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A miracle work in progress

Rajeev Dhavan | Updated on January 27, 2018

A steady hand: Pandit Jawaharlal Nehru signs the Indian Constitution at the final session of the Constituent Assembly on January 24, 1950; credit must go to him for sustaining a constitutional spirit with reformist zeal right from Independence until his death in 1964   -  The Hindu Archives

Major strides: Populist in its stance, the apex court has established its own rapport with the people. Photo: Monica Tiwari

Major strides: Populist in its stance, the apex court has established its own rapport with the people. Photo: Monica Tiwari   -  The Hindu

The making of the Indian Constitution was unparalleled in its scope — the well-being of a nation with a magnificent diversity of languages, faiths, customs, and differences. If the country were to try and design one today, it would fail

Retreating imperialism left many countries asunder in Asia and Africa. For the nations concerned, it was a simultaneous two-step process. The first to achieve independence; the second the drawing of boundaries. India was divided into India and Pakistan. Punjab was cut in half, as well as Bengal — amidst mayhem, violence, death, wanton rape and murder. But this is only half the story; India had some 570-odd princely States that were given the option to remain free or to join either dominion: India or Pakistan. This was straightforward in many cases but very controversial in others.

Military intervention in Hyderabad and Junagadh and heavy persuasion in Manipur mapped out India. This left Kashmir, which hoped to remain independent but acceded to India because Pakistani militants-supported troops nearly reached Srinagar. Airlifted Indian troops saved the situation but left Kashmir divided — with parts other than the Valley going to Pakistan, which it named Azad Kashmir. This division has not healed Kashmir despite three wars and thousand skirmishes. Try and imagine the subcontinent if the princes had not acceded. India would have been balkanised. The Constitution gave the acceding princes a privy purse, which Indira Gandhi took away in 1971.

Historians and politicians fight over who caused the partition: Muhammad Ali Jinnah, a Shia, leading Sunnis and the Muslim League, or Pandit Jawaharlal Nehru dominating Congress, or Mountbatten the last Viceroy, or simply giving up in the sight of victory.

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It is in this context that India’s Constitution was drafted. The process began in anticipation in 1946. When Nehru moved the Objectives Resolution (which became the Preamble to the Constitution), the Constituent Assembly did not pass it immediately, wanting to wait — hoping against all hope that Pakistan would not happen. An emotionally shattered Assembly went about its task to create a Constitution — not just for a nation but virtually a civilisation. A task never attempted before.

The population of India in 1951 was 361 million, but it had a magnificent diversity of many languages in many scripts, many faiths and customs resplendent with an infinite variety and many differences of love and hate, many races of all kinds and groups, many tribes and castes including the much-discriminated dalits — whom continuing history treated with cruelty without remorse. If we take all the varieties of thought and belief and practices of Europe, Russia, Africa and the Americas, the Indian challenge was greater and more multifarious. It was reposed in the many hardworking people of the Assembly whose debates and discussions were of an incomparable standard and intensity.

By November 1949 the Constitution was ready and duly adapted to start India’s journey as a republic on January 26, 1950.

India’s Constitution was a miracle. If the country were to try and design a Constitution now, it would fail. The Constitution of Pakistan was declared in 1956 but fell to a military dictatorship in 1958. This was the fate of other Constitutions. Sri Lanka went into constitutional turmoil, as, indeed, did neighbouring Burma. It is rightly said that India’s Constitution became the “cornerstone of the nation”. Piloted by BR Ambedkar, its secret lay in allowing free discussion, negotiating problems with a preparedness of compromise.

The list of active participants was long, including Alladi Krishnaswami Ayyar, KM Munshi, Sardar Patel, Pandit Thakur Dass Bhargava, who brought in the concept of “reasonableness”, the feminist intervention for social reform by Amrit Kaur and Hansa Mehta supported by KT Shah. Nehru was busy running the country, attending the Assembly when he could. The conservationists wanted a strong Centre, powers of preventive detention, and Emergency powers to deal with public order. The liberals wanted free speech, equality and the Bill of Rights. The reformers wanted land reform to liquidate the zamindars and ensure that religions were amenable to social reform.

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Although the foundation of the Constitution, apart from the Bill of Rights, was taken from the British Government of India Act 1935, it was not a copycat Constitution but drew from the American, English, French and Russian Revolutions to create a workable amalgam, distributed over 395 articles and eight schedules, which increased into many more articles and another four schedules.

Given the 101 amendments to the text in 70 years, there is a joke that book sellers do not stock the Constitution because it is a periodical. But a detailed Constitution gathers together loose strands.

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The Constitution combines a federal structure consisting of a strong Centre, States and lesser Union Territories with parliamentary democracy and a Bill of Fundamental Rights, Directive Principles and the Preamble to guide the future. One of its alarming provisions was the Centre altering the boundary and creating more States — that too, to accommodate linguistic and other diversities.

There is another way to look at the Constitution as consisting of the political and democratic texts including elections, and parliamentary control; and the justice and rule of law texts, which are entrusted to the judiciary, especially the High Courts and Supreme Court. Without the justice texts, there would be tyranny.

Without the democratic texts, peoples’ power would be swallowed by judges. Since Independence, the country’s constitutional history represents the tension between the democratic and justice texts with hostility between Parliament and the judiciary. Parliament kept using its power to amend the Constitution to overrule the judiciary’s decisions until 1973, when the Supreme Court declared that Parliament’s amending power could not violate the Constitution’s basic structure. These tensions continue over appointing judges and other matters.

But, overall, there has been a balance maintained between the democratic and justice texts of the Constitution.

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Credit must go to Nehru for sustaining a constitutional spirit with reformist zeal (amidst compromises) right from Independence until his death in 1964 — the most dangerous decades. By 1947, when he became Prime Minister, he was about 60 years of age and had been jailed by the British for around 10 years. Despite imposing Emergency rule in Kerala in 1959, he was a committed parliamentarian with faith in the democratic system. He was wary of the judiciary, which with lawyers (in his phrase) “purloined the Constitution”. Yet he never interfered in the judiciary’s functioning.

He relied on constitutional amendment to ensure the abolition of zamindari on a low-cost basis and to restructure the States on linguistic lines. He built a standing for himself as a world leader, speaking and uniting the Third World through non-alignment.

When summoned by Parliament for breach of privilege or the courts for contempt, he responded with humility. Nehru and his colleagues took a stand on corruption.

He emerges from history as a challenging figure with a zest for constitutional democracy, without which India’s Constitution may well have floundered or broken up. Future history will be kinder to him.

By contrast, Indira Gandhi’s years in office from 1967-77 manipulated every trick to deal with her enemies, eventually declaring a national Emergency (1975-77) to protect herself, deny elections, detaining politicians without trial, and silencing free speech. Her advisors seemed to think that the Constitution was malleable and they could play with it to any length. It became a political toy in the quest for sustaining power. Only the Supreme Court stood up to her; and during the Emergency, even the judiciary capitulated, allowing the detention without trial of those who opposed her. She claimed she was doing all this to give effect to socialist ideals and removing poverty ( garibi hatao).

Her legacy is that of a remarkable leader, but one who was inimical to constitutional values by paying lip service to them in an unforgivably absurd manner. It does not seem ironical that she left dynastic trends that continue till today through Rajiv (her son), Sonia (Rajiv’s widow), Rahul (Sonia’s son), to run the Congress and hold power in their hands. Democratic constitutionalism does not favour dynastic successions, albeit through a “democratic” process.

As mentioned earlier, the judiciary is the custodian of the justice and rule of law texts of the Constitution. Apart from its unforgivable lapse during the Emergency, it has remained at the forefront to set up a polarity so that the democratic texts are confronted and disciplined by the justice and rule of law texts.

Had the judiciary been non-existent, the Indian Constitution would have worked as an elected dictatorship. The judiciary — especially the Supreme Court — was initially characterised as an enemy of the social justice plans of the government. But having fought back, it invited the people to approach it directly to create a formidable public interest law and litigation to deal with issues relating to environment, social justice to disadvantaged groups, corruption and so on.

If doubted earlier, the Supreme Court today occupies an eminent place. This has not been without its critics (especially politicians and business), who protest that the judiciary has overreached itself to delve into administrative and policy matters that are none of its business. It is instead advised to clear its colossal backlog of cases. The judiciary contends that it is maintaining a balance to intervene where governance is overshadowed by administrative caprice and corruption. Equally, the judiciary has gone well beyond balancing to misappropriate the powers of the legislature and executive. Populist in its stance, it has established its own rapport with the people. Inevitably there is a struggle over who should appoint judges.

Executive appointments have brought in politicised judges. The judiciary has taken over the power of appointment, but the executive keeps blocking it. An independent judiciary requires an independent method of appointing judges. Even so, many nations have floundered because they do not have an independent judiciary. Without a strong judiciary, the entire edifice of constitutionalism will collapse.

There is a spectre hanging over India — the spectre of communalism. The destruction of the Babri Masjid, the communal riots that followed, the riots in Gujarat in 2002, and the growing incidents of violence perpetrated by fringe groups threaten to rend the secular fabric and ideals of the Constitution. That cannot, and must not happen.

Ultimately, the Constitution is not just addressed to the government or courts but to the people to imbibe the spirit of its democracy. India’s electoral democracy is unabated election after election. Amidst many struggles, it is a testament for the Indian people, a kind of civic religion which Indians have adopted. The miracle continues.

Rajeev Dhavan is a senior advocate in the Supreme Court whose book The Indian Constitution: Miracle, Surrender, Hope was published recently

Published on January 26, 2018

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