The Draft Constitution: Some Reflections
BY V. LINGAMURTY, M.A.
(Lecturer, Maharaja’s College, Vizianagaram)
The strenuous labours of the Indian Constituent Assembly, under the most tragic and baffling circumstances, have borne fruit. The Drafting Committee appointed by the Constituent Assembly, with Dr. B. R. Ambedkar as Chairman, has now presented the Draft Constitution of India, following the decisions of the Constituent Assembly and of the Committees appointed by it. The Drafting Committee has introduced some significant changes in the decisions taken by the Assembly and its Committees though the general features of the Constitution remain unaltered.
In Article I of the Draft, India has been described as a ‘Union of States’1 for the Committee “considered that there are advantages in describing India as a union, although its Constitution may be federal in structure.” The term ‘Union’ has the advantage of elasticity, for It can conveniently be applied to any political contrivance ranging from a personal union which is a union of two sovereign States under one individual, to a real union which means a complete merger of a number of political communities as is the case with Scotland since 1707. Federation strikes a via media between complete union and confederation. The proposed Constitution reduces the autonomy of the Provinces and gives divergent status to the States, thus making India a unitary cum Federal State.
One of the essentials of federalism is equality of the units. But, thanks to the ‘divide and rule’ policy of the British, India consists chaotically divergent types of units and the Constitution has to provinces for heterogeneous elements. Such a constitutional structure has to described as a Union. In federation, sovereignty rests with the component units and the Central Government is not allowed to interfere with the Governments of the States. But according to the Draft, under certain circumstances, the President may issue a proclamation “the effect of which will be to put the Central Executive in the place of the State Execution and the Central Legislature in the place of the State Legislature.” In the distribution of legislative powers also, the unitary nature is visible. The Committee has decided that “when Parliament makes a law with respect any matter in the State List in the national interest, it should be treated akin to a matter in the Concurrent List. Thus the Central Government is given the power to encroach on the State field which, no doubt, strikes at the root of the federal principle. But there is no sanctity in the federal principle as such. Some subjects such as agriculture, co-operative societies etc., which are included in the State List, are of national importance. Sir B.N. Rau rightly pointed out at a press conference, “suppose, however, that in order to raise the standard of living of the Indian people as a whole a system of co-operative farming and of price control of agriculture products on a national scale, and not merely in a single Province, becomes desirable. In that event the Centre should not be precluded from legislating in respect of the above subjects as of right.”2 The Central Government is strengthened by the residuary powers being vested in it, Clause (1) of Article 223 states that “Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.” It is generally held that the Government which enjoys the residuary powers will be the stronger of the two and so the Congress, which always fought for a strong Centre, wanted to vest the residuary powers with the Centre. But, “there is no theoretical found9tion for such an impression.” The strength of the Centre really depends on the power enumerated in the Union List and the preparedness of the people to shed local feelings for national interests.
Though the Draft thus proposes a strong Centre, the general features of federalism are not overlooked. It envisages a division of legislative powers, the Supremacy of the Constitution, the creation of a Supreme Court, and a rigid Constitution. Thus the Indian Union represents a combination of both unitary and federal principles. Political and economic life in the modern world has become so complicated that integration of authority has become common and universal. For an infant democracy like India, a strong Centre is not only essential but also expedient.
Fundamental Rights in the Draft Constitution bear a close resemblance to those in the Irish Constitution. As in the case of the latter, some Fundamental Rights are made justiciable and some others non-jnsticiable. The guiding principle of the framers of our Constitution being the creation of a secular State, rights relating to religion are subject to certain qualifications. One of the most valuable lessons which a student of history may learn is that any mixing of religion with politics will have disastrous results. For the evolution of a democratic State, religion must be made a purely private affair and the State must be given the power to check all religious activity which impedes economic and political activity and social welfare. So, it is rightly stated in Clause (2) of Article 19 that the State can make laws restricting religious freedom “for social welfare and reform”. The importance of such a clause cannot be overlooked, especially in view of the disastrous activities of some religious organisations in India, which have culminated in the tragic death of Mahatma Gandhi. The Draft Constitution is really lacking in definiteness regarding the secularization of the State. In Clause (2) of Article 23 it is stated that “no minority, whether based on religion, community or language, shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State.” It is clear that the wording of the clause is not specific enough to effectively check religious and communal considerations in admission to colleges and services, which are so rampant in the Province of Madras. 3
The Draft Constitution dealing with the States causes some concern to peoples like the Andhras and the Kannadigas whose aspirations for a separate Province have been long neglected, though it does not quite smother their hopes. Article 3 states that “Parliament may, by law, form a new State by separation of territory from a State, or by uniting two or more States or parts of States.” But the Draft has not provided for any immediate steps to be taken for the reorganisation of Provinces. It has been widely held that the present division of Provinces is unhistoric and artificial, and the Indian National Congress on many an occasion emphatically upheld that it is urgently necessary to reorganise the Provinces on a linguistic basis. The maintenance of the present artificial units will not only stifle cultural development but also break the democratic machinery by the formation of rival cliques in the legislature. The result would be that the strongest group in the legislature, which may not command the confidence of the people, may come into power. To avoid such a danger and to safeguard democracy, is it not the first duty of the Government to create homogeneous units? Can such a demand be treated as a hysterical outburst? On calm and sober thinking, one is led to remark that any idea of reorganisation of Provinces after the inauguration of the new Constitution will be like putting the cart before the horse. While rash and hasty action is dangerous, undue delay may prove disastrous.
The Draft Constitution has been prepared after a close study of several foreign Constitutions, and, in particular, much is borrowed from the American and Irish Constitutions. In the formation of the Central Government, the authors of the Constitution have succeeded in creating a strong Centre while maintaining the diversity of India. “The Drafting Committee have evidently tried to steer the middle course between reducing the President to a mere figurehead and giving him powers similar to those of the American President which, with India’s lack of democratic experience, will be an invitation to dictatorship.” Bicameralism, which is now almost the universal system, is introduced at the Centre. The Council of States is given equal powers with the House of the People except over money bills; but, to be in tune with democratic practice, the Second Chamber must set up conventions which will make it mainly a revising body and give freedom of action to the Lower House.
The Draft dealing with the constitutional structure of provincial governments requires some scrutiny. The suggestion of the Drafting Committee to eliminate Deputy Governors is a sound one. Its suggestion regarding the method of election of a Governor is a definite improvement over the system of direct election. The Drafting Committee suggested that the Legislature of the State should elect a panel of four persons (who need not be residents of the State) and the President of the Union should appoint one of the four as Governor. Such a system will have the double advantage of preserving the freedom of choice to the States while maintaining unity of action between the Centre and the States. Moreover, direct election of the Governor may lead to friction between him and the Prime Minister and may also have unwholesome results. Nomination by the President from the panel prepared by the State Legislature of a person preferably from outside the State, see1us to be the best method. But, it is being asked, is their need for a Governor at all? Sri Narain Agarwal expresses the view that a Governor will be a costly superfluity. He remarks: “In my opinion, there is no necessity for a Governor. The Chief Minister should be able to take his place, and people’s money to the tune of Rs. 5,500 per month for the sinecure of the Governor will be saved” 4 But a study of parliamentary executives shows that a person like the Governor is indispensable for maintaining continuity in government. Moreover, from the detached position, which he occupies, he will be able to understand things in their right perspective and give valuable guidance to the Ministers. But the defect in the Draft Constitution lies in making the Governor the most dominating person in the Province. It reminds us of Governors under the Government of India Act, 1935. The Governor will enjoy all the legislative, executive, judicial and emergency powers which the Governors at present are enjoying. Even Sec. 93 of the Act of 1935, which is associated with the memory of British domination, is introduced in the Draft Constitution. To vest a single mortal Head of a State Government with formidable powers is quite undesirable, nay dangerous, for “power corrupts, and absolute power corrupts absolutely.” It is true that Governors should not be made figureheads; but it is equally necessary not to invest them with overwhelming powers. As Mahatma Gandhi observed, “theirs’ (Governors’) must be an all-pervasive moral influence in their Provinces.”
In the Draft, provision is made for a bi-cameral legislature in some of the States, a feature which is taken from the Act of 1935. “Where there are two Houses of the Legislature of a State,” says Clause (2) of Article 148, “one shall be known as the Legislative Council, and the other as the Legislative Assembly, and where there is only one house, it shall be known as the Legislative Assembly.” It is strange that the authors of our Constitution have thought a double-chamber system necessary in some of the States, while its value even at the Centre is doubted by some prominent writers on Political Science in recent times. A keen thinker like Prof. Laski observes: “The Single Chamber and magni-competent Legislative Assembly seems best to answer the needs of the modern State.” A Second Chamber is generally advocated to give representation to certain special interests and to lighten the legislative work of the Lower House. But in a small unit like a State, an additional Chamber is redundant. The other functions which are attributed to a Second Chamber are more theoretical in nature. It is generally described as a ‘revising House,’ though in fact its work of revision is largely verbal. So too with its work of ‘delaying legislation’, for, “legislation is not made ex-nihilo; it does not, suddenly as out of a clear sky, find its way to the statute-book.” Moreover, to have a uniform structure of Government, a uni-cameral legislature may be introduced in all the States. Whatever may be the value of a Second Chamber in the Union Government, in a State it is redundant and superfluous.
One of the significant omissions which the Drafting Committee could have filled up are the instruments of direct democracy, namely, referendum initiative, and recall. These ultra-democratic developments constitute the ‘latest novelty’ in the history of democracy, and they are given a place in the Constitutions of Australia, Switzerland, the U. S. S. R. and in some of the States in the U. S. A. It may not be advantageous to introduce these, instruments of direct democracy in the Union Constitution for the mass of voters may not be able to express their views on such subjects as Defense, Foreign Affairs, etc., with which the Union Government has to deal. Any reference of such subjects to the people will be an appeal from knowledge to ignorance. Moreover, there will be the practical difficulty of conducting frequent elections on a national scale, which will be not a little difficult in a big country like India. But such considerations need not have prevented the authors of the Constitution from introducing the direct democratic checks in the State Constitutions. In modern representative democracy, it is referendum, initiative and recall that afford a channel of direct action by the people. Their value will be immense in a compact unit like a State, whose Government has to deal with issues which will not be above the comprehension of the people. In the absence of such checks, the people will be free only at the time of elections. The ugly happenings connected with the Madras Ministry clearly reveal how democracy can be curtailed and made to look pitiful.
Another omission in the Draft which may be pointed out is the lack of any mention of village panchayats. In the heyday of our ancient civilization, the village panchayats played an important part and formed the nucleus connecting the people with the Central Government. Even today India is mainly a nation of villages, and so the village panchayats must be made an integral part of our constitutional structure. But the framers of our Constitution, who seems to be preoccupied with centralisation of authority have made no mention of the village panchayats. “It is certainly an omission calling for immediate attention,” observed Gandhiji, “if our independence is to reflect the people’s voice. The greater the power of the panchayats, the better for the people.”5 A system of village autonomy not only lightens the work of the State Government but also makes administration efficient, by reducing the evils of red-tapism and bureaucracy.
Nor is the Draft Constitution entirely based on equalitarian principles, for some of the units in the Union enjoy a privileged position. As the Chairman of the Drafting Committee admitted in his Note to the President of the Constituent Assembly, “some differences between the units there will undoubtedly remain, even in the new Constitution.” While the Provinces automatically become parts of the Union, the accession of the Indian States to the Union is voluntary. An Indian State may accede to the Indian Union or Pakistan, or it may remain independent. This is, no doubt, a legacy of British imperialism. But the Indian Government must act with firmness and determination to prevent the “Ulsterisation of the country, even by resorting to force, if necessary. Even after accession to the Union, the Indian States enjoy a privileged position, for, according to article 225, “the power of Parliament to make laws for a State or group of States for the time being specified in Part III of the First Schedule 6 shall be subject to the terms of any agreement entered into in that behalf by that State or group of States with the Government of India and the limitations contained therein.” Thus, while the power of the Union Government is uniform over all the States enumerated in Part I of the First Schedule 7, its powers over the States enumerated in Part III of the First Schedule vary according to the nature of the agreement made with them. This is undoubtedly an anti-democratic feature in the new Constitution. But, on considerations of expediency, certain imperfections have to be tolerated. In course of time, when circumstances permit, such inequalities in the Constitution will have to be wiped out through amendments.
Thus the Draft Constitution requires some omissions and certain additions. The powers of the Governors may be reduced and a Second Chamber in a State eliminated. The authors of the Constitution have also to show a wider and more liberal outlook regarding Fundamental Rights, and the reorganisation of State boundaries on a linguistic basis. To make the Constitution truly democratic, direct democratic checks must be introduced in the State Constitution, and all inequalities in the treatment of the Provinces and Indian States must be leveled down. The Draft has certainly its bright side. “To obtain a strong Central rule without despotism is indeed India’s problem, and, as far as a written Constitution can achieve such an aim, the planners seem to have done their work well.” The picture of our Constitution, before it is finally presented to the people, requires a few touches to give it the colorfulness of a great democracy.
1 For uniformity, the Committee has thought it desirable to describe the units of the Union in the new Constitution as States, whether they are known at present as Governors’ Provinces, Chief Commissioners’ Provinces, or Indian States.
2 The Hindu, Dec. 22, 1947.
3 For further remarks on Fundamental Rights, refer to my article, Independent India: A Democracy, published in Triveni Vol. XIX, No.3, October, 1947.
4 The Hindu, Dec. 23, 1947.
5 The Hindu, Dec. 23, 1947.
6 Indian States.
7 Governors’ Provinces.