There are a number of areas in the Indian Constitution that require correction. It is time that the document is amended to purge it of all defects
The Preamble to the Constitution swears by “We the People” which gives an impression that it was approved by popular will. It was, however, voted by the Constituent Assembly, which initially comprised of 389 representatives. Of these, 292 represented Provincial Assemblies, 93 were appointed by rulers of princely States. Four more came from the Chief Commissioner’s Provinces, namely Delhi, Ajmer, Coorg and British Baluchistan. The 292 members were chosen by an electorate which consisted mainly of property owners. Each member represented about a million adults. This number was further sub-divided between Hindus, Muslims and Sikhs in proportion to their population. The suffrage, thus, was extremely limited; one representative for a million people. Of the 292, the Congress won 208, while the Muslim league won 73. Of these 73, 26 members were those Muslims who remained in Hindustan, the rest went to Pakistan.
Winston Churchill condemned the Constituent Assembly as having been elected on an “inadequate and unrepresentative franchise”, as recorded by VP Menon in his book, The Transfer of Power in India. The 26 Muslim members who stayed back, participated in the framing of the Constitution and several of them demanded separate electorates and reservation of jobs for Muslims. That provoked Sardar Patel to say the following: “I want to ask the Indian Muslims only one question. In the recent All-India Muslim Conference, why did you not open your mouth on the Kashmir issueIJ Why did you not condemn the action of PakistanIJ These things create doubt in the minds of the people. So, I want to say a word as a friend of Muslims as it is the duty of a good friend to speak frankly. It is your duty now to sail in the same boat and sink or swim together. I want to tell you very clearly that you cannot ride two horses. You select one horse, whichever you like best”.
In the Constituent Assembly, one of the lucknow Muslim league members pleaded for separate electorates and reservation of seats. I had to open my mouth and say that he could not have it both ways. Now he (Chaudhry Khaliquzzaman) is in Pakistan. Those who want to go to Pakistan can go there and live in peace. let us live here in peace and work for ourselves. This was recorded by KM Munshi in his book, The End of an Era.
Evidently, the Constituent Assembly represented only the upper class and that also by a limited number of representatives. The assertion “We the People” looks incorrect. Moreover, the Partition, drawn for a Muslim homeland, raised the question of special rights for this minority which in any case Mohammed Ali Jinnah had asserted was a nation and not a minority. In fact, a division on the basis of religion made the separate rights not only irrelevant but also unjust by making the majority of the people less than equal. Article 25 to 30 denies Hindus the rights that are given to the minorities, who, for instance, can establish educational institutions freely which Hindus cannot do. Whereas, Article 14 insists on equality before the law: The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 (1) says: The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 30 reads: Right of minorities to establish and administer educational institutions. Article 30(1) reads: All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Contradictions, so apparent, may be excused on the ground that the enormous national document was drafted in a hurry. Moreover, the political atmosphere was tumultuous and full of uncertainity, followed by the Partition and the consequent mass slaughters. No wonder, the Constitution had to be amended again and again (123 times in 70 years). In contrast, the US national document was amended 26 times in the course of 236 years. India had no political experience on a national scale until 1947.
Under these circumstances, it might not have been possible to produce the Constitution with all its inadequacies by January 1950. But for the Government of India Act, 1935, which was enacted by the Westminster Parliament for governing the Indian empire, even an imperfect document would have been very difficult to draft. This Act came in handy for adapting readily to independent India’s Constitution. As with any substantial duplication, there were bound to be faults.
It was suggested to Prime Minister Jawaharlal Nehru by several political friends to place the whole document before the first lok Sabha election by universal adult franchise in 1952. An endorsement by a popularly elected body would have legitimised the claim of the Preamble “We the People”. One person voting per million people with some of them unwillingly left behind in Hindustan; in fact a few of them like Janab Khaliquzzaman emigrated to Pakistan after participating in the debates on Constitution-making. Yet others were direct appointees of the maharajahs and nawabs of the princely States like Indore, Baroda and Bhopal. Moreover, a debate by MPs elected by adult franchise would have lent useful swotting up or editing to the document. The Prime Minister did not deem such an exercise necessary.
There are a number of areas which need attention. One glaring defect we have mentioned whereby the majority community and the minorities are not treated as equal. Articles 15 and 30 contradict each other. A second one is the confusion that the concurrent subjects cause. For example, law and order is a state subject yet there is a Central Reserve Police, the largest para-military force, which is mainly for duties in the States.
Then agriculture, for which the Cabinet has a Minister and so has each State. Who is the ultimate authorityIJ A thorough revision is obviously necessary. Or preferably a new document.
(The writer is a well-known columnist and an author)
