The Indian Constitution (Cornerstone of a Nation)

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In this classic work, based on original sources, one of the world’s leading experts on Indian constitution law examines the ideals, motivations, and vision of the founders of the Indian Constitution. He analyses the extent to which they were successful in articulating India’s goals and in designing the necessary governing structures. The book shows how the constitution has been a socially revolutionary and modernizing force. The author contends that the seeds of solutions to existing and future problems can be found within the document’s principles and that it is misguided to say that the constitution has not ‘worked’.

This volume is essential reading for scholars and students of law and political science, as well as those interested in the making of contemporary India.

Granville Austin is an independent historian living in Washington DC. He is the author of Working a Democratic Constitution: A History of the Indian Experience.

INDIA’S founding fathers and mothers established in the Constitution both the nation’s ideals and the institutions and processes for achieving them. The ideals were national unity and integrity and a democratic and equitable society. The new society was to be achieved through a social-economic revolution pursued with a democratic spirit using constitutional, democratic institutions. I later came to think of unity, social revolution, and democracy as three strands of a seamless web. The founders believed that none of these goals was to be pursued, nor could any be achieved, separately. They were mutually dependent and had to be sought together.

During recent years it has become fashionable among some citizens to disparage the founders and their document. These individuals, disappointed by developments in the country since 1950, have called for changing the Constitution, explaining that it has not ‘worked.’ Such thinking, in my view, is misguided. Constitutions do not ‘work,’ they are inert, dependent upon being ‘worked’ by citizens and elected and appointed leaders.

Looking back over fifty years, I am struck by the extent to which the framers were successful in articulating the nation’s goals and in designing the necessary governing structures. The Constitution has served the nation remarkably well. Each and every contingency the framers did not foresee—nor, realistically, could they have been expected to. A combination of idealism and the multitude of issues confronting the country during the framing period apparently obscured their appraisal of several future contingencies. Other contingencies, which they may have foreseen, they did not provide for in the Constitution—aware, I believe, that no founding document can contain solutions to every situation, and that leaders in the future should find, within the Constitution’s principles, their own way out of difficulties that might confront them. As Chief justice John Marshall has said, a Constitution is framed for ages to come, but ‘its course cannot always be tranquil.’

The essential element of the framers’ foresight was their concept of the seamless web, the interdependence of the nation’s three grand goals, and their building into the Constitution the institutions and processes for their pursuit.

National unity and integrity were to be served by the Constitution’s highly centralised federalism, characterised, among other elements, by central government distribution of much revenue, national development planning, continuation of the inherited central civil services, state governors who were presidential appointees, the well-known Emergency Provisions, and a wide variety of state-centre coordinating mechanisms. Each of these was to benefit from the Congress Party’s mass character and its own central-command federal structure. That this centralisation would become counter-productive over-centralisation, particularly beginning some two decades after the Constitution’s inauguration, is another matter. It would be unreasonable to think the framers should have foreseen this. Moreover, during the period from 1946 to 1950 creating a united India to pursue national development was the government’s and the framers’ highest priority.

The democratic features of the Constitution were as risk-taking as the unity features were cautious. Representative government with adult suffrage, a bill of rights providing for equality under the law and personal liberty, and an independent judiciary were to become the spiritual and institutional bases for a new society—one replacing the traditional hierarchy and its repressions. Other constitutional provisions were designed to spread democracy by protecting and increasing the rights of minorities, by assisting under-privileged groups in society to better their condition, and by ending the blatant oppression of the Scheduled Castes and Tribes. These provisions have brought into, or closer to, the mainstream of society individuals and groups that would otherwise have remained at society’s bottom or at its edges.

The Constitution, by its very existence, was a social revolutionary statement. It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. Democracy, representative government, personal liberty, equality before the law, were revolutionary for the society. Social- economic equitableness as expressed in the Directive Principles of State Policy was equally revolutionary. So were the Constitution’s articles allowing abolishing zamindari and altering property relations and those allowing for compensatory discrimination in education and employment for disadvantaged citizens.

The Constitution’s many and detailed administrative provisions and their accompanying, if often cumbersome, bureaucracy supported pursuit of these goals. Inherited from the 1935 Government of India Act, the framers included them in the Constitution in preference to building an administration afresh under a Constitution embodying oily general principles.

But the founders’ foresight was not perfect. There were situations that future governments might confront that they realistically could have been expected to foresee, and that should have been taken into account in the drafting process. Some eventualities they did not provide for, purposely leaving them for their heirs in government. Other developments must have been beyond their imaginations.

Among those in the first category were the situations that brought about the early amendments to the Constitution. It was not foreseen, for example, that there would be a conflict between the fundamental rights provisions for equality before the law and for special treatment backward classes of citizens. Nor was it expected, although it is fair to say that it should have been, that the word ‘compensation’ the property articles would be given its traditional meaning by courts in zamindari abolition and property-takings cases. (And difficult to understand how these longtime Congress Party member did not appreciate—or were they unwilling to admit to themselves? — that the most significant opposition to land reform efforts would not be in the courts, but among their fellow party-men in the states.)

Among the unimagined developments was that President’s Rule come to be abused and that the power to declare a national emergency would be invoked for the personal benefit of a prime minister. Otherwise, the Emergency Provisions might not have been placed in the Constitution—or, if so, perhaps they might have been circumscribed along the lines of the Forty-fourth Amendment. Few among the framers could foresee that implementing the socialism of the Directive Principles would have a dark side, namely corruption, and harm national development by depriving the country of the economic engine of private entrepreneurship—whose excesses, of course, would have to have been curbed. None could have foreseen the vast changes in legislative representation that economic change and adult suffrage would bring about. The framers surely would have deplored the self-serving conduct of many in public life today.

Although the framers provided for adult suffrage expressly to break the mould of traditional society, they did not foresee, so far as one may discern in the historical record, the extent to which the social revolution would at once empower new groups while, in the pattern of traditional society, allowing these groups to oppress others. The most the founders could do was to set a social revolution in motion and hope for the best. They could not prescribe the shape of things to come. Their successors would have to cope.

Among the things that the founding fathers and mothers could have imagined, but did not provide for in the Constitution, were the consequences of a decline in the Congress Party’s popularity and legislature representation—especially in Parliament—that would result in its being a partner in a coalition government or out of office replaced by a coalition of other parties. Although from the vantage point of the late Forties, this was remote, it nevertheless was conceivable. If privately they did consider this, it seems probable that they did not think it an abnormal development in a parliamentary system, and did think it one whose political intricacies could not be provided for wisely in advance.

Constitutional conventions were another area where the framers declined to prescribe their successors political conduct, although the Constituent Assembly had direct experience with the contentiousness of conventions. For example, despite the controversy over the President’s powers, they did not write into the Constitution the conventions surrounding them. And they did not include an instrument of instructions for governors, although this was contemplated. Evidently believing that the conventions of parliamentary government would be observed, they seem not to have expected the violation of several—leave alone the consequent writing into the Constitution by amendment those concerning presidential powers and the declaration of emergencies.

These are small oversights, if they are oversights at all, when set against the founders’ achievements in the Constitution. Under it, national unity has been assured, despite difficulties in Kashmir. Democracy is vibrant, although subject to excesses and shared unequally among citizens. The social-economic revolution has changed the face of the country even if it, too, has far to go. If the dream of the Constitution has not yet wholly been realised, India has become a great nation under it.

Impelled and sustained by a compound of vision, practicality, ambition for the Congress Party, idealism, and faith, the founders Laid the cornerstone for the new India. This volume attempts to describe how they did it.

The Constituent Assembly, brought into being by the will of the Indian people and, in the last scene of the last act, with the help f the British, drafted a constitution for India in the years from December 1946 to December 1949. In the Assembly Indians were for the first time in a century and a half responsible for their own governance. They were at last free to shape their own destiny, to pursue their long-proclaimed aims and aspirations, and to create he national institutions that would facilitate the fulfillment of these aims. These tasks the members approached with remarkable idealism and strength of purpose born of the struggle for independence. A constitution, Assembly members realized, could not by itself make a new India, but they intended it to light the way.

The Constitution was to foster the achievement of many goals. Transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic needs of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of Indian society—a society with a and glorious cultural tradition, but greatly in need, Assembly members believed, of a powerful infusion of energy and rationalism. E theme of social revolution runs throughout the proceedings and documents of the Assembly. It provided the basis for the decisions adopt parliamentary government and direct elections, the fundamental Rights and the Directive Principles of State Policy, and even many aspects of the Executive, Legislative, and Judicial provision of the Constitution.

Rivalling the social revolution in importance were the goals of national unity and stability. Desirable as ends in themselves, they were also considered to be necessary prerequisites for a social renascence. Although evident in many parts of the Constitution, unity stood out as the central issue during the framing of the federal and language provisions as well as during the drafting of the Legislative provisions. The need for domestic stability affected the shape of the federal structure in general and particularly caused the inclusion of the Emergency Provisions. Other aims also played their part in shaping the Constitution—aims such as the protection of minority interests, the creation of efficient government and administration, and national security. All these aims were either explicitly or implicitly embodied in the Constitution as were, Assembly members hoped, the institutions that would be the means of achieving them.

The Indian Constitution is, then, a document in which provisions expressing general principles and humanitarian sentiments—vows of purpose, if you will—mingle with those embodying level-headed practicality and administrative detail. And as the idealism that marks the Constitution was predominantly a product of the social content of the Independence Movement, which in turn stemmed from an awareness of the plight of the mass of Indians, so the practical provisions, were largely a product of the Assembly members’ experience in government and of the exigencies of the times. The members of the Constituent Assembly did not work in a vacuum. Not only did they act as the nation’s parliament from August 1947 until January 1950, but many of their number were also the leaders of the Union and provincial governments. Hence domestic conditions—food shortages, communal riots, communist subversion— had a marked effect on the content of the Constitution, and events abroad also carried lessons. The news dispatches carried by New Delhi’s major newspaper of the period, The Hindustan Times, for the month of September 1948, a few weeks before the members debated the Draft Constitution, show the atmosphere in which the Assembly worked.

The issue of 1 September carried news of the continuing trial of Mahatma Gandhi’s murderer, Nathuram Godse. Headlines announced that floods in Kanpur had left twenty thousands homeless, that the Law Ministry of the Union Government had recommended that consideration of the controversial Hindu Code Bill be postponed, and that a large Pakistani attack near Poonch in Kashmir had been beaten off. The issue of 4 September reported that Parliament had discussed the ‘inflationary crisis’ and that Nehru had assured the House that the rupee was not to be devalued. Sardar Patel praised the Gaekwar of Baroda for inaugurating full responsible government in that Princely State. Events in Kashmir made the headlines on 6 September—and on nearly every day—as did the Russian blockade of Berlin. Troops of the Chinese Red Army were reported advancing on Chiang Kai-shek’s positions in Honan. And G. S. Gupta presented his Hindi translation of the Draft Constitution to a press conference, saying that it should be accepted along with the English version to give it legal validity. On 12 September banner headlines and black borders announced the death of Jinnah, the founder of Pakistan. Two days later news of the invasion of the State of Hyderabad by Indian troops covered the front page, and on 18 September came word that the Nizam had surrendered. That same day the dispatches from Palestine reported that Bernadotte had been murdered by the Stern gang. For the last ten days of the month the paper was full of the intentions of provincial food and agriculture ministers to reinstitute food controls, of a plan for cloth rationing in Delhi, and of a communist revolt in East Java. India, no less than the world at large, was in ferment, and amidst such daily events the members of the Constituent Assembly to lay the foundations of the future India.

Many of the articles of the Constitution, either in wording or in content, have their origins in foreign constitutions. The members of the Assembly were not so chauvinistic as to reject the experience of other nations. Yet although the Assembly borrowed freely, it fashioned from this mass of precedent a document to suit India’s needs. Although the Constitution at some point defies nearly all the rules devised by constitutional lawyers for success, it has worked well. The credit for this lies —insofar as it can be assigned—in part with c British, who brought the vision and some of the reality of parliamentary democracy with them to India, in part with fortuitous, circumstances and in largest part with Indians themselves. Indians had for years demanded a constitution establishing parliamentary democracy; when the opportunity came they framed one; and for past decade and a half they have demonstrated that they have the ability to make it work.

The Constituent Assembly was able to draft a constitution that both a declaration of social intent and an intricate administrative blueprint because of the extraordinary sense of compromise among the members. The members disagreed hardly at all about the ends they sought and only slightly about the means for achieving them, although several issues did produce deep dissension. The atmosphere of the Assembly, generally speaking, was one of trust in the leadership and a sense of compromise among the members. The Assembly’s hope, which it frequently achieved, was to reach decisions by consensus. And there can be little doubt that the lengthy and frank discussion of all the provisions of the future constitution by the Assembly, followed by sincere attempts to compromise and to reach consensus, have been the principal reason for the strength of the Constitution.

This book is a political history of the framing of the Constitution, of how past and present, aims and events, ideals and personalities moved the members of the Constituent Assembly to write the Constitution as they did. It has been called a political history to distinguish it from the many volumes having a more legalistic approach. Several of these have been valuable contributions in their field, but they have not contributed greatly to our knowledge of India in the years since World War II. The author has intended to do this in some measure. It is hoped that the book will provide the general reader with some insight into the political bases and motivations of Indian life and at the same time provide the close student of Indian affairs with the first account, based on manuscript sources, of the working of the Constituent Assembly.