ON INDIAN CONSTITUTION

Dr Richa Raj

26 January 2018

Mr Anant Kumar Hegde, a five-time Lok Sabha member from Uttara Kannada, who has been made Union Minister of Skill Development and Entrepreneurship in Prime Minister Narendra Modi's cabinet made a controversial remark recently attacking the word ‘secularism’ and asserting, ‘We are here to change the Constitution and we'll change it’ clearly marking a devaluing of the Indian Constitution in its present form even though his party distanced itself from this statement.

In the light of this statement it is imperative to understand both the significance of the Indian Constitution and the date on which the Constitution was enacted. It was on 26 November 1949 that the Constitution was signed by the President of the Constituent Assembly. The draft was voted upon and adopted but the draft itself clearly states ‘that on the 26th of January India shall be a Republic in 1950 when this draft will turn into a Constitution and we shall enact’ it then. Further, in the two months between 26 November 1949 and 26 January 1950 after India adopted this Constitution the law that governed India was the India Independence Act, 1947 moved by the British Prime Minister Clement Attlee in the House of Commons in London. So India did not turn into a Republic on 26 November 1949, as some would like to believe. It was on 26 January 1950 that India became a republic.

The makers of the Constitution specially chose the date 26 January as the date for enacting and adopting the Constitution because of its historical significance. It was on 26 January 1930, that the Indian National Congress at its Lahore session passed a resolution demanding purna swaraj or full freedom from colonization. The members of the drafting committee felt that the birth of the constitution should be observed on a day that held some significance in their fight for independence. January 26 was thus the date assigned to celebrate India's Republic Day. This was the day the Indian Independence Act was consequently repealed and India was established as a democratic republic, no longer a dominion of the British Crown.

It was Mahatma Gandhi who chose 26 January 1930 as the date to introduce the concept of purna swaraj which was embedded in the ‘Declaration of Independence’ adopted by Jawaharlal Nehru and the Indian National Congress at Lahore in December 1929. 

Anthony J. Parel, who has written extensively on Mahatma Gandhi, calls this Declaration one of the principal documents of modern Indian history with philosophical depth as well as rhetorical flourish. It is a statement of India’s grievances against British colonial exploitation, economic, political, cultural and spiritual, and ends with the solemn pledge: ‘We therefore hereby solemnly resolve to carry out the Congress’s instructions, issued from time to time for the purpose of establishing purna swaraj.’ It also enshrines the liberal concepts of inalienable rights and governments based on the consent of the governed. Since the British government had based itself on the exploitation of the Indian masses, the Indian National Congress asserted that India must sever the British connection and attain purna swaraj or complete independence. As the author of the Declaration, Gandhi wanted to educate the people ‘why and wherefore’ the Declaration was drafted and proclaimed. Indians must grasp its underlying political philosophy, he believed. Indians needed political swaraj because it was their inalienable right. He also emphasized that governments originate from the consent of the governed. If the colonial government lacked the consent of the Indian people, Indians had the right and the duty to abolish it. Gandhi asserted the ideal of non-violence saying that the most effective way of gaining freedom was not through violence. Civil disobedience, withholding of taxes, and withdrawal of support for the colonial system through non-violent means would end the inhuman rule. 

The Indian Constitution enacted on 26 January 1950 is, according to Granville Austin, first and foremost a social document with the majority of India's constitutional provisions either directly arriving at furthering the aim of social revolution or attempting to foster this revolution by establishing conditions necessary for its achievement. The text provides constitutional guarantees and protections for a wide range of civil liberties for individual citizens, including freedom of religion, the abolition of untouchability and the outlawing of all forms of discrimination. Extensive economic and social rights for women were argued for in the Constituent Assembly debates, and the Assembly's support was garnered to introduce a system of reservations of jobs in the civil services, schools and colleges for members of scheduled castes and scheduled tribes, a system akin to affirmative action. India's lawmakers hoped to eradicate the socio-economic inequalities and lack of opportunities for India's depressed classes through this measure.

Dr B.R. Ambedkar, widely accepted as the architect of Indian Constitution and constitutional and legal expert par excellence proposed to the Constituent Assembly that the chapter on fundamental rights in the Constitution should include rights relating to civil liberties as well as those relating to social and economic justice explaining why his vision of the rights of citizenship would entail extensive state control over the economy. He also stressed on the absolute rights of minorities: “The first right that we have given is the right to use their language, their script and their culture. We have stated that ‘there shall be no discrimination on the ground of religion, language, etc.’ in the matter of admission into state educational institutions. We have said that ‘no minority shall be precluded from establishing any educational institution which such minority may wish to establish.’ It is also stated that whenever a state decides to provide aid to schools or other educational institutions maintained by the minority, they shall not discriminate in the matter of giving grant on the basis of religion, community or language.” (Babasaheb Ambedkar: Writings and Speeches, volume 13, 1994) Secularism is thus implicit in the entire constitutional framework. It guarantees equality in Article 14 and promises non-discrimination on grounds of religion, race, caste etc. in Article 15, and generally and specifically in public employment in Article 16. It ensures the fundamental rights to freedom of religion individually in Article 25 and collectively in Article 26. It promises protection from religious taxes and religious instruction in state-funded institutions set in Articles 27 and 28. It allows permission of educational institutions of choice to linguistic and religious minorities in Articles 29 and 30 and the promise of equal ballots devoid of sectional preferences in Article 325 — all of which makes for a constitutional framework devoid of any religious preference whatsoever. This also meant that the state would remain equidistant from every possible religion and that no particular religion would enjoy patronage by the state to the exclusion of the other, and that the rights of the minorities would be safeguarded by the state. 

To proclaim a desire to change the constitution is to negate the extensive and exhaustive debates that the constitution-makers went through regarding core issues faced by a new state: the nature of the state itself, fundamental rights and duties of its people, affirmative action against discrimination of all sorts, economic planning and so on, as much as it is to smear the sanctity of the Document itself. The people of the Republic must stand guard against such problematic tendencies!!!

Wishing everyone freedom and tolerance on our Republic Day !!!

Warmly

Dr Richa Raj

NMF