Constitution Day is a rather recent addition to our calendar. 26 November used to be called National Law Day and it was mostly forgotten. But in 2015, the National Law Day was declared Constitution Day (or Samvidhan Divas). It gives me an excuse to delve into one of my favourite topics. Our Constitution.
The Constitution itself has a marvelous history. The drama around the creation of the Constituent Assembly, their debates, and the variety of issues it sought to address (something I hope to write about in a future post). Civics is by far the dullest of the Social Sciences in middle school and yet the most important and relevant. No matter what career a student chooses to take up, they are invariably going to be citizens of a democratic nation. We take this citizenship for granted, never really thinking about how precious this is. My grandparents, just two generations away from me, were part of a generation that knew what it was to live in a non-democratic state. Their ancestors before that were either subjects to the British Raj or in princely states – subjects of a detached and disinterested monarch. Also, for generations, people in the Indian subcontinent were always aware of their duties – duties to their family, duties to their community, religion, king or queen. With independence and the adoption of democracy, Indians were introduced to a new vocabulary. We grew aware of rights, and our Constitution told us what those rights were and also, that we could fight to protect our rights.
The Constitution as an Agent of Transformation
The Civics textbook definition of the Constitution is that the Constitution serves as a rule book for how a democratic state should function. It also provides a sort of mission statement to guide future leaders and citizens about the ideal society that the Constitution seeks to nurture and protect.
The Indian Constitution is often criticized for being derivative. More than 70% of it came from the Government of India Act, 1935. The framework of how our government will run comes from the Act. Curiously, we even incorporated some of the harsher, more autocratic aspects of the Act like preventive detention, or the power to suspend the legal system during an Emergency, etc. Things that Indian freedom fighters had objected to in the 1930s were now powers that the independent Indian state had.
So what was so great about the Indian Constitution? While it is true that most of it is derivative, does something have to be entirely original to be of value? I do not know. I do know that while it may have flaws, the Constitution sought to create an new nation that was built on the precepts of Equality, Liberty and Fraternity as interpreted for the uniquely Indian context.
Here are the top 3 things I think makes our Constitution unique and special:
- Universal Adult Franchise: When we read ‘universal adult franchise’ we automatically think of women receiving the right to vote, and this is natural because that was a hard-won right in the rest of the world. Women in India could vote and hold office since the 1920s (Kamala Devi Chattopadhyay becoming the first woman to run for public office, even before her counterparts in Britain, when she ran in the 1926 elections for a seat in the Madras Provincial Legislative Assembly). Interestingly, women got this right much before western women (French women could vote and hold office only in 1944). But, there was a time when voting was the right of just the educated landowners. It was an effective way to disenfranchise the weakest and most vulnerable portions of society. In India this would have excluded not just women but also Dalits and indigenous (tribal) people. So, for a new nation to immediately grant Universal Adult Franchise is a big deal. From its very beginning, it sought to include the very people who had been excluded by society through political and social institutions. (To give us some perspective, South Africa adopted universal adult franchise only in 1996 and Bahrain and some other Muslim states gave women the right in 2005).
- It’s Defense of Equality: At the time of independence, India was shaking off the British but was still in the suffocating grips of social and religious authoritarianism. Breaking caste rules or gender rules could lead to severe social, emotional and often physical consequences. Unlike Western nations where the power lay in the hands of the government, India had multiple levels of power, starting at the religious or caste based community level down to the head of the family. Ambedkar, B.N. Rau and members of the Constituent Assembly were writing a constitution for a country that didn’t fully recognize the notion of an individual’s rights. And so, the framers sought to rewire our social structure. Article 15(2) which banned the discrimination in access to restaurants and roads (years before the American Civil Rights movement managed to end segregation in the United States), Article 17 abolishing untouchability and Article 23 forbidding forced labour. In theory, at least, the Constitution was laying the groundwork for a society where every citizen was equal both politically and socially.
- The Right to Constitutional Remedies: In India, a citizen can move directly to the Supreme Court to protect their fundamental rights against violation not just by the State but also by institutions. This makes sure that the State and institutions cannot create laws that violate any individuals fundamental rights. The head of your company, religious math, or head of your joint family even cannot force you to do anything that violates your fundamental rights, as the state is duty bound to protect it. As mentioned earlier, our Constitution recognized the various levels of power or sovereignty in India and provided a recourse for the average citizen to protect themselves from social as well as political authoritarianism.
Ambedkar was used to hearing criticisms of the Constitutions by the end of the drafting process. In his final speech to the Constituent Assembly on the 25th of November, he addressed some of them but added “… I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”
He continued to say that the Constitution written by the Constituent Assembly reflected the views and pressing concerns of his generation and he was aware that every generation would face its own concerns and have its own views. He quoted Thomas Jefferson, an American founding father – “We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”
The Constitution we have today is not perfect. It has also been interpreted in ways we might not agree with. But if we choose to remain ignorant of its contents we do ourselves and our generation a great disservice.
We live in a frighteningly divided time now, where neighbors attack each other personally for differing political views and declare themselves upholders of morality in their community WhatsApp and email groups. The late 1940s were an even more divisive period in Indian history. People disagreed violently with each other on a lot of things. The violence spilt out of their mouths, onto the page and then into the street.
At the time, the subcontinent was divided and two countries were formed. One ended up with a Constitution that was slowly but carefully constructed. The other that seemed accidentally put together with individual egos and prejudices taking precedence over values and ideals. One has survived70 years and is regularly challenged but almost always respected. The other was thrown out and new ones were written to suit the convenience of the man in charge. If we look further at the other countries who gained independence and shook of colonialism in 1940s, 50s and 60s, the story of Indian’s constitution feels even more unique and special.
And so I feel our Constitution should be celebrated every year. The best way to do it is to pay attention to it – understand it, discuss it and defend the rights within it whenever we can.
Resources:
Ambedkar’s final speech to the Constituent Assembly (bits of which I have quoted above) can be found here.
An excerpt of the final speech in a Scroll article titled Why BR Ambedkar’s three warnings in his last speech to the Constituent Assembly resonate even today
An article I wrote earlier about Ambedkar and the narrative of his life.
A book that I am currently reading: The Transformative Constitution by Gautam Bhatia
The Untaught Historian 