Critical Questions Around the Constitution
Benegal Narsing Rau, the visionary author of the First Draft: On 29 August 1947, a fortnight after the Independence was ushered in, the Constituent Assembly formed a Drafting Committee. BN Rau, a Kannadiga, was an administrator, jurist, diplomat, statesman, and Constitutional advisor. The Constitution Drafting Committee was advised to discuss and finalise the rough draft before presenting it to the Constituent Assembly. BN Rau did his best to put the draft before the committee in time. “The credit given to me does not belong to me. It belongs partly to Sir BN Rau, the Constitutional Adviser to the Constituent Assembly, who prepared a rough draft of the Constitution for the consideration of the Drafting Committee,” said Ambedkar on November 25, 1949.
Dr BR Ambedkar, the architect of the Constitution: It is incorrect to say that Ambedkar has not just authored the Constitution. It is more than him; he is the father of our Constitution, its architect. He holds more prestige than the collective authorship. The Constituent Assembly and the Parliament are not the same. A Constituent Assembly was formed to draft and finalise the Constitution. After that, it disbanded. The Parliament is the Legislative wing of the state that makes laws as directed by the Constitution. Rajendra Prasad, a lawyer at the Calcutta High Court and the first President of the Indian Republic, presided over the Constituent Assembly. When he became the President, he was independent and did not belong to any party.
Constructing a team: Representatives who won the elections would be the members of the Constituent Assembly. But, Bombay did not elect Ambedkar. He became a member of Bengal with the support of the Muslim League. He announced entering the Constituent Assembly to achieve rights for Dalits and minorities. But after the partition, his constituency went to Pakistan. Rajendra Prasad wrote a letter to BN Kher, the Prime Minister of Bombay (before Independence, provinces had their own Prime Ministers), asking him to get Ambedkar elected from Bombay. MR Jayakar was requested to resign. Rajendra Prasad saw to it that Ambedkar won from Bombay. Ambedkar was highly educated and immensely knowledgeable both in law and economics. He studied various systems of governance. So, Rajendra Prasad suggested that Ambedkar be on the Drafting Committee. Alladi Krishna Swamy Iyer, N Gopala Swamy Iyengar, KM Munshi, Mahammed Sadulla, BL Mitter (as he fell ill and resigned, N Madhava Rao took his place), DP Khaitan (after his demise in 1948, TT Krishnamacharya became a member) were the other members. At the end of August 1947, the drafting committee elected Ambedkar as its Chairman.
Heavy Burden on Ambedkar: Gopala Swamy Iyengar was occupied with state administration affairs. Sadulla and Madhava Rao could not adjust to Delhi’s climate. Rau was well-versed in administrative, legal, and constitutional matters and the Constitutions of various countries. Rau took the Government of India Act of 1935 as the basis. The Constitutional Advisor prepared and presented a draft constitution before the Drafting Committee. Later, he played a crucial role in remaking the principles in the first draft. As he was abroad during that period, he was also unavailable. The role of the rest of the committee members was minimal. So, Ambedkar had to shoulder the maximum responsibility in refining the first draft before the Constituent Assembly. Ambedkar fulfilled the task and became the father of the Constitution.
Some other committees, too, cooperated. Nehru headed the Union Power Committee and the Constitution Committee, Patel headed the Provincial Constitution Committee, and Kripalani led the Fundamental Rights Sub-Committee. These and the rest of the sub-committees distributed the work. The detailed paper submitted by Ambedkar to the Fundamental Rights Committee was pivotal. After deep discussions, 7,635 amendments were brought up in the Constituent Assembly. Among those, 2,473 amendments were adopted after thorough discussion. The rest were discussed and discarded. The debates ran on every word, with discussions on each sentence. Ambedkar replied to all objections, clarifying innumerable doubts. BN Rau’s Draft Constitution had 243 Articles and 13 Schedules, and the Draft Committee, under the Chairmanship of Dr Ambedkar, after several rounds of discussions, finalised the Draft Constitution with 395 Articles and eight Schedules.
A critique against the draft men: The first copy of the Constitution was read out in the Constitution Assembly on November 4, 1948. Naziruddin Ahmed was a bitter critique of the Draft Constitution. He mocked the Drafting Committee, calling it a ‘drifting committee’, as it took an unusually long time. He slammed the first draft for repetitions and pointed out even grammatical errors in the draft. He also accused the committee of not being transparent and that some amendments were carried out without the ratification of the Assembly. It was just a figment of his imagination, not a fact. Naziruddin Ahmed was not alone in playing the role of a perpetual critique. There was a chorus of criticisms by K Santhanam (Madras), RR Diwakar (Bombay), and Moulana Hasrat Mohani (United Provinces). They alleged that the Drafting Committee illegally assumed the role of the Constitution Committee. Diwakar lambasted the chairman of the Drafting Committee for reviewing the resolutions of the Constitution Assembly; in some places, he gave them a new meaning. Mohani took chairman Ambedkar to task, alleging that the chairman transgressed the objective resolutions of the Assembly and that the proposed new resolution (Preamble) reflected his yearnings. That resolution became the Preamble of the new Constitution.
Sculpting the Preamble
After confirming that Ambedkar is the architect, who is the author of the critical document: the Preamble? This is a controversial question that has no easy answer. What we have in the records are the debates on the Articles, proposed amendments, discussions on the amendments, and the changes as ratified by the Assembly. But we have no record of the informal consultations or tete-e-tete confabulations before giving a final shape to the Constitution. The details of the deliberations or the path of the discourse before finalising the Preamble are unavailable to us. Not only were the details of the exchanges within the Drafting Committee unavailable to us but also to the Constituent Assembly members.
Nehru or Ambedkar? One of the important questions an UPSC aspirant is asked is ‘who wrote the Preamble of the Constitution?’ Without blinking an eyelid, they give their answer as Nehru. Nehru proposed the resolution on the Preamble, which the Constituent Assembly passed. In this regard, the absence of the details of the deliberations in the Constituent Assembly had been criticised by Mohani and other bitter opponents of Ambedkar. In this context, some people credit BN Rau, the Constitutional Advisor, for making the first draft a basis for the Draft Committee. It is indisputable that BN Rau was the creator of the first draft. Ambedkar had spoken about that in the Constituent Assembly too. However, it is not correct to attribute the authorship to BN Rau. It is an indisputable fact that Ambedkar sculpted the Constitution after meticulously going into the members’ responses in the discussions and framed the sentences in the Articles of the Constitution by their collective wisdom. It is important to note that skeptics would create disputes, even if there were none. Many times, all the members did not attend the meetings. Only four members participated in the Drafting Committee meetings when the discussions were scheduled to discuss the Preamble. Ambedkar was the only person who attended all the meetings without missing a single day of its sessions. One conclusion is that it is only Ambedkar who deserves the credit for drafting the Preamble. True, there are similarities between the Constitution and the Preamble. But there are differences, too. Writing and making are not the same. We need to distinguish the nuanced differences. Even if we say that Ambedkar was the prime maker of the Constitution, it does not mean that he authored every part of the Constitution.
The speech by Ambedkar after the writing the Constitution was finished and the speech given by Nehru in Lok Sabha on December 6, 1956 (the day Ambedkar passed away), substantiates the understanding that Ambedkar was the chief architect of the Constitution. “It is said that Ambedkar is one of the makers of the Constitution. But there is no other person who did arduous work and showed utmost diligence in the making of the Constitution,” said Nehru. Ambedkar spoke in the Assembly about how he shouldn’t be given the sole credit for making the Constitution. He further stated that several others in the Drafting Committee and the Constituent Assembly also contributed considerably. Among the mélange of various debates surrounding the making of the Constitution, the intriguing question about the authorship of the Preamble went into the backburner. Akash Singh Rathode named his book Ambedkar’s Preamble: A Secret History of the Constitution of India.
The Constitution is not a mere book authored by any single person. It is a tower sculpted by an outstanding person like Ambedkar. Along with Constitutional principles, Constitutional traditions are followed, and they become part of the Constitutional jurisprudence. The five senior judges forming into a collegium is a tradition—similar to establishing constitutional benches. Pandits say that the Basic Structure Doctrine prevents a majoritarian-driven assault on the Constitution’s foundational principles. Once, former Home Minister P Chidambaram spoke of three crucial persons. 1. Vice President and Chairman of the Rajya Sabha (b. 1951) 2. Speaker of the Lok Sabha, Om Birla (b.1962), 3. Kiran Rijiju, (former) Union Law Minister (b.1971). They were all born after the Constitution came into effect. The apex court declared that Parliament has no power to alter the basic structure of the Constitution. The Supreme Court unmistakably gave contours that fall under the basic structure. Federal structure, secularism, independent Judiciary, etc., are the fundamental features of the Constitution. The independence of the Judiciary is strengthened, not by rules, but by traditions. The establishment of a collegium is part of that. In that context, some said that two people–the PM and the Law Minister–decide who should sit in the top court is incorrect.
Independent judiciary is paramount
The Supreme Court struck down the 99th Constitutional Amendment and the NJAC Act in 2015. But the elders, MPs in Rajya Sabha, were not accepting it, albeit, indirectly. They want that decision to be nullified differently. A senior advocate, Chidambaram, speaks frankly: “I think Dhankar, Birla, and Rijiju must have read the country’s history between 1966-77. Dhankar mixed up two aspects. Would any or every aspect of the Indian Constitution come under the powers of Parliament to amend? If amended, whether such an amendment could come under SC’s power of judicial review is one aspect to be considered. Another aspect is whether the SC’s judgment, striking down the 99th Amendment to the Constitution and the NJAC Act, has transgressed its powers.” Chidambaram argued: “There could be scope for an opinion that the SC judgment in Kesavanada Bharati judgment is correct, but the SC erred in striking down the NJAC Act of 2015. Many legal scholars are thinking along these lines.” Further, he said: “Let us agree that the Parliament has absolute powers to bring any legislation or any amendment to the Constitution and can override the Judiciary. What would happen? I will raise some questions. Would you agree that a state should be divided into many union territories like it did in Jammu and Kashmir? Will you accept if the fundamental rights of freedom of speech, freedom of living anywhere in the country, and freedom of professing any occupation or business are abrogated? Do you agree with the legislation if it violates equality between genders, if there is discrimination in the governance between Hindus and Muslims? Can we concede if rights are denied to the LGBT community?”
His question is “Can we concur with those legislations that throttle the guarantees given to minorities – Muslims, Christians, Sikhs, Parsees, Jains, Buddhists, and others? Will you consent to that law that bestows all the powers to make legislation only to the Parliament by denuding the states’ powers to create legislation under the state list? Can we be on the same page with the government that tries to bring a law forcing all Indians to learn a particular language? Do you accept the law that presumes every accused is guilty of the crime until proven innocent? Parliament will not make such laws. Even if it does, they can be nullified by the judiciary. The judiciary has that right.” The power of Judicial review of the Legislation does not accept the principle of ‘Parliament is sovereign and judiciary should be under restraint’.
Another principle is that the independent judiciary is paramount for any democracy, and needs to be saved. Of late, many ministers have been openly discussing sweeping changes that could fundamentally affect the Constitution. Supreme Court reiterated, umpteen times, that the basic structure of the Constitution cannot be tinkered with. The SC, in its wisdom, struck down the 99th Constitutional Amendment and NJAC while defending the independence of the judiciary. We all need to protect the judgment to prevent attacks on the basic structure of the Constitution.
The executive wants to reverse the decision in the NJAC case, which many constitutional benches have consistently upheld. Instead of the collegium, only three elders – the CJI, the PM, and the Law Minister would decide the top court judiciary. Will the independence of the judiciary be intact if the government’s efforts succeed?
The Preamble is our National Anthem
Our Preamble of the Constitution reads and sounds like a National Anthem. Rabindranath Tagore’s Jana Gana Mana is a patriotic song, undoubtedly. The Preamble is not a song but a pledge, a statement, a lesson, and a promise to fulfil the nation’s tasks. We need to remember key concepts every minute to not slip into the opposite pole of democracy. It is a directive that guides our governance. It is a writ ordained by the ‘we the sovereign people’. It is a dictum that can never be defied. It is sad, but those who must protect, prevent heresy, and have to read and understand its depth have forgotten.
When Preamble a Crime? Rulers are furious for reading this Preamble before people. Police charged their canes. Chandrasekhar Azad was slapped with criminal cases for reading the Preamble and criticising the Citizenship Amendment Act in 2020. Rulers feel that they are demigods. Getting bail is becoming Ram Bharosa (the will of god). UAPA is rampantly used so that the arrested can languish in jail without bail. At last, Kamini Lau, the Additional Sessions judge, gave bail to Chandrasekhar Azad. She asked the public prosecutor these questions in the court: “Have you read the Constitution? Who says you cannot protest?”
The Preamble introduces the Constitution. It enunciated the objectives of the Constitution, its quintessential principles, and the underlying philosophy of the Constitution. He got bail when the court said Chandrasekhar Azad could not be arrested for reading the Preamble. After his release, he re-read the Preamble, of course, amid people’s thunderous applause! The reading of the Preamble has become the torch in the hands of the protesters when the protectors of the Constitution become predators. Ironically, after a few months, the government directed the citizens to read the Preamble on November 26, 2023, on Constitutional Day.
The Soul and Identity Card of the Constitution, that is, the Preamble of the Constitution.
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR 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 and integrity of the Nation;
In our Constituent Assembly this twenty-sixth day of November 1949, do hereby adopt, enact, and give to ourselves this Constitution.
Initially, we described India as a Sovereign Democratic Republic, but after the 42nd amendment of the Constitution, India became a Sovereign, Socialist, Secular Democratic Republic.
Constitution as a social document; attempts to relegate the Preamble as an Appendix: The Preamble in the American Constitution was once critical to the American Declaration of Independence. Our Preamble resembles it. Justice Hidayataullah, in Sankari Prasad’s case (1952), said that ‘it is more than a declaration, it is the soul of the Constitution’. He also said that the ‘Preamble is the identity card of the constitution’. A controversy arose about whether the Preamble is part of the Constitution or an Appendix. After prolonged arguments considering the question in detail, the Bench in the Keshavananda Bharati case held that the Preamble was part of the Constitution. The attempts to relegate the Preamble to a petty script ended.
Preamble, the social contract: While the Constitution is a social document, the Preamble is a social contract. We must determinedly protect these values enshrined in the Preamble. We must pledge to make the citizen, a free person, a conscious being, a rational human. Citizens must be brought out from the redundant and reactionary frameworks of caste and religion. However, regrettably, the voters are appealed on caste and religious lines. Money power is showing its monstrous prowess in deciding the elections. Vote has become a commodity. They are sold and purchased. Allurements like the distribution of alcohol have become the order of the day. Even after 75 years of independence, social development and democratic values are abysmal. Past is glorified. Pristine culture is eulogised uncritically. Ancient culture is extolled, manufacturing myths into a reality. Spreading hatred has become a new mission for the rulers.
‘Union’ of Diverse Cultures: India is the ‘union’ of diverse cultures, religions and languages but not a ‘centre’ for hatred: the political class spreading the hate must be taught the fundamentals of the Constitution. The first lesson would be: India is a ‘union of diversity but not a centre for belching bigotry.’ Constitution never sported the term ‘Centre.’ According to the Constitution, the Union is the national government that rules from Delhi. Union means living together in harmony. At a time when spreading hatred has become the dharma of the land, lynching has become a weapon in the lawless mobs, disinformation rules the social media roost, and distortions of history have become the official edicts, we all need to emphasise that the Constitution in spirit and letter taught us that country is the Union. The language of the political leaders has gone through a sea change. The diction they use is no different from that of the foul-mouthed criminals. They are employing the lexicon of spite from the podiums. Those who weaponise hatred are traitors. They deserve their place in prisons and not as political leaders addressing the public. Sad, but true.
Centre, A myth? In ordinary parlance, even in the media, the word ‘centre’ denotes the Union government in Delhi. NT Rama Rao, the founder of the Telugu Desam Party, used to say that the Centre is a myth. If there were no states, where is the country, he argued? Combine all the borders of the states; it is India, he used to say. Which is greater? Centre or the States? Everyone has a ready answer: The Centre. Why? Is it because the Centre has enormous powers? Or is it because it has more financial power? If a PM and CM are elected, why should the PM be seen as superior to a CM? To quote George Orwell from his book Animal Farm ‘all animals are equal, but some are more equal.’ Similarly, the Centre is just not primus inter pares, not first among the equals, but is interpreted as unimaginably more equal than the rest. Defence, external affairs, and communications are all controlled by the Centre, as per the list mentioned in the Union list in the Seventh Schedule. States have no role in these sectors.
India or Bharat, Approved! Our Constitution begins with India, that is, Bharat. And India remains the Union of States. One basis while forming states was language. But later, it was abandoned. Hindi is spoken in five to six states. Likewise, there could be two Telugu states, which were the reasons for the formation of the Telangana State. A PIL was filed in 2016 to direct the Union government to call India Bharat only. TS Thakur dismissed the petition, saying that people have the choice of calling India or Bharat, according to their choice. He stated categorically that the apex court has no arbitrary power to decide a single name for the country.
We a Mature Republic?
India is entering the 75th year of Republic formation. The government wants us to believe that we have entered Amrit Kaal. It is time for us to seriously wonder if we live in a mature republic ripened with seven and half decades of experience. Or are we far away from the quintessential freedoms guaranteed in the Constitution? The truth is, the patriotism of yesteryears has metamorphosed into vulgarised forms of bigotry.
It appears that the Indian Constitution is intact. But there is no faint whisper about the Directive Principles of State Policy. The quality of debates in the Parliament is at its nadir. The role of opposition is ignored in the Legislative process. Bills are manufactured into Acts with incredible speed. There is an Orwellian snooping with massive surveillance by the imported Pegasus. Ironically, this happened when the SC upheld privacy as a fundamental right.
Criminals roam freely and innocents are guilty: While the perpetrators of sexual assaults are roaming free in the temples of democracy, the victims are fighting losing battles in the streets. The CJI who faced sexual harassment, the victim and her family were snooped under Pegasus, and her relatives were harassed. Justice was promoted to the legislature to strengthen the executive.
A British judge once felt ashamed to sentence Gandhi in a case of sedition. But our government has no shame in slapping fake sedition cases against our people. Perhaps the British, who long ago, did away with sedition in their country too, would be surprised to see how the Indian government is using the ‘colonial penal clauses’ against their citizens.
A thorough accounting of legislators’ details, wealth, and criminal histories is cared less for by anyone nowadays. More and more Brihbhushan Sharmas (Brij Bhushan, accused of sexual harassment by six women wrestlers) are entering Legislative bodies, and people have become nonchalant about these developments. Our Legislatures are mirrors of our times and crimes. Crime and politics have become intertwined. At one point in time, out of the 539 elected Lok Sabha members, 233 had crimes against them. While 174 were elected to the AP Assembly, 151 have criminal cases. In December 2023, the Telangana Assembly elected 119 MLAs, 73 of them had criminal cases before entering the portals of democracy. Those who haven’t committed a crime have only a 4.7 per cent chance of getting into any legislature. If the candidate had any crime history, his chances are brighter, with 15.7 per cent winning the seat. Shameful! No party has a policy not to distribute tickets to persons having some or other crime history. It seems the political parties are strictly following the right to equality under Article 14.
Speedy Trial – A perpetual travesty of justice: Time and again, the apex court emphasised the need for speedy justice. Justice delayed, justice denied had become a cliché, told ad nauseam. The government has become the biggest litigant, and courts are clogged with its cases. Long back, the top court unequivocally said that speedy justice is part of Article 21. Seventy-five years of Republic is yet to solve this basic problem of pacing up the justice system.
Now, the apex court wants to prioritise the criminal cases pending against the people’s representatives. There is no moral sense to any party that criminals should not get the tickets in the first place. Now, apex court wants to speed up their cases at the cost of the rest of the people. What a travesty! We hear about inordinate delays, where even divorce cases take three decades to conclude. A young lady was cheated on by her husband and she files for divorce. While the case is unduly delayed for decades, she would irrevocably lose an opportunity to remarry. The apex court wants us to believe that our super governance would collapse if the criminal cases on people’s representatives, who constitute nearly 43 per cent of the total legislature college, are not fast-tracked. So, the court guarantees the right to speedy trial only for this privileged class. It is like ending the lockdown by first opening up liquor shops. Damn with our rotten kind of preferences!
However, if – though it is a Himalayan big – under the strict supervision of the Supreme Court and the High Court, without allowing any transfer of the judge, and not letting the prosecution withdraw the cases, the trial brings all the evidence without any compromise, and if all the 233 people’s representatives in Lok Sabha get the conviction, who constituted little less than 50 per cent, wouldn’t a catastrophe strike our democracy? How will the Budget Sessions run? If proven guilty, an MP from the ruling party is asking in a PIL to ban the convicted member from power corridors for a lifetime. My God! What will happen to the political parties’ new breed of criminals aspiring for power? What occurs to the voters who got used to electing criminals?
My India! I shudder to think about the consequences if our political representatives in the legislatures are disembarked from their powerhouses after their conviction. Would such time come during the Amrit Kaal India where the Parliament and State Legislatures are free from criminals? Or is it just wishful thinking from a plebeian?
Prof M Sridhar Acharyulu,
Mahindra University,
Hyderabad
(The views and opinions expressed in the article are those of the author and do not reflect the official policy or position of SouthCheck.)
