Legal Articles

A Miracle, Indeed

The making of the Indian Constitution was indeed a miracle. The task before it was massive. There were huge differences, both inside and outside the Constitution, including the murder of the Mahatma on 30th January, 1948 – four days before the Draft Constitution was laid before the Assembly. How did this motley crowd, with vociferous views, expressing dissents from each other produce such an elaborate Constitution of 395 articles and 8 schedules – the longest in the world for a democracy of over 300 million people with a framework for the future? On 25th November, 1949, Ambedkar reminded the Assembly that the American Constitution was created in four months, its Bill of Rights came two year later. The Canadian took two years and five months, the South African, a year in 1908-9 (which was riddled with racism and replaced in 1994). He wrongly pointed out that American Constitution had four articles (totaling 21), the Canadian 147, the Australian 128, and the South African 153. Their enactments went reasonably smoothly. But the making of the Indian Constitution was highly contentious. It had 2,473 amendments of a kind no Constitution was called upon to resolve. This was one miracle. But there is also another way to look at it. All the other Constitutions in and around the subcontinent had collapsed. Pakistan’s Constitutional Assembly took seven years to produce the Constitution of the Islamic Republic in 1956. Two years later, it was taken over by dictators. This happened frequently. Pakistani judges had to use, what I call, juristic witchcraft to justify each change. The Constitution of Ceylon (now Sri Lanka) of 1948 had to be re-written and re-done. Burma’s Constitution of 1948 collapsed; its governance taken over by Gen erals. Bangladesh’s Constitution could not avoid turmoil and went the Pakistan way. Even little Nepal struggled to reconcile differences. India’s Constitution survived the scare of an Emergency and has continued, its script re-written by 100 amendments and its meaning transformed by its judiciary.

Temporal survival is, of course, part miracle, but it is not enough. Has the Constitution worked? Democratic elections continue to take place and the rule of law provisions have been strengthened. But its working pathology show tensions which are more wear and tear. The first is the absence of an intrinsic institutional morality to work its processes. Without a working morality (I hesitate to use the phrase constitutional morality), no governance is possible. The second test is to ask whether the constitutional socio-economic objectives have been met. Ambedkar’s apprehensions on this were incisive and foreboding enterprise itself:

On the 26th January, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man, one vote; and one vote, one value. In our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to deny equality in our social and economic life? We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

This unfulfilled task remains the biggest failure of the very raison d’etre of the Constitution. In 1951 the population of India was 361 million. In 2016, it has reached 1.2 billion, with half of its people hovering around or below the poverty line. India prospers, but not the majority of its people.

I have one other reason for calling the Indian Constitution a miracle: if we were called upon to create a new Constitution afresh now, we would certainly fail.

Excerpts from The Constitution of India Miracle, Surrender, Hope by Rajeev Dhavan, Universal Law Publishing (2017) Rs. 325/-. The Book is available at Universal Book Traders, C-27 Connaught Place, New Delhi.

Leave a Comment