(The article was originally published in Indian Express on November 25, 2023 as a part of Dr Madhav’s column titled ‘Ram Rajya’. Views expressed are personal.)
On Samvidhan Diwas (Constitution Day), which falls on November 26 — commemorating the adoption of the Indian Constitution by the Constituent Assembly in 1949 — we hear paeans to it from scholars and constitutionalists. But, of late, we are also hearing voices asking for it to be replaced with a new Constitution.
Rewriting of constitutions is not an unusual thing. There is an old joke: A reader walks into a library and asks for a copy of the French Constitution. The librarian tells him that they don’t keep periodicals. Jokes apart, it is a fact that France has had over a dozen constitutions between 1791 and 1958, the last one credited with creating the Fifth Republic.
In our neighbourhood, Nepal had six constitutions between 1948 and 2007, before finally settling for the present one in 2015. Chile in South America embarked on rewriting its constitution in 2021, while the president of Uzbekistan, Shavkat Mirziyoyev, secured a thumbs up for the same in a referendum a few months ago. But none of these countries is comparable to India. Political expediency or lack of consensus over principles were largely responsible for them to undertake such exercises.
The story of our constitution making is different and unique. The draft constitution prepared by the committee headed by Dr B R Ambedkar was thoroughly discussed in the Constituent Assembly. Its members suggested 7,635 amendments, of which 2,473 were discussed during a period of 114 working days, spread over almost three years. The Constitution that came out of this hard work contained 395 articles and eight schedules. It gave new hope to 320 million Indians, especially to millions of underprivileged citizens like the Scheduled Castes and Scheduled Tribes.
One of the important criticisms about the present Constitution is that it was a “colonial constitution”. It is argued that a large part of it was a “copy-paste” from the Government of India Act 1935, enacted by the British Parliament. While there is no denying the fact that the 1935 Act was a colonial enterprise to perpetuate the British stranglehold over our country and there were some similarities in the clauses of the two, the “colonial” tag may be an oversimplification.
Allaying such apprehensions, Dr Rajendra Prasad, in his final address on November 26, 1949, as the chairman of the Constituent Assembly, made an important assertion that they were “not bound to have a Constitution which completely and fully falls in line with known categories of Constitution in the world”. Rajendra Babu insisted that “the Constitution has, not to an inconsiderable extent, been influenced by such realities as facts of history” of our country.
One such “fact of history” was the visit of the Simon Commission in 1927 with the mandate of reviewing the working of the Government of India Act, 1919, and proposing constitutional reforms for the country. The Indian National Congressdecided to boycott it on the grounds that there was not a single Indian member in it. Instead of accepting the mistake, the British sought to challenge Indians to prove that they could draw up a constitution of their own.
A similar challenge was thrown by Lord Birkenhead, Secretary of State for India, in the House of Lords in 1925, calling Indians to “produce a constitution which carries behind it a fair measure of general agreement among the great peoples of India”. Leaders of the nationalist movement accepted the challenge by setting up an all-party conference in December 1927 to draft a constitution for India. Motilal Nehru led it, with Subhas Chandra Bose, Annie Besant, M R Jayakar, Jawaharlal Nehru, a couple of Muslim League representatives and others as its members. It came out with a draft constitution in 1928 that became popular as “the Nehru Report”.
Unfortunately, political consensus eluded the Nehru Report at that time. It, nevertheless, became the basis for the future constitutional struggle. It contained 22 chapters and 88 articles and dealt with important subjects like fundamental rights, bicameral parliament, division of powers, judicial independence and centre-state relations. It unequivocally declared that every citizen of 21 years of age shall have voting rights. A leading newspaper exclaimed in its editorial that while Birkenhead got a befitting reply, “…we have drawn the Magna Carta of our liberty”.
In reality, the Government of India Act, 1935, was a hurried British response to the growing demand for liberty centred around the Nehru Report. While allowing limited democracy, it enhanced the powers of the viceroy including the power to dissolve the Parliament, prompting Congress to call it a “slave constitution”. Far from being universal, voting rights were extended to less than 15 per cent of the population. There was no provision for rights at all.
Upon dispassionate analysis, the Indian Constitution seems more akin to the Nehru Report than the 1935 Act. The proof of the pudding is in the eating. In the roller-coaster of Indian politics in the last seven decades, it served the country efficiently. It failed when leaders failed it.
Some could still argue that the national reality demands its rewriting. Two things must be kept in mind. One, many major countries, including the US, run their affairs without tampering with their constitutions too much. Several, like the UK and Israel, run their countries even when they don’t have a written constitution. Two, while responding to Birkenhead’s challenge, we accepted its underlying principle: A constitution that carries behind it a “fair measure of general agreement” among the peoples of India. We must be prepared for such a gigantic exercise, not forgetting that the present Constitution was drafted without taking recourse to voting and divisions in lobbies.
In any case, Rajendra Babu’s sane advice should always ring in our ears. “Our Constitution has provisions in it which appear to some to be objectionable from one point or another. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country.”