THE DRAFT CONSTITUTION FOR INDIA:
SOME FUNDAMENTAL CONSIDERATIONS
By P. Kodanda Rao, M.A.
(Servants of India Society, Bangalore)
WITH reference to the future relations between India and the British Commonwealth, as it has been known hitherto, Pandit Jawaharlal Nehru is reported to have said in London recently that he was a prisoner of past commitments on the subject. It should be noted however that they were made, not always on their merits, but as a challenge to the then British imperialism in India. An instance of it is adult franchise. Few in India would have advocated it at the time they did, on its merits. India has attained her independence. It is no longer necessary to speak with an eye on British imperialism. A proof of our independence is the revaluation of our past commitments and adherence to only those which can be justified on merits in the present circumstances.
During the days of British rule there was a demand that India should have a swadeshi Constitution made by a swadeshi Constituent Assembly, to displace the then Constitution which was ‘made in England’ and by England, and was therefore foreign and unacceptable to India. Ultimately, it was the British Government that set up the Indian Constituent Assembly with all the communal and other anti-national handicaps associated with the British-made Indian Constitution. The British quit India on the 15th of August 1947. But not the Constituent Assembly created by them. No new swadeshi Constituent Assembly has been called into existence by India since she attained her independence. The present Assembly owes its origin and character to British imperialism; it is not swadeshi.
The Draft Constitution also is not pucca swadeshi. Indeed, one of the bitter criticisms against it is that it is largely foreign. In his authoritative article on the Draft Indian Constitution, published in the Independence Number of The Hindu of Madras, of the 15th of August 1948, Sir B. N. Rau, the Constitutional Adviser to the Government of India, admitted that the Draft Constitution borrowed largely from other Constitutions, and more particularly from the hated Government of Indian Act of 1935. It borrowed not only the substance but also the very language of the Act of 1935! Sir B. N. Rau defended it as not only inevitable but also wise. And he was right. There is however no need to pretend that it is a swadeshi Constitution.
One may well wonder if it was at all necessary to have set up the Constituent Assembly to draft a new Constitution. Was it necessary to draft a whole new Constitution at all? India has not been without a Constitution; there was no constitutional vacuum to be filled for the first time. Even without the new Constitution drafted by the Indian Constituent Assembly, India has achieved the most fundamental changes in her Constitution: she attained national independence and achieved responsible parliamentary government at the Centre and in the Provinces. By August 1948 most of the Indian States had acceded to the Indian Union and also obtained responsible government these great and fundamental changes were brought about by the amendment of the Government of India Act of 1935. India is now free to make further changes which, by comparison, can only be minor in character, by a similar process of amending the same Act, as and when necessary, one clause at a time.
Those who longed for a really swadeshi Constitution lamented that the Draft Constitution did not take note of India’s indigenous village system and start from the village as the base, and work up to the Province and the Centre. Sir B. N. Rau defended the exclusion from the Constitution of provisions regarding local government on the ground, among others, that their inclusion would make the Constitution even more ‘rigid’ than it was in the Draft, for, their amendment would require, the special procedure prescribed for the amendment of the Constitution, and that such special procedure was not necessary in the case of provisions concerning local government.
It will be noted that the Constitution of India, which is in operation today, though a ‘written’ one, has been made and amended by a bare majority of members of the Legislature, present and voting. In this respect, it follows the procedure for making and amending the so-called unwritten Constitution of Great Britain. The Draft Constitution of India, though it can be enacted by a bare majority of members of the Constituent Assembly, present and voting, provides for a larger majority, and some cases, ratifications by the Provinces and acceding States, to amend it subsequently. In this it follows, though not closely, the pattern of the American Constitution. It is a fundamental departure from the present Indian pattern.
Is there any justification for this innovation? If it is a good and wise provision, why deny it at the local government level, for, as Sir B. N. Rau rightly said, the Constitution of a country deals with organs of government at various levels, which includes the local government level as well? If it is not, why introduce it at the Province and Centre levels? Have England and India suffered because their Constitutions at all levels have been made and amended by an ordinary majority? Eave countries like the U.S.A. gained by the adoption of special procedure for amending their Constitutions at the higher levels? Would India gain by replacing the present procedure by the special procedure?
Does it stand to reason that a Constitution can be made by a bare majority of members, present and voting, but that it cannot be amended subsequently except by a larger majority and a special procedure? If a larger majority is a safeguard against hasty and ill-considered amendments of the Constitution, would it not stand to reason that a similar procedure should be adopted for enacting it in the first instance? And should not the same special procedure be adopted for all Legislation: indeed be made universal? Should we safeguard only constitutional amendments from hasty and ill-considered action by the legislators, but not other laws which affect the welfare of the citizens even more vitally and extensively? The laws affecting property agriculture and industry, education, marriage and inheritance, peace and war, which affect the mass of the citizens very vitally, may be made and unmade by an ordinary majority, but not Sec. 47 (b) of the Draft Constitution which prescribes that the candidate for election as President of the Indian Union shall have completed the age of thirty five years! Of the 315 Sections of the Draft Constitution few, if any, are more consequential to the welfare of the citizens than, say, an annual budget which may impose heavy and crushing taxation, or the amendment of the Army Act which may enforce conscription. And yet, the former are proposed to be protected against hasty amendment while the latter are not! If the Legislature can be trusted to act wisely and well with major and more consequential issues like the budget, there is no reason to distrust them in dealing with the comparatively minor issues, say, the emoluments of the President under Sec. 48 (4) of the Draft Constitution.
It has been contended that the special procedure for amendment is necessary to safeguard fundamental civil liberties against infringement by the Legislature and the Executive. It is common ground that civil liberties should be protected. But is it necessary to list such liberties in the Constitution, which only means that they can be abridged by the special procedure prescribed for amendments of the Constitution? Civil liberties are entrenched in the Constitution in the U.S.A.; in England they are at the mercy of a majority in Parliament. But, by all accounts, they do not seem to be in greater danger of infringement in England than in the U.S.A. Indeed, it is generally admitted that they are better protected in England than in the U.S.A. For instance, the Constitution of the U.S.A. guarantees equal rights to all its citizens. But it has not been able to secure them to the Negroes.
The Draft Indian Constitution, surprisingly enough, does not really safeguard civil liberties, while professing to do so. Part III of the Draft enumerates the Fundamental Rights guaranteed by the Constitution, which can be amended only by the special procedure, but almost every such right is subject to infringement by laws that may be enacted by the Legislature by the ordinary procedure! For instance, Sec. 13 (1) (b) says that all citizens of India shall have the right to assemble peacefully and without arms, but Sec. 13 (3) says that it is subject to any existing law or any law that may be passed restricting the right!
It has been suggested by some critics of the Draft Constitution that the civil liberties or Fundamental Rights should be made absolute as in the Constitution of the U.S.A. For instance, the First Amendment in the ‘Bill of Rights’ in the American Constitution provides that no law shall be enacted which would prohibit the free exercise of religion, or abridge the freedom of speech or of the press, or the right of the citizens to assemble peacefully, etc.
Nevertheless, Fundamental Rights are not really absolute in the U.S.A. Only the power to abridge them has been exercised by the Judiciary instead of the Executive or the Legislature. Such action of the U.S. Judiciary is however without warrant in the Constitution. Indeed, if there were a judicial tribunal to pronounce on the constitutional validity of the Judiciary of the U.S.A. abridging the Fundamental Rights guaranteed in absolute terms by the American Constitution, there can be little doubt that the verdict would go against the Judiciary. The only constitutional way to abridge the Fundamental Rights, necessitated by practical politics, is by a constitutional amendment.
It is a matter of political philosophy and practical politics whether the inescapable abridgement of Fundamental Rights on occasions should be at the discretion of the Executive and the Legislature, or the Judiciary. The Legislature, reflecting public opinion, and even more the Executive, with sources of information not wholly available to the public, are in a better position to judge if and when Fundamental Rights should be abridged. The Judiciary is not, by its very nature, equipped for the purpose. At best, it can step in only after the abridgement, and pronounce whether it was justified or not.
The Executive is equipped to take immediate and preventive action; the Legislature can meet in an emergency session, and after due and public deliberation, sanction abridgement of civil liberties temporarily but the Judiciary can act only post facto and carry out a post mortem, as it were. It is ill-equipped to cope with an emergency calling for immediate but temporary abridgement of civil liberties.
Under the Constitution of the U.S.A., the Executive is not ‘responsible’ to the Legislature. They remain in office for a period which is fixed in the Constitution; there is no resignation of the President, or the dissolution of the Congress in response to public opinion. of the President and the Congress shock public opinion by arbitrary infringement of Fundamental Rights, the public have no immediate remedy. But in the Parliamentary system, as prevails in England and in India, the Executive is continuously responsible to the Legislature, and the Cabinet can resign and the Legislature be dissolved at any time that they forfeit the confidence of the public by their unwarranted abridgement of Fundamental Rights. Even if there is some justification in the U.S.A. for vesting in the Judiciary the discretion to abridge Fundamental Rights, there is none in England and India which have the Parliamentary system.
If it is still desired that Fundamental Rights should be ‘protected’ from abridgement by the Executive and the Legislature, and that for that purpose they should be incorporated in the Constitution, then, the Constitution may be limited to them only. There is no need to insist on the special procedure for amendment of the other of the 315 Sections in the Draft Constitution.
The Constitution will then be a very short and terse statement of Fundamental Rights and Obligations of the Indian citizen. It can then be memorised by everybody, particularly by children in the schools, like the U.S. Declaration of Independence and the Preamble to the American Constitution which every child in the U.S.A. repeat as a mantram every day. The Indian Constitution may even be made the National Anthem and be inscribed on the Indian National Flag like the Edicts of Asoka. Such a document and such presentation will grip the imagination and engage the emotions of the citizens and evoke their veneration and loyalty. The present Draft Constitution, with its three hundred and odd Sections, will, like the Indian Penal Code or Criminal Procedure Code, interest only lawyers and pandits. It can have no public appeal.
Further, there are several Sections in the Draft Constitution amendable by special procedure which are subject to ordinary laws made by the ordinary procedure. It is not an advantage to make constitutional laws subordinate to statutory laws. It is a disadvantage to distinguish two kinds of laws, the only difference between which is the procedure for amendment. The validity of laws passed by the Legislature becomes liable to question in the Courts. Laws sponsored by the Executive and enacted by the Legislature in compliance with an electoral mandate, may be declared ultra vires by the Courts. This may happen long after the law concerned has been in operation, and only when some aggrieved party prefers a complaint. For, the Courts do not pronounce on the constitutionality of a law while it is still in the formative stage. No Executive will propose, and no Legislature will enact, a law which they knew beforehand was unconstitutional. The very fact that they enacted the law means that their law-officers, no mean experts, had opined that the law was constitutional. Nevertheless, long after, when the law is challenged in the court, it may be declared unconstitutional and ultra vires. Not infrequently, the judgment of the court is not unanimous, nor even by a large majority, but by a majority of one! It is not to be supposed that the minority judges were incompetent or ignorant of the Constitution or necessarily perverse. Thus, a law passed by the Legislature operates in an atmosphere of insecurity until the court has occasion to pronounce on it, and even then, its validity or otherwise turns often on the opinion of a single judge, who may not be wiser than the rest!
Judicial review of legislation passed by the Legislature infringes the principle of the supremacy of the Legislature in its own special field, namely, legislation. The verdict of the court cannot be anticipated; it is unpredictable and incalculable. The considerations which weigh with the court are not the same as weigh with the Legislature. The former is concerned with law as it is and its interpretation, and not with law as it should be in view of public opinion. The court’s approach is static, while that of the Legislature is dynamic. The one views law in retrospect, the other in prospect: what it is and what it should be.
There are instances of judicial legislation, of the Courts legislating instead of merely interpreting laws enacted by the Legislature. But such a procedure is exceptional and even questionable. The normal function of the court is to declare and apply the law and not to make it.
The example of the U.S.A. has often been quoted in support of judicial review of legislation. But, as Dr. Wallace S. Sayre, Department of Government, New York University, said, “No other power exercised by the Federal Courts has been surrounded by controversy as the review of legislation by the Judiciary.”1 “Social and economic legislation in the States has been so frequently overruled by the court on these grounds that the impartial quality of judicial review has been more and more brought into question.”2
In the U.S.A., constitutional amendments have a very elaborate procedure to follow. Amendments are, therefore, very difficult to make and they take very long time. In consequence, it has become necessary to resort more frequently to judicial decisions. But, as has been stated ahead, judicial decisions are incalculable in advance. There has been, therefore, the temptation to appoint judges favourable to the policies of the Executive. The late President was openly accused of appointing ‘political judges’ who would support his policies! That amounts to corrupting the Judiciary for political ends.
Indeed, the situation has become so unsatisfactory that proposals have been canvassed to mend it. Among the proposed reforms may be mentioned: (1) the abolition of judicial review of legislation, (2) the Legislature to override judicial veto by re-enacting the vetoed law, even as it can override the Presidential veto, and (3) concurrence of seven out of the nine Judges of the Supreme Court to sustain judicial veto. But any one of these reforms needs a constitutional amendment, which, under the Constitution of the U.S.A., is very difficult to bring about.
In England, the House of Lords, which is not elected and is not ‘responsible’ to the electorate, had an absolute veto over legislation passed by the House of Commons, which is elected and is ‘responsible’ to the electorate. The veto became so intolerable that even the British Liberal Party was obliged to pass the Parliamentary Act of 1911 limiting the Lords’ veto to three years, and to get it accepted by the House of Lords by the threat of creating enough new Lords to pass it! Now, the Labour Party proposes to limit the Lords’ veto to one year.
As Sir B. N. Rau rightly said, most modem Constitutions make full use of the experience of other and earlier Constitutions, borrow what is good and reject what is bad. It is the part of wisdom to do so. India may rightly borrow from other Constitutions, even from the Government of India Act of 1935. But it is not wise to borrow what is questioned and discredited in other Constitutions. It would be a political blunder to import and impose for the first time handicaps which other Constitutions are trying to get rid of, and from which India has been happily free. The sovereignty of the Indian Parliament at New Delhi should be absolute in the legislative sphere, and legislation passed by the Indian Parliament should not be subject to review by the Judiciary. There is no need to distinguish in India, for the first time, between Constitutional Laws and Statutory laws, and make the former subject to judicial review or to amendment by special procedure, while the latter are open only to judicial interpretation and amendment by the ordinary procedure. As far as their enforcement by the Judiciary is concerned, there is no difference between constitutional laws and statutory laws, or even laws enacted by local government bodies like municipalities.
The only difference between the two is that the constitutional laws can be amended by a special procedure, while the ordinary laws are made and amended by the ordinary procedure. In so far as the special procedure involves a larger majority than the ordinary majority of fifty-one per cent of the legislators, present and voting, it vests a veto in the minority. If the constitutional law can be amended by a majority of, say, two-thirds, as proposed in Sec. 304 of the Draft Constitution, a minority of one-third plus one can veto the will of the majority. If majority rule is sometimes an evil, minority rule is worse. Minority veto cuts both ways; if it sometimes arrests unhealthy legislation, it also arrests healthy legislation. Lord Bryce noted that several measures considered very desirable and necessary by a large majority of people in the U.S.A. were not introduced in the American Congress, or not ratified after enactment by the Congress, because of the great difficulty of securing the requisite majority in the Congress or in the States.
In the case of India, the Constituent Assembly can claim no higher or better competence or wisdom than the Legislature, for, both are one! The same body is the Constituent Assembly and the Indian Parliament. It is very odd that the very same body can enact a brand new Constitution by a simple majority, and without ratification by the Provinces or States, but cannot amend it subsequently except by a two-thirds majority and, in some cases, only after ratification by the States. It is absurd to contend that the present British-appointed Constituent Assembly, based on communal electorates and partly nominated and partly elected, and the latter indirectly elected on a restricted franchise, is competent to enact a brand new Constitution by an ordinary majority and without ratification’s, but that a Parliament brought into being under the new Constitution, perhaps wholly elected, cannot amend it, in the same manner! Further, it is extremely unwise to make a ‘rigid’ Constitution when the polity of India is still in a state of flux and while revolutionary changes are taking place. From every point of view, there is no need to distinguish between constitutional and statutory laws in India at the present time; indeed, it is unwise to introduce such an innovation.
Sir B. N. Rau admitted the cogency of these criticisms, and suggested that during the first five years the new Constitution should be amended by an ordinary majority like other statutory laws. So far so good. But this compromise only postpones the inherent illogicality for five years. Indeed, it will be even more odd, nay, stultifying, to tell the new Indian Parliament that its political wisdom and competence in the matter of amendments to the Constitution can be trusted only during the first five years but not subsequently! It may be urged that during the first five years Parliament would have gained some experience and could therefore be trusted better for it later on. If the special procedure for amendment is really a safeguard against ill-considered and hasty amendments, the danger is greater now, when Indian polity is a revolutionary flux, than at the end of five years, when the tempo of change might slow down. If the polity settles down after five years, there will be less need or constitutional amendments, but not greater need for safeguards.
The best course is to enact a law re-naming the existing Constitution as the New Indian Constitution, and go on amending it, clause by clause, as and when necessary. For instance, if we desire to introduce at once adult franchise and common electorates, the relevant clauses in the present Constitution may be amended immediately, without reviewing all the other clauses simultaneously.
It is, therefore, suggested that Section 304 of the Draft Constitution be either dropped or re-drafted to say that the Constitution can be amended by a majority of members of each House, present and voting, or, in case of a difference of opinion between the two Houses, by a majority of the joint session of both Houses. The Indian Parliament should be supreme and sovereign in the legislative field and not be subject to the veto of a minority in the Legislature or of the Judiciary.
As the second best, it may be provided that when an amendment, passed by an ordinary majority, is vetoed by the Judiciary as unconstitutional, it shall be valid if it is re-passed by a similar majority after an interval of a year since the first passing. This will give plenty of time for deliberation, but will not give a veto to the minority or the Judiciary.
The clauses to be included in the Constitution should be as few as possible and only those whose amendment justifies the special procedure. If they are few enough, they may form the National Anthem and be inscribed on the National Flag, so as to hold before the people the fundamental ideals of the Indian Constitution and inspire them to realise them in practice and form the new Gayatri, as it were.
1 An outline of American Government (1934), p. 53.
2 Ibid, p. 54.