We adopted the Constitution 74 years ago on November 26, 1949; and since 2015, we have been observing this day as the Constitution Day, or ‘Samvidhan Diwas’. Getting the Constitution drafted and adopted was no easy task; it took two years, 11 months and 17 days for the Constituent Assembly to draft the Constitution for Independent India. The Assembly held 11 sessions and its members submitted around 7,600 amendments to the Draft Constitution.
Drafting of India’s Constitution was such a herculean challenge as the world was watching how a newly independent, dismembered nation was scripting its definition and self-governance. As was obvious, questions were raised about the provisions of the Constitution, including how it proposed to deal with federalism and over the reasons for borrowing provisions from the Constitutions of other countries.
The issues thus stood on three major counts; first, that the Constitution lacked novelty, second, ‘ancient polity of India’ being inadequately represented, and third, on its perspective or rather approach towards the fundamental rights.
Dr BR Ambedkar, Chairman of the Drafting Committee, while introducing the Draft Constitution in the Constituent Assembly on November 4, 1948,sought to address the criticism in an interesting manner. He asked, “Whether there can be anything new in a Constitution framed at this hour in the history of the world.” He further said, “More than hundred years have rolled over when the first written Constitution was drafted. What the scope of a Constitution should be has long been settled… Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.”
“The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution… I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee in performing its duty has not been guilty of such blind and slavish imitation as it is represented to be…,” he observed.
On the criticism of “ancient Hindu polity of India” being inadequately represented, Dr Ambedkar said, “Another criticism against the Draft Constitution is that no part of it represents the ancient polity of India. It is said that the new Constitution should have been drafted on the ancient Hindu model of a State and that instead of incorporating Western theories, the new Constitution should have been raised and built upon village Panchayats and District Panchayats. There are others who have taken a more extreme view. They do not want any Central or Provincial Governments. They just want India to contain so many village Governments. The love of the intellectual Indians for the village community is of course infinite if not pathetic.”
He went on to say that such love for village communities seemed to be based on “the fulsome praise bestowed upon it by Metcalfe (Sir Charles Metcalfe), who described them as little republics having nearly everything that they want within themselves”.
“The existence of these village communities, each one forming a separate little State in itself, has, according to Metcalfe, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their happiness and to the enjoyment of a great portion of the freedom and independence. No doubt, the village communities have lasted where nothing else lasts. But those who take pride in the village communities do not care to consider what little part they have played in the affairs and the destiny of the country; and why?” he stated.
Dr Ambedkar somewhere definitely felt that the survival of the village communities was not a matter for pride. “That they have survived through all vicissitudes may be a fact. But mere survival has no value. The question is on what plane they have survived. Surely on a low, on a selfish level. I hold that these village republics have been the ruination of India. I am therefore 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? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit,” he said.
While presenting his views on Fundamental Rights, Dr Ambedkar declined to attribute any absoluteness to these rights. He said, “The most criticised part of the Draft Constitution is that which relates to Fundamental Rights. It is said that Article 13 which defines fundamental rights is riddled with so many exceptions, that the exceptions have eaten up the rights altogether. It is condemned as a kind of deception. In the opinion of the critics, fundamental rights are not fundamental rights unless they are also absolute rights...”
He then sketched a distinction between fundamental and other rights. According to him, “The real distinction between the two is that non-fundamental rights are created by agreement between parties while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State, it does not follow that the State cannot qualify them.”
He referred to the claims of the critics that in America, the fundamental rights are absolute, and said that even there those rights are circumscribed by the decision of the Supreme Court whereas in India, the limitations are very much inherent and explicit in the Draft Constitution itself.
He said, “What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights.”
Indeed, it would not be an exaggeration to say that our Constitution is a civilisational marvel and definitely not an exercise in verbosity without a reason but it was a necessity still felt to save this nation from ambiguity and bring in clarity in governance.
(The writer is an Advocate, Orissa High Court, Additional Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)