Wednesday, May 28, 2008

The Manu of Our Times?

Arun Shourie
"Now, Sir," the member said, "we have inherited a tradition. People always keep saying to me : 'Oh, you are the maker of the Constitution.' "My answer is I was a hack. What I was asked to do, I did much against my will."

He ridiculed the "notions of democracy" the country had acquired because of its hatred of the British, like the notion that to leave any discretionary powers with the Governor is undemocratic. "We have inherited the idea that the Governor must have no power at all, that he must be a rubber-stamp," the member explained. "If a minister, however scoundrelly he may be, if he puts up a proposal before the Governor, he has to ditto it. That is the kind of conception about democracy which we have developed in this country," he continued.

"But you defended it," interjected a member from Rajasthan.

"We lawyers defend many things....," said the member. Several members were on their feet protesting.

He proceeded to ask the Home Minister : were our Constitution to give discretionary powers to Governors on the lines of the Canadian Constitution, how would it become undemocratic ? The Home Minister said his answer was that the member had been responsible for drafting the Constitution. The member shot back, "You want to accuse me of your blemishes?"

He returned to the point a little later in his speech : "Sir," he said, "my friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it out. I do not want it. It does not suit anybody...."

The member ? B.R. Ambedkar, of course. The occasion? The debate in the Council of States, as the Rajya Sabha was then known, on 2 September, 1953, regarding the Bill for establishing the state of Andhra.

Was Ambedkar just palming off responsibility? Or was he being truthful in describing what his role really had been in regard to the drafting of the Constitution ? That the remarks were not just an off-the-cuff burst is evident from the fact that he repeated the description to the political scientist and biographer, Michael Brecher during an interview three years later, a few months before his death [ Michael Brecher, Nehru, A Political Biography, Oxford University Press, 1959, p. 423 ]

Or take another instance. The Article relating to the right to property went through several rounds, and was the subject of earnest discussion. The draft of the Article as it was sent up by the Drafting Committee closely followed Section 299 of the Government of India Act, 1935. It provided that no property would be acquired except for a public purpose, and that it would not be acquired without compensation and unless either the amount of compensation was fixed or the principles on which it was to be fixed were set out. When the draft came up for consideration in the Constituent Assembly, Pandit Nehru himself moved an amendment to replace the text wholesale. He told the Assembly that the new text was "the result of a great deal of consultation", that it reflected a compromise between various approaches.

Two years later, in 1952, the Supreme Court handed down judgements in which it held that the existence of a public purpose was a prerequisite for the exercise of the power of compulsory acquisition. The Government then brought in an amendment to the Constitution which provided, among other things, that "no such law [ aimed at acquiring property ] shall be called in question in any court on the ground that the compensation provided by that law is not adequate." The amendment also provided that where the law did not transfer the property to the State or a Corporation owned or controlled by the State "it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property." In a word, there was no longer any need in such cases for either of the two conditions -- the existence of a public purpose, or the payment of just compensation. This part of the matter was thus put beyond the reach of courts. Government asserted that the new text was in accord with what the Drafting Committee had intended.

Ambedkar refuted the suggestion. Here is what he told the Rajya Sabha on 19 March, 1955 : "Article 31 with which we are dealing now in this Bill is an Article for which I, and the Drafting Committee, can take no responsibility whatsoever. We do not take any responsibility for that. That is not our draft." He said that at the time this Article was being considered "the Congress Party... was so divided within itself that we did not know what to do, what to put and what not to put." Ambedkar said that there had been three points of view within the Congress on the question : a section led by Sardar Patel had wanted that the Constitution provide for compensation on the lines of the existing Land Acquisition Act, namely market price plus 15 per cent; Pandit Nehru wanted that no compensation should be provided for at all; Pandit Pant, who was the Chief Minister of Uttar Pradesh at the time, had been concerned mainly to safeguard the zamindari-abolition legislation he had got through. "There was thus this tripartite struggle," Ambedkar told the House, "and we left it to them to decide in any way they liked. And they merely embodied what their decision was in Article 31. This Article 31, in my judgement, is a very ugly thing, something which I do not like to look at..."

A volume can be filled at short notice with examples of this kind. The point however will be obvious : in saying what he did about this particular Article, was Ambedkar again just passing off responsibility? Or was he giving us a truthful glimpse into the way the Constitution was actually framed -- by an iterative, collective effort, by the contribution of numerous persons, by adjustments of many, many points of view?

"But was he not the Chairman of the Drafting Committee? And did this Committee not draft the Constitution?"

How mere designations father myths ! Yes, Ambedkar was elected Chairman of the Drafting Committee [and the why and how of that is itself a delicious story], but what was this "Drafting Committee" set up to do?

The Constituent Assembly had been functioning since December 1946. Committees to draft substantive sections of the Constitution began work in January 1947. The "Drafting Committee" did not come into being till 29 August, 1947.

The Constituent Assembly's resolution setting up the Committee declared that it was being set up to "Scrutinise the Draft of the text of the Constitution prepared by the Constitutional Adviser giving effect to the decisions taken already in the Assembly and including all matters ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration the text of the Draft Constitution as revised by the Committee." At the very least these terms of reference should alert us to the fact that there already was a Draft in existence when this Committee was set up!

The Draft in question had been prepared by Sir B. N. Rau, the Constitutional Adviser to the Constituent Assembly, with the assistance of the Joint Secretary and Draftsman, S.N. Mukerjee. It consisted of 240 draft Articles and 13 Schedules. Nor was this document itself something that had sprung from the head of one or two individuals. In fact, in the marginal note to each draft Article Sir B N Rau indicated the original source or basis of the provision -- the Government of India Act, 1935, the Constitution of Ireland, that of Canada, that of Australia, the Danzig Constitution, that of the USSR, of the USA and so on, in each instance with the relevant Article listed. It was this Draft which constituted the basic working document in all subsequent deliberations. And it was this Draft which the Drafting Committee began adding to and deleting from so as to incorporate the decisions which the Assembly had already arrived at, and to incorporate the reports and recommendations of the various Committees which had been set up to draft particular sections of the Constitution. Sir B N Rau's Draft, the minutes and drafts of the Committees are all published documents which are easily accessible to anyone who would care to look.

But even that sort of account suggests a greater degree of latitude and role for the Drafting Committee than was the case. For everything was in practice decided in meetings of the Congress Party before it was formally taken up by the Constituent Assembly. Ambedkar himself was to acknowledge later that it was possible to get the Constitution through so smoothly precisely because of the discipline and cohesion of the Congress. Another member of the Assembly was even more candid : in his speech at the conclusion of the Assembly's labours he said that the meetings of the Congress Party became the real meetings of the Constituent Assembly, and that the decisions taken in them -- after vigourous and free debate, and much contention -- were in a sense "registered" by the Assembly in its formal meetings.

The Draft was the result of collective labours of many persons. Several parts of it went through many versions. Several Articles were adopted, only to be overturned at the next stage. The Assembly itself reopened and revised, and sometimes completely overhauled several provisions -- many of them key provisions on which the very nature of the system of governance turned.

Not only did Ambedkar himself not claim authorship of the Draft. He did not even claim any great degree of originality for the Draft which emerged from these iterations and which he formally tabled. Quite the contrary, he scoffed at those who were looking for originality in the document. Addressing the Assembly on 4 November, 1948, while placing the Draft Constitution in the Assembly for its consideration, Ambedkar said : "It is said that there is nothing new in the Draft Constitution, that about half of it has been copied from the Government of India Act of 1935 and that the rest of it has been borrowed from the Constitutions of other countries. Very little of it can claim originality. One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than a hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly what should be the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country..."

"As to the accusation that the Draft Constitution has [re]produced a good part of the provisions of the Government of India Act, 1935," Ambedkar continued, "I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution...."

That this was the position was known to one and all. As I mentioned, in the margin of each Draft Article Sir B N Rau had indicated the provisions of other Constitutions on which it was based. The overwhelming proportion of provisions were based on the Government of India Act of 1935 -- and that too was natural : that Act itself built on successive laws under which India had been governed for a hundred years; the administrative structure of the country had grown around these laws, even in combating those laws and provisions it is that structure which our leaders had grown accustomed to, which they had in a sense mastered.

Ambedkar, who had all along been with the British while the rest were fighting to free the country from them, actually felt a sense of vindication in the fact that, all said and done, the nationalist leaders, who used to rail against the British, had in the end had to adopt more or less the system which the British had devised. Recall that Ambedkar formally presented the Draft to the Assembly on 21 February, 1948. On 28 April that year Ambedkar was the chief guest at a dinner at the Delhi Gymkhana Club. In a starry-eyed account, Alan Campbell-Johnson, the Press Attache of Lord Mountbatten, recorded in his diary for that day : "Fay and I dined tonight amid fairy-lights on the lawn of the Delhi Gymkhana Club.... The principal guest was Dr. Ambedkar, the Minister of Law, the leader of the untouchables, and a colourful personality in Indian politics over the past twenty years. He is now one of the principal figures associated with the preparation of India's new Constitution, which finally removes the stigma of untouchability from the statute book. As part of his emancipation, Ambedkar, himself an untouchable, has only recently married a lady doctor who is a Brahmin... Ambedkar himself was in an expansive vein, and gave us a revealing analysis of some of the new features of the new Constitution... As evidence of the enduring quality of the 1935 Act, he said that some two hundred and fifty of its clauses had been embodied as they stood into the new Constitution." [ Mission With Mountbatten, 1951, Hamish Hamilton, 1985, p.319 ] On that count, not half but almost four-fifths of the Constitution was from the 1935 Act -- for the Draft as submitted by the Drafting Committee had 315 Articles.

And this position was freely acknowledged by our courts also. Rejecting a construction which was being urged before it, the Supreme Court, for instance, observed in Sundaramier and Co. Vs State of Andhra Pradesh in 1958, "It [ the construction which was being urged ] overlooks that our Constitution was not written on a tabula-rasa, that a federal Constitution had been established under the Government of India Act, 1935, and though that has undergone considerable changes by way of repeal, modification and addition, it still remains the framework on which the present Constitution is built..." For that reason the Court held that "the provisions of the Constitution must accordingly be read in the light of the provisions of the Government of India Act."

But now suddenly the Constitution is presented as something that sprung -- whole and complete, pristine and virginal -- from the mind and genius of Ambedkar. So much so that the Draft Constitution is included by the Maharashtra Government in its volumes Babasaheb Ambedkar, Writings and Speeches as if it were one of the things he had authored!

Even so there is a silver lining. The very ones who hail Ambedkar as the Manu of our times revile Manu as the fount of all evil! The very ones who hail the Constitution as the Ambedkar-smriti denounce the same Constitution as being nothing but an alien graft wholly unsuited to our country!

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