India After Gandhi Revised and Updated Edition

by Ramachandra Guha

  The process was made more participatory by asking for submissions from the public at large. There were hundreds of responses, a sampling of which gives a clue to the interests the law-makers had to take account of. Thus the All-India Varnashrama Swarajya Sangh (based in Calcutta) asked that the constitution ‘be based on the principles laid down in ancient Hindu works’. The prohibition of cow-slaughter and the closing down of abbatoirs was particularly recommended. Low-caste groups demanded an end to their ‘ill treatment by upper-caste people’ and ‘reservation of separate seats on the basis of their population in legislature, government departments, and local bodies, etc.’. Linguistic minorities asked for ‘freedom of speech in [the] mother tongue’ and the ‘redistribution of provinces on linguistic basis’. Religious minorities asked for special safeguards. And bodies as varied as the District Teachers Guild of Vizianagaram and the Central Jewish Board of Bombay requested ‘adequate representation . . . on all public bodies including legislatures etc.’.5

  These submissions testify to the baffling heterogeneity of India, but also to the precocious existence of a rights culture among Indians. They were many; they were divided; above all, they were vocal. The Constitution of India had to adjudicate among thousands of competing claims and demands. The task was made no easier by the turmoil of the times. The Assembly met between 1946 and 1949, against a backdrop of food scarcity, religious riots, refugee resettlement, class war and feudal intransigence. As one historian of the process has put it, ‘Fundamental Rights were to be framed amidst the carnage of Fundamental Wrongs’.6

  III

  The Constituent Assembly had more than 300 members. In his magisterial history of the Indian Constitution, Granville Austin identifies twenty as being the most influential. Of these, as many as twelve had law degrees, including the Congress stalwarts Jawaharlal Nehru, Vallabhbhai Patel and Rajendra Prasad.

  Nehru’s first major speech in the Assembly was on 13 December 1946, when he moved the Objectives Resolution. This proclaimed India as an ‘independent sovereign republic’, guaranteeing its citizens ‘justice, social, economic and political; equality of status; of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality’ – all this while assuring that ‘adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes . . .’ In moving the resolution, Nehru invoked the spirit of Gandhi and the ‘great past of India’, as well as modern precedents such as the French, American and Russian revolutions.7

  Nine months later Nehru spoke again in that columned hall, at the midnight hour, when he asked Indians to redeem their tryst with destiny. In between, on 22 July 1947, he had moved a resolution proposing that the national flag of India be a ‘horizontal tricolour of saffron, white and dark green in equal proportion’, with a wheel in navy blue at the centre. On this occasion Nehru led a chorus of competitive patriotism, with each subsequent speaker seeking to see in the colours of the flag something special about his own community’s contribution to India.8

  The speeches of symbolic importance were naturally made by Nehru. Just as naturally, the bulk of the back-room work was done by Vallabhbhai Patel. A consummate committee man, he played a key role in the drafting of the various reports. It was Patel, rather than the less-patient Nehru, who worked at mediating between warring groups, taking recalcitrant members with him on his morning walks and making them see the larger point of view. It was also Patel who moved one of the more contentious resolutions: that pertaining to minority rights.9

  The third Congress member of importance was the president of the Assembly, Rajendra Prasad. He was nominated to the office on the day after the Assembly was inaugurated and held it with dignity until the end of its term. His was an unenviable task, for Indians are better speakers than listeners, and Indian politicians especially so. Prasad had to keep the peace between quarrelsome members and (just as difficult) keep to the clock men who sometimes had little sense of what was trifling and what significant.

  Outside this Congress trinity the most crucial member of the Assembly was the brilliant low-caste lawyer B. R. Ambedkar. Ambedkar was law minister in the Union government; and also chairman of the Drafting Committee of the Indian Constitution. Serving with him were two other formidable minds: K. M. Munshi, a Gujarati polymath who was a novelist and lawyer as well as freedom fighter, and Alladi Krishnaswami Aiyar, a Tamil who for fifteen years had served as advocate general to the Madras presidency.

  To these six men one must add a seventh who was not a member of the Assembly at all. This was B. N. Rau, who served as constitutional adviser to the government of India. In a long career in the Indian Civil Service Rau had a series of legal appointments. Using his learning and experience, and following a fresh study-tour of Western democracies, Rau prepared a series of notes for Ambedkar and his team to chew upon. Rau, in turn, was assisted by the chief draughtsman, S. N. Mukherjee, whose ‘ability to put the most intricate proposals in the simplest and clearest legal form can rarely be equalled’.10

  IV

  Moral vision, political skill, legal acumen: these were all brought together in the framing of the Indian Constitution. This was a coming together of what Granville Austin has called the ‘national’ and ‘social’ revolutions respectively.11 The national revolution focused on democracy and liberty – which the experience of colonial rule had denied to all Indians – whereas the social revolution focused on emancipation and equality, which tradition and scripture had withheld from women and low castes.

  Could these twin revolutions be brought about by indigenous methods? Some advocated a ‘Gandhian constitution’, based on a revived panchayati raj system of village councils, with the village as the basic unit of politics and governance. This was sharply attacked by B. R. Ambedkar, who held that ‘these village republics have been the ruination of India’. Ambedkar was ‘surprised that those who condemn Provincialism and communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism?’12

  These remarks provoked outrage in some quarters. The socialist H. V. Kamath dismissed Ambedkar’s attitude as ‘typical of the urban highbrow’. The peasant leader N. G. Ranga said that Ambedkar’s comments only showed his ignorance of Indian history. ‘All the democratic traditions of our country has [sic] been lost on him. If he had only known the achievements of the village panchayats in Southern India over a period of a millennium, he would not have said those things.’13

  However, the feisty female member from the United Provinces, Begum Aizaz Rasul, ‘entirely agreed’ with Dr Ambedkar. As she saw it, the ‘modern tendency is towards the rights of the citizen as against any corporate body and village panchayats can be very autocratic’.14

  Ultimately it was the individual, rather than the village, that was chosen as the unit. In other respects, too, the constitution was to look towards Euro-American rather than Indian precedents. The American presidential system was considered and rejected, as was the Swiss method of directly electing Cabinet ministers. Several members argued for proportional representation (PR), but this was never taken very seriously. Another former British colony, Ireland, had adopted PR, but when the constitutional adviser, B. N. Rau, visited Dublin, Eamon de Valera himself told him that he wished the Irish had adopted the British ‘first-past-the-post’ system of elections and the British cabinet system. This, he felt, made for a strong government. In India, where the number of competing interest groups was immeasurably larger, it made even more sense to follow the British model.15 The lower house of Parliament, as well as the lower houses of the provinces, were to be chosen on the basis of universal adult franchise. After much discussion Parliament, as well as most provinces, decided also to have a second chamber to act as a check on the excesses of democratic zeal. Its members were chosen through indirect election, in the case of the Upper House of Parliamen
t by the state legislatures.

  While the Cabinet was headed by a prime minister, the head of state was a president elected by a college comprising the national and provincial legislatures. The president would be the commander-in-chief of the armed forces, and had the power to refer bills back to Parliament. This was a position of ‘great authority and dignity’, but, like those of the British monarchy, one with ‘no real power’.16 (In the provinces a governor nominated by the ‘centre’ (as central government was coming to be known) played a role comparable to the president’s.) The constitution provided for an independent election commission, and an independent comptroller general of accounts. To protect the judiciary from party politics, judges were to be appointed by the president in consultation with the chief justice, while their salaries were not decided by Parliament but charged directly to the Treasury. The Supreme Court in Delhi was seen both as the guardian of the social revolution and as the guarantor of civil and minority rights. It was endowed with broad appellate jurisdiction – any civil or criminal case could be referred to it so long as it involved an interpretation of the constitution.

  The constitution mandated for a complex system of fiscal federalism. In the case of some taxes (for instance customs duties and company taxes) the centre retained all the proceeds; in other cases (such as income taxes and excise duties) it shared them with the states; in still other cases (e.g. estate duties) it assigned them wholly to the states. The states, meanwhile, could levy and collect certain taxes on their own: these included land and property taxes, sales tax, and the hugely profitable tax on bottled liquor.

  These financial provisions borrowed heavily from the Government of India Act of 1935. The ‘conscience of the constitution’,17 meanwhile, was contained in Parts III and IV, which outlined a series of fundamental rights and directive principles. The fundamental rights, which were enforceable in a court of law, derived from the obligations of the state not to encroach upon or stifle personal liberty, and to protect individuals and groups from arbitrary state action. The rights defined included freedom and equality before the law, the cultural rights of minorities, and the prohibition of such practices as untouchability and forced labour.18 The directive principles, which were not justiciable, derived from the positive obligations of the state to provide for a more fulfilling life for the citizen. They were a curious amalgam of contending pulls. Some principles were a concession to the socialist wing of the Congress, others (such as the ban on cow-slaughter) to the party’s conservative faction.19

  To the unprejudiced eye the constitution was an adaptation of Western principles to Indian ends. Some patriots did not see it that way. They claimed that it was Indians who had invented adult suffrage. T. Prakasam spoke about an inscription on a 1,000-year-old Conjeevaram temple which talked of an election held with leaves as ballot papers and pots as ballot boxes.20 This kind of chauvinism was not the preserve of the south alone. The Hindi scholar Raghu Vira claimed that ancient India was ‘the originator of the Republican system of government’, and ‘spread this system to the other parts of the world’.21

  Those who had looked closely at the provisions of the constitution could not thus console themselves. Mahavir Tyagi was ‘very much disappointed [to] see nothing Gandhian in this Constitution’.22 And K. Hanumanthaiya complained that while freedom fighters like himself had wanted ‘the music of Veena or Sitar’, what they had got instead was ‘the music of an English band’.23

  V

  The Constitution of India sought both to promote national unity and to facilitate progressive social change. There was a fundamental right to propagate religion, but the state reserved to itself the right to impose legislation oriented towards social reform (such as a uniform civil code). The centre had the powers, through national planning, to redistribute resources away from richer provinces to poorer ones. The right of due process was not allowed in property legislation, another instance in which the social good as defined by the state took precedence over individual rights. Land-reform laws were on the anvil in many provinces, and the government wanted to close the door to litigation by disaffected moneylenders and landlords.

  Fundamental rights were qualified and limited by needs of social reform, and also by considerations of security and public order. There were provisions for rights to be suspended in times of ‘national emergency’. And there was a clause allowing for ‘preventive detention’ without trial. A veteran freedom fighter called this ‘the darkest blot on this constitution’. Having spent ten years of his own life in ‘dungeons and condemned cells in the days of our slavery under the British’, he knew ‘the tortures which detention without trial means and I can never reconcile myself to it’.24

  The constitution showed a certain bias towards the rights of the Union of India over those of its constituent states. There was already a unitary system in place, imposed by the colonial power. The violence of the times gave a further push to centralization, now seen as necessary both to forestall chaos and to plan for the country’s economic development.

  The constitution provided for three areas of responsibility: union, state and concurrent. The subjects in the first list were the preserve of the central government while those in the second list were vested with the states. As for the third list, here centre and state shared responsibility. However, many more items were placed under exclusive central control than in other federations, and more placed on the concurrent list too than desired by the provinces. The centre also had control of minerals and key industries. And Article 356 gave it the power to take over a state administration on the recommendation of the governor.25

  Provincial politicians fought hard for the rights of states, for fewer items to be put on the concurrent and union lists. They asked for a greater share of tax revenues and they mounted an ideological attack on the principle itself. A member from Orissa said that the constitution had ‘so centralised power, that I am afraid, due to its very weight, the Centre is likely to break’. A member from Mysore thought that what was proposed was a ‘unitary’ rather than ‘federal’ constitution. Under its provisions ‘democracy is centred in Delhi and it is not allowed to work in the same sense and spirit in the rest of the country’.26

  Perhaps the most eloquent defence of states’ rights came from K. Santhanam of Madras. He thought that the fiscal provisions would make provinces ‘beggars at the door of the Centre’. In the United States, both centre and state could levy ‘all kinds of tax’, but here, crucial sources of revenue, such as the income tax, had been denied the provinces. Besides, the Drafting Committee had tried ‘to burden the Centre with all kinds of powers which it ought not to have’. These included ‘vagrancy’, which had been taken away from the states list and put on the concurrent list. ‘Do you want all India to be bothered about vagrants?’ asked Santhanam sarcastically. As he put it, rather than place an excessive load on the Union government, ‘the initial responsibility for the well-being of the people of the provinces should rest with the Provincial Governments’.27

  The next day a member from the United Provinces answered these charges. Hearing Santhanam, he wondered whether it was not ‘India’s age-old historical tendency of disintegrating that was speaking through these stalwarts’. A strong centre was an absolute imperative in these ‘times of stress and strain’. Only a strong centre would ‘be in a position to think and plan for the well-being of the country as a whole’.28

  Members of the Drafting Committee vigorously defended the unitary bias of the constitution. In an early session B. R. Ambedkar told the House that he wanted ‘a strong united centre (hear, hear) much stronger than the centre we had created under the Government of India Act of 1935’.29 And K. M. Munshi argued for the construction of ‘a federation with a centre as strong as we can make it’.30 In some matters Munshi was close to being a Hindu chauvinist; but here he found himself on the same side as the Muslims. For the horrific communal violence of 1946 and 1947 bore witness to the need for a strong centre. In the words of Kazi Syed Karimuddin, �
��everybody is not Pandit Jawaharlal Nehru’ (in respect of his commitment to inter-religious harmony). There were ‘weak and vacillating executives in all the Provinces’, said the kazi. Thus ‘what we want today is a stable Government. What we want today is a patriotic Government. What we want today is a strong Government, an impartial and unbending executive, that does not bow before popular whims.’31

  VI

  Much attention was paid by the Assembly to the rights of the minorities. The first extended discussion of the subject took place a bare ten days after Partition. Here, a Muslim from Madras made a vigorous plea for the retention of separate electorates. ‘As matters stand at present in this country’, said B. Pocker Bahadur, it was ‘very difficult’ for non-Muslims ‘to realise the needs and requirements of the Muslim community’. If separate electorates were abolished, then important groups would be left feeling ‘that they have not got an adequate voice in the governance of the country’.32

  The home minister, Sardar Patel, was deeply unsympathetic to this demand. Separate electorates had in the past led to the division of the country. ‘Those who want that kind of thing have a place in Pakistan, not here,’ thundered Patel to a burst of applause. ‘Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough.’33

  There were, however, some Muslims who from the start were opposed to separate electorates. These included Begum Aizaz Rasul. It was ‘absolutely meaningless’ now to have reservation on the basis of religion, said the begum. Separate electorates were ‘a self-destructive weapon which separates the minorities from the majority for all time’. For the interests of the Muslims in a secular democracy were ‘absolutely identical’ with those of other citizens.34