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Tuesday, December 07, 2021

A labour of law

Constituent Assembly debates were full of disagreement, humour and hope. Will the dreams of the founding fathers come true?

Written by Soli J. Sorabjee |
Updated: February 7, 2019 1:23:44 pm
On November 26, 1949, we came to the end of the Constitutional Yatra.

On December 9, 1946, the first meeting of the Constituent Assembly was held. The business was formal. Sachchidananda Sinha, who was elected as temporary chairman, concluded his excellent inaugural address with an apt Biblical quotation — “where is no vision the people perish”.

On December 13, 1946, when the Objectives Resolution was moved by Jawaharlal Nehru, during which he said “the Declaration is a pledge and an undertaking. a time comes when we have to rise above party and think of the nation, think sometimes of even the world at large of which our nation is a great part”. Thereafter Dr Radhakrishnan in a moving speech said “this declaration, which we make today, is of the nature of a pledge to our own people and a pact with the civilised world”.

The next meeting was on August 14, 1947, at 11:00 pm. The first item on the agenda was the singing of the first verse of Vande Mataram which, was rendered by Sucheta Kripalani. Thereafter, Nehru made his celebrated “tryst with destiny” speech.

The subject of fundamental rights was crucial. It was debated for 38 days, during which M Ananthasayanam Ayyangar plaintively asked, “Is there a single word in the Constitution that imposes on the future governments the obligation to see that nobody in India dies of starvation?” The main problem that loomed large was whether these rights should be unqualified, or be subjected to restrictions, and the nature of the restrictions. Most important: Who should have the final word in determining the necessity for the restriction? The legislature or the judiciary?

Quite a few members felt that the guaranteed freedoms were hedged in with so many restrictions that, according to P S Deshmukh, “they are neither fundamental nor have much of rights in them”. Muhammad Ismail bemoaned that “the exceptions have actually eaten up the rights”. Several members complained of the legislative legerdemain of giving fundamental rights with the right hand and taking it away “by three or four or five left hands”. Algu Rai Shastri drew inspiration from the arts: “Freedom is a great art — even greater than the art of music and dancing. He (an artist) cannot sing and dance out of tune and time, in an unrestricted manner. He remains fully bound to the rules.”
An irreconcilable gulf seemed to divide the two sides, which was overcome by the suggestion of Thakurdas Bhargava, who advocated that the word “reasonable” be inserted before the expression “restrictions”. B R Ambedkar readily accepted the proposal and the vital principle of judicial review implicit in it.

Provisions relating to preventive detention generated sharp controversy. Bakshi Tek Chand condemned them as most reactionary, and according to Mahavir Tyagi, the business of the Constitution makers was to guarantee the rights of people and not to make laws to deprive them.

The debates had their lighter side. Lawyers were a frequent butt of ridicule and sarcasm. Lok Nath Mishra referred to the profession as one which “feeds on fat fees and forged facts”. H V Kamath moved an amendment for the insertion of the words “in the name of God” in the beginning of the Preamble. Rohini Kumar Choudhary explained that he belonged to the Shakti cult and protested that “if we bring in the name of God at all, we should bring in the name of Goddess also”. Rajendra Prasad was not amused.

The founding fathers did not mince words when it came to criticising one another. Ambedkar got it in the neck because of his remark that “democracy in India is only a top dressing on an Indian soil which is essentially undemocratic” and also for his disparaging references to the village as a “sink of localism, a den of ignorance.”. Kamath described Ambedkar’s attitude “as typical of the urban highbrow”. N G Ranga retorted that obviously Ambedkar had not studied Indian history “with as much care as he seemed to have devoted to the history of other countries”.

Tempers did run high on occasions. During the debate on official language, T T Krishnamachari complained that “hon’ble friends from UP do not help us in any way by flogging their idea of ‘Hindi imperialism’”. Abdul Kalam Azad indignantly said that he “was totally disappointed to find out that from one end to the other, narrow-mindedness reigned supreme” and “that with such small minds we cannot aspire to be a great nation”. The arch protagonist of Hindi, Govind Das, thundered that the passing of the Constitution “in a foreign language after the attainment of independence would for ever remain a blot on us.”

Ambedkar, in a sombre mood, delivered many home-truths. He declared that “on the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up.” He cautioned people “not to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institution. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero worship is a sure road to degradation and to eventual dictatorship”.

On November 26, 1949, we came to the end of the Constitutional Yatra. Rajendra Prasad’s words on that day have a ringing appeal. “If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. India needs today nothing more than a set of honest men who will have the interest of the country before them.”

Is it utopian to expect these words will become a reality?

The writer is a former Attorney-General of India

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