Constitution a work in progress: The Tribune India
India’s Constitution, one of the longest in the world, is generally interpreted as a gold mine for lawyers. Numerous legal battles have been fought over each provision, careers have been made and destroyed, and a vast amount of case law has been generated on each issue. However, the legalization of the Constitution has concealed its essential character as a political document. We tend to forget that the basic rules of the political game were established in and through historical processes initiated at the turn of the 20th century. In the 1920s, the freedom movement developed into a mass movement and the concept of freedom was incorporated into liberal notions of fundamental rights, the rule of law, parliamentary government and universal suffrage of adults. Although the administrative structure of the Constitution is based on the Government of India Act 1935, the preamble, fundamental rights and guiding principles are the result of initiatives taken by the leaders of the national movement.
The Constitution seeks to create a democratic community out of a jumble of cultural, religious, linguistic and ethnic communities. The project is still awaiting completion.
The rulers insisted that the Indian Constitution be written by the Indians themselves. As Republic Day approaches, it is time that we begin to appreciate this aspect of the struggle for freedom and remember that these precepts were a creative response to a particular crisis in the body politic. It should also be remembered that the Constitution was drafted against a backdrop of tremendous upheavals: the assassination of Gandhi, agrarian revolts, integration of the princely States into the Union, and above all, the Partition which left a million dead, half a million in the only region of Indian Punjab. And yet, the creators of the Constitution have remained true to their cherished dreams of democracy and minority rights. This is what we should commemorate when we celebrate its making.
On December 9, 1946, a Constituent Assembly met to draft a constitution for a people marching towards independence. The resolution on the targets was presented by the Prime Minister of the interim government, Jawaharlal Nehru. He drew attention to the fact that the Constituent Assembly was not a gift from the colonial government. The Indians had fought for the right to write their own Constitution. “For a long time we had various plans for a free India in our minds, but now when we start the actual work, I hope you will agree with me when I say that we should present a clear picture of this plan for ourselves, for the people of India and for the world at large. The task of the Assembly was to build on previous initiatives, as well as to set out a plan for the future.
Nehru’s words served to remind the Assembly that Indians had begun to conceptualize the basic precepts of their own Constitution as early as 1895, when a ‘Constitution of India Bill’ attracted attention public. No one was sure who authored it, although Annie Besant thought Tilak had written the bill. During the second decade of the 20th century, 43 distinguished Indians signed a memorandum accompanying “The Commonwealth of India Bill 1925”. The bill has been sent for consideration to the Labor government in England. However, after the first reading in the British Parliament, the Labor government was ousted from power and the bill did not pass. The bill included a list of civil liberties, the right to freedom of religion and social rights. A fuller version of these rights was enshrined in the 1928 document, known as Motilal Nehru’s Constitutional Draft. The bill stated: “We could not better guarantee the full enjoyment of religious and communal rights to all communities than by including them among the fundamental principles of the constitution.
The session of Congress held in Karachi in 1931 adopted a “Resolution on Fundamental Rights and Economic and Social Change”. It included a more comprehensive list of fundamental rights. In 1945, the report of the Sapru Commission declared that the fundamental rights of the new constitution would serve as a “permanent warning” to all. ‘[W]What the Constitution demands and expects is perfect equality between one part of the community and another in matters of political and civil rights, equality of freedom and security in the enjoyment of freedom of religion, worship and the pursuit of the ordinary applications of life.’
Rejecting the 1933 White Paper published by the British government, the Congressional Working Committee declared that “the only satisfactory alternative to the White Paper is a constitution drafted by a Constituent Assembly elected by adult vote. If necessary, significant minorities should elect their own representatives.
These resolutions and initiatives embodied three precepts of the freedom manifesto. The first was the self-author. The Indians could only possess their Constitution if it was written and signed by their representatives. Second, elections to the Constituent Assembly must be held on the basis of adult suffrage. Third, special attention has been paid to the interests of minorities.
In 1940 Nehru authored an article titled “Why do we ask for a Constituent Assembly”? A Constitution written by and for the people “means the creation of a new state; it means getting out and moving away from the economic foundations and structure of imperialism. This cannot be done by the wisest of lawyers assembled in conclave; it cannot be done by small committees trying to balance interests and calling it constitution making; it can never be done in the shadow of an outside authority. It can only be done effectively when… the envy and the sanctions come from the masses. Hence the vital importance of adult suffrage.
Constitutions are historical documents. The Constitution of India embodies the aspirations of the Indian people who had dared to dream of a life free from colonialism. The Constitution is also a project for the future. Dr. Ambedkar, quoting George Grote, the historian of Greece, spoke of constitutional morality as “primordial respect for the forms of the Constitution”. This morality, he admits, must be cultivated. But this is learned because the Constitution gives us the means to think and act democratically. The Constitution seeks to create a democratic community out of a jumble of cultural, religious, linguistic and ethnic communities. The project is still awaiting completion.