On this day 73 years ago, the Constitution of India was adopted, coming into effect on January 26, 1950. Since 2015, the day has been observed as Constitution Day, or ‘Samvidhan Diwas’.
The Constituent Assembly took two years, 11 months and 17 days to draft the Constitution for Independent India. During this period, it held 11 sessions covering 165 days, and its members submitted around 7,600 amendments to the draft Constitution.
It was for good reasons that the drafting of India’s Constitution was such a mammoth exercise — it was to determine how a newly independent, newly dismembered nation would define and govern itself. As the exercise went on, many questions were raised about the Constitution, including over its approach to federalism, to the protection of minorities’ rights, and over the fact that it had borrowed heavily from other Constitutions around the world.
Dr BR Ambedkar, the Constitution’s chief architect, addressed the criticism in his speech on November 4, 1948, when introducing the Draft Constitution in the Constituent Assembly. Here are his responses on four issues: on the draft Constitution being ‘unoriginal’, over its treatment of minorities, over it not representing the “ancient polity of India”; and on its approach to fundamental rights.
Borrowed from other documents
To this, Dr Ambedkar asked “whether there can be anything new in a Constitution framed at this hour in the history of the world.”
“More than hundred years have rolled over when the first written Constitution was drafted. What the scope of a Constitution should be has long been settled… Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.
The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution… I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee in performing its duty has not been guilty of such blind and slavish imitation as it is represented to be,” Ambedkar said.
On “ancient Hindu model of a State”
Dr Ambedkar said, “Another criticism against the Draft Constitution is that no part of it represents the ancient polity of India. It is said that the new Constitution should have been drafted on the ancient Hindu model of a State and that instead of incorporating Western theories the new Constitution should have been raised and built upon village Panchayats and District Panchayats. There are others who have taken a more extreme view. They do not want any Central or Provincial Governments. They just want India to contain so many village Governments. The love of the intellectual Indians for the village community is of course infinite if not pathetic.”
Dr Ambedkar went on to say that this love of village communities seemed founded largely on “the fulsome praise bestowed upon it by Metcalfe [Sir Charles Metcalfe], who described them as little republics having nearly everything that they want within themselves”.
“The existence of these village communities each one forming a separate little State in itself has according to Metcalfe contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their happiness and to the enjoyment of a great portion of the freedom and independence. No doubt the village communities have lasted where nothing else lasts. But those who take pride in the village communities do not care to consider what little part they have played in the affairs and the destiny of the country; and why?” he said.
The survival of the village communities was no matter for pride, Dr Ambedkar felt.
“That they have survived through all viscisitudes may be a fact. But mere survival has no value. The question is on what plane they have survived. Surely on a low, on a selfish level. I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit,” he said.
Safeguards for minorities
The chairman of the Drafting Committee said that while in introducing safeguards for minorities, the Committee merely followed the “decisions of the Constituent Assembly”, “speaking for myself, I have no doubt that the Constituent Assembly has done wisely in providing such safeguards for minorities as it has done.”
“In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose… To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority.”
Giving the example of Ireland, he said, “In the history of negotiations for preventing the partition of Ireland, Redmond said to Carson “ask for any safeguard you like for the Protestant minority but let us have a United Ireland. “Carson’s reply was “Damn your safeguards, we don’t want to be ruled by you.” No minority in India has taken this stand. They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority. It is for the majority to realize its duty not to discriminate against minorities,” he said.
On fundamental rights
Dr Ambedkar said that fundamental rights could not mean absolute rights.
“The most criticized part of the Draft Constitution is that which relates to Fundamental Rights. It is said that Article 13 which defines fundamental rights is riddled with so many exceptions that the exceptions have eaten up the rights altogether. It is condemned as a kind of deception. In the opinion of the critics fundamental rights are not fundamental rights unless they are also absolute rights,” he said.
He then went on to distinguish between fundamental and non-fundamental rights.
“The real distinction between the two is that non-fundamental rights are created by agreement between parties while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them,” he said.
He also said that while critics have claimed that fundamental rights in America are absolute, even in that country, they are limited by Supreme Court judgments, whereas in India, the limitations had been included in the Draft Constitution itself.
“What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power [as in the US], it permits the State directly to impose limitations upon the fundamental rights,” Dr Ambedkar said.