away at your rights in the interest of some hazy greater common good.
Voting is a great civic duty, but a knowledge of the Constitution keeps you safe in between elections – and we need more people than just a handful of lawyers and constitutional experts to weigh in on these matters – even these guys, maybe us guys, we come in with our own prejudices and biases on what justice should look like, and we speak for the vast majority of you, through our blogs and our tweets and our arguments in court. Are these the right arguments? I don’t know always, and I’m curious how the conversation would be different, if more people participated. Ultimately through the social contract, we are beholden to each other and our duty remains to be ever vigilant on behalf of each other – and for the good of each other.
And if you’ve ever felt like there is way too much confusion and fighting in society today, and you may not be able to pick the right side, or make the best argument, don’t worry. Doubts about how to move ahead as a society have always existed. In fact, the people who originally wrote, or as we drafted the Constitution – they too while writing it, were plagued by doubt and deep polarisation. Some issues that confused them included, the prohibition of alcohol, or reservation or whether we should give everyone the right to vote. They had some tough debates. These debates have actually been recorded, and they are called the Constituent Assembly Debates. I’ll keep referring to them as we move ahead, and you’ll start to understand why these Debates are so important in understanding the Constitution.
Now these members the people who drafted our constitution – didn’t just come together magically in one room to start. Elections were held in all of India, and elected representatives on the basis of a plan, had to come together to form an assembly, that could start discussing what a Constitution could look like. And this wasn’t without its unique challenges…
Lets talk about that in the next section!
This one’s a bit more technical? The various parts of the Constitution are called Articles, whereas the parts of a law, like the Indian Penal Code, are called Sections. Weird, right? If you’ve watched any movie with a police station scene or a courtroom scene, say in a murder or fraud case, you would have heard Section 300 of the IPC, or Section 420. In contrast, when you talk of the Right to Equality under the Constitution, you’ll hear it referred to as Article 14, not Section 14. So keep in mind as we discuss the Constitution, we will refer to its through Articles, and not Sections. There’s no legal rule or reason why this nomenclature is followed, it’s an example of a tradition that now enjoys universal use. Yeah weird.
How did it start
Today is the 4 of February, 2017, and a few days ago, India celebrated its 68th Republic Day! But turn the clock back, and imagine we are now in 1946.
For those of you not aware – the Constituent Assembly was a group of people elected from all across India, who came together to draft our Constitution.
Let’s spend some time talking about how the Constituent Assembly came into existence. In 1945, Lord Wavell, who was then the Viceroy (or Governor-General) of India, was tasked with presenting a structure for the independence and future government of India, in a manner which would be acceptable to both Congress and the Muslim League, which were the dominant political parties at this point. One key distinction was that instead of asking all the parties to nominate members to the Executive Council from all the communities, seats were reserved for members on the basis of religion and caste, and the plan apparently did not contain any guarantee of Indian independence or any mention of a future constituent assembly.
Now Lord Wavell invited the political leaders of the day to discuss the Plan at Simla on 25 June, 1945. Here, the Muslim League apparently insisted that only they had the right to appoint Muslims to the Executive Council, and the Congress could not nominate any Muslim member. I have not been as yet able to find multiple authoritative sources on this point, but whatever the reason, it is clear that the Congress and the Muslim League’s disagreements led to the Wavell Plan not being accepted.
Following the failure of the Simla Conference, the British government sent the Cabinet Mission to India in 1946 with the intention of formulating proposals for the formation of a government that would lead to an independent India.
During this time, elections were conducted in provincial legislative assemblies or what we would call State Legislatures today. It was these elected members who formed the Constituent Assembly, and from among these members were chosen the Interim Government of India – which was formally established on 2 September, 1946.
Or think of it this way: Say the Constituent Assembly is like a new startup. A bunch of people want to create something. They have to create it, but they have no details about what they actually want to create – just a broad idea. And they are not all necessarily friends or from the same college or whatever – they are a bunch of people who won some election, then they were all put in a room and told – ok now create this.
And not all of these startup founders shall we say, like each other. Some of them have legitimate grievances with each other. And they dont want to work together. And they want to walk out – but their VC funders are like – no way, you have to launch your product by this date, and it has to be a great and most important product and you can’t make a mistake because this could affect the lives and futures of millions of people.
So much pressure right? This was basically our Constituent Assembly. Now remember I told you the Assembly was made up of elected members from various parts of India right? Up until this point, there had been tremendous resistance from the Muslim League to accept some of these developments, to join the Assembly, and participate in the drafting. Some of you may also remember there was tension between the Muslim League, the Congress and the British Government on the Hindu-Muslim question, and on the issue of partition. At this time, there were also been riots and large scale violence, especially in Bengal, between Hindus and Muslims
After much discussion, the Viceroy convinced Mr. Mohammad Ali Jinnah to join Constituent Assembly. On October 26, 1946 , 5 Muslim League nominees took the oath to become a part of the Constituent Assembly.
The first step towards the drafting of the Constitution thus began in an atmosphere of communal clashes and uncertainty, and deep mistrust, and it was under these fraught circumstances that the Constituent Assembly met for the first time on the 9th of December, 1946.
Now on the 9th – 12th December, the Assembly discussed mundane matters of attendance, and rules for how the Committee would function, and a broad framework for how to move ahead with the drafting. Certain members of the Assembly, including the members of the Muslim League had not attended any of the sessions so far, and there was confusion about whether the House should move ahead with its work, and if so in what manner.
There was also some doubt about the ambit and depth of the Assembly – what could it actually do?
On Friday, the 13 of December 1946, Jawaharlal Nehru stood up to speak, and he said wanted to introduce a Resolution, and wanted all of the Constituent Assembly Members to vote on it: He said,
“Governments do not come into being by State Papers. Governments are, in fact the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole-shall wish us to go.”
“And I wish this House, if I may say so respectfully, should consider this Resolution not in a spirit of narrow legal wording, but rather to look at the spirit behind that Resolution. Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion.”
That’s a wondeful line no?
Words are magic things often enough? Its true right becuase we use words to write poeetry, create fuction, in a way create magic. And he says: ven the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. – wow. It must have been a very important Resolution for Nehru to have spoken in such a heartfelt manner about what he wanted everyone to consider. What was the resolution – what did it want to achieve? And why was it so important to Nehru that the Assembly adopt it? Tune in to the next episode, to find out!
Also in the next episode, we’ll talk briefly talk about the how Constituent Assembly went about drafting the Constitution – and then move on to examining something called the Preamble to the Constitution. The preamble is like a preface or an introduction to the Constitution, but it’s a very important part of the Constitution because the words in the Preamble – define how our country will be, somewhat like a list of ingredients in a recipe! I promise it’s going to be super interesting – so do join in!
Here’s our last Fun Fact for today – The room that the Constituent Assembly met in, was then called the the Constitution Hall and is now known as the Central Hall of Parliament. The Central Hall of Parliament is designed to be circular in shape. The dome is 98 ft. (29.87 metres) in diameter. At present, the Central Hall is used for holding Joint Sittings of the two Houses. The President of India addresses the Joint Sitting of both Houses, the Lok Sabha and the Rajya Sabha at the commencement of the first session of each year, including on this year in 20167. I’ve dug a photo of what the Hall looks like! Take a look!
You’ll find the text of the podcast, with all the references and links on my blog www.sowmya.co and general conversation on twitter at @basic_structure.
Let me know if you enjoyed this episode, and what else you’d have liked to hear. I’d also really appreciate your feedback on this podcast, as its my first time doing this – and I’m all ears for suggestions on how to make it better. You can also send me any questions you have – and I’ll try and answer them in the next episode.
Speaking of which: the next episode should be out next weekend – and I hope to have one podcast up a week – ambitious but that’s me!
P.s. I have to thank @nandu and @jimanish and @karthikb351 for listening to an early version of this podcast and giving me some great feedback (SPEAK SLOWLY). ❤ thanks!