It’s Constitution of India, not Indira

People who never had faith in the Constitution, nor had they participated in its drafting, are now swearing by it and are laying claim to it. They are now having a discussion on commitment to it. There cannot be a bigger joke than this”, said Congress president Sonia Gandhi in the Lok Sabha in the context of the discussion on Constitution Day on November 26. These words are born out of the conviction that the Constitution of India is also a legacy of the Nehru dynasty. Syama Prasad Mookerjee, like many other right-leaning political leaders, was an active member of the Congress Party and the Constituent Assembly before founding the Bharatiya Jan Sangh (the precursor to the Bharatiya Janata Party) in 1951. And, in any case, all holders of constitutional offices have to pledge allegiance to the Constitution of India, which belongs equally to all.

Recorded history shows that the Constitution, framing of which was completed on November 26, 1949, and which came into force on January 26, 1950, was mercilessly “defamed and defiled” — to borrow the phrase from the great Nani J. Palkhivala — by successive Congress governments through amendments.

The Congress abused its provisions by imposing President’s Rule more than 100 times during the first two decades of the republic, thereby destroying the federal character of India. And to top it all, during the phoney Emergency of 1975-76, Indira Gandhi tried to destroy the Constitution through the infamous 39th and 42nd Amendments brought in after Opposition MPs were thrown in jails.

The 39th Amendment of the Constitution of India, enacted on August 10, 1975, placed the election of the President, the vice-president, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts.

The 42nd Amendment attempted to reduce the power of the Supreme Court and high courts to pronounce upon the constitutional validity of laws and introduced the words “socialist” and “secular” in the Preamble. It also accorded precedence to the Directive Principles of State Policy over fundamental rights of individuals and prevented any constitutional amendment from being “called in question in any court on any ground”.

Fortunately for the country, in 1977, Indira Gandhi was voted out and the Morarji Desai government that succeeded annulled most of the mischiefs. Thus, today we have a Constitution that is in a recognisable shape.

The following extract from the speech of Somnath Chatterjee in Parliament, in August 1978, summarises the feeling that prevailed following these amendments: “We have opposed, and the people have opposed, the Forty-Second Amendment as it had been the product of insatiable hunger for power it represented the grossest form of anti-people outrage. It has been nothing but synonymous with fascism and dictatorship ”

The immediate question was whether to retain the words “socialist” and “secular” introduced in the Preamble by the 42nd Amendment. They added no substance and seemed to be there only for cosmetic purposes. This is the only legacy that the Congress Party can boast of in the context of the Indian Constitution.

Mrs Sonia Gandhi, on November 26, quoted B.R. Ambedkar as follows: “I was surprised when I was chosen as the chairman. There were more learned and better people than me in the committee. It was the discipline of Congress that enabled the drafting committee to give full information about every Act in the Constitution.”

Her speechwriter had done a clumsy cut-paste job as can be seen from the text of Ambedkar’s speech at the Constituent Assembly delivered on November 25, 1949: “I came into the Constituent Assembly with no greater aspiration than to safeguard the interests of the Scheduled Castes. I had not the remotest idea that I would be called upon to undertake more responsible functions. I was, therefore, greatly surprised when the Assembly elected me to the drafting committee. I was more than surprised when the drafting committee elected me to be its chairman. There were in the drafting committee men bigger, better and more competent than myself such as my friend Sir Alladi Krishnaswami Ayyar.”

On August 29, 1947, the Constituent Assembly had adopted a resolution authorising the appointment of a drafting committee, consisting of Alladi Krishnaswamy Ayyar, K.M. Munshi, both outstanding lawyers, N. Gopalaswami Ayyangar, B.R. Ambedkar, Mohammad Saadulla, B.L. Mitter and D.P. Khaitan. At its first meeting held on August 30, the drafting committee selected Ambedkar as its chairman. Thus, the records show that Ambedkar was chosen as a chairman not by the mercy of any politician, but by a committee of eminent men who were aware of his ability not only as a legal scholar, but also as an economist and a reformer.

Ambedkar paid compliments to the Congress, the only sizeable party then in existence, for facilitating smooth passage of the Constitution as a part of “vote of thanks”, but added: “The proceedings of this Constituent Assembly would have been very dull if all members had yielded to the rule of party discipline. Party discipline, in all its rigidity, would have converted this Assembly into a gathering of ‘yes’ men. Fortunately, there were rebels”.

Those rebels and many others then members of the Congress decided to serve in the Opposition in the interest of democracy.

The recent jostle between the BJP and the Congress to claim Ambedkar is amusing. Ambedkar, soon after resigning as law minister in 1951, contested the 1952 general elections as an independent from Bombay North.

A Congress candidate defeated him. Again in 1954, he contested a byelection to the Lok Sabha. This time too a Congress candidate defeated him. He died in 1956 as a nominated member of the Rajya Sabha.

The discussion on the Preamble to the Constitution was getting postponed time and again. Finally, it was taken up on October 17, 1949 — the last day of business — when, the agenda before the Constituent Assembly was very heavy, including discussion on Article 306A which is the present Article 370 relating to special status to Kashmir. Several amendments were moved, including some which wanted the word “socialism” included. Some wanted God and Mahatma Gandhi to find place in the Preamble. The Constituent Assembly rejected all these amendments.

No one wanted the word “secularism” added to the Preamble because the framers of the Constitution were aware that what matter are the provisions of the Constitution and not the Preamble.

For example, the Constitution prohibits discrimination of any sort, including on the basis of race, religion, caste, creed and gender. It guarantees freedom of religion, including propagating them peacefully. It guarantees special position to minorities to conserve their own distinct language, script or culture. The minorities are also given the right to establish and administer educational institutions of their choice free from the state interference. The Constitution also guarantees elections on the basis of adult suffrage. Indian secularism flows from these provisions. Not from the word “secular” in the Preamble.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com