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.