75 Years of India's Independence:
Idea of India and the Indian Constitution
S.Chatterjee and Pramod Gouri
Part I: Idea of India
I
It was about a hundred and twenty years ago, in 1899 that Swami
Vivekenanda gave the call to the people of India,
“O India, do not forget- the depressed castes, the ignorant, the
poor, the uneducated, the cobbler, the scavenger are your blood, your brothers.
Rise as a hero and say with all your pride, I am an Indian, Indians are my
brothers. Say – the ignorant Indian, the poor Indian, the Brahmin- Indian, the
Chandala-Indian are my brothers”.
These were some of the sentiments that inspired many an anti-colonial
freedom fighter in India's freedom movement. Following a tortuous route, with
sacrifices from millions of her people and martyrdom of thousands, India
achieved her independence from the colonial rule, on 15th August,
1947.
India declared herself a republic in 1950. Our constitution has a
preamble that reads:
“WE, THE PEOPLE of India, solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity: and to promote among them
all
FRATERNITY assuring the dignity of the individual and integrity of
the Nation;”
This was the consensus of that time and this is the consensus that
WE, THE PEOPLE of India, uphold, in India's 75th year of
independence.
The Idea of India that we cherish is that of a modern society, that
which had developed through our two centuries' old freedom struggle- which also
had the experience of centuries' old civilization to guide us in many a
cultural field. Our freedom struggle consolidated the unity of people of India,
a unity in diversity: a pluralistic
composite culture that is not seen anywhere else in the world.
II
If you read Charles Dickens' “A Tale of Two Cities”, which had the
French Revolution as the background, you will be enchanted by its opening lines
“It was the best of times, it was the worst of times”. Last year and a half,
i.e. living in the time of Covid, were certainly not the best of times, but
this “winter of despair” cannot stop the dream of a “spring of hope”. It is
with that spirit of hope, we, in the People's Science Movement observe the
yearlong celebration of 75 years of Indian independence, with all our citizens.
India achieved her freedom from colonial rule at a momentous phase
of history, i.e. after Second World War that ended with the defeat of fascism.
These events heralded the process of decolonization of the globe, in which
India's independence was a historic event that inspired anti-colonial struggles
all over the world. Our freedom was won through struggle and sacrifice by our
people, who were led by different strands of political thoughts and actions,
e.g. Gandhians, Socialists, revolutionaries of different ideologies and by
communists etc. For all of them the question was: Whither India? Which path are
we to take after independence?
The visions that our freedom struggle had given us, have shaped our
“Idea of India” in a land of tremendous diversity that leads to her richness
and strength. It was because of this
that we opted for a democratic federal polity, so that different parts of the country
with their diverse history, culture, languages have their representation in
building a nation. We elect governments that would be responsible for people's
welfare and they have to seek people's mandate every five years.
This was put into practice, very early in the life of independent
India, guaranteeing to her people, universal adult franchise. Acceptance of
this idea was not resistance-free. Universal adult franchise meant that every
citizen had the right to vote and elect the governments at the states and at
the centre and that every vote had equal value. Emphasis must be given to the
EVERY, i.e. irrespective of the religion, caste or sex. This decision was
historically momentous. For, many a free nation did not give this right to its
citizens. For example, the United States gave voting rights to only white women
in 1920 and gave universal voting rights to all citizens, at all levels,
irrespective of their skin colour only in 1972! This may appear inconceivable!
But the point is that many African-Americans, Native Americans (called Red
Indians), Asian-Americans were disqualified from registering as voters by the
“Poll Tax” and “Grandfather Laws”. Americans, till the mid 1960’s could not be
registered as voters unless they paid a tax or if they could not prove that
their grandfathers were voters! This practice was an instrument to keep these
discriminated groups away from voting. They often did not have money to pay the
poll tax nor could prove that their grandfathers had voted. The final change towards
universal voting rights in the US came after mass protests in 1964-65.
When India decided to enact universal adult suffrage right from the
time of formation of the republic there were many critics to that step. Some
argued, “How would the illiterate know about the needs of the state?” Or, “The
poor have no knowledge of what the country needs, and women should be in their
homes, why should they vote and decide about the country? And these uncivilized
castes, why should they be given so much rights? Do we not know what rights
that they must have? It is best that their future be decided by us….”
As we can see, these arguments go against the quote from Swami
Vivekananda that we had given in the beginning. It goes to the credit of WE THE
PEOPLE OF INDIA, that WE decided what was best for all of us. Universal adult
suffrage was one such.
India, right in the beginning decided that elections must be free
and fair. They should not subverted by the ruling party in power. For this purpose,
a constitutional body was created and that was the Election Commission of India
(ECI) which is independent of the government in power, both at the Centre as
well as those in the states. In
addition, every government must submit itself to the ECI's orders to ensure
that all the provisions of the Representation of the People's Act are
satisfactorily met.
Within two years after India adopted a constitution and became a
republic, she conducted her first general elections. This massive operation, in
our First General Election in 1952, was conducted by the Election Commission of
India. The task was to ensure that every one of the 17crore 32 lakh eligible
voters could vote in a free and fair manner in the 1, 96,084 polling booths.
Vastness of the country, poor communication facilities meant that this was not
an easy operation and it took four months (25th October 1951-21st
February 1952) to complete. The World looked on with disbelief, wonder and awe,
so much so that India's first Election Commissioner, Mr. Sukumar Sen, would
become a world celebrity.
Seventy years later, it is inconceivable to imagine that type of
obstacles that the Election Commission faced, due to the backward social milieu
of the time. We have noted that there was resistance from the upper castes in
the villages to register the names of those from the so called backward castes.
There were obstacles in registering the names of women voters' too, as the head
of the family would be a male and they would not entertain the “ghunghat
covered” or “burkha clad” to come forward and register their names to electoral
officers. And often the family would give their women’s names as “Shyam's mother” or “Shakil's wife”
etc..
Part II : Idea of an Indian
constitution
III
Early Ideas: Demand for a written constitution and an
elected constituent assembly.
Following the Civil Disobedience Movement (1919-1922) British tried
to assuage Indian sentiments by promising larger role for Indians in
self-government. They also said that the British would grant India a Dominion
Status and present a draft constitution for India. This last proposal was
rejected by Indians and the Swaraj Party ( an important section in the Indian
National Congress), in a resolution in May 1924, demanded that the constitution
of India would have to be framed by a constituent assembly. These demands saw
some advance with the formation of the All Party Conference, with Motilal Nehru
as the chairman, which gave its report (called the Nehru Report) in 1928.
Next few years saw an intensification in freedom movement and
revolutionary activities that led to the resolution demanding “Complete
Independence” (Lahore Congress, 1929, Jawaharlal Nehru as Congress President;
the Salt Satyagraha led by Gandhi came close to the heels of this historic
Congress session). The Karachi Congress in 1931 paved the way for radical
political and economic formulations like those on Fundamental Rights and
creation of state owned public sector industries. Question of a constitution of
free India became a natural component of these developments. The demand for a
written constitution for free India was for the first time made by the pioneer
communist revolutionary Manabendra Nath Roy (MN Roy) in 1934. He made a further
radical demand that the task of writing the constitution should be vested on a
Constituent Assembly, elected by the people of India through universal
suffrage.
This became the demand of the Congress Party in 1935. British government acceded to a demand only
in August 1940, as it needed Indian peoples' cooperation in World War II. By
this time it was thus clear that British Rule in India would end, sooner than
what many had thought. The process could not progress further, since many
leaders were jailed due to Quit India movement. As the process of Transfer of
Power gained momentum, in the post World War II era, the idea of a constituent
assembly was revived once again.
In Europe the World War II ended on 9th May 1945 and on
June 15, the British government lifted the ban on the Congress Party and
started releasing its leaders from the prison. The Viceroy, Lord Wavell also
declared that the government would form an interim government with Indian
leaders. This certainly meant that independence was imminent and that Britain
had lost the capacity to govern India.
These signals were coming all through. The Quit India movement
showed the extent of public anger. It certainly did not remain non-violent and
according to Nehru's estimate, about 10,000 volunteers had died in course of
this movement. In addition, it has shown that Indians were now capable of
leading a resistance, by becoming their own leaders, even while the
political leadership of Gandhi, Nehru, Patel or Azad remained incarcerated in
jail. That was indeed an ominous sign for the colonial rulers but dangerous
warnings were coming from other fields too.
With Britain's military defeat in South East Asia, 45000 members of
the British Indian Army were taken prisoners of war (POW) by the British.
Though known for their loyalty to the British crown, these POWs had now joined
the Indian National Army (INA) under the charismatic leader, Subhas Chandra
Bose and marched to India to liberate the motherland. Ill equipped (they had no
air force and was largely composed of infantry) though the INA was in terms of
military resources, its success in liberating Imphal from British rule, not
only instilled patriotic fervour in India but also surprised British military
establishment. The INA was finally militarily defeated and its leaders General
Shah Nawaz Khn, Col. Prem Sehgal, Col. Gurbaksh Singh Dhillon were court
martialed for treason, while 6000 INA soldiers were held hostages as POW.
The INA trials galvanised Indian opinion, against the British rule.
The Congress decided to pass a resolution asking the government to withhold
punishment to these INA soldiers and quite dramatically, Jawaharlal Nehru
decided to appear as a barrister on their behalf along with well known barristers
like, Tej Bahadur Sapru, Kalashnath Katju, Asaf Ali where the defence team was
led by Bhulabhai Desai. Gandhi, who always advocated non- violence, too
had to concede, “The hypnotism of the Indian National Army has cast its spell
upon us” and that, “Netaji's name is one to conjure with. His patriotism is
second to none.”
As the country stood on a precipice, the soldiers in the Royal
Indian Navy, revolted on 18th February 1946. This first happened in
the ship, named Talwar that was anchored in Bombay and soon spread to Karachi,
Vishakhapatnam, Cochin and Calcutta. In Bombay, in an extraordinary act, the
naval ratings had lowered the Union Jack and replaced it with the
tricolour along with those of the Muslim League and the communist red flag. In
all, 22 ships in Bombay port had taken part in the revolt defying the threat
from the top echelons, “Surrender or perish”. Their patriotism was greeted with
great enthusiasm by the people of Bombay, who went on a general strike- the
common citizen supporting this strike call by working class parties like the
communists. The government retaliated with unprecedented violence, killing 228
people in police firing in the city, and by sending a British destroyer
from Ceylon (Sri Lanka) that waited in readiness at the Gateway of India. The
bloodshed was averted by a negotiation that was worked out by Sardar Vallabhai
Patel and M.A. Jinnah, both being residents of Bombay. The working class
parties played an important role in placing before the negotiators, the
strikers' political demand of complete independence.
IV
Changes in International Scenario:
Formation of the Constituent Assembly
Fascism was defeated in 1945 and a new world order was emerging,
being led by the United States and the Soviet Union, in which it was clear that
Britain had lost its role as a leader. It was in this background that general
elections were held in UK in July 1945. Mr. Winston Churchill, the Prime
Minister of the Wartime National Government was riding in popularity for his
leadership during the war. But his party lost very badly to the Labour Party.
This was because of average citizen's distrust about Churchill's Conservative
Party's ability to tide over the economic challenges of the post war era. In
fact, the Conservative Party was leading the government since the end of the
World War I and had failed in containing inflation, unemployment and
economic disaster due to the Great Economic Depression of the 1930's. This was
not lost in the British electorate's memory. They also felt that Britain was
drawn into the war because of appeasement of the fascists by the earlier
Conservative governments.
Winston Churchill was a known colonialist. Concerning India's
independence, he had said that he had not become His Majesty's Prime Minister
to preside over the liquidation of the Empire, of which India was the Jewel in
the Crown! Clement Attlee, the new Prime Minister was less obdurate and
declared on 20th February, 1946 (while the naval revolt was still
on) that Britain was preparing to withdraw from India, at a date not later than
June 1948.
Elections of 1946:
It was in this backdrop that elections were held for the Central
Legislative Assembly (CLA) and for the provisional governments. These elections
were not based on universal franchise. Based on the administrative
provisions of the time, only 586647 ballots decided the composition of the CLA,
while for the provincial elections only 3.5 crore could cast their votes. These
elections were held under the electoral reforms of 1935.
An interim government was formed on 2nd September 1946.
Jawaharlal Nehru was its Prime Minister with Vallabhai Patel as Home Minister
with Liaqat Ali Khan of the Muslim League as the Finance Minister. In
this government, the Hindu Mahasabha leader Syama Prasad Mookerjee shared place
with Dr. B.R. Ambedkar, the leader of the Depressed Classes and with Leaders of
the Muslim League. It also had as a minister, C.Rajagopalachari, who though a
committed Gandhi loyalist had not participated in the Quit India and was always
a supporter of the country's partition.
The fissures were thus inevitable. It is said that the strong
willed Vallabhai Patel could not secure from the Muslim League Finance Minister,
Liaquat Ali Khan, financial sanction to even open a new police station!
The Constituent Assembly was convened on 11th December
1946 with the Viceroy appointing Dr. Rajendra Prasad as its president and Dr.
Harendra Coomar Mookerjee (a Bengalee Christian) as its Vice President. Later
after independence the name of V.T. Krishnamachari (representative from
princely states) was added as another Vice President.
Jawaharlal Nehru presented the objective of the constitution on
9th December 1946, but from the composition of the CA it was
clear that it would have a rough sailing. There were several reasons for
that. Most important of them was that though it would be the constitution of
united India, the Muslim League was demanding a partition!
The CA had altogether 389 members of which 292 were from British
India, 93 were from Princely States and others were from the Chief Commissioner
provinces of Delhi, Coorg, British Balochistan. None of them was directly
elected by universal adult franchise. Only 103 LCA members were elected from
restricted franchise while others were elected by indirect franchise by the
elected representatives from the provinces, who too were elected by restrictive
suffrage!
The British Prime Minister Clement Atlee now sent Lord Mountbatten
in March 1947, as the Viceroy to India, replacing Lord Wavell. Since Muslim
League's Direct Action Day on 16th August 1946 India was rocked with
communal violence from time to time. It first began in Calcutta and then shifted
to Noakhali and Bihar. By March 1947, unprecedented loot, arson and bloodshed
had engulfed the state of Punjab, involving Hindus, Muslims and Sikhs acting
in violent competition with each other, being stoked by organised communal
organizations in these communities. Mountbatten held several parleys with
the Congress, Muslim League and with representatives of other communities, e.g.
Sikhs and Depressed Communities. He proposed a plan for the partition of the
country into India and Pakistan and as a part of that plan the provinces of
Bengal and Punjab too would be partitioned with the Muslim majority parts being
acceded to Pakistan and the rest to be a part of India.
In the beginning the Constituent Assembly was formed with the idea
of writing the constitution of undivided India. Now, with partition of the
country it had the task of writing the constitution of India. Most of the
Muslim League members had left for Pakistan but 28 of them opted to be in India
as members of the Constituent Assembly of India.
In the first meeting of the Constituent Assembly, Nehru had said on
9th December 1946:
The first task of this Assembly is to free India
through a new constitution, to feed the starving people, and to clothe the
naked masses, and to give every Indian the fullest opportunity to develop
himself according to his capacity. This is certainly a great task. Look at
India today. We, are sitting here and there in despair in many places, and
unrest in many cities. The atmosphere is surcharged with these quarrels and
feuds which are called communal disturbances, and unfortunately we sometimes
cannot avoid them. But at present the greatest and most important question in
India is how to solve the problem of the poor and the starving. Wherever we
turn, we are confronted with this problem. If we cannot solve this problem
soon, all our paper constitutions will become useless and purposeless. Keeping
this aspect in view, who could suggest to us to postpone and wait?
— Jawaharlal Nehru, Constituent Assembly Debates (Proceedings), Vol. II
How this task would be addressed is a matter that has to be looked
back.
India's partition had created several technical problems. One such
was about Dr. Ambedkar's participation. He was to be the Chairman of the
Drafting Committee. But with partition he could make no claim for that. This
was because, Dr. Ambedkar was elected from Bengal (he hailed from Maharashtra)
and his constituency was no longer a part of India! Dr. Ambedkar was thus
required to get elected again. Though Dr. Ambedkar was a consistent
critic of Gandhi, Nehru and the Congress party, the Congress extended support
and Dr. B.R. Ambedkar got elected from the Bombay province.
While the actual business of drafting the constitution began with
full force only after independence the first draft constitution was written by
M.N. Roy in 1944 and circulated to be public for national debate.
Part III: India wins freedom: Making of a
constitution: History harks back
V
Constitution of
India and Historical Experiences:
The 1857 War of Independence came full hundred years after the East
India Company had gained administrative control of India, the provinces of
Bengal-Bihar and Orissa being the first that experienced Company rule after
Siraj ud Doula's defeat in the Battle of Plassey (1757). British rule in the
South got firmly established with the defeat of Tippu Sultan in 1799 at the
Battle of Seringapatna. In these hundred years between 1757 and 1857 there were
a number of revolts against the British Rule, e.g. the Sanyasi Revolt in Bengal
(and parts of Bihar, 1763-1771- which overlaps with the Bengal famine of 1770),
the Chuhar uprising ( 1799, Bankura, Midnapore and Manbhum of Bengal) , the
revolt of Veerapandyan Kattaboman (martyred in 1799, Pudukottai in Tamil Nadu),
the Vellore Uprising (Vellore, Tamil Nadu, 1806) , the Wahabi Rabellion (24
Parganas of Bengal, led by Syed Nisar Ali Titumir, martyred in 1831), (the
Karnool uprising, 1846-47, led by Uyyalawada Narasimha Reddy) all of which were
put down. The main reason behind all these revolts was the land question and
heavy taxation of the peasantry under the British rule. The most widespread
amongst them was the 1857 War of Independence, after which it was felt by the
British that interest of the British capital could not be protected by the East
India Company. The rule was passed on to the Queen of England, who was
proclaimed as the Queen Empress of India in 1878.
This transfer to the British crown did not, however, abate revolts.
Most notable amongst them was the Indigo revolt in Bengal (1859-1860's) which
saw an alliance between the peasant cultivator and the zamindar and it also had
the sympathy of the intelligentsia, Bengali and English alike.
In India's freedom movement, whose leadership to a large extent
passed into the hands of the local capitalist, three phases could be discerned.
In the first phase, the Indian capitalist became and ally of the British, with
the hope that modern experiments of governance like the parliamentary system,
would be implemented in India, giving Indians a chance for self -rule. This was
also the line that Bankim Chandra had advocated in his work Anandamath, a novel
that would greatly inspire the freedom movement. Disillusionment soon followed
with the observation that what British followed was an “un-British Bristish
rule in India” as was described by Dadabhai Naoroji. It is to be further noted
that British rule had completely de-industrialized India. By the end of the
eighteenth century, India contributed to 20% of global trade, which dropped to
only 4% by the time the British left. British ruled India, with the help of Indian elite that it nurtured. They
collaborated with the British rulers but soon developed aspirations to grow out
of British protections. This was the beginning of nationalism in India. These
elites were products of British educational institutions. They understood that
their opportunities would be thwarted unless they gained greater privileges
from the British, e.g. entry into the administration, enactment of favourable
tariff laws etc. They formed several formed different platforms to express
their grievances, which finally led to the formation of an all India body, the
Indian National Congress (INC) in 1885. This was the beginning of the second
phase.
The INC had the blessing of British rulers, who found it as a
safety valve to neutralize discontent. Its members had western education (e.g. barristers,
Indian Civil Servants, industrialists) who learnt how the system worked. But by
1907, it was understood that the INC did not serve the aims to obtain better
deals from the rulers. Thus, there arose in the INC a radical group led by the
triumvirate of Lala Lajpat Rai- Bal Gangadgar Tilak- Bepin Chandra Pal
(Lal-Bal-Pal in short) who challenged the moderates led by Gopal Krishna
Gokhale. These radicals demanded more direct “seditious” (according to the
British) actions, like boycott and burning of British goods etc. While the
radicals became more popular, Gokhale also gained strength with two young
barristers joining his rank, Mohandas Karamchand Gandhi and Mohammad Ali Jinnah
(both Gujaratis).
It is at this stage that entry of Muslim interests made its
appearance in Indian politics. British had annexed Indian territory from Muslim
rulers and thus there was an enmity between the two. Thus, in early British
rule the Hindus played different roles in the administration and also accepted
western education. This marginalization of Muslims was harmful to their
interests. This was understood by the reformer Syed Ahmed Khan of Aligarh who
undertook expansion of education in the Muslim community. The Muslim
intelligentsia, led by the Aga Khan and the Nawab of Decca (now Dhaka, in
Bangladesh) formed a party called the Muslim League (ML) in 1906 that demanded
a greater role for the Muslims in administration.
Formation of the ML was an important component in communal politics
that would follow. But that was not the beginning of it. Communalism was
encouraged by the British in a number of ways. For example, they had earlier tried
several means to exclude Muslims from administration. But with the rise of
nationalism they started to play with communal politics in a different way. One
of the major steps was division of Bengal on communal lines in 1905. Bengal had
53% population of Muslims but majority resided in the Eastern part of the
province. Lord Curzon, divided Bengal into a Hindu majority (western part) and
Muslim majority (eastern part) provinces. This led to widespread protests in
Bengal, called the Swadeshi movement that witnessed burning of British goods.
Scale of these protests made governance difficult and also became an
inspiration to others too, e.g. in Punjab (anti irrigation tax movements) and
Maharashtra and also led to revolutionary movements in Bengal.
The British now tried to play the INC and the ML against each
other. Creating fissures between communities was a part of “Divide and Rule”
policy. work of the British Formation of the ML helped this scheme. Largely, Muslims
in India tended to stay away from the Congress and now they found the Muslim
League to represent their interests.
With the outbreak of the World war I, the INC and ML came forward to
cooperate in the Khilafat, i.e. defence of Turkey against imperial aggression
by Britain and France. Their agreements were formalised by the Lucknow Pact of
1916 and co-operations followed for several years. This pact collapsed in 1921
and from now on communal politics became a potent tool in the British rulers'
“divide and rule” scheme, playing secular Congress against the Muslim League.
This communal politics was also aided by another factor, the rise
of Hindu communal organizations like the Hindu Mahasabha and the Rashtriya
Swayam Sevak Sangh (RSS, founded in 1925 in the lines of Mussolini's ideas and
later expressing adulations to Hitler). Their propaganda was based on treating
the Muslims as the main enemy of the nation. These forces extended all
co-operation to the British rule and were treated with benign indulgence by the
British rulers
During the British rule, the total number of British residents in
India had never exceeded 2 lakhs. They ruled India with the help of Indians and
to help this it was found necessary to give Indians greater (limited though in
administrative and political powers) entry into “self-rule”. It was with this
idea that the British undertook several reforms in the country, in 1861,
1883-1884, 1892. In the 1892 Indian Councils Act, a few indirectly elected
representatives entered the Provincial Legislative Council and through several
other indirect elections, members were admitted to the Viceroy's legislative
Council. All through in this period
India witnessed several famines in 1870's and peasant unrest in the Deccan.
In 1909, in the midst of wave of protests (1900-1911) the Morley-Minto
reforms were announced. It allowed a majority of members in the Provincial
Council should be elected representatives but partly elected by direct and
partly by indirect elections. On the other hand, the elected representatives in
the Viceroy's Council would be a minority of members. It allowed that a
separate reserved seats be kept exclusively for Muslim members to be elected by
a Muslim electorate. The government justified this special communal electorate
on the ground that the Muslim community being economically backward (actually
result of British discrimination to them) required to catch up with others and
hence is special treatment. In addition, direct elections would take place in
seats reserved for landlords. This was followed by further reforms in 1919 and
1935 in what were to evolve as the Government of India Acts of 1919 and 1935.
Above Acts expanded the percentage of elected members but the
electorate was largely restricted, e.g. on the basis of landed property or
communal reservation for the Muslims. This, last provision led to strident
demands from the Untouchables, who refused to be accommodated as Hindus and
thus demanded a separate electorate. This was immediately resented by Gandhi,
who went on a fast, threatening fast unto death. Dr. Ambedkar, the leader of
the Untouchables and Depressed Classes, considered this to be a coercion on the
part of Gandhi and thus accepted the provision that there would be Reserved
constituencies for the Scheduled Castes and Tribes (SC/ST). The member elected
from this constituency had to be a member of the SC/ST community but was to be
elected by a general electorate comprising all castes.
These above changes did not come due to benevolence of the rulers
but due to growing disenchantment with the British rule. The colonial rulers'
attempts to curb democratic rights was met with mass protests, to be handled
with unprecedented cruelty by the British rulers, as with the Ghadar and Bengal
revolutionaries, Punjab peasantry and mass killing in Jalianwalabagh in 1919,
in protest against the Rowlatt Act. In transforming the Congress as a platform
for mass mobilisation in support of Indian independence, Mahatma Gandhi had an
important role. His method of passive resistance, called Satyagraha (search for
truth) was first attempted in South Africa and was now successfully employed in
India in the Civil Disobedience in 1919-1921 and in the Salt march in 1930. All
these struggles were conducted with calibrated timings. The Civil Disobedience
in 1919 was in response to the economic miseries of the post-World War I while
the Salt Satyagraha was in response to those due to the Great Economic
Depression. In addition, the 1920's were also witness to great industrial
strikes in India, formation of trade unions and rise of revolutionary movements
in the country, e.g. those led by Bhagat Singh, Surya Sen and others. In addition,
it must be noted that anti-imperialist feelings had also infiltrated in the
police forces. In the 1930's the Garwali police refused to fire upon protesters
in the North West Frontier Province. Thus, ordinary policemen decided that they
would not allow another Jalianwalabagh to happen.
These events had also led to the demand of complete independence
from the British Raj, a question that was not considered in the reforms that we
have mentioned earlier. The demand for complete independence was first raised
in the Ahmedabad session of the Congress in 1921 and was finally endorsed by
the party in the Lahore session in 1929. This session gave the call to observe
throughout India, 26th January, 1930 as the independence day. This
was celebrated throughout the country with great enthusiasm, met by heavy
repression with 90000 arrests. In recognition of this historic event, India
also decided to celebrate 26th January as the Republic Day, since
1950.
It was with this background that elections took place in 1937, in
which the Congress party formed ministries in many provinces. In 1938, with
Subhas Bose as the Congress President, a National Planning Committee was formed
in the Congress, at the initiative of Bose and the famous scientist Megh Nad
Saha, with Jawaharlal Nehru as the Chairman of the committee. The committee
gave its recommendations in March 1941, which contained many ideas that would later
be followed in the planning process in post-independence era in the
Nehru-Mahalnobis plan. Self-reliance, setting up state owned public sector,
creating employment, state's responsibilities in education and health were the
basic pillars of planning. This became a consensus for the country.
In addition to self- reliance, another fundamental idea that got
integrated with the Idea of India, was that of scientific temper.
Part IV: Idea of India: Making of a constitution:
VI
Fundamental principles
If one refers to the Anushasana Parva of the Mahabharata, one can
hear Bhishma (in his sarashaya) telling Yudhishthira, “The state has the
following wings: personnel, well-wishers, finances, territory, fortifications
and defence forces”. When the Constituent Assembly was engaged in its debates,
the above assets of the state were being divided between the two countries, India
and Pakistan. The debate was: how to put these resources to best use for the
people of the India? Experiences of other nations and of the freedom movement
acted as the guides. A notable point in the history of free India is that
our defence forces have always accepted civilian administration and our history
is devoid of military coup. Equally remarkable is the fact that even at the
time of partition, when communal passion ran high the armed forces remained
insulated from these influences.
In the modern era, ideas of state and administration have come from
important social thinkers like, Hobbes, Locke and Russeau. In their ideas, the
state must have a territory in which it has to be autonomous and its people
represent contracting parties. The state must work out a code for mutual relation
between these contracting parties, ideally beneficial to ALL. In doing so, the
constitution makers were led to recognize multiple identities of these
contracting parties in India, e.g. in terms of their language, religion, gender,
economic strength etc. and very importantly which is unique in India, in terms
of their caste. The state further envisioned that in executing these
“contracts”, peace had to be maintained internally and also with neighbours and
the contracts must be of maximum benefit to largest sections of the people.
In this three approaches emerged. It was generally agreed that India
should emerge from being an agricultural nation to an industrialised one and
the constitution must safeguard the interests of all sections of the
population. The dominant leadership that
led the country in the freedom struggle had come to a conclusion that the state
must take up the role of creating the basic infra -structure for
industrialisation with state ownership and that the profit motive of individual
capitalist had to be curbed by state controls.
Nehru had recalled in “The Discovery of India”, in the context of
National Planning Committee, “Thus, while free enterprise was not ruled out as
such, its scope was severely restricted. In regard to Defence Industries it was
decided that they must be owned and controlled by the state. Regarding other
industries, the majority were of the opinion that they should be state owned,
but a substantial minority of the Committee considered that State control would
be sufficient. Such control, however, of these industries had to be rigid.
Public utilities, it was decided, should be owned by some organ of the state-
either the Central Government, Provincial Government or a Local Board.” In
fact, Dr. B.R. Ambedkar who had become the Chairman of the Drafting Committee
had long held that all profit motive must be severely curbed, i.e. industries
and farm lands must be nationalised.
Differences with the rightist elements in the constituent assembly
arose on these above questions of state control and control of monopoly
practices. The industry argued that such controls would have a debilitating
effect, taking away natural incentive from the industry. Same tune was played
by the landlord elements, who had also the backing of the princely states,
which had not joined the Indian Union. In this regard, strong objection was
raised by the lone communist member of the constituent assembly, Somnath
Lahiri. He opined that by giving membership of the constituent assembly to the
representatives of princely states a compromise was made with the spirit of
freedom, as these princely states had always aligned with the British and
worked against the interests of the people of India. In fact, the Congress
party's attitude to princes was ambivalent. Leaders like Nehru held that the
Congress party must organize land reform drives in these states, an idea that
was not supported by Gandhi and his followers. The Constituent Assembly finally
made a concession to the princes, by granting them a Privy Purse (a continuing
monetary reward for having joined the union) and other privileges. This act, in
fact, was a compromise that went against the fundamental principles of equality
and gave special privileges on account of pedigree. These privileges were
finally removed by an Act of the parliament in 1970.
Land reform was another demand that the freedom movement had
championed. This was compromised by granting concessions to the princes.
Independence came in the wake of several land struggles by toiling peasants,
notably in Tebhaga in Bengal, Kayur and Punnapra Vyalar in Kerala, Worlis in
the Bombay province (now, Maharashtra) and above all, Telangana in Hyderabad
state. These anti-feudal mass struggles were intertwined with India’s freedom
movement, i.e. ending British rule and Princely rule and establishing an united
India. Certainly, the Constituent Assembly could not ignore the land question.
Zamindari abolition acts were passed in several states in 1950. However,
concessions were given to the landlords in the form of land ceilings and
several other provisions, e.g. privy purses etc.. An important issue on which
there was general agreement was on linguistic reorganization of states which
was a demand of the freedom movement.
In contrast to the above, the left had a sharp radical point of
view. For example, M.N. Roy's draft constitution expressed that “supreme
sovereignty belongs to the people of India”. The left claimed that the land and
the underground resources of the country are the collective resources of the
people. The state must own all capital resources, e.g. industries and land and
must provide employment for all with eight hours' work and also provide
unemployment relief. They demanded that vested land should be taken over from
the zamindar, by the state and distributed to the real tillers of the land, and
give sufficient debt relief to the peasant; they demanded free and compulsory
education up to the age of fourteen to all children and free health services to
all citizens.
At the time when the Constituent Assembly debated several issues
and important development was taking place. The United Nation was formed on October
24, 1945 with India as a member. While the UN was holding consultations on the
question of Declaration of Universal Human Rights, the Constituent Assembly was
also discussing similar questions i.e. on Fundamental Rights. The United
Nations released the Declaration of Universal Human Rights on 10th
December 1948, about a year after that on 26th November, 1949, the
Constituent Assembly adopted the Constitution of India, to come to effect from
26th January 1950.
The Constituent Assembly had taken lessons from the British and
American Constitutions. An important inspiration came from the concept of
Affirmative Action in the Irish Constitution. It affirmed that in order to
remove discrimination against certain excluded sections of the population, the
state was duty bound to remove these social discriminations within a stipulated
period of time. In India, perpetuation of age-old discrimination like the caste
system had perpetuated social and economic backwardness of the Untouchables and
Depressed classes. The constitution abolished untouchability and introduced
Reservations in Jobs and academic institutions for the Scheduled Castes and
Scheduled Tribes. The communal riots being a contemporary experience, a
Minorities Commission was formed which would examine and act against
discrimination on religious minority communities.
VII
Indian Constitution and the framework
It is a
well-known fact that the constitution of India was framed by a constituent
assembly comprising 389 members. It took 2 years, 11 months and 18 days to
finalize the draft constitution. The process of the making of the constitution
was a formal and rigorous exercise done by a draft committee which was headed
by Dr. B.R. Ambedkar. However, the seeds for the basic tenets, structures,
ideals and philosophy of the Indian constitution were sown way back in the
early 19th century.
The
socio-religious reform movements led by reformers from different parts of the
country formed one of the foundation of a modern India- a nation with universal
adult suffrage, civil rights with constitutional guarantee, an independent
judiciary as the custodian of the constitution and secularism along with a
federal structure. So, the constitution of India must be seen as an outcome of
struggles of these reformers, of their ideas to reconstruct Indian society, and
the freedom movement fought against imperialist rule. Thus, the formation of
the constitution must be seen as a continuum of the struggle that started in
the 19th century, popularly known as the renaissance.
The Indian
Constitution is extremely relevant in discussions and discourse even after over
seventy years of its making. Some people consider the Indian Constitution as a
replica of the 1935 Act of British India while some others call it a
congregation of various governing laws. While all these perceptions may hold
some validity, these are incomplete conceptions of the longest constitution of
the world (one lakh 46 thousand words). Or, in other words, we must go beyond
these points of view and try to understand its indispensable worth. The important fact is that our constitution was
enriched by experiences from different parts of the world and different relevant
views were internalised to suit our own requirements. It is known, that Dr. B.R.
Ambedkar himself had read as many as 60 constitutions, including those of USA,
UK, Ireland, USSR, France etc.
VIII
Rationale
Over the last
few years, our established democratic norms in India have declined to a new
low. These subversions are directed against our basic constitutional tenets
such as Secularism, Federalism, Social Justice, Freedom of Speech, Freedom of
Faith and so on. Institutions responsible for protecting the constitution are
either being subverted or being used to serve the interests of a communal
fascistic dispensation. Our society is being directed towards relying on
unsubstantiated glories of the past and blaming foreign invasions, particularly
the Muslims and Christians for the ills of the society. Such propaganda machinery purposefully
ignores the history that is full of struggles, debates, social churning, and
ideas. The glorious process of making and shaping the Indian nation state that
occurred with the evolution of nationalism under the broader ideologies of
Humanism and Internationalism is being thwarted. Ideas of rationality and
scientific temper are being curbed, challenged and threatened. All of this is
happening in a country where people at large have not separated themselves from
arenas of conflicts, the world of struggles, and sacrifices of our great
freedom fighters and the makers of the constitution. Today, the reactionary
forces do not want the younger generations to take inspiration, feel pride and
define their ideals in the light of the freedom movement. It is in this context
and background that our constitution should be brought to the fore. People do
not only need awareness of the tenets of our constitution but also of the history
of it- the underlying principles, the ideals embedded in the constitution and
the intent of the framers of the Constitution.
IX
Ideals
Nehru's quote
accurately captures the essence of the intent of the framers of the
constitution- "The Constituent Assembly is not just a body of people or a
gathering of able lawyers. Rather, it is a nation on the move, throwing away
the shell of its political past and possibly its social structure, thus fashioning
for itself a new garment of its own making". The Indian Constitution was
designed to break the shackles of traditional social hierarchies and to usher
in a new era of freedom, equality and justice. The essence of the constitution
is not to limit people in power but to empower those who have traditionally
been deprived of it. It provides vulnerable people with the power to achieve
collective good. Granville Austin described the Indian Constitution as the
'first and foremost social document'. The majority of India's constitutional
provisions are either directly aimed at furthering the aim of social revolution
or attempt to foster this revolution by establishing conditions necessary for
its achievement.
X
Civil Liberties
The text
prepared by Ambedkar provided constitutional guarantees and protections for a
wide range of civil liberties for individual citizens including the freedom of
religion, the abolition of untouchability, the outlawing of all forms of
discrimination. This text was a result of a lot of debates, conflicts and
contradictions among various political strands. The glimpses of the ideological
battles may be revealed through the mention of a few instances in and of the
Constituent Assembly. One such instance of prominence is that of the debates
held between December 9, 1946 to November 26, 1949 on the issue of Indianness.
XI
Varied Views and Consensus
K. Hanumanthiah,
a member of the Assembly from Mysore on November 17, 1949 lamented, "We
wanted the music of Veena and Sitar but here we have the music of an English
Band." Pandit Govind Malviya's suggestion was to start the Preamble to the
Constitution with the words, "By the grace of Parmeshwar, the Supreme
Being, Lord of the Universe…". Mahavir Tyagi, on December 27, 1948
emphasized regaining "spiritual freedom" and not just political
freedom. Loknath Mishra said on December 3, 1948, "If you accept religion,
you must accept Hinduism as it is practiced by an overwhelming majority of the
people of India."
The plea for Indianisation was confronted not only by
the values of Western Liberal Democracy but also by the finer aspects of the
Indian tradition, which were organically incorporated into the Constitution.
This synthesis of ideas provides great strength to the Indian Constitution.
There were several meetings of the Constituent Assembly and in every meeting,
intense debates took place. These debates had various shades with respect to
the evolution of the Constitution. The journey of the making of the
Constitution shows that ideals of our constitution certainly had their roots in
the ideas that emerged during the 19th century Reform Movements.
In the
Constituent Assembly debates one thing stands out: members were ready to listen
to contrary views and revise their own. Unity of the people weighed supreme and
hence the idea of secularism was the guiding philosophy in the constitution and
it is now expressed in the preamble.
XII
Evolution
The commitment
of the Constitution to humanistic ideals did not emerge miraculously out of
calm deliberations around a table. Rather, it was the product of continuous
intellectual and political activity for well over one and a half centuries.
Beginning as early as the 19th Century, these activities started with Ram Mohan
Roy's efforts towards the abolition of Sati. Almost all reformers advocated the
urgent need to free women from the shackles of this moribund custom. This
contributed to women's active participation in the national freedom struggle
and eventually, women's equality was established in our constitution as one of
its fundamental aspects. Similarly, with the commencement of the fight against
the oppressive caste system under the leadership of Periyar, Jyotiba Phule,
Swami Vivekananda and then Ambedkar, the Dalit section of the society emerged
to the forefront as citizens of the country – these were reform movements in
modern times. And, we find in the constitution the provision for reservations
for Scheduled Castes and Scheduled Tribes. Equal citizenship for women and
Dalits or the spirit of Social Justice was well placed in the constitution from
the very beginning.
Likewise, the
most important tenet of a liberal constitution is individual freedom. The
question of Fundamental Rights thus took the prime place in many a debate in
the Constituent Assembly, building upon the Karachi Congress (1931) Resolutions
and debates thereafter. Thus the question of fundaments rights has been
incorporated with great prominence in our constitution.
These questions
have a long history. Raja Rammohan Roy, Dadabhai Naoroji and other such
reformers stood for democratic rights and put forth demands like the right of
Indian nationals to have a voice in the administration of the country. At the
same time, demand for a free press was emphatically made. The roots of the idea
of Individual Freedom lie in Rammohan Roy’s protest against the curtailment of
the freedom of the press under British rule. It might be recalled that for over
forty years before the adoption of the constitution every single resolution,
scheme, bill and report of the Indian National Congress mentioned individual
rights not just in passing but as a non-negotiable value. In fact, Ram Mohan
Roy and his fellow enlightened Indians initiated social-reform and
religious-reform movements which represented endeavours to reform Indian
society and religion in the spirit of the new principles of democracy,
rationalism and nationalism. These movements were the expression of the rising
national democratic consciousness among a large section of the Indian people.
Raja Rammohun
Roy, Ishwar Chandra Vidyasagar were the early pioneers who advocated reason,
science over conservative traditions. They were followed by Rabindranath
Tagore, Keshab Chandra Sen, KT Telang, Justice Mahadev Govind Ranade, Mahatma
Jyoti Rao Phule and Swami Dayanand were some of the early pioneer nationalists
in different parts of the country. These reformers were fighting for the
abolition of privileges based on birth or sex. These efforts for social reform
were being made in the backdrop while a capitalist economy and modern
industrial production was being initiated in India. Thus, the restructuring of
the economy and social reforms went hand in hand leading to the foundation of a
modern Indian State.
XIII
Redefining The Western concept of Secularism:
The prevalent
Western conception of Secularism is that the State should neither help nor
hinder religions. Instead, it should keep itself at an arm's length from them.
The makers of the Indian Constitution had to work out an alternative
interpretation of secularism- one that would fit the unique needs of India due
to its diverse populace. The term “Secular” was explicitly put in the
constitution in 1976, though in spirit secularism was always the guiding vision
for India. The word “Socialist” was also added in 1976 – both being included
through the 42nd amendment of the constitution.
XIV
Secularism in the Indian Constitution and Religious
Reforms of the 19th century
Rights of
Religious Minorities:
The Indian
constitution grants rights such as the right to establish and maintain
educational institutions to all religious communities. This right serves the
purpose of maintaining equality among all communities thus maintaining equality
amongst each individual irrespective of which community they come from.
Moreover, the separation of the State from religion in India could not amount
to mutual exclusion because religiously sanctioned customs such as
untouchability deprived individuals of the most basic dignity and self-respect.
Such customs were so deeply rooted in
Indian society that without active State intervention, there would not be any
hope for their dissolution. Thus, the state simply had to interfere in the
affairs of religion. Similarly, in the 19th century when Rammohun Roy made
efforts for the abolition of Sati with the help of Lord William Bentinck,
intervention in religious affairs was necessary and was done through the
formation of a law against this practice.
Another reason
for forming and adopting a different version of secularism is that reformers had
developed their ideas of reforms through their experiences in different
backgrounds. However, in the philosophical, political and cultural disciplines
they all stood for, in different ways and varying degrees, a revision of
traditional religions. It is not our intention to give an extensive list.
However, life histories of many a reformer will show an underlying link in the
ideas, i.e. equality and social justice, as can be seen in people with such
diverse experiences such as Raja Rammohun Roy, Gopal Krishna Gokhale, Bal
Gangadhar Tilak, Surendra Nath Banerjee, Bipin Chandra Pal, Aurobindo Ghosh,
Lala Lajpat Rai, Rabindranath Tagore, Mohandas Karamchand Gandhi, Abul Kalam
Azad, Mohammed Iqbal, Syed Ahmed Khan, Khwaja Altaf Hussain Hali (a reformer
born in Panipat who was also an Urdu poet and a writer, and a Humanist), Maulvi
Nazeer Ahmed (also known as "Deputy” Nazir Ahmad, he was an Urdu novel
writer, social and religious reformer, and orator from Uttar Pradesh), Maulvi
Shibli Nomani (an Islamic scholar from the Indian subcontinent during the
British Raj born at Bindwal in Azamgarh district of present-day Uttar Pradesh
who founded the Shibli National College in 1883 and the Darul Mussanifin- House
of Writers- in Azamgarh) etc
These ideas
emerged in the flourishing modern literature in several Indian languages, e.g.
Gurajada Appa Rao in Telugu, Subrahmaniya Bharathiyar in Tamil, Kuvempu (KV
Puttappa) in Kannada, Narayanaguru,
Vallathol in Malayalam, Lakshminath Bezbaruah in Assmese, Fakirmohan Senapati
and Gopabandhu Das in Odia.
These collective
experiences were taken into account and are reflected in the Idea of India.
Indian culture is thus not classified as those of the “majority” or “minority”.
Yet it was felt that 'pluralism' and
‘compositeness’ are best safeguarded by according an important place to the
rights of the minorities.
XV
Universal Adult Franchise
Once the idea of
a nation took root among the elite, the idea of a democratic self government
followed. Thus, Indian nationalism always conceived of a political order based
on the will of every single member of the society. The idea of universal
franchise lay securely within the heart of nationalism. As early as the
Constitution of India Bill, 1895, the first non-official attempt at drafting a
constitution for India, the author declared that every citizen, i.e., anyone
born in India had a right to take part in the affairs of the country and be
admitted to public office. The Motilal Nehru Report, 1928 reaffirmed this
conception reiterating that every person of either sex who attained the age of
21 (now 18) would be entitled to vote for.
These fundamental
rights are listed in the constitution are:
1.
Right to Equality
2.
Right to freedom
3.
Right against exploitation
4.
Right to freedom of religion
5.
Cultural and educational rights
6.
Right to constitutional
remedies.
These are the
most important features in our constitution that define the Idea of a Modern
India.
Part V. The Constitution-Seventy
Years After:
The vanguard of
modern Indian society were committed to transform it. It took one and a half
centuries to liberate our conscience, our fellow beings and our society.
Various streams of social and cultural reforms ultimately converged into the
Indian Constitution. The constitution makers considered that it should continue
to remain contemporary, as we move with times and as the nation evolves. The
constitution thus has provisions for amendments which gives it a scope to
evolve, within a basic framework. We have had till October, 2021, 105
amendments. It is thus much unlike the American
constitution that has allowed very few amendments. The American constitution,
written in 1789 (and the oldest written constitution) has had only 27
amendments till 2022. The Indian constitution experts and members of the
Constituent Assembly had thoroughly studied the American constitution also and had
found many of the provisions to be useful for India, e.g. the federal system.
But there are several important differences.
Firstly, India
decided to follow a parliamentary system similar to the British system and it
has stood the test of time. Also, unlike the American constitution, Indian
states do not have separate constitutions. Exception was made for only one
state that was for the erstwhile state of Jammu and Kashmir which is since 2019
has been converted to three Union territories.
XVI
Contemporary challenges:
Indian society has
faced a major challenge with the imposition of emergency on June 25th
1975 by the Indira Gandhi government. Leaders of the opposition were arrested. Freedom
of speech and expression and of press stood suspended with strict press censorship
putting a curb on free flow of news and exchange of views. Rather, the
constitution was used to curb the constitution itself.
About nineteen
months later, on 18th January 1977, Indira Gandhi government ordered general
elections, to elect a new parliament. These elections were held in March that
year and Indira Gandhi’s party faced a crushing defeat. She too lost her own
parliamentary seat. Internal Emergency
was lifted on 21st March 1977, i.e. about 21 months after its
imposition. However, three years later, in 1980, Indira Gandhi and her party
returned to power. This is one of the strengths of Indian democracy, that
Indian masses have owned this system and make their political choice through it.
However, during
the period 1973 and 1977 two important events happened and in both Justice HR
Khanna of the Supreme Court of India occupied the centre stage.
In 1973, in a
landmark case “Keshavanada Bharati versus the State of Kerala” the Supreme
Court held that the basic character of the Indian constitution could not be
altered. Again, in 1976, when the
Supreme Court of India debated whether the parliament could abrogate the
fundamental rights of the citizen during emergency (called the ADM Jabalpur
case) in a five member bench Justice HR
Khanna’s was the only dissenting note. In his dissent he said that the fundamental
rights could not be suspended. Following the above dissent, Justice Khanna, who
was due for promotion as the Chief Justice of India in view of his seniority,
was superseded by Justice M.H.Beg, (one of the supporters of suspension of
fundamental rights), in 1977. This can be taken as an act by the executive,
trying to discipline dissenting judges.
In protest
Justice HR Khanna resigned. About a year later, the Janata party government
that came to power following Indira Gandhi’s defeat, got the 44th
amendment passed in the parliament that restored ALL the fundamental rights
of the citizen to be fundamental that could not be curbed by any parliamentary
amendment and not a single one of them could be compromised.
Indian nation is
under a different type of threat at present times, i.e. since 2014, and the
target is the Indian constitution. The difference with the Emergency of 1970’s
is that at that time the constitution was suspended in letter and spirit
through government dictats. At present times, the spirit of the constitution
was first attacked by unleashing communal social forces that challenge the Idea
of India that are described earlier. A social milieu of unbridled hate campaign
is unleashed all around, including in electoral campaigns. These are
particularly directed against the Muslims and Christians- their places of
worship are desecrated and are they are often physically attacked in well
planned communal programs like those which happened in Gujarat in 2002 and in
Delhi in 2020.
The forces that
lead the government now are the products of the Ramjanambhumi agitation that
saw the destruction of the Babri Masjid in Ayodhya. This was a part of a
mission to create a Hindu Rashtra, where, the “foreign races in Hindustan must
either adopt the Hindu must either adopt the Hindu culture and language, must
learn to respect and hold in reverence Hindu religion, must entertain no idea
but those of the glorification of the Hindu race and culture, i.e. of the Hindu
nation and must lose their separate existence to merge in the Hindu race, or
may stay in the country, wholly subordinated to the Hindu nation, claiming
nothing, deserving no privileges , far less any preferential treatment- not
even citizen’s right.” [M.S.Golwalkar, “We, Our Nationhood Defined”, 1939].
This above spirit
has now entered in “letter” though the legislation of the “Citizenship
Amendment Act, 2019”. It allows immigrants from Bangladesh, Afghanistan,
Pakistan citizenship within six years of stay in India if they belong to Hindu,
Christian, Buddhist, Jain, Zoraostrian faiths. Conspicuous in its absence is
the mention of Muslim immigrants, who have to stay in India for twelve years
for naturalisation. This discriminatory legislation was passed in both houses
of the parliament, by using the ruling party’s overwhelming majority but it was
greeted by countrywide protests for discrimination against Muslims. As a young
Supreme Court lawyer had commented to a TV channel, “This is akin to the
following case. Four customers enter a restaurant for food. The restaurant
asked them their religion. They were told, “Sir, to three of you we will serve
immediately. But the fourth amongst you will be served after an hour since his
religion is…. and he/she is thus not our priority customer.”” Such an Act
definitely goes against the spirit of equality that is proclaimed in the
preamble of our constitution.
This particular
Act has been challenged in the Supreme Court of India in January 2020 but the
highest court has not given it any date for hearing. Same is the case with
abrogation of Article 370 and withdrawal of statehood of Jammu and Kashmir, an
act that was passed in the parliament without any consultation with the elected
representatives of the state. This Act of the parliament was also challenged in
the Supreme Court on constitutional grounds but the Supreme Court has not yet heard
the arguments. Several cases pertaining to granting bail in alleged cases of
sedition are also to heard by the Supreme Court of India.
However, passing
Acts in the parliament without sufficient debate or referring them to the
respective consultative committees has now become a norm. The most glaring
example is that of the three farm laws which were passed in September 2020. Protests against these laws appeared both
inside the parliament as well as outside it. In the parliament, many members
said that by passing these laws in the Rajya Sabha by voice vote was an
undemocratic act that did not allow opposition members to register their
opposition. Outside the parliament, several farmers’ groups put up a united
resistance for 371 days resisting several high handed attempts by the
government to break their resistance including martyrdom of 700 protesters. In
the face of this determined resistance and growing support from the countrymen
the government was forced to repeal the laws on 1st December 2021 by
acts of parliament.
Events in the
last forty years show a pattern in which they had evolved. The first assault
came on the secular values of the constitution by creating mob frenzy with the
Ramjanambhoomi agitation. A narrative was created by which the secular spirit
of the constitution was attacked and finally in the last few years this would
be formalised in letter too- in part helped by the judiciary!
For this, the
example that readily comes to mind is that of the Ayodhya verdict, on 9th
November, 2019. In its judgement the Supreme Court conceded that destruction of
the mosque (by militant Hindu groups) was against the law, but the court
directed the government to set up a trust to construct a Ram Temple at the
disputed site, granting the rights to the very same forces who were responsible
for destroying the mosque. This was a case of the highest court directing the
government to own up a religious identity- by defining the government’s task to
set up a trust for religious worship!
In spite of the
apex court’s several important steps in recent times, it acts of omission are
also extremely glaring and raises scepticism about its role as the custodian of
people’s interests. This has been most expressly expressed by several retired
judges and lawyers, to the Chief Justice of India, that the Supreme Court ought
to act with speed against incitement to violence against Muslims, as was
expressed in the Dharam Sansad in Hardwar on 19th December, 2021. Their
statement said, “The said speeches pose a great threat not just to the unity
and integrity of our country but also endanger the lives of millions of Muslims
citizens”. Retired officers of the armed forces, administrators and
intellectuals demanded action from the Prime Minister, saying that, “We cannot
allow such incitement to violence together with public expression of hate which
not only constitute serious breaches of internal security, but which could also
tear apart the social fabric of our nation” and thus demanded “urgent judicial
intervention” “to prevent such events that seem to have become the order of the
day.” In addition, several citizens and legal experts have also demanded a
repeal of the clauses on “sedition” from the constitution.
The apex court’s
inaction to take cognizance of the state’s failure to provide succour to the
needy at the time of great distress came out in its most blatant form at the
time of the country wide lockdown in March-June 2020. At a time, when migrant
labour was forced to trod the country in their journey back home (it was a
silent satyagraha- a civil disobedience) the Solicitor General of India deposed
before that Supreme Court that as of 11 AM on 31st March, 2020 there
was no person on the road, trying to reach home. To this, a retired judge of
the Supreme Court commented, by calling the courts actions as “A Supreme Failure”,
“Not only has the court abdicated its judicial responsibility, it has also
demonstrated an unprecedented apathy and heartlessness to the plight of the
most vulnerable citizens of the country.” Stating that the ADM Jabalpur (i.e.
Supreme Court order about abrogation of fundamental rights, during emergency) “will
no longer be remembered as the darkest moment of the Supreme Court” the retired
judge said, “That infamy now belongs to the Court’s response to the preventable
migrant crisis during the COVID-19 pandemic.”
A New Tryst:
In spite of these
vicissitudes, “The Idea of India”, with which we had made a tryst with destiny,
still lives in our dreams. It faces assault especially form the forces of
fundamentalism that swear by the slogan of “Hindi, Hindu, Hindustan” by the
attacking the social values that are expressed in the preamble of our
constitution. The constitution deserves not only protection by the judiciary
but by all citizens and particularly the state since it integrates the lives of
all Indian citizens. Defence of our constitution thus becomes a duty for
us in order to preserve the canvas of a composite pluralistic Idea of Modern India
which forms an integral part of world culture, as can be expressed in the words
of Rabindranath Tagore, “I love India, not because I cultivate the idolatry of
geography not because I had the chance to be born in her soil but because she
has saved through tumultuous ages the living words that have issued from the
illuminated consciousness of her great ones.”
No comments:
Post a Comment