The Constitution of India (issues)
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The Constitution of India
History
Before-1947
Baroda
Rahul Sagar, Sep 25, 2022: The Times of India
How many in contemporary India are aware that the earliest concerted push for constitutionalism occurred not in British India but in “Indian India”? The story goes like this. In the first half of the 19th century, the British had come to the conclusion that the native states were a morass where “despotic” rulers treated their subjects as “mere milch cows”.
Since meddling openly generated resentment, the British tried to use education to produce “responsible” rulers. Baroda became a test case for this approach. After Malhar Rao was deposed on grounds of maladministration in 1875, the British selected Sayaji Rao Gaekwad, then an illiterate 12-year-old, and set about grooming him for office. Under the supervision of his Oxford-educated tutor, Frederick Elliot, Sayaji Rao was introduced to various “gentlemanly” activities. But then on the eve of his ascension, a fierce debate broke out over the rightful role of a maharaja.
The traditional view in the native states was that a maharaja was entitled to decidedly absolute rule in the interest of his dynasty. This view now came under attack from ambitious and patriotic young men in Bombay Presidency, who had received a modern education. Hoping to see the backs of the British, they urged Sayaji Rao to “strengthen his state”. Remarkably, Elliot nurtured these views. Because he wanted to make Sayaji Rao, whom he cherished, a leading figure in western India, he let his ward mingle with Maratha firebrands. Thus, it was that Sayaji Rao came into possession of Niccolò Machiavelli’s ‘Prince’, which he promptly “adopted as his political guide”.
This development shocked the British who set about trying to oust Elliot. It also alarmed Baroda’s celebrated Dewan, Sir Madhava Rao. It was all very well to be moved by Machiavelli’s exhortation to liberate one’s patria (homeland) from “barbarians”, but much depended on knowing how to do this. Having devoted his career to preserving native states from the grasping British, Rao was only tooaware of their comparative weakness. And so, in 1881 the anxious Dewan convinced the British to allow him to deliver to Sayaji Rao a “special education” in the form of lectures on the “art and science of government”.
In his lectures, Rao urged Sayaji to see that the circumstances he confronted were quite unlike those in Machiavelli’s Prince. What maintained the British in India was public credit and public opinion: Indians were willing to lend them money and obey their laws because they expected them to improve their lives — and did not foresee a better alternative. Consequently, violence could accomplish little, as the great mass were unlikely to side with the native states. To supplant the British, the native states would need to outperform them. And in an age where newspapers were watching the ruler’s every move, half-measures would fool few. “A fierce light beats upon the throne,” Rao warned. Only thoroughgoing reform would suffice: the native states had to establish a constitutional order in which governance would depend not on the maharaja’s penchants but on impartial and capable public institutions.
Rao struggled to be heard. The constitution he proposed to Gaekwad was denounced by traditionalists and militants alike. The sardars and bais mocked him as a “Madrasi” who wanted to turn Baroda into Britain, while hotheads in Bombay, reportedly including the young Bal Gangadhar Tilak, circulated anonymous pamphlets accusing him of timidness. But the story does not end there. Rao’s entreaties prompted a much wider debate in western India. It led to dozens of publications on the importance of constitutionalism, which decisively shaped the world view of liberals clustered in the Poona Sarvajanik Sabha and the Indian National Social Conference, most notably M G Ranade and G K Gokhale. These figures then went on to shape the “moderate” wing of the Indian National Congress, which made constitutional reform its signature.
This is only one example of how the native states contributed to ideas and policies that have shaped contemporary India. There are many other stories to be told: about Mysore and Travancore fostering representation, Tanjore and Vizianagaram revitalising culture, Bhavnagar and Gondal encouraging education, Indore and Mayurbhanj facilitating enterprise, and Kapurthala and Bikaner advancing diplomacy. As we continue to excavate these stories, we will see that the natives states were patrons of wider national progress, serving as incubators of talent, arenas of debate, and laboratories of policy. And perhaps then we will give them their due by celebrating their contribution to the making of modern India. ¦ Rahul Sagar teaches political science at NYU Abu Dhabi and is the author of ‘The Progressive Maharaja: Sir Madhava Rao’s Hints on the Art and Science of Government’
The Constitution’s journey: 1946-2022
January 26, 2022: The Times of India
From: [The Times of India]
India’s independence was celebrated crowds. In contrast, the nation’s metamorphosis into a republic was a much more sober affair. Compared to August 15, 1947, the front page headline of this newspaper on January 28, 1950, (no paper was published on January 27) was staid, proclaiming — ‘India Becomes Sovereign Democratic Republic’ — with a picture of India’s first president Rajendra Prasad being sworn in. This news jostled with other items like a “Communist-sponsored” demonstration against Republic Day in Calcutta, a bomb thrown at the Nizam of Hyderabad and the US signing a pact with western European powers.
Before the nation was officially declared a republic on January 26, 1950, several acts went into it. The most notable was the Constituent Assembly, meeting between 1946 and 1949 and framing the Constitution, which forms the republic’s nucleus. It was adopted on November 26, 1949. Indeed, while Independence Day was about the exhilaration of freedom from British rule, Republic Day was really about the adoption of the Constitution, crafted by Indians, to henceforth act as a lodestar to the nation.
Among the most important things the new republic did was to mandate universal adult suffrage, critical since the word republic draws from the Latin phrase ‘res publica’, where a state draws legitimacy from the public or the people. In fact, the Constituent Assembly itself was elected on the basis of a limited electorate. Adult suffrage was a revolutionary step given the widespread poverty and illiteracy in India. Some members expressed unease with adult suffrage, one calling it a “grand leap in the dark”. Outside the Assembly, even Rajendra Prasad had reportedly voiced his “grave anxieties” at a public meeting about adult franchise.
However, Alladi Krishnaswamy Aiyar, the lawyer whom Ambedkar called more “competent” than him, made the most eloquent defence of the principle in the assembly saying the “introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life… and… decent living of the common man. ” It is no accident the preamble to the Constitution begins, “We the people…” The Constitution, albeit with frequent and often substantial amendments, alongwith elections, has been
the cornerstone of the Indian republic. The first amendment to it – when the provisional Parliament was in place and the first election of free India was yet to be held – was farmany subsequent amendments, the first amendment was partly dictated by the government’s ideological concerns and partly to strengthen the state. The court rulings.
At the time, an exasperated Jawaharlal Nehru had proclaimed in Parliament, “Somehow we have found this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers. ” Among other things, the first amendment curtailed freedom of speech, introduced caste-based reservations and set in place land reforms by restricting the right to property.
Similar forces were at play during the early years of Indira Gandhi’s term as prime minister when many of her policies, including bank na- tionalisation and abolition of the privy purses, ran afoul of the Supreme Court, culminating in the landmark Kesavananda Bharati ruling in 1973. In one of the most famous judgments in India’s constitutional history, a 13-judge bench, the largest ever in Supreme Court, in eleven separate opinions structure” doctrine, which essentialmandate to “alter the basic structure or framework of the Constitution”. events, including nationwide protests 1975 Allahabad high court ruling finda state of emergency in 1975. Most into bend, but you crawled. ” After having imposed the Emergency, the Indira government struck back at the judiciary with the 42nd amendment, which said certain amendments could not be challenged in court and that there would be no limitation on Parliament’s power to amend the Constitution.
It was left to the people, the voters, to chastise Indira, handing her a resounding defeat when she called elections in 1977. One of the achievements of the Janata government, which lasted 28 months and was marred by factional rivalries and leadership struggles, was the restoration of the republic and parliamentary democracy.
Nearly four decades later, as majoritarian tendencies gather momentum around the world, it is imperative for citizens everywhere, including India, to preserve and protect the fundamental rights and civil liberties that were won with so much struggle and sacrifice by preceding generations. What Ambedkar had cautioned in his final speech in the Constituent Assembly on November 25, 1949, still holds true: “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. ”
Its resilience
D Shyam Babu, January 26, 2022: The Times of India
Highlighting how resilient the Constitution of India had been during the first half-century of its existence, eminent jurist Fali Nariman narrated in 2002 how Sir IvorJennings – that ‘prolific author of Westminster-type constitutions’ – was dismissive of our law of the land. Invited by theUniversity of Madras to lecture on the Constitution when the document was barely a year old, he said it was “too long, too detailed, too rigid”. Indeed!The same Sir Ivor had helped draft constitutions for SriLanka (then Ceylon)and Nepal but neither outlived its infancy. Such is the fate of most constitutions in the developing world. It mattered not whether a constitution was homegrown or borrowed, too long or two short, it proved to be toofrail to live longer. But the IndianConstitution stands as a beacon of stability and longevity. However, one can readily concede to its shortcomings: it’s too long, too alien, etc. And one can as wellthrow in yet another charge:it’s too elitist. What then explains the success of a document that is plagued by somany infirmities?An often neglected factorfor the Constitution’s successis its popularity, the realisation among an overwhelming majority of Indians that itreflects and guarantees theirbasic human rights. Aboveall, the document symbolisesthe nation-inmaking. It is nomere past perfect,but a charter ofpresent continuous. For the downtrodden – lowercastes, especiallyDalits and tribals,and women – itsymbolises notonly a break from centuries of oppression andsubordination but the hopefor a bright future. A case in point is the adnauseam debate on the everexpanding ambit of quotas. While one may be right in finding fault with the logic of quotas, one must recognise thatany debate thereon is invariably anchored to constitutional guarantees. The legitimacyand longevity of any constitution depend on the peoples’faith that it has direct andpositive bearing on their lives. What gives the documentits heft is its structure in thatit is comparable to most constitutions in the developedworld, as well as its pedigree,above all epitomised by itschief architect, Dr Ambedkar. However, its depth comes fromthe 299-member Constituent Assembly which was broadlyrepresentative of the country. Each of the 15 women members in the Assembly, for example, was there in her own right. Some of them, such as Durgabai Deshmukhand RajkumariAmrit Kaur, wenton to make enduring contributionsto the nation. Twoother members,Hansa Jivraj Mehta and Vijaya Lakshmi Pandit, madetheir mark at theglobal level. the Assembly rendered gender justice a fait accompli, no matConstitution was adopted, her Declaration of Human Rights be absolute and unambiguous.
Being one of the two female members of the UN Commis- sion that drafted the Declaration, Mehta insisted that in article 1, the expression “All men are created equal. . . ” be replaced by “All human beings are created equal. ” She reasoned that ‘men’ might be representative of all human beings but there could be occasions when women might be excluded. Eleanor Roosevelt, the other female member of the Commission, became its chairman and it was Mehta who proposed Roosevelt’s name.
Though Mehta’s demand that there ought to be some mechanism to ensure human rights are enforced was rejected, the challenge of compli- ance still haunts the world.
As with the freedom struggle, so is the case with constitution-making, we have ended up men and women whose contributions and sacrifices are second to none. For example, in his ‘rebels’ for praise – such as H V made it to the Constitution. But they were large-hearted enough to add their seal of approval to the doculone member refusing to add his signature to the Constituganged up and withdented the Constitution’s legitimacy. It is heartening that the younger generation is embracing the Constitution as a progressive and inclusive instrument deserving our reverence. Its remembrance and celebration constitute our secular creed and practice. The Republic Day Walk being organised in Chennai for promoting conversations around equity is a praiseworthy initiative.
People claiming the Constitution their own will be the ultimate safeguard against corrosion from within and sabotage from without.
The drafting of the Constitution of India
The process
The Times of India, Nov 27 2015
How we codified what India stands for WHEN DID THE PROCESS OF DRAFTING INDIA'S CONSTITUTION BEGIN?
In 1934 Indian leaders demanded a constituent assembly to draft a Constitution reflecting the ideals of an independent India, the process began more than a decade later. The constituent assembly first met on December 9, 1946 in the Central Hall of Parliament, then called Constitution Hall; more than 200 representatives attended, including nine women. Sachchidananda Sinha was elected temporary chairman, to be soon replaced by Rajendra Prasad.
How was the assembly constituted?
Constituent Assembly members were chosen mainly through indirect election by provincial assemblies, as per Cabinet Mission recommendations. 292 members were elected through provincial assemblies, 93 represented princely states and four represented chief commissioners' provinces, including the Northwest Frontier Province, Balochistan, Coorg, Ajmer-Merwara, Andaman and Nicobar. Total membership: 389.
How did it function?
On December 13, 1946, Nehru moved the `Objectives Resolution' stating the assembly's declaration proclaiming India an independent sovereign republic. It resolved to draw the operational characteristics of government in independent India. Soon after Mountbatten's partition plan was declared on June 3, 1947, a separate constituent assembly was set up for Pakistan, reducing the Indian body's members to 299. Before Independence, legislation was through the Central Legislative Assembly . On August 14, 1947 midnight, this was replaced by the constituent assembly. It had 17 committees to discuss all aspects of the new democracy .
How often has the Constitution been amended?
The Constitution has been amended 100 times, making it the world's mostamended statute. The first amendment came in 1951, a year after the Constitution came into effect. The last one became effective this May to make it possible for the India-Bangladesh land boundary agreement to be implemented. The Constitution framers felt the process of amending it should be neither too easy , which would defeat the very purpose of having a Constitution, nor too difficult, which would make it impossible for the document to keep up with changing social values. For amending the Constitution, a Bill can be intro duced in either House, but must win support of a majority of the total membership of each House (including vacancies, if any) and two-thirds of those present and voting (including “ayes“ and “nays“, excluding those abstaining) in each House.
If the Bill fails to pass this test in one House, no joint sitting of Houses can be used to get it passed. Where the proposed amendment imping es on the power of the states, it must be ratified by at least half the state legislatures. Which are the important amendments?
Some amendments have been significant. The first amendment in 1951 introduced Schedule 9 to protect laws that are on the face of it contrary to constitutionally guaranteed fundamental rights from judicial review.For example, a law allowing the state to forcibly acquire land for public good would seem to violate the right to property, but placing it in Schedule 9 (as the 17th amendment of 1964 did) was to put it beyond the reach of the courts. In 2007, the SC ruled that even laws under Schedule 9 are open to judicial review, if they violate the basic structure of the Constitution.
The Seventh Amendment of 1956 was to enable creation of linguistic states and of UTs while abolishing the earlier classification of Class A, B, C and D states.The 39th and 42nd amendments passed during Emergency in the mid-70s were controversial. The 39th placed restrictions on judicial scrutiny of the PM and the 42nd curtailed fundamental rights while introducing the concept of fundamental duties. It added the words secular and socialist to the preamble that defines the republic's nature.
The 43rd and 44th amendments passed after Emergency reversed some of the excesses. Rajiv Gandhi's tenure saw some crucial changes. The 52nd amendment of 1985 was to introduce an anti-defection bill while the 61st in 1989 reduced voting age to 18 from 21. The 73rd and 74th amendments allowed creation of a third tier of government through local bodies in rural and urban areas. The 86th amendment of 2002 conferred the right to education.
How long did it take to draft the Constitution?
It took two years, 11 months and 17 days to compile the world's longest national statute. The constituent assembly held 11 sessions over 165 days. On August 29, 1947, it set up a drafting committee under Ambedkar.The constitution was adopted on November 26, 1949. It came into force on January 26, 1950. That day the assembly became the provisional Parliament of India. This date was chosen to honour the “purna swaraj“ declaration of 1930.
The spirit
A union of states
Chandrima Banerjee, February 8, 2022: The Times of India
It is the first line in the Constitution, right after the Preamble — “India, that is Bharat, shall be a Union of States.” But when Congress MP Rahul Gandhi referred to it while speaking in the Lok Sabha on February 2, considerable uproar followed.
“If you read the Constitution of India, you will find — and many of my colleagues who have not read it should look at it — that India is described as a ‘Union of States’. India is not described as a nation, it is described as a ‘Union of States’,” he had said. “Meaning it is a negotiation, a conversation … It is a partnership, it is not a kingdom.”
BJP’s IT cell head Amit Malviya called it “deeply problematic and dangerous.” And BJP MP Nishikant Dubey moved a privilege notice against Gandhi in the Lok Sabha, saying he wanted to “incite” people with his statements which were in “contempt of the House”.
Like each phrase, punctuation (and even order of words) that eventually found its way into the Indian Constitution, “Union of States”, too, was debated for all its possible implications by the makers of the country’s legal code after Independence. And they had made a conscious choice to leave it in.
Every word was deliberated on
In 1948, a committee prepared a draft version of the Constitution and sent it out to all members. Over the next eight months, they sent in suggestions or proposed amendments. The public, public bodies and provincial governments were also asked to chip in.
Based on these inputs, the Drafting Committee reworked many articles.
This revised Draft Constitution was placed in the constituent assembly. Each article was then taken up, one by one, for debate over every possible nuance. If someone wanted an amendment to an article being debated at the time, they could “give notice” and then that would be discussed and put to vote.
So, why ‘union of states’? When BR Ambedkar tabled the Draft Constitution on November 4, 1948, he made it clear that it was a “Federal Constitution” — “this dual polity under the proposed Constitution will consist of the Union at the Centre and the states at the periphery.”
And that the Indian Constitution would not be for a “league of states nor are the states administrative units or agencies of the Union government.”
The debate that followed then was similar to the one now. Ambedkar said, “Some critics have taken objection to the description of India in Article 1 of the Draft Constitution as a Union of States. It is said that the correct phraseology should be a federation of states.”
He cited two examples: South Africa was a unitary state (governed by a central government) and Canada was a federation (group of partially self-governing states), but both called themselves “unions”.
“Thus the description of India as a Union, though its Constitution is federal, does no violence to usage. But what is important is that the use of the word Union is deliberate,” he added.
Then, he went on to explain why the phrase was chosen.
“I can tell you why the Drafting Committee has used it. The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the states to join in a federation and that the federation not being the result of an agreement no state has the right to secede from it.” In simple words, India was not a country that states “joined” (though the princely states did exactly that but that’s a separate debate) but a larger unit they were part of already.
“The federation is a Union because it is indestructible,” Ambedkar continued. “Though the country and the people may be divided into different states for convenience of administration the country is one integral whole, its people a single people living under a single imperium derived from a single source … The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute.” So, the phrase “Union of States” was meant to uphold territorial integrity, not incite secession.
‘Too much’ autonomy or ‘too little’?
The following day, on November 5, the debate came up again — how much power should the Centre have? Damodar Swarup Seth, the socialist freedom fighter from UP, said, “Our Indian Republic should have been a Union — a Union of small autonomous republics.”
Why did Seth say so? “Had there been such autonomous republics, neither the question of linguistic provinces nor of communal majorities or minorities or of backward classes would have arisen … The natural consequence of centralising power by law will be that our country which has all along opposed fascism — even today we claim to strongly oppose it — will gradually move towards fascism.”
Not everyone agreed.
Bengal politician Lakshmi Kanta Maitra said that retaining the phrase could lay the ground for secession later because many states had indeed “acceded to the Indian Union”, a voluntary act. “If this description of India, as is given in Articles 1 and 2, is retained, these states may contend, at some later stage, that they were sovereign states and were united to the Indian Union by purely voluntary arrangement,” he added. “We want to make it perfectly clear in the Constitution that this Union is an indissoluble Union of indestructible states, states in the sense of constituent units.”
The constituent assembly went back to the question about a year on.
On September 17, 1949, Urdu poet and freedom fighter from UP Hasrat Mohani objected to the phrase. “I am opposed to this union of states. I do not want a Union of that kind. Because, originally we had republics. We have given up that idea of republics and we have brought in the states. This is a very serious matter. It cannot be disposed of in a simple manner.” But the amendment could not be debated. Prime Minister Narendra Modi said in Lok Sabha, "The House has been insulted by saying that word 'nation' is not in the Constitution"
The following day, on September 18, Mohani was given time to explain. Unlike other opponents of the phrase, who thought it created space for secession, he thought it did not give states enough autonomy.
“I say that I have got a right to propose that instead of 'union of states' it should be 'Union of Republics of India or Union of Socialist Republic of India',” he said. “The word republic is taboo for some people. If they do not have the courage to use it, and find difficulty in accepting that word, I have an alternative proposal to call them sovereign states of India. That is to say the provinces will be autonomous.”
Supporting the idea but for an entirely different reason, BM Gupta from Bombay said, “The states might consider that they are independent and their estimate of their status might be higher than what it really is. I therefore submit that at least as far as the right of secession is concerned, it is not too late yet expressly to negative it, if it is found necessary.”
Eventually, four proposals came up.
“India shall be a Union of Indian Socialist republics to be called UISR on the lines of USSR.” It was rejected.
“India or Bharat shall be a Union of Sovereign States of India or Bharat to be called USSI or USSB on the lines of USSR.” Also dismissed.
“Bharat, or, in the English language, India, shall be a Union of States.” Rejected again.
Finally, the constituent assembly settled on what is now Article 1 of the Constitution: “India, that is Bharat, shall be a Union of States.”
Uniquely Indian features
Examining the Constitution as it tookits final shape in November 1949, Constituent Assembly member Kengal Hanumanthaiah dejectedly remarked: ‘Wewanted the music of a veena or sitar, buthere we have the music of an English band. ’ It was afeeling that many shared, and the idea that the Constitution — and the institutional systems it engenders —lacks indigeneity and replicates anglicised forms ill-suited to Indian terrain has since been firmly ensconced inthe mainstream political discourse. Calls to ‘decolonise’India’s political and constitutional systems, one maderecently by Justice Abdul Naseer, abound. Some evenseek to lay the blame at Nehru’s door. It is true that indigenous, particularly Gandhian, alternatives put forward by men like Radhakamal Mukherjee and Shriman Narayan Agarwal were rejected out of hand. Yet the creation of the Constitution was far more than just thetransplanting of the Westminster system on Indian soil. Desperately poor, largely uneducated, with little real knowledge orexperience of parliamentarydemocracy, deep-seated socialdivisions and an absence of enabling background conditions, the India of 1947 — its political and judicial institutions —lacked the traditions, precedents,and conventions on which theirWestminster counterparts rested. It was the need to address this lack, whether through written constitutional text or through their own actions that created ‘instant conventions’, that gave India’s founding fathers the space to shape their own version of Westminster. The resulting conceptual and practical distinctions fromWestminster, and the white settler dominions of Australia,New Zealand, and Canada, were substantial. Even whileembracing Westminster-style democracy in form, India’sConstitution bent, twisted, and adapted its norms and techniques, creating something very different in substance:both unusual and hard to categorise. While many of thesedistinctions were indeed down to the impress of Nehru, itis important to note that these ideas were widely shared inthe Constituent Assembly, including by Ambedkar andPatel. Even when expressed in the language and paradigmof a British constitutional legacy, India’s Constitution created an institutional structure and political culture thatconstitutes a typology of its own, distinct from Westminster. It was, to quote the constitutional historian Harshan Kumarasingham, an ‘Eastminster’ — the first of its kind. In contrast to the uncodified or sparsely codified constitutions of the UK and the dominions, India’s Constitution,the lengthiest in the world by a mile, went into exquisite and extensive detail. This was driven not by a crude obsession with verbosity, but the need to explicate rules andprovide firm and detailed guidance for institutions. It was an indigenous answer to India’s circumstances: the absenceof experience, tradition and precedent emblematic of Westminster. Or as the political theorist Madhav Khosla recently reminded us in his book India’s Founding Moment, anattempt to use the Constitution as a pedagogical tool to trainIndian institutions and those who staffed them. It created a state explicitly committed to revolutionarysocial aims embedded in its Constitution, with individualrights hemmed in with multiple provisos that enabled thestate to override them and legislate its social revolutioninto being. Here again, the impress of Nehru and his socialist policies — then enjoying widespread acceptance asan answer to India’s poverty and social inequality — is clear. Through Article 123 that confers the power to promulgate ordinances, the Constitution clothed the executivewith legislative power and allowed the government tolegislate in place of Parliament, without declaring anemergency. This is a power unheard of in Westminster. Thisenshrining of executive supremacy placed the government in thedriving seat with the ability andthe power to set the agenda for alllegislative business. To stress thisdominance further, it prescribedno period for the duration of parliamentary sessions, leaving italmost entirely to the government to decide when the legislature is summoned and how longit sits. Unlike the House of Commons which can only be prorogued to a definite date, andwhere the average length of prorogation in the recent past hasbeen 18 days, the Lok Sabha is almost entirely at the executive’s mercy. Such executive pre-eminence, needed forNehru’s social revolution, was also widely accepted as asuitable answer to the exigencies of India’s condition. These are only some of the more obvious distinctions. There are many others. All of them are indigenous mechanisms, consequences of the framers’ attempts to groundthe Constitution in Indian conditions. As innocuous as theymay seem, they have engendered an institutional form andpolitical culture that is recognisably Indian, widely divergent from anything seen in Westminster — enough to barely be recognisable beyond the outward form. Even a cursory observer will notice Indian democracy is far from Westminster in substance, and its constitutional structures farfrom simply an anglicised transplant. Its divergences, whileshunning ‘Indian type institutions’ as Fali Nariman callsthem, for better or (in my opinion mostly) for worse, represent a kind of indigeneity that has served to root the Constitution in Indian soil. This Constitution is thus more thanan imposition or a transplant; it is the framing of its ownhybrid system: the ‘Eastminster’ system.
Singh is the co-author of ‘Nehru:The debates that defined India’
The 15 women who wrote the Constitution
March 6, 2024: The Indian Express
The women who wrote the Constitution of India
Among the 299-member Constituent Assembly, there were 15 women who advocated passionately for a kind of India that would bear the imprint of both genders. They argued ardently over a range of topics from reservations to the Uniform Civil Code.
These experiences informed their discussions, arguments and positions on subjects like reservations, minority rights and legislative finances. During the debate around the Hindu Code Bill, members like Durgabai Deshmukh and Hansa Kumari made strong arguments for a Uniform Civil Code, which they believed would ensure more equality for women.
Dakshayani Velayudhan and Begum Aziaz Rasul argued against reservations and separate electorates for Scheduled Castes and Scheduled Tribes. They believed that reservations would maintain an unbridgeable gap between minorities and the majority.
These women advocated for a kind of India that would bear that imprint of both men and women. Economic, social and political equality for everyone in society was their foremost goal. Despite being on the receiving end of distasteful comments from several Constituency Assembly members, these women spoke their minds and played a crucial role in scripting the sovereign and secular republic of India.
Annie Mascarene
Born in 1902, Annie Mascarene’s work as a lawyer and politician in Travancore influenced her arguments in the Constituent Assembly Debates greatly. She fought to integrate the princely state of Travancore into the newly independent India and became the first woman to hold a ministerial and legislative assembly position in Travancore.
Mascarene in the Constituent Assembly Debates firmly believed in the centralisation of power for a smooth functioning of a democracy. She also warned against complete centralisation which would negatively affect the nature of democratic institutions. She said that the task of the Assembly was to lay down the rudimentary principles of democracy for generations to come and not just for the near future.
Hansa Jivraj Mehta
As a staunch freedom fighter, women’s rights activist and member of the Constituent Assembly, Hansa Jivraj Mehta essayed several roles. On August 15, 1947 as the country celebrated its Independence and President Rajendra Prasad took the pledge of freedom, Mehta presented the country’s first national flag on behalf of the women of India.
Mehta remained committed to women’s issues throughout her life and, in the Constituent Assembly, made strong arguments against reservations for women. “What we have asked for is social justice, economic justice and political justice, not reserved seats for quotas and separate electorates,” she said. Mehta also served on the board of UNESCO and became the first Vice Chancellor of MS University in Baroda.
Dakshayani Velayudhan
Born into the Pulaya community of Kerala, Dakshayani Velayudhan faced acute discrimination from the upper caste communities in Cochin and Travancore. Movements against caste discrimination were becoming prominent.
Velayudhan affirmed that the Constituent Assembly does not just “provide a new framework for the country but also grants the people a new framework of life”. She was a Gandhian and opposed untouchability. She supported Article 17 of the Constitution which abolishes untouchability. Velayudhan did not pursue electoral politics but was actively involved in social work in Delhi.
Amrit Kaur
A princess by birth but a fierce activist by passion, Amrit Kaur played an important role both during the freedom struggle and in shaping independent India. Kaur joined Gandhi in the Civil Disobedience movement in 1930 and was passionate about the political participation of women.
Like many of her contemporaries, Kaur advocated for universal adult franchise and did not believe in reservations for women. Kaur believed that true equality would only be gained when women made it to the legislature through ordinary elections rather than through reservations.
More about Rajkumari Amrit Kaur | The princess who built AIIMS She advocated for the Uniform Civil Code along with Hansa Mehta and wanted to replace “free practice of religion” with “freedom of religious worship” in the draft Constitution. A secular at heart, Kaur carried with her a spinning wheel, the Bhagwad Gita and the Bible when she was jailed after the Quit India Movement.
Kaur also served as the first women Health Minister and founded renowned institutions like the All India Institute of Medical Sciences (AIIMS).
Ammu Swaminathan
Fearless and politically charged, Ammu Swaminathan was a social worker, politician and anti-caste activist. Despite being born into an upper caste family, Swaminathan actively fought to erase caste-based discrimination in India.
Swaminathan started becoming politically involved in 1917 when she formed the Women’s India Association along with Annie Besant to address the social and economic problems of women workers. In the Constituent Assembly, Swaminathan supported the adult franchise and the removal of untouchability.
Having been at the receiving end of the practice of child marriage herself, she advocated for the Child Marriage Restraint Act and Age of Consent Act and the various Hindu Code Bills that pushed for reform in Hindu religious laws.
Durgabai Deshmukh
Remembered as the ‘Mother of Social Work’, Durgabai Deshmukh was one of the drivers of rigorous nation-building and social reform. Born in 1909 in Andhra Pradesh, Deshmukh did not come from a family of privilege. Since her childhood, she noticed cruel customs and poor treatment of women. When she was jailed during the Salt Satyagraha, Deshmukh observed that several women were imprisoned for crimes they did not even commit.
After this, Deshmukh decided to become a lawyer and pioneered the Andhra Mahila Sabha in 1937, which became an institution of education and social welfare. In the Constituent Assembly, she weighed in on judicial matters and advocated lowering the age from 35 to 30 to hold a seat in the Council of Ministers.
After Independence, she also served in the Planning Commission as a leader of social services and became the chairperson of the Central Social Welfare Board (CSWB).
Begum Aizaz Rasul
“Reservation is a self-destructive weapon which separates the minorities from the majority for all time,” said Begum Aizaz Rasul in the Constituent Assembly in 1948. Rasul was born into a princely family in Punjab and was introduced to politics early on.
She was the only Muslim woman member in the Constituent Assembly and advocated for minority rights in a secular state. However, she opposed reservations and separate electorates on communal lines. Beyond the Constituent Assembly, Rasul in the 1990s also believed that given the rising popularity of Hindutva, “it is time to think anew of how to improve the educational and socio-economic conditions of Muslims”.
Rasul was also the President of the Indian Women’s Hockey Federation and established the All India Women’s Hockey Association for 20 years.
Vijaya Laxmi Pandit
Often sidelined as Jawaharlal Nehru’s sister, Vijaya Laxmi Pandit was a diplomat and revolutionary. Born into one of the most illustrious families in India, Vijaya Laxmi Pandit was the first woman cabinet minister in the British era. She was also one of the first leaders to call for an Indian constituent assembly to frame a Constitution.
In the Assembly, Pandit emphasised the responsibilities of a free India towards its citizens and other countries. After independence, Pandit became the face of India on a global stage. She was the only woman delegate at the United Nations Organisation Conference. She was also the first woman President of the UN General Assembly in 1953.
The original copies of the Constitution
Preserving them
Chakshu Roy, January 24, 2022: The Times of India
A little rain in Delhi on January 24, 1950 did not dampen the spirits of the members of the Constituent Assembly. Huddled together, in the Constitution (now Central) Hall of Parliament, they were anxiously waiting for assembly proceedings to begin at 11 am for the last time.
There were two critical items on the day’s agenda. First was the election of the President of India. This one was momentous but straightforward because Dr Rajendra Prasad was the only candidate for the position. The second item was more personal. That day, each member would sign a document that would guide independent India’s destiny — the Constitution of India.
Constituent Assembly members signed three copies of the Constitution. Prime Minister Jawaharlal Nehru was the first to sign since he had to leave early and Dr Prasad the last. One was a printed copy in English, and two were in English and Hindi hand-lettered by two expert calligraphers. Artists from Shantiniketan also decorated each page of the calligraphed versions.
The two calligraphed Constitution copies are kept in the library of Parliament, and the institution shoulders the responsibility of preserving them for the nation. Their preservation is critical because written documents get damaged by prolonged environmental exposure. Inks and colours fade, plus air pollutants and insect infestation can irreparably damage paper.
In the mid-1980s, the Indian Parliament and the Egyptian government started looking for preservation solutions. The former for the two calligraphed Constitutions, and the latter for 27 royal mummies.
The Egyptians reached out to the Getty Conservation Institute (GCI) in the US. Dr Shin Maekawa, a Japanese-born American, led GCI’s project to design a storage and display case for the mummies. An engineer by training, Dr Maekawa had worked at the NASA-owned Jet Propulsion Lab before joining GCI. He laid stringent design parameters for the oxygen-free cases for the royal mummies. They had to be readily manufacturable, low maintenance and cost-effective.
The Parliament of India reached out to the National Physical Laboratory (NPL) in New Delhi for developing a case for preserving the Constitution. The point man at NPL for this project was its scientist Dr Hari Kishan. He would later go on to head NPL’s Quantum Phenomena and Applications Division.
Dr Kishan would work extensively to fabricate a glass case with some success. The missing piece of the problem was a seal on the edges of the display case that guaranteed it remained airtight and no oxygen could leak into it. While visiting France to develop a glass case, he would learn about GCI’s efforts in designing similar cases for the Egyptian mummies.
Dr Maekawa and the GCI team had successfully made a sealed display case to ensure that minimal oxygen would leak into it over an extended period. In 1993, GCI and NPL agreed to collaboratively design, install and test GCI’s hermetically sealed cases for the preservation and display of the Constitution.
A year later, GCI would ship two display cases for the English and Hindi versions of the Constitution to India. And after a year of testing, the two copies of the Constitution were placed in the airtight nitrogen-filled cases in 1995. Since then, a team of NPL scientists has carried out annual checks on the working of the two display cases.
The work done by Dr Shin Maekawa and Dr Hari Kishan has ensured the preservation of the calligraphed Constitutions that were signed 73 years ago for future generations. While their efforts protect the physical book, the people of India have to preserve the letter and spirit of the Constitution.
As former Supreme Court Justice HR Khanna, who upheld civil liberties during the Emergency, wrote: “A Constitution is not a parchment of paper; it is a way of life. Eternal vigilance is the price of liberty and, in the final analysis, its only keepers are the people.”
Illustrations in the 1st print edition
Nandlal Bose’ chapter titles
Sep 12, 2019: The Times of India
‘Statute in 1950 form would draw Hindu Rashtra charge’
The Constitution,1950: Part III (fundamental rights) carries a picture of Lord Ram, Sita and Laxman and Part IV (directive principles of state policy) which has a picture of Lord Krishna and Arjun
The titles of other sections have pictures of Lord Hanuman, Buddha, Mahavir, Kabir and even Mahatma Gandhi. There is also Akbar.
Union law minister Ravi Shankar Prasad said [in 2019 that] when the Constitution was being drafted, there were discussions on whether India’s culture, values and traditions should be incorporated into the document. Everybody, including Nehru and other leaders, agreed. “Painter Nandlal Bose was asked to paint the titles of various chapters. The founders of our Constitution decided what the paintings would be,” he said.
The architects of India’s Constitution
Fifteen founding mothers
Manimugdha Sharma, March 8, 2020: The Times of India
From: Manimugdha Sharma, March 8, 2020: The Times of India
Leela Roy was a socialist revolutionary. At a time when revolutionary activities were understood to be a male bastion, this Assam-born, Bengal-raised woman had in the 1920s taught other Bengali women how to make bombs, handle firearms, and circulate ‘seditious’ pamphlets. In 1946, she was elected to the Constituent Assembly, becoming one among 15 women tasked with framing a Constitution of free India.
Over the decades, the role played by these women who rocked the cradle of the nascent Indian republic was forgotten. Until now.
Priya Ravichandran, a marketing professional from Chennai, has been digging out the stories of these founding mothers of India as part of a project that she hopes to turn into a book.
The stories are fascinating. Roy, for instance, quit the revolutionary path and became a member of Indian National Congress in 1939. Then she became a member of Subhas Chandra Bose’s Forward Bloc. In 1942, she took part in the Quit India Movement and was arrested and jailed. “She quit the Constituent Assembly too in protest against Partition. And so did Malati Devi Choudhury,” Ravichandran says.
Choudhury was a Marxist. And she quit because she was uncomfortable with the idea of a constitution that was so heavily borrowed, elitist and inorganic. “There was also a strong belief that despite the granting of adult franchise, the ‘uneducated, poor, & hungry’ were not going to be alleviated, and that the Constitution would not go far enough in giving them a voice. The long, often contentious discussions and drawn out procedures would not have appealed to the restless nature of a woman whom Gandhi nicknamed “toofani”. She stepped away soon after to heed Gandhi’s call for a peace march for Noakhali and to work with the ‘Namasudras’ of Tripura (an avarna group),” Ravichandran says.
Historian Namrata Ganneri agrees that these women have been underrepresented in the national narrative. She says that many of these women had substantial careers before they stepped into the Constituent Assembly. So, they weren’t showpieces in the assembly but strong voices that challenged the status quo. “Women like Renuka Ray who were instrumental in the Hindu Code Reform were stridently opposed by a section of conservative women. Jankibai Joshi, who was president of the All India Hindu Mahila Mahasabha, decried Renuka Ray’s interventions as that of a Brahmo and not representative of a large majority of Hindus. Divorce reform was particularly opposed as western and destroying the sanctity of Hindu marriage,” Ganneri says.
For Ravichandran, it was Durgabai Deshmukh that led her on this quest. “The road I take to work in Chennai is named after her, and I also pass by her brainchild — the Andhra Mahila Sabha. My curiosity about her work and life kickstarted this interest, which is now a full-blown obsession,” says the researcher.
She also says that it took quite a bit of effort to figure out how exactly these women came to be in the assembly and how they contributed to the republic. “For many of them, the personal was intensely political. Vijayalakshmi Pandit, for instance, was directly impacted by property laws when she lost her husband in 1944. Her experiences went to inform her acts when she championed for the reform of Hindu women’s rights in All India Women’s Conference. So, to be able to map these connections, and parse the relationship between the women was challenging. Quite a few of them went completely off-radar after the 1950s, which hampered the search,” Ravichandran says. Till she embarked on this quest, the Indian republic for her was one built by men, with women on the sidelines. “Sarojini Naidu and her poems, Kamala Nehru and her protests, Kasturba Gandhi, Annie Besant, Aruna Asaf Ali, Lakshmi Sehgal etc are well known but there were these women too: Aruna Asaf Ali’s sister Purnima Banerji, Sehgal’s mother Ammu Swaminathan, all playing a central role. How could we not know about them? How can our understanding of our country be one written by men, and of men?” Ravichandran says.
India’s deceptive Constitution
The Hindu, November 26, 2015
The written Constitution diverges to such an extent from Indian constitutional law that it is not just an incomplete statement but can be positively misleading
Here's a look at the difficult circumstances under which our Constitution was adopted:
1. 271 men and women who were part of the Constituent Assembly, drafted the Indian Constituion after three years of debate over the governing charter of India.
2. The Constitution consists of 90,000 words carefully handwritten in English and Hindi. The books were also illustrated with events from Indian history exquisitely prepared by the great national artist, Nandalal Bose of Santiniketan.
3. There were no foreign consultants involved in framing the Constitution. The founders were adamant that Indians should have full control over the drafting procedure. Thus, the assistance of several lawyer-members were sought: Nehru, Prasad, Ambedkar, and Alladi Krishnaswami Ayyar were part of the historic draft.
4. Based on expert inputs, the Assembly's Constitutional Adviser B.N. Rau prepared an initial draft constitution in February 1948. Rau's draft was further revised by Ambedkar's drafting committee and issued in November 1948.
5. The Assembly took almost a year to discuss it. More than 2,000 amendments were considered and several were accepted. The drafting committee produced a revised draft, which was eventually adopted by the Assembly, with some changes, as the Constitution on November 26, 1949.
6. When the Assembly convened for its final session on January 24, 1950, its secretary, H.V.R. Iengar announced that Rajendra Prasad had been elected unopposed as India's first President. He invited members to sign the Constitution's calligraphic copies. Nehru was the first to do so and members from Madras followed him.
7. After the last member had signed the books, Prasad decided that he, too, must do so. But, rather than signing behind the last signatory, he inserted his name in the small space between the last line of the text and Nehru's signature.
8. Two days later, the Constitution became fully effective. At a ceremony held in Rashtrapathi Bhavan's Durbar Hall, Governor General Rajagopalachari solemnly proclaimed India as a “Sovereign, Democratic Republic”.
9. Through its unprecedented abolition of untouchability, the Constitution serves as a powerful emancipation proclamation ending centuries of caste-based discrimination and social exclusion.
10. The Constitution expressly guarantees every citizen important fundamental rights, which may be subject to only certain restrictions. These rights include the ability to freely speak and express oneself; the freedom of conscience and to profess, practise, and even propagate a religion; basic protections against arbitrary arrest and detention by authorities, and various cultural and educational guarantees.
The making and implementation of the Sublime Constitution
Nov 27 2015 : The Times of India (Delhi)
STATUTE OF LIBERTY - Constitution is sublime, failings are of our own making
Harish Salve
As a college student, I remember hearing a speech by the legendary Palkhivala on what he called “the Sublime Constitution“. There can be no doubt that the epithet coined by him was anything but fully deserved. The government's decision to characterise November 26 as Constitution Day is a remarkable step -albeit a token of gratitude which this nation owes to one who can fairly be called the principal architect of the Constitution.
The framing of the Constitution was a painstaking exercise. On August 29, 1947 the Constituent Assembly appointed a drafting committee (B R Ambedkar was chairman) which presented a draft in February 1948. This draft was discussed and altered and finally adopted by the Constituent Assembly on November 26, 1949. The Indian Constitution drew upon models in countries such as the US, Australia, Canada, Ireland, but crafted its own architecture.
Ambedkar in his speech to the Constituent Assembly quoted the powerful words of Grote [the Greek historian] “...The diffusion of constitutional morality.... Is the indispensable condition of government at once free and peaceable...Since even any powerful and obstinate minority may render the working of a free institution impracticable even without being strong enough to conquer ascendancy for themselves.“
With his characteristic bluntness Ambedkar said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.“
We are no longer an infant democracy -65 years is a fairly long time in the life of a nation, sufficient to assess whether we have imbibed constitutional morality, in sufficient measure. India has had its share of problems, the biggest being the economic non-inclusiveness of nearly 13rd of its population. Sociologically , we continue to let caste and religion divide us. Gender justice is a distance away .
India is the perfect social cauldron where strife could be a way of life. Add to this mix the freedom of speech and a media driven by popularity ratings -there's hardly any surprise that on its surface India has started to appear as an intolerant society . But the gains of six decades of democracy should never be underestimated.
The biggest success of Indian democ racy has been its ability to sustain the system of a popular government -the experiment of 1975 and its aftermath has hopefully dispelled any fantasies of dictatorship harboured by any political leader.
The second has been that, despite populist attempts at dismantling the basic freedoms as a ruse to usher in a socialist order, we have maintained the fundamental freedoms engrafted in the Constitution -the gift of freedom for which our forebears took on the might of the British Empire and sacrificed their lives.
An adjunct of this is that the Supreme Court in particular, and judiciary generally, is considered perhaps the world's most powerful institution of its kind.Barring certain aberrations, SC has been at the forefront of the battle to preserve these freedoms, using judiciously its power to enforce constitutional rights and fundamental freedoms even if it meant overriding popular sentiment. The SC has been proactive in attempting to make constitutional rights a living reality even for those who do not have the resources to seek redress of the judicial system, and to use these as a weapon to address executive and legislative lethargy.
Ambedkar, in his speech in the constituent assembly on November 4, 1948, expostulated the features of the draft Constitution. He explained the relative strengths and weaknesses of the Presidential form of government and the Westminster form of democracy . He said a democratic executive must satisfy two conditions -it must be a stable executive and it must be a responsible executive.
The presidential forms impart greater stability but lesser responsibility as the executive isn't dependent for its existence on a majority in Congress. The British system imparts greater responsibility because of an executive dependent on Parliament for its existence, but this is at times at the cost of stability. It isn't that the former is unaccountable -it's the degree of accountability and its pervasiveness that differs in the two systems.By this touchstone, Indian democracy is clearly work in progress. The lack of stability in government inherent in the Westminster system has taken its toll -coalition politics has seen national interest being sacrificed for political stability -the need for consensus has been seen to constrain ambitious economic measures.
Constitutional morality is another area which is shown up in grey light.Some areas of dismal failure are crimi nalisation of politics, radicalisation and intolerance, populist measures that fester the caste divide, and, most of all egregious, corruption. We replace governments every five years, unfortunately each government uses the same red beacons to torment the common man.
And when all else fails, we blame the Constitution. Amendments to the Constitution have been made designed to emasculate the courts and make our fundamental freedoms subject to the whim and caprice of those in power, on the excuse that it was the fundamental rights that prevented removal of poverty .
Such attempts are now dust on the shelves of history . No government in present times would dare tinker with the basic values enshrined in the Constitution. In a broadcast on the Cabinet Mission plan in 1946, Lord Wavell had in prophetic words said “... No country and no form of government can work satisfactorily without goodwill; with good will and determination to succeed even an apparently illogical arrangement can be made to work....“ Our Constitution is truly sublime if there have been any failings we have only ourselves to blame.
The basic structure doctrine
When Constitution got a judicial shield
40 years ago, the Supreme Court held that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework
Manoj Mitta | TNN
New Delhi: It was the mother of all judgments, delivered in 1973. The largest ever bench, consisting of 13 judges of the Supreme Court, came up with the “basic structure” doctrine in the Kesavananda Bharati case. The verdict was as political as it was legal, prompting the Indira Gandhi government to mount an audacious attack on the independence of the judiciary.
On April 24, 1973, the bench headed by the outgoing Chief Justice of India, S M Sikri, held with a 7-6 majority that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework. The very next day, the government appointed A N Ray as CJI, superseding three of the seven judges who had laid down the basic structure as the line that the Parliament could not cross while amending the Constitution.
For better or for worse, the Kesavananda Bharati judgment thwarted Indira Gandhi’s much-touted socialist policies of serving the collective interest at the expense of individual rights.
Long before the initiation of economic reforms in 1991, Kesavananda Bharati was the most significant triumph for the right, thanks to the exertions of legendary advocate Nani Palkhivala. In fact, it was seen as an instance when the right was on the right side of history.
The basic structure doctrine came on top of three judicial setbacks she had already suffered. While dealing with laws eroding the right to property, which was then a fundamental right, the Golaknath judgment of 1967 ruled that Parliament could not amend any of the fundamental rights guaranteed by the Constitution.
Two years later, the apex court struck down the first-ever nationalization of banks, because of inadequate compensation to the original owners. In 1970, it also invalidated the government’s decision to abolish privy purses, which had been conferred on erstwhile princes at the time of the integration of their states into the country.
If the basic structure doctrine was a path-breaking innovation, the manner in which it was laid down was no less unprecedented. For, 12 of the 13 judges on the bench were equally divided on whether there was any implied limitation in Article 368 on Parliament’s power to amend the Constitution. CJI Sikri, who was on the side of the judges who believed in the implied limitation, tilted the balance by using the ambivalent opinion of the 13th judge, H R Khanna.
Sikri adopted the stratagem of writing a note titled “View by the Majority”, which was endorsed by most of his fellow judges. Khanna came on board as the crucial sentence in that summary about the basic structure was lifted from his opinion.
Thus was born the basic structure doctrine, through an addendum of doubtful legal sanctity.
Though it did not attempt to provide an exhaustive list of the basic features of the Constitution, the Kesavananda Bharati verdict cited illustrative examples: supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, federal character of the Constitution, mandate to build a welfare state, free and fair elections and unity and integrity of the nation. The premise of the verdict was that an amendment to any of these basic features would amount to abrogation of the Constitution, as it would have changed beyond recognition.
In the event, many of the constitutional amendments made during the Emergency did violate the basic structure and were therefore removed from the Constitution by the Morarji Desai government.
During that infamous phase, the Supreme Court under justice Ray even made an abortive attempt to review the Kesavananda Bharati verdict.
Though the judgment played a historic role in preserving democracy in India, it has its share of critics among legal scholars. They allege that by placing the Constitution above Parliament, the basic structure doctrine was actually anti-democratic.
But there is no denying that it has stood the test of time.
A backgrounder
Prateek Chadha, January 15, 2023: The Times of India
What is the 'basic structure’ doctrine?
There is a widely-held misunderstanding that the 'basic structure' doctrine was ‘invented’ by the Supreme Court in its decision in Kesavananda Bharati's case — this is, in fact, a significant oversimplification. Barely had the ink dried on the Constitution, adopted in 1950, when the Supreme Court was obliged to consider the question of whether there were any limits on the powers of Parliament to amend the Constitution.
The validity of the very first amendment to the Constitution was called into question and decided in Shankari Prasad Deo’s case (1951), where the court unanimously took the view that there was no limit to Parliament’s power to amend the Constitution. However, over the next two decades, as Parliament began to increasingly use its unfettered powers (especially in the context of removing and restricting fundamental rights), the same question regarding whether there were any limits to the power to amend the Constitution kept cropping up. Consequently, the court began to develop a more nuanced understanding of this power.
In Sajjan Singh’s case (1965), the court once again upheld an unfettered power to amend the Constitution, but this time, by a 3:2 majority, with the dissenting opinions of Justices Mudholkar and Justice Hidayatullah, the foundations for what would become the basic structure doctrine were put in place.
This was followed by the decision in Golak Nath’s case (1967), where by a 6:5 decision, the court held that there were limits on the power to amend the Constitution and that Parliament could only make amendments that were relatable to subjects that it had dominion over in terms of the entries of the Union and Concurrent Lists of the Constitution.
It was in the context of this hyper-technical (and frankly rather unworkable) restriction that the decision in Kesavananda Bharati came into being.
Expectedly, the decision in Golak Nath’s case brought a legislative backlash in the form of the 25th amendment, which was brought to make clear that there was no limit to the power to amend the Constitution. The reason that Kesvananda’s case was before a 13-judge bench (the largest we have ever had) was that it was meant to decide whether Golak Nath’s position of there being restrictions on the power to amend the constitution was correct. By way of a razor thin 7:6 majority, the bench held that while the decision in Golak Nath case was right in saying there were restrictions on Parliament’s power to amend, it was wrong in claiming the power to amend was relatable to the legislative lists and basing the limits on the contents of the list. Instead, the limits were to be decided by the ‘basic structure' doctrine.
How it came about
Though the hodgepodge of opinions that form the majority said a lot of things, they all essentially agreed that there are certain basic aspects of our Constitution that are impliedly and inherently so central and important to the character of the document that they can never ever be altered.
They called these basic aspects the ‘basic structure’ and said that Parliament’s power to amend the Constitution was limited by the fact that it could never change these aspects i.e. the ‘basic structure’. If we imagine the Constitution as a large tower of Jenga blocks, the 'basic structure' doctrine is basically the court’s way of reminding us that while we can add and remove many blocks while having essentially the same tower, there are some blocks that we cannot touch without bringing the whole structure crashing down.
Through the majority opinion, and various other significant decisions that followed over the years — such as Raj Narain (1975), Minerva Mills (1980), Waman Rao (1981), SR Bommai, (1994), IR Coelho (2007), National Judicial Appointments Commission or NJAC (2015) to name a few — the court has fleshed out what these basic unalterable building blocks of the Constitution were.
Today there is broad agreement through a number of judgements that the 'basic structure' doctrine means that Parliament can never make any amendments to the Constitution that detract from the primacy of the Constitution, our democratic form of government, our fundamental rights, the independence of the judiciary, the separation of powers, a secular state, judicial review and federalism.
What the ‘basic structure’ doctrine does
The reason the ‘basic structure’ doctrine has been widely accepted across political lines for the better part of four decades now and no government has ever mounted a serious challenge to it is because there is a consensus that it is a safeguard against majoritarianism.
Even the most overwhelming mandate to a government has two significant limitations:
It may still not be reflective of the views of 50% of the populace in our first past-the-post system, where you can have over 2/3rds of the seats from a vote share that is well under 50% [2019: 303/545 seats = 37.3% vote share; 1984: 414/516 seats = 46.86% vote share]
The result of an election reflects the views of our citizenry at a given point in history and it would not be fair to allow the views of the electorate at one given point in history to have such a significant effect on future electorates.
There are those who argue that every electorate suffers this sort of intergenerational inequity when compared to the generation that framed the Constitution. But the simplest answer to that is that the original generation was also the one that sacrificed blood, sweat and tears like no other, which is what earned them that privilege.
Who all have supported it
Various leading lights from across the political spectrum seem to agree with this analysis of the 'basic structure' doctrine (many with a deep appreciation of what it means to be in Opposition to a large parliamentary majority). Former PM Atal Bihari Vajpayee is on record stating that: “It has been a national resolve that there will be no change in the ‘basic structure’ of the Constitution.”
Arun Jaitley is also on record as having supported the ‘basic structure’ doctrine by saying: “We learnt from our mistakes. We made the basic structure of the Constitution non-amendable. After the experience of the mid-1970s, we prohibited the suspension of fundamental rights even during the proclamation of an emergency.” Former VP, Venkaiah Naidu, P Chidambaram and Jairam Ramesh are also on record as having spoken publicly in support of the doctrine.
Why we need it
Over time, the ‘basic structure’ doctrine has also come to gain acceptance across various jurisdictions, either by way of judicial decisions curtailing legislative power to amend a constitution or by way of provisions in the constitution that expressly place such limitations. Today, the doctrine is accepted as good law in Bangladesh, Belize, Pakistan, Kenya, Uganda, Malaysia, Germany, Greece, Portugal, Italy, France and Iran among others.
From all of this, it appears fairly clear that the Vice-President’s criticism is rather unfounded and appears to be an extension of his vociferous and repeated disagreement with the NJAC judgement (which also relied on the idea that the independence of the judiciary is a part of the ‘basic structure’ to strike down the constitutional amendment that tried to do away with the collegium system).
This ignores the fact that the doctrine is essentially nothing more than a commitment on the part of all three branches of the state to ensure that India will always remain true and strive to achieve the vision of founding mothers and fathers.
Court Has Discovered Many, Will Discover More: SC Judge
Privacy is the latest fundamental right mined out by the Supreme Court from the “Constitution's dark matter“, which over the years has yielded a rich harvest of gems like right to education and dignity , Justice J Chelameswar said.
In his separate judgment agreeing with the nine-judge bench's conclusion on constitutional status of privacy , Justice Chelameswar said privacy as a fundamental right did not find mention in the written words of the Constitution but it was not hard to find it intrinsic to many other expressly provided rights like right to life and various freedoms, including speech and expression.
“The implications arising from the scheme of the Constitution are `Constitution's dark matter' and are as important as the express stipulations in its text,“ he said and added that even the inviolability of basic structure doctrine laid down in the famous Keshavananda Bharati case in 1973 found no mention in the text of the Constitution. “The necessity of probing seriously and respectfully into the invisible portion of the Constitution cannot be ignored without being disrespectful to the hard earned political freedom and the declared aspirations of the liberty of `we the people of India',“ he said. Justice Chelameswar said the SC has continuously engaged in the process of interpretative digging of the “Constitution's dark matter“ which has yielded a rich harvest of gems of fun damental rights.
The discovered fundamental rights are freedom of press, right to earn livelihood, right to education, right to speedy trial, right to reputation, right to pollution free environment and right to go abroad and these have helped citizens realise fully the fruits of expressly provided fundamental rights in the Constitution.
Justice Chelameswar said, “To sanctify an argument that whatever is not found in the text of the Constitution cannot become part of the Constitution would be too primitive an understanding of the Constitution and con trary to settled cannons of constitutional interpretation.
“Constitution is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only for their generation but generations to follow. The Constitution cannot be seen as a document written in ink to replace one legal regime by another. It must be seen as a document written in the blood of innumerable martyrs of Jalianwala Bagh and the like.“
On the liberties and freedoms needed for a human being to live with dignity , Justice Chelameswar said, “I am of the opinion that a better view of the whole scheme of the chapter on fundamental rights is to look at each one of the guaranteed rights not as a series of isolated points, but as a rational continuum of the legal concept of liberty , that is freedom from all substantial, arbitrary encroachments and purposeless restraints sought to be made by the state.“
Features
5 Lesser-Known Aspects
August 12, 2022: The Times of India
FREEDOM OF TRADE, COMMERCE WITHIN INDIA
Part XIII of the Constitution contemplates ‘economic unity’ among the states. The Constitution guarantees freedom of trade, commerce and intercourse and prohibits imposition of taxes by the states in regional interest. This guarantee came to be tested in 1961 with an Assam law that levied a tax on the quantity of goods transported through the state’s inland waterways and roads. Because the law did not account for the distance covered for transportation, the Supreme Court invalidated it when it interfered with the dispatch of tea from Assam to Calcutta. Currently, states can impose non-discriminatory entry tax to share the tax burden between importing and exporting states, but protectionist regional taxes remain prohibited.
THE EXECUTIVE’S LAWMAKING POWERS
Can laws be made when Parliament and the state legislatures are not in session, but a need arises for immediate action? In such situations, the Constitution grants lawmaking power to the President and governors by way of ‘ordi- nances’ under Articles 123 and 213, respectively, that are meant to lapse within 6 weeks of the legislature coming into session. Between 1967 and 1981, this exceptional power was used routinely in Bihar, where the governor promulgated 256 ordinances, and kept them alive by continuous repromulgation. Between 1950 and 2014, the President issued 679 ordinances on key issues like land acquisition, powers of SEBI, and food security. Time and again, the Supreme Court has clarified that ordinances should be used only in extraordinary situations and that their repromulgation – without placing them before the legislature – subverts democracy.
STATES WITH SPECIAL STATUS
Just like it was for J&K, Part XXI of the Constitution contains special provisions for other states like, for instance, Sikkim. At the time of Independence, Sikkim was a hereditary monarchy, ruled by a Chogyal or king of the Namgyal dynasty. Following the 1950 Indo-Sikkim Treaty, Sikkim became India’s protectorate. As demands for democracy gathered momentum, a tripartite agreement was signed between the Chogyal, the Indian government, and representatives of political parties in 1973, paving the way for assembly elections in Sikkim. In the first such elections in 1974, the pro-India Sikkim Congress Party emerged victorious. Eventually, in 1975, Sikkim was merged with India through a referendum. Article 371F was inserted into the Constitution to meet Sikkim’s special needs, and the monarchy was thus ended.
CONSTITUTIONAL RECOGNITION OF LANGUAGES
India’s rich linguistic diversity comes through the Constitution’s Eighth Schedule, which explicitly recognises 22 languages. In former PM Jawaharlal Nehru’s words, the significance of this schedule is that it gives regional languages ‘their due place’ in the new nation. Passed in 1968, the Official Language Resolution requires central and state governments to promote the scheduled languages. Funds are allocated under the Union Budget for the promotion of Indian languages. Governments also take specific promotional measures such as translation of university-level textbooks in all scheduled languages. While four new languages were added to the schedule in 2003, demands for the inclusion of more than 38 languages, such as Tulu, Khasi, Mizo, Pali and, more recently, Rajasthani, are pending.
THE ABOLITION OF TITLES
The abolition of titles under Article 18 was incorporated as a fundamental right to discontinue the practice of bias in conferment of such titles. The Constituent Assembly decided to prohibit hereditary titles of nobility, such as Maharaja, Rai Bahadur, and Rai Saheb, as they created a distinct, unequal class of citizens. Titles conferred to honour military and academic distinctions were preserved. In 1996, the Supreme Court was faced with the question of whether national awards, such as Bharat Ratna and Padma Vibhushan, are titles under Article 18. Because these awards are meant to recognise merit and work of extraordinary nature, the top court held that they were not titles and neither did they violate the equality principle.
The Preamble
Fraternity
‘These principles of liberty equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy,’ said B.R. Ambedkar in the Constituent Assembly, in 1949.
It is often forgotten that ‘fraternity assuring the dignity of the individual and the unity and integrity of the Nation’ is, along with Justice, Liberty and Equality, among the basic values inscribed in the Preamble of the Constitution of India whose first line asserts, ‘We, the People of India’ have solemnly resolved to ‘secure’ to all the citizens of India.
The responsibility of the individual citizen
B.R. Ambedkar provided its rationale with remarkable foresight: ‘We must begin by acknowledging the fact there is a complete absence of two things in Indian society. One of these is equality’ and as a result of it we would enter into ‘a life of contradictions’ on January 26, 1950.
However, practical adherence to this commitment was given shape only by the Forty-Second Amendment (1976) in Article 51A (e) on Fundamental Duties.
It makes it the duty of every citizen of India ‘to promote harmony and the spirit of common among all the people of India, transcending religious, linguistic and regional or sectional diversities.
Significantly, the responsibility for bringing this about does not rest with the state but seems to be the responsibility of the individual citizen. We, therefore, need to comprehend the meaning and relevance of this pious wish. How has it become a political principle of relevance?
A poet summed it up neatly: Unka jo aqeeda hai who ahl-e-sayaaasat jaanen; Mera paigham mohabbat hai, jahaan tak pahunche (The politicians’ creed, the politicians know/ (Mine is the message of love, be it heard afar)
The idea of fraternity is based on the view that people have responsibilities to each other. It was defined after the French Revolution in the following terms: ‘Do not do to others what you would not want them to do to you; do constantly to others the good which you would wish to receive from them.’ The vagueness of the definition suggests that, despite its place in the revolutionary slogan, the idea of fraternity was not clearly understood. It is generally seen as an emotion rather than a principle.
In the Indian context however, as understood and articulated by B.R. Ambedkar, there is a sense of the imperative in the emotion. This is reflected in the wording of this section of the Preamble where the dignity of the individual and the unity of the nation both necessitate this emotion, and thereby lend a sense of urgency to it. It thus becomes an essential ingredient of citizenship that can be evaded or neglected at the cost of the concept itself.
Addition of terms: Secular and Socialist
Upendra Baxi, Look beyond the preamble, December 14, 2015: India Today
Upendra Baxi is emeritus professor of law, University of Warwick, and former vice chancellor, Delhi University
Constitutional secularism means that no particular group should acquire the syndrome of being persecuted or develop the symptoms of oppression.
There has been a lot of public debate in the last one year on the words 'secular' and 'socialist' appearing in the Preamble of the Constitution. No doubt, the two words were inserted into the Preamble by the 42nd Amendment in 1976-the last phase of Emergency proclaimed by the then prime minister Indira Gandhi-when most opposition leaders were imprisoned and when in a dark moment the Supreme Court denied the right of habeas corpus even in cases of mistaken identity. But the 42nd Amendment was upheld as a legal and binding amendment.
The post-Emergency governing elite chose not to delete these words. The 44th amendment was piloted by the then law minister Shanti Bhushan, and Atal Bihari Vajpayee and L.K. Advani were leading members of the cabinet.
Three years before the Emergency, in the Kesavananda Bharati case in 1973, the Supreme Court declared that 'secularism' and 'socialism' were aspects of the basic structure of the Constitution, and constitutional secularism was affirmed in 1994 in the Bommai case. These decisions were as late as October this year fully followed in the invalidation of the National Judicial Appointments Commission (NJAC) amendment. The deletion, if desired by Parliament, of the two words in the Preamble has to be a constitutional amendment process and will have to run the disciplinary gauntlet of the basic structure. Even systemic political dislike and occasional governmental advertisements (deleting these two words from the Preamble) cannot otherwise change the constitutional realities.
Much has been made of Dr B.R. Ambedkar's response to an amendment moved by professor K.T. Shah in the Constituent Assembly on November 15, 1948, where he did not see any need to add the two words to the Preamble. His overarching rationale was that there were certain "matters which must be decided by the people themselves according to time and circumstances" and these may not be "laid down in the Constitution itself, because that is destroying democracy altogether". He added: "If you state in the Constitution that the social organisation of the state shall take a particular form, you are, in my judgement, taking away the liberty of the people to decide what should be the social organisation in which they wish to live."
Closely read, his response was directed only to the term 'socialist' character of the Constitution. The Constitution he drafted had ample assurances for the state's secularism. The Constitution did not declare God's will or supremacy; it abolished untouchability, trafficking in human beings, and agrestic serfdom as constitutional offences (incidentally ours is the first modern constitution to declare offences against it and give Parliament the power to legislate about it, despite the federal design and detail); endowed the freedom of conscience and practices of religion; gave minorities the basic right to establish and maintain educational institutions of their own choice; and embodied so many assurances of constitutional secularity. Ambedkar and the Constituent Assembly felt that nothing much by way of secularism remained to be achieved by adding this word to the Preamble. They also felt the same about 'socialism' because the directive principles were, and are, replete with its attributes. Nevertheless, the Supreme Court has also felt it necessary to reiterate since 1973 the need to accentuate 'secularism' and 'socialism' as essential features of the basic structure.
One must conclude that the constitutional debate is long over, even when a new political debate seems to have begun around the meaning of constitutional secularism. The directions in which such a debate should move remain deeply contested. However, one must rule out firmly arguments for a Hindu rashtra, allowing non-Hindus a subordinated place. This is what the freedom movement rejected. Neither does the Constitution contemplate that born, or naturalised, Indian citizens should be asked or made to reside in other countries. Still less, does it allow citizens of this country to be demoted to the status of mere subjects-the new rightless people. The Preamble to the Constitution highlights fraternity as a value as important as liberty and equality; and there is now a fundamental duty of all Indian citizens, under Article 51-A of the Constitution, to promote and preserve the 'composite culture of India'.
Constitutional secularism means that no particular group should acquire the syndrome of being persecuted or develop the symptoms of oppression. All communities are to some measure affected by these. A mature political debate will, with great care, identify the specific constituencies and redress their injustices rather than quibbling about the terms of the Preamble.
The Constitution and the Scheduled Castes
The Times of India, Nov 27 2015
Chandra Bhan Prasad In the popular Dalit imagina tion, the Constitution is the anti-thesis of Manusmriti, the ancient text whose laws governed the caste Hindu society . Manusmriti belongs to antiquity, very few might have seen the book, let alone read it.However, its impact over the Hindu consciousness continues over vast swathes of India. That's why in MP's Ratlam district this year, stones were thrown at a Dalit groom who needed the protection of a kind policeman's helmet to avoid serious injury . His crime: Daring to ride a ghodi (mare) for his wedding.One also recalls the case of two Dalit brothers in UP's Pratapgarh district whose house was stoned after they cracked this year's IIT entrance exams. Such tales are endless.
The question that needs our attention is simple: Who were the Ratlam groom and the Pratapgarh brothers defying? Were they defying Hinduism? With all the brilliance at its command, caste Hindu India is yet to explain the relationship between Hinduism as faith and the caste as a social organization. The sad truth is that historically, Hinduism never rejected the caste order. And the caste order always justified its authority citing Dharma! Manu's law book, which also earned Chanakya's approval, lays down prohibitions against Dalits, ranging from food to lifestyle to occupation. The world of letters is forbidden to Dalits. It says, “A king must confiscate the wealth of a Shudra even if it is accumulated through enterprise.“
An effort to change such discrimination was first made by Macaulay , who created the Indian Penal Code in the first half of the 19th century . But a complete rejection of Manu's laws occurred when India turned into a republic with its own book of law: The Constitution.
The Constitution gave enormous confidence to Dalits. It always filled me with pride that BR Ambedkar, a Dalit, was the architect of the Constitution. And as a teenager, I was always upset that April 14 (Ambedkar's birthday) was not observed as a public holiday .
I recall how older Dalits spoke of the Constitution as their book of faith. I know I was able to join JNU for higher studies only because the Constitution created a pathway for me. Society , as we know it, would have hardly allowed a Dalit, someone from the community of rat hunters, to voice these words in The Times of India.
With the Indian society, its political arm in particular, accepting the Ambedkarauthored Constitution, a huge majority of Dalits feel integrated with the national mainstream. One can say that the Constitution allowed India to walk into a new era of egalitarianism, even if only theoretically .
While Manu's laws may still continue to impinge our lives adversely for another couple of generations, the government needs to be congratulated for this defining moment of observing November 25 as Constitution Day .For many decades, that's what many Dalits have been wishing for. Thank you Mr Prime Minister for making it happen.
Universal adult franchise/ electoral democracy
1947-50: how India ensured one-person-one-vote
The making of universal adult franchise in India during 1947-1950 was one of the greatest experiments in democratic history. Ornit Shani, author of the new book How India Became Democratic, speaks to Amulya Gopalakrishnan about those momentous years
Why was it such a massive feat for India to adopt universal adult franchise?
The Constituent Assembly of India agreed on the adoption of universal adult franchise in April 1947. But the practical process of turning all adult Indians into voters — enrolling the most gigantic electorate in the world — had to be achieved against many overwhelming odds. It was done in the midst of the Partition that rendered about 18 million people refugees; then there were 552 sovereign princely states whose subjects had not identified themselves as Indians; about 85% of the future electorate was illiterate; and 50% were women, many of whom did not recognise themselves as individuals, but as a ‘wife of’ or ‘daughter of’. Moreover, this had to be achieved in the face of deep social divisions and widespread poverty. Finally, universal franchise was no legacy of colonial rule. Colonial bureaucrats held the position that beyond being a bad fit for India, it would also be impracticable and an impossible task.
You show how Indians became voters before becoming citizens. Could you elaborate?
The Constituent Assembly Secretariat, the non-partisan executive branch of the Assembly, in anticipation of the Constitution being finally framed and approved, undertook from November 1947 the practical steps needed for the preparation of electoral rolls on the basis of universal adult franchise. These outstanding bureaucrats recognised that the work involved was ‘colossal’, and had to be undertaken forthwith to ensure that the general elections could be held as early as possible after the Constitution came into force. A voter, according to a key criterion in the instructions they devised, had to be a citizen. But the citizenship provisions were only agreed on in August 1949. So, while ‘who is an Indian’ was still a contested question, especially for Partition refugees, securing a place on the roll became a way for people to secure their membership in the nation. The enrolment engendered struggles for citizenship from below, as people from the margins fought for their citizenship and voting rights, through a place on the electoral roll. The first draft electoral roll was ready just before the enactment of the Constitution. So yes, Indians became voters before they were citizens.
How radical was the idea of one-personone-vote in a nation with many hierarchies?
The institutionalisation of procedural equality was revolutionary. It came about from the many interactions of the Secretariat of the Constituent Assembly that, under the leadership of Constitutional Adviser B N Rao, oversaw this operation,with people. The Secretariat, whose work has largely been lost to history, aimed to prepare an accurate list of all adult Indians. They were inclusive, accountable, and responsive to every complaint or grievance. Their commitment to procedural equality sometimes resulted in bureaucrats taking proactive steps to ensure the voting rights of those at the very margins of society such as vagrants, domestic help and footpath dwellers. For example, in November 1948, the collector of Bombay wrote to the chief secretary, asking whether the following categories of persons should qualify for enrolment: ‘a vagrant lives in a hut erected on municipal land without permission, pays no rent but lives with his family in the hut; a person who works in the mill, and sleeps on the footpath’. The decision was that vagrants, servants and people who sleep on balconies, staircases and rear passages were eligible for inclusion. But people sleeping on footpaths were not included.
Why is the Election Commission (EC) such a critical institution?
The draft Constitution of 1948 provided for one EC for the central legislature and separate ECs for each of the states. Yet the article that came up for discussion in the Assembly on June 15, 1949, stipulated that the machinery for all elections to Parliament and state legislatures would be vested in a single central EC. This radical change was largely driven by the experience of the preparation of electoral rolls on the ground and by the information about attempts at disenfranchisement, and breaches of the Secretariat’s instructions by provincial governments. The Secretariat helped bring about these farreaching changes in the final Constitution, which ensured that the election management body would be independent of the government of the day.
How does that formative moment in India speak to our current situation?
It’s an inspiring story, and hasn’t been told so far. It is located just beyond the grasp of living memory — the generation that brought Independence is largely not alive. At this dire time for democracy in India and elsewhere in the world, this is an opportunity to appreciate an extraordinary juncture, in which Indians made electoral democracy for their own country and society. They did so against many odds with an immense imagination and inventiveness. It offers a basis for reconnecting people with the ideals of democracy.
See also
The Constitution of India (issues) <> The Constitution of India: Amendments<> The Constitution of India: Amendments 1-25<> The Constitution of India: Amendments 26-50<> The Constitution of India: Amendments 51-75<> The Constitution of India: Amendments 76-100 <>
And also
A note on grammar and usage
Indpaedia has received the following advice:
The correct way to write it is ‘Article 239AA in the Constitution of India.’
‘of the’ is used to indicate a part of something, while "in" is used to indicate a location within something. The Constitution of India is a document, so we would use "in" to indicate that Article 239AA is located within the document.
Article 131 in the Constitution of India
Article 142 in the Constitution of India
Article 239AA in the Constitution of India
