On November 17, 1949, the draft Constitution was taken up for its third and final reading in the Constituent Assembly of India. Over the next few days, in a number of speeches, members of the Assembly harshly criticised the document. Three arguments were particularly striking: That the new Constitution was far too long, that it contained nothing original and that it was not Indian enough.
For instance, Seth Govind Das, a Congressman who had been imprisoned five times during the freedom movement and who would serve as an MP for nearly five decades (between 1923 and 1970), highlighted how some felt that the Constitution had “become too bulky”, that it contained “too many articles as also many details which could well have been left out”. Laxminarayan Sahu, a prolific writer from Odisha, called the Constitution a “khichri” or “cocktail”, a “queer and unwholesome amalgam” which borrowed heavily from the old Government of India Act, 1935, and from other constitutions of the world, and which would “break down soon after being brought into operation”. Perhaps the most trenchant criticism came from K Hanumanthaiya, a lawyer who later became chief minister of Mysore state, and union minister of law and railways. Hanumanthaiya, who had been imprisoned seven times by the colonial regime, said that many members of the Drafting Committee had never been part of the freedom movement, and their draft Constitution lacked a certain Indianness. “It is something like this,” he said, “we wanted the music of veena or sitar, but here we have the music of an English band.”
Many of these criticisms were not entirely unjustified. With 395 articles and 8 schedules, the original Constitution of India was perhaps the longest in the world. By November 1949, it had been debated over 165 days and 7,635 amendments had been suggested to it. In places, it contained seemingly banal details — how states cannot tax electricity consumed while constructing railways (Article 287), how the deputy chairman can preside over a state legislature in the temporary absence of the chairman (Article 184), and how judges in the subordinate judicial service of a state should be appointed (Article 234). Large chunks of the Constitution heavily borrowed from the Government of India Act, 1935, the last Constitution of colonial India that had been enacted by Britain’s Parliament in August 1935.
Parts of the Constitution had also been inspired by constitutions across the globe. In 1946, the constitutional adviser to the Constituent Assembly, B N Rau, prepared a 115-page dossier for members of the Assembly containing extracts from the constitutions of several countries like Lithuania, Hungary, Peru, Syria, South Africa, Sweden, Switzerland, Canada, and so on. The dossier proved to be quite useful. The words “equal protection of the laws” in Article 14 were copied from the 14th amendment to the US constitution. In Article 19(2), the framers of India’s Constitution decided to adopt the Irish example of setting out the exceptions to the freedom of speech and expression in the text of the Constitution itself. The phrase “procedure established by law” in Article 21 was borrowed from Article 31 of the Japanese constitution, after a discussion Rau had with Justice Felix Frankfurter of the US Supreme Court.
Seventy-five years after it was given to us, is there no reason to celebrate our Constitution, which was criticised for being unendingly long, unoriginal and un-Indian?
Perhaps the best answer to these criticisms came from two speeches made by B R Ambedkar, chairman of the drafting committee of the Constitution, in the Constituent Assembly. In the first speech, in November 1948, Ambedkar addressed the argument that the Constitution was unoriginal. “I make no apologies” about this, he said, because “[t]here is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a constitution.” In fact, India was not the only country to have looked beyond its shores for inspiration while drafting its constitution. Relying on crates of books sent by Thomas Jefferson from Paris, James Madison, one of the chief draughtsmen of the US constitution, had written an essay similar to Rau’s on ancient and modern confederacies, examining constitutional provisions in the ancient Greek city-states. India’s culture has never been shy of borrowed wisdom either. The famous autobiography, Roses in December (1973), written by chief justice M C Chagla of the Bombay High Court, begins with a quotation from the Rig Veda, “Let noble thoughts come to us from every side.”
Ambedkar agreed that the Constitution contained far too many administrative details, but felt that its length had been necessitated by the fact that India lacked a culture of constitutionalism, which he called “constitutional morality”. Ambedkar, who had taken a course called “History 121” at Columbia University in the US in 1914-15, quoted from a 19th-century British historian called George Grote. In his 12-volume history of Greece, which he had prepared without ever visiting that country, Grote wrote that “constitutional morality” was “the indispensable condition of government at once free and peaceable”. In the Constituent Assembly, Ambedkar explained that it was only once India had internalised a culture of constitutionalism that banal details could be left out of the Constitution. At the time, however, Ambedkar explained that constitutional morality in India was “not a natural sentiment”, it had to be “cultivated”, because democracy was “only a top-dressing on an Indian soil, which is essentially undemocratic”.
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Though the Constitution borrowed a phrase here and a word there from constitutions across the globe, it was certainly not an unthinking reproduction of any foreign constitution. In Article 21, for example, the framers of India’s Constitution avoided the American phrase “due process of law” because they did not want to give courts the power to strike down social welfare legislation like the US Supreme Court had done during the Great Depression. The exceptions to free speech in Article 19(2), though modelled on the Irish constitution, were drawn from India’s own unique history and circumstances. For instance, Syama Prasad Mookerjee’s demands for the forcible reunification of India and Pakistan gave rise to the words “friendly relations with foreign states” in the Constitution — an exception to free speech. The provisions in India’s Constitution for quota-based reservation in legislative bodies, government jobs and educational institutions are also uniquely Indian, with no foreign precedent.
But it was perhaps in his next speech, on November 25, 1949, that Ambedkar made the most important point. “[H]owever good a constitution may be,” he said, “it is sure to turn out bad because those who are called to work it, happen to be a bad lot”. Equally, he added, “[H]owever 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.” This speech is reminiscent of Benjamin Franklin’s famous words, uttered on the last day of the Philadelphia convention at which the US constitution was drafted. On September 17, 1787, a lady by the name of Elizabeth Willing Powel asked Franklin, “Well, doctor, what have we got — a republic or a monarchy?” Franklin replied, “A republic – if you can keep it.” The draughtsmen of our Constituent Assembly gave us the Constitution. For 75 years, successive generations of Indians have preserved it. It is for us to keep it.
The writer is an advocate at the Bombay High Court
