While the Cabinet was headed by a prime minister, the head of state was a president elected by a college comprising the national and provincial legislatures. The president would be the commander-in-chief of the armed forces, and had the power to refer bills back to Parliament. This was a position of ‘great authority and dignity’, but, like those of the British monarchy, one with’no real power’.16 (In the provinces a governor nominated by the ‘centre’ (as central government was coming to be known) played a role comparable to the president’s.) The constitution provided for an independent election commission, and an independent comptroller general of accounts. To protect the judiciary from party politics, judges were to be appointed by the president in consultation with the chief justice, while their salaries were not decided by Parliament but charged directly to the Treasury. The Supreme Court in Delhi was seen both as the guardian of the social revolution and as the guarantor of civil and minority rights. It was endowed with broad appellate jurisdiction – any civil or criminal case could be referred to it so long as it involved an interpretation of the constitution.
The constitution mandated for a complex system of fiscal federalism. In the case of some taxes (for instance customs duties and company taxes) the centre retained all the proceeds; in other cases (such as income taxes and excise duties) it shared them with the states; in still other cases (e.g. estate duties) it assigned them wholly to the states. The states, meanwhile, could levy and collect certain taxes on their own: these included land and property taxes, sales tax, and the hugely profitable tax on bottled liquor.
These financial provisions borrowed heavily from the Government of India Act of 1935. The ‘conscience of the constitution’,17 meanwhile, was contained in Parts III and IV, which outlined a series of fundamental rights and directive principles. The fundamental rights, which were enforceable in a court of law, derived from the obligations of the state not to encroach upon or stifle personal liberty, and to protect individuals and groups from arbitrary state action. The rights defined included freedom and equality before the law, the cultural rights of minorities, and the prohibition of such practices as untouchability and forced labour.18 The directive principles, which were not justiciable, derived from the positive obligations of the state to provide for amore fulfilling life for the citizen. They were a curious amalgam of contending pulls. Some principles were a concession to the socialist wing of the Congress, others (such as the ban on cow-slaughter) to the party’s conservative faction.19
To the unprejudiced eye the constitution was an adaptation of Western principles to Indian ends. Some patriotsdid not see it that way. They claimed that it was Indians who had invented adult suffrage. T. Prakasam spoke about an inscription on a 1,000-year-old Conjeevaram temple which talked of an election held with leaves as ballot papers and pots as ballot boxes.20 This kind of chauvinism was not the preserve of the south alone. The Hindi scholar Raghu Vira claimed that ancient India was ‘the originator of the Republican system of government’, and ‘spread this system to the otherparts of the world’.21
Those who had looked closely at the provisions of the constitution could not thus console themselves. Mahavir Tyagi was ‘very much disappointed [to] see nothing Gandhian in this Constitution’.22 And K. Hanumanthaiya complained that while freedom fighters like himself had wanted ‘the music of Veena or Sitar’, what they had got instead was ‘the music of an English band’23
V
The Constitution of India sought both to promote national unity and to facilitate progressive social change. There was a fundamental right to propagate religion, but the state reserved to itself the right to impose legislation oriented towards social reform (such as a uniform civil code). The centre had the powers, through national planning, to redistribute resources away from richer provinces to poorer ones. The right of due process was not allowed in property legislation, another instance in which the social good as defined by the state took precedence over individual rights. Land-reform laws were on the anvil in many provinces, and the government wanted to close the door to litigation by disaffected moneylenders and landlords.
Fundamental rights were qualified and limited by needs of social reform, and also by considerations of security and public order. There were provisions for rights to be suspended in times of ‘national emergency’. And there was a clause allowing for ‘preventive detention’ without trial. A veteran freedom fighter called this ‘the darkest blot on this constitution’. Having spent ten years of his own life in ‘dungeons and condemned cells in the days of our slavery under the British’, he knew ‘the tortures which detention without trial means and I can never reconcile myself to it’24
The constitution showed a certain bias towards the rights of the Union of India over those of its constituent states. There was already a unitary system in place, imposed by the colonial power. The violence of the times gave a further push to centralization, now seen as necessary both to forestall chaos and to plan for the country’s economic development.
The constitution provided for three areas of responsibility: union, state and concurrent. The subjects in the first list were the preserve of the central government while those in the second list were vested with the states. As for the third list, here centre and state shared responsibility. However, many more items were placed under exclusive central control than in other federations, and more placed on the concurrent list too than desired by the provinces. The centre also had control of minerals and key industries. And Article 356 gave it the powerto takeovera state administration on the recommendation of the governor.25
Provincial politicians fought hard for the rights of states, for fewer items to be put on the concurrent and union lists. They asked for a greater share of tax revenues and they mounted an ideological attack on the principle itself. A member from Orissa said that the constitution had ‘so centralised power, that I am afraid, due to its very weight, the Centre is likely to break’. A member from Mysore thought that what was proposed was a ‘unitary’ rather than ‘federal’ constitution. Under its provisions ‘democracy is centred in Delhi and it is not allowed to work in the same sense and spirit in the rest of the country’.26
Perhaps the most eloquent defence of states’ rights came from K. Santhanam of Madras. He thought that the fiscal provisions would make provinces ‘beggars at the door of the Centre’. In the UnitedStates, both centre and state could levy ‘all kinds of tax’, but here, crucial sources of revenue, such as the income tax, had been denied the provinces. Besides, the Drafting Committee had tried ‘to burden the Centre with all kinds of powers which it ought not to have .These included ‘vagrancy’, which had been taken away from the states list and put on the concurrent list. ‘Do you want all India to be bothered about vagrants?’ asked Santhanam sarcastically. As he put it, rather than place an excessive load on the Union government, ‘the initial responsibility for the well-being of the people of the provinces should rest with theP rovincial Governments’.27
The next day a member from the United Provinces answered these charges. Hearing Santhanam, he wondered whether it was not ‘India’s age-old historical tendency of disintegrating that was speaking through these stalwarts’. A strong centre was an absolute imperative in these ‘times of stress and strain . Only a strong centre would ‘be in a position to think and plan for the well-being of the country as a whole’.28
Members of the Drafting Committee vigorously defended the unitary bias of the constitution. In an early session B. R. Ambedkar told the House that he wanted ‘a strong united centre (hear, hear) much stronger than the centre we had created under the Government of India Act of 1935’.29 And K. M. Munshi argued for the construction of ‘a federation with a centre as strong as we can make it’.30 In some matters Munshi was close to being a Hindu chauvinist; but here he found himself on the same side as the Muslims. For the horrific communal violence of 1946 and 1947 bore witness to the need for a strong centre. In the words of Kazi Syed Karimuddin, ‘everybody is not Pandit Jawaharlal Nehru�
�� (in respect of his commitment to inter-religious harmony). There were ‘weak and vacillating executives in all the Provinces’, said the kazi. Thus ‘what we want today is astable Government. What we want today is a patriotic Government. What we want today is a strong Government, an impartial and unbending executive, that does not bow before popular whims.’31
VI
Much attention was paid by the Assembly to the rights of the minorities. The first extended discussion of the subject took place a bare ten days after Partition. Here, a Muslim from Madras made a vigorous plea for the retention of separate electorates. ‘As matters stand at present in this country’, said B. Pocker Bahadur, it was ‘very difficult’ for non-Muslims ‘to realise the needs and requirements of the Muslim community’. If separate electorates were abolished, then important groups would be left feeling ‘that they have not got an adequate voice in the governance of the country’.32
The home minister, Sardar Patel, was deeply unsympathetic to this demand. Separate electorates had in the past led to the division of the country. ‘Those who want that kind of thing have a place in Pakistan, not here,’ thundered Patel to a burst of applause. ‘Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough.’33
There were, however, some Muslims who fromthestart were opposedto separate electorates. These included Begum Aizaz Rasul. It was ‘absolutely meaningless’ now to have reservation on the basis of religion, said the begum. Separate electorates were ‘a self-destructive weapon which separates the minorities from the majority for all time’. For the interests of the Muslims in a secular democracy were ‘absolutely identical’ with those of other citizens.34
By 1949 Muslim members who had at first demanded separate electorates came round to the begum’s point of view. They sensed that reservation for Muslims ‘would be really harmful to the Muslims themselves’. Instead, the Muslims should reconstitute themselves as voting blocs, so that in constituencies where they were numerous, no candidate could afford to ignore them. They could even come to ‘have A decisive voice in the elections’; for ‘it may be that an apparently huge majority may at the end . . . find itself defeated by a single vote’. Therefore, ‘the safety of the Muslims lies in intelligently playing their part and mixing themselves with the Hindus in public affairs’.35
A vulnerable minority even more numerous than the Muslims were the women of India. The female members of the Assembly had come through the national movement and were infected early with the spirit of unity. Thus Hansa Mehta of Bombay rejected reserved seats, quotas or separate electorates. ‘We have never asked for privileges’, she remarked. ‘What we have asked for is social justice, economic justice, and political justice. We have asked for that equality which alone can be the basis of mutual respect and understanding and without which real co-operation is not possible between man and woman.’36 Renuka Roy of Bengal agreed: unlike the ‘narrow suffragist movement[s]’ of ‘many so-called enlightened nations’, the women of India strove for ‘equality of status, for justice and for fair play and most of all to be able to take their part in responsible work in the service of their country’. For ‘ever since the start of the Women’s Movement in this country, women have been fundamentally opposed to special privileges and reservations’.37
The only voice in favour of reservation for women was a man’s. This was strange; stranger still was the logic of his argument. From his own ‘experience as a parliamentarian and a man of the world’,)said R. K. Chaudhuri,
I think it would be wise to provide for a women’s constituency. When a woman asks for something, as we know, it is easy to get it and give it to her; but when she does not ask for anything in particular it becomes very difficult to find out what she wants. If you give them a special constituency they can have their scramble and fight there among themselves without coming into the general constituency. Otherwise we may at times feel weak and yield in their favour and give them seats which they are not entitled to.38
VII
There would be no reservation for Muslims and women. But the constitution did recommend reservation for Untouchables. This was in acknowledgement of the horrific discrimination they had suffered, and also a bow towards Mahatma Gandhi, who had long held that true freedom, or swaraj, would come only when Hindu society had rid itself of this evil. It was also Gandhi who had made popular a newterm for ‘Untouchables’, which was ‘Harijans’, or children of God.
The constitution set aside seats in legislatures as well as jobs in government offices for the lowest castes. It also threw open Hindu temples to all castes, and asked for the abolition of untouchability in society at large. These provisions were very widely welcomed. Munis-wamyPillai of Madras remarked that ‘the fair name of India was a slur and a blot by having untouchability . . . [G]reat saints tried their level best to abolish untouchability but it is given to this august Assembly and the new Constitution to say in loud terms that no more untouchability shall stay in our country. 39
As H. J. Khandekar of the Central Provinces pointed out, Untouchables were conspicuously under-represented in the upper echelons of the administration. In the provinces, where they might constitute up to 25 per cent of the population, there was often only one Harijan minister, whereas Brahmins who made up only 2 per cent of the population might command two-thirds of the seats in the Cabinet. Khandekar suggested that despite the public commitment of the Congress, ‘except for Mahatma Gandhi and ten or twenty other [upper-caste] persons there is none to think of the uplift of the Harijans in the true sense’.
This member eloquently defended the extension of reservation to jobs in government. He alluded to the recent recruitment to the Indian Administrative Service, the successor to the ICS. Many Harijans were interviewed but all were found unsuitable on the grounds that their grades were not good enough. Addressing his upper-caste colleagues, Khandekar insisted that
You are responsible for our being unfit today. We were suppressed for thousands of years. You engaged in your service to serve your own ends and suppressed us to such an extent that neither our minds nor our bodies and nor even our hearts work, nor are we able to march forward. This is the position. You have reduced us to such a position and then you say that we are not fit and that we have not secured the requisite marks. How can we secure them?40
The argument was hard, if not impossible, to refute. But some members warned against the possible abuse of the provisions. One thought that ‘those persons who are clamouring for these seats, for reservation, for consideration, represent a handful of persons, constituting the cream of Harijan society’. These were the ‘politically powerful among these groups.41 For the left-wing congress politician Mahavir Tyagi, reservation did not lead to real representation. For ‘no caste ever gets any benefit from this reservation. It is the individual or family which gets benefits’. Instead of caste, perhaps there might be reservation by class, such that ‘cobblers, fishermen and other such classes send their representatives through reservation because they are the ones who do not really get any representation’42
VIII
The first report on minority rights, made public in late August 1947, provided for reservation for Untouchables only. Muslims were denied the right, which in the circumstances was to be expected. However, one member of the Assembly regretted that ‘the most needy, the most deserving group of adibasis [tribals] has been completely left out of the picture’.43
The member was Jaipal Singh, himself an adivasi, albeit of a rather special kind. Jaipal was aMunda from Chotanagpur, the forested plateau of South Bihar peopled by numerous tribes all more-or-less distinct from caste Hindu society. Sent by missionaries to study in Oxford, he made a name there as a superb hockey player. He obtained a Blue, and went on to captain the Indian team that won the gold medal in the 1928 Olympic Games.
On his return to India Jaipal did not, as hissponsors
no doubt hoped, preach theGospel, but came to invent a kind of gospel of hisown. This held that the tribals were the ‘original inhabitants’ of the subcontinent – hence the term ‘adibasi’ or ‘adivasi’, which means precisely that. Jaipal formed an Adibasi Mahasabha in 1938 which asked for a separate state of ‘Jharkhand’, to be carved out of Bihar. To the tribals of Chotanagpur he was their marang gomke, or ‘greatleader’ . In the Constituent Assembly he came to represent the tribals not just of his native plateau, but of all India.44
Jaipal was a gifted speaker, whose interventions both enlivened and entertained the House. (In this respect, the Church’s loss was unquestionably politics’ gain.) His first speech was made on 19 December 1946 when, in welcoming the Objectives Resolution, he provided a masterly summation of the adivasi case. ‘As ajungli, as an adibasi’, said Jaipal,
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