However, the angst of the partition and the massive issue of resettlement pushed the way for a stronger central government. In fact, even in the US the government at the center had progressively taken more power since 1787.
Brajeshwar Prasad of Bihar spoke of the worry in many people's minds when he eloquently argued against federalism:
We accepted federalism in order to meet the challenge of the Two-Nations theory of the late lamented Mr. Jinnah. We accepted federalism in order to persuade the Indian Princes to surrender a part of their sovereignty. Now the position is entirely changed. This country, Sir, has been unfortunately partitioned. The Princes today have been liquidated. The States today are in a far worse position than the Indian Provinces. Last time when the Constituent Assembly met I had spoken in this House in favour of a unitary State.
A unitary state had its appeal to many nationalists who wanted to build a more homogenous Indian nation that will not be partitioned anymore. In essence, national integration became an overarching principle.
Eventually, the framers settled for a federal system with a few unitary features:
In Article 1 (1), Ambedkar explicitly called for India to be a "Union of States" instead of a Federation.
While every state in the US has the right to have its own constitution, in India only Jammu & Kashmir has that right through a special provision.
There is no separate state citizenship other than the citizenship of India.
Article 3 of the Constitution allows the addition and deletion of states and the altering of the boundaries without permission of the State legislature. This power was especially added after the fifth amendment. This is a significant difference from other federal systems like the US and Australia. This provision was used to drastically change Indian provinces as we will see in Chapter 3.
Articles 352, 356, and 360 allow for the declaration of emergency that would temporarily change the federal system to a more unitary system. Article 356 is especially contentious as it allows Parliament to dismiss any state government at will. This was often abused to meet narrow political needs.
Not everyone liked this arrangement:
The Constitution which is nearly complete has made the Centre too strong and much of the owners of the Provinces has been curtailed. The centre has become the great king and the provinces its dependencies.
-- K. M. Jedhe(Bombay)
That said, there are enough provisions for federalism, including a clear delineation of Union and State subjects. For instance, only the state legislatures are allowed to legislate in subjects like education and property. In S.R. Bommai v. Union of India, the Supreme Court ruled that federalism is an essential part of the Indian constitution.
Debate 4: Rights of the Minorities
Winston Churchill argued against giving independence to India citing that India was dominated by a minority of upper caste Hindus and that the rule of this group was no better than the rule of the British. While Churchill's bias is well recognized, the Assembly didn't want to have a serious questioning of India as a multicultural democracy.
The Fundamental rights provided strong provisions for freedom of speech and religion. Then there was a question of special electorates for women, Muslims, and the "Untouchables" [the bottom of the caste system].
In the case of Muslims, the separate electorates reminded people of partition and thus the Assembly stuck to the historical Congressional stance that ruled against any religious reservation in legislatures or the Parliament. In the same way, the female members of the Constituent Assembly [a very unique sight in the history of constitution-making] argued against any separate treatment of women. The Indian National Congress had already elected two female party Presidents in the decades before that and thus the women felt more secure.
However, when it came to the untouchables, everyone agreed with Ambedkar. It was felt that their participation and development was critical for India's growth. Thus, they were the only group to be given reserved seats to be elected.
Debate 5: Common Civil Code
This was another heated debate - should India have a single law governing all religions? After the various troubles related to religion, the British government was careful not to interfere too much into the religious aspects of Indians. Hindus, Muslims, and Christians were given separate civil laws that affected things like marriage, divorce, alimony, inheritance, etc.
The Constituent Assembly debated long on evolving a common civil code.
Now why do people want a uniform civil code, as in article 35? Their idea evidently is to secure harmony through uniformity. But I maintain that for that purpose it is not necessary to regiment the civil law of the people including the personal law. Such regimentation will bring discontent and harmony will be affected. But if people are allowed to follow their own personal law there will be no discontent or dissatisfaction. Every section of the people, being free to follow its own personal law will not really come in conflict with others.
-- Mohamad Ismail Sahib (Madras)
Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the States shall endeavour to secure a uniform civil code throughout the territory of India?
--Alladi Krishnaswami Ayyar (Madras)
During the 175 years of British rule, they did not interfere with certain fundamental personal laws...In fact, each community, each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices. I believe that in framing a uniform draft code these religious laws or semi-religious laws should be kept out of its way.
--Naziruddin Ahmad(Bengal)
I know there are many among Hindus who do not like a uniform Civil Code, because they take the same view as the honourable Muslim Members who spoke last. ... A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. But I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied.
--KM Munshi(Bombay)
With no agreement in sight, they postponed it by 10 years by making a non-enforcing Directive Principle. With severe opposition from the religious right, the moderates had to cave in on this.
I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not... I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it.
-- BR Ambedkar
Nehru was not happy retaining some of the backward religious laws. Years later against the opposition of many of his own party men, including Rajendra Prasad, he pushed the Hindu Code Bill. In a group of four landmark legislations in 1956, Pandit Nehru enabled the modernization of the Hindu religious code - allowing divorce, adoption, alimony and an equitable inheritance to sons, daughters.
While the Hindu code was reformed, other religions were allowed to keep the 19th century laws (substantially anti-women). Thus, Muslim women had to put up with polygamy, unilateral divorce, and restriction of access to alimony or inheritance.
The Muslim laws had especially been controversial as it al
lowed polygamy and poor protection to women in matters such as alimony and divorce. I will cover a detailed episode on this as a part of the Shah Bano Case, in latter chapters.
In the Mary Sonia Zachariah case, Judge T. Ramakrishnan opined that:
Indian women of all religions other than Christianity are entitled to get divorced on the grounds of cruelty and/or desertion which are recognized as independent grounds for divorce under the respective enactments applicable to them. For Christians who are governed by the Act, cruelty and desertion are not by themselves independent grounds for divorce.
This came to the front in 1995. A Christian woman was deserted by her husband and the husband had a child out of his other affair. However, the religious law didn't allow for divorce on this ground. In fact, the poor woman was not even able to find her husband.
Eventually the Kerala court ruled that the law discriminated against Christian women. There was some furor in the community, but eventually it was accepted. The rights were further extended in 1997. A Christian woman was arguing for her divorce stating that her husband was impotent. Under Hindu laws and modern laws of the world that is justification enough. However, under Christian personal laws it was not. Thus, the High Court refused to nullify the marriage on that grounds, although they were ok with applying laws on cruelty.
The judge, Chinnappa Reddy, was sympathetic and said:
It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code.
Debate 6: God vs. Secularism
Sir, it has been repeated to our ears that ours is a secular State. I accepted this secularism in the sense that our State shall remain unconcerned with religion, and I thought that the secular State of partitioned India was the maximum of generosity of a Hindu dominated territory for its non-Hindu population. I did not of course know what exactly this secularism meant and how far the State intends to cover the life and manners of our people. Gradually it seems to me that our`secular State' is a slippery phrase, a device to bypass the ancient culture of the land.
-- Lokanath Misra (Orissa)
Mr. Misra brought an important point. India's founding fathers were intent on secularism, but for many it was not clear what it really meant. Many nationalists thought India as a Hindu nation and they wanted enough protection for the religion. There was a sharp debate on this. This mainly concerned the Preamble that set the overall tone for the rest of the document.
When I perused the Constitution, I was left with the feeling that there was a void in it. We had forgotten, I do not know why, to invoke the grace and blessing of God.
-- HV Kamath (Central Provinces)
The move by Kamath to add an "In the name of God" in the preamble was defeated somewhat more narrowly than expected (68 to 41). To arrive at this compromise, it was also decided to drop "secular" in the Preamble. Thus, the preamble would have neither secular nor God in it.
Another member, Brajeshwar Prasad, wanted to insert "socialist" into the Preamble and that was also overwhelmingly rejected.
During the darkness of emergency in 1976 [covered in later chapters], Indira Gandhi would insert both these words into the Preamble, through the 42nd Amendment, that India’s founding fathers declined to include.
Overall, the Constitution maintained a strongly secular character and the Supreme Court had ruled that Secularism is a core part of the structure that cannot be altered.
Debate 7: The Special Status of Jammu & Kashmir
You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it.
-- Babasaheb Ambedkar to Sheik Abdullah
In Chapter 1, we saw the history of Kashmir's accession into India and the instrument of accession permitted a wide range of rights for the state. In the the eagerness to get the state admitted, Congress didn't think too much about those rights. These came before the Constituent Assembly.
Article 370 of the Indian Constitution deals with the special status given to the state of Jammu & Kashmir. It provides a fairly high degree of autonomy to the state, enables the state to have its own constitution (unique in an Indian context) which permits the state to give some special privileges to its "permanent residents". One such special privilege is that only a permanent resident can buy land in the state and citizens from other Indian states face some restrictions.
The article was enacted with much displeasure to Sardar Patel and Babasaheb Ambedkar. It is a very controversial topic as the region is an international hotspot and the state is the only Muslim-majority state in India.
In this issue, Nehru weighed the opinion of Gopalaswami Ayyangar - an ex-Prime Minister of Kashmir more than others. Nehru was himself a Kashmiri Pandit and together this duo was allegedly biased towards Kashmir.
Gopalaswami Ayyangar has been especially asked to help in Kashmir matters. Both for this reason and because of his intimate knowledge and experience of Kashmir, he had to be given full latitude. I really do not know where the States Ministry (Sardar Patel’s ministry) comes into the picture except that it should be kept informed for [sic] the steps taken.
-- Pandit Nehru to the Assembly
Ayyangar argued that Kashmir was not fully integrated, a third of the state was still in occupation of Pakistan and the matter was with the UN Security Council. Thus, he said there must be special provisions for Kashmir as a stopgap until the state was ready for full integration. Nehru was in the US at the time of framing Article 370 and fully left the matter to Mr. Ayyangar while the constituent assembly was in an uproar.
As originally envisaged, Article 370 gave Jammu & Kashmir complete control over their destiny (except when it came to matters of defense and diplomacy, where the Indian government had control). Fundamental rights and duties, directive principles of the state policy, and even the supremacy of the Indian Supreme Court didn't apply to the state. The state had its own constitution and its own flag.
Along with Article 35A of the Indian Constitution, it allowed the state to prefer the J&K "citizens" for:
Employment under the State Government;
Acquisition of immovable property in the State;
Settlement in the State; and
The right to scholarships and other forms of aid as the State Government may provide.
However, since 1950, the Indian government slowly eroded on the state's autonomy (giving Supreme Court jurisdiction over the state and making most of the Union laws applicable to the state). Presently, most institutions of the Government of India apply to the state as a result of The Delhi Agreement, 1952. In 2002, the J&K High court has ruled that daughters of the state would continue to be permanent residents even after marrying people from outside the state (men always had this right).
The key sticking point is that the citizens from other parts of India could not easily migrate to Kashmir nor acquire land in the state. Only "Permanent Residents" of the state could acquire property and other Indians cannot become permanent residents.
The state prides itself in being unique this way and there is a claim that such "uniqueness" breeds further separatism. However, others feel that such a major change would breed further resentment and build more separatism.
Directive Principles
In the Directive Principles of State Policy we have said that although they may not be enforceable in a court of law, they are nevertheless fundamental for the governance of this country.
-- Ms. Purnima Banerji (UP)
&
nbsp; There were many ideas that the Assembly proposed that the framers didn't want to make mandatory for the government to implement. For instance, Hindus wanted cow slaughter to be banned. Reformers sought an equality of pay for both women and men and protection of wildlife. Gandhians wanted the protection of cottage industries, abolition of alcohol, and maintaining the village panchayats [local councils].
Instead of debating endlessly on these, the framers tucked all these into a "nice to have section" at the end that should theoretically guide the Parliament in its law making. However, these didn't have legal authority on the government.
The Constitution Comes to Power
We are to begin our journey on the 26th January 1950 when we will resolve ourselves to carry out the Constitution in letter and spirit for the good of the people. Equally so the people must also realise their duty to the State and work shoulder to shoulder with the State. The provisions contained in the Fundamental Rights and Directive Principles of State Policy are ample evidences for the guarantee to the people. Now that alien rule has been eliminated, we give this Constitution to ourselves.
-- Dr. V Subramaniam (Madras)
After three years of deliberations, the Assembly finally approved the Constitution on the 26th of November 1949. The three years of effort cost nearly Rs 3.4 crores (34 million). However, it came out with a very satisfying result. Article 13 made the Constitution itself the ultimate authority on land.
The leaders waited two months to properly bring the Constitution to the public. They chose the day of January 26, 1950. It was on January 26, 1930 that Nehru first unfurled the Indian flag in Lahore demanding Purna Swaraj (complete independence). Until 1947, January 26 was celebrated as "independence day". To keep up with the significance of the day, the constitution came to force on that day and it was now called the Republic Day.
From Tryst to Tendulkar: The History of Independent India Page 6