The Constitution was founded on these

Our founding fathers were driven by the learnings of the past, the turmoil of the present and the possibilities of the future.

Written by Soli J. Sorabjee | Updated: April 21, 2018 12:29:00 am

Indian constitution, Constituent Assembly, Jawaharlal Nehru, Indian Parliament, Supreme Court, fundamental rights, indian express

Indian Parliament House. (Express Photo)

The task of framing free India’s Constitution was completed in three years from December 9, 1946 to November 26, 1949. It is worthwhile reading the debates of the Constituent Assembly (CA) because they reveal the erudition and far-sightedness of our founding fathers and also because of the sarcasm and humour that enlivened the proceedings.

One of the highlights of the debates was the Aims and Objectives Resolution moved by Jawaharlal Nehru on December 13, 1946, when he declaimed “laws are made of words, but this Resolution is something higher than the law… It is a Declaration. It is a firm resolve. It is a pledge and an undertaking and it is for all of us I hope a dedication. …I would beg of this House to consider this Resolution in the mighty prospect of our past, of the turmoil of the present and of the great and unborn future that is going to take place soon”.

The next meeting of the CA was the historic one held on August 14, 1947 at 11:00 pm. The first item on the agenda was singing of the first verse of Vande Mataram by Sucheta Kripalani. Thereafter, the President of the Assembly, Rajendra Prasad, delivered his address in Hindi.

Subsequently, S Radhakrishnan expressed his thoughts in felicitous language. “History and legend will grow round this day. It marks a milestone in the march of our democracy. …Through a long night of waiting, a night full of fateful portents and silent prayers for the dawn of freedom, of haunting spectres of hunger and death, our sentinels kept watch, the lights were burning bright till at last the dawn is breaking and we greet it with the utmost enthusiasm.”

Every member of the CA, after the last stroke of midnight, took a pledge dedicating himself “in all humility to the service of India and her people”. How many members of Parliament can today honestly take this pledge? And if they did, how many would believe them?

The subject of fundamental rights was debated extensively. The main focus was on the proposed restrictions on fundamental rights. Some members complained of the “legislative legerdemain of giving fundamental rights with the right hand and taking it away by three or four or five left hands”.

The founding fathers had differing perceptions about the role of the judiciary in the constitutional scheme. B R Ambedkar was conscious that a popular legislature swayed by passion and prejudice can ride roughshod over fundamental rights. Yet, he was doubtful whether five of six gentlemen sitting “in the federal or Supreme Court… be trusted to determine which law is good and which law is bad”. The problem was solved by Pandit Thakurdas Bhargava’s proposal that restrictions on the fundamental rights should be qualified by the insertion of the expression “reasonable” as that would give “the courts the final authority to say whether the restrictions imposed are reasonable or not”. Ambedkar readily agreed with the proposal and the right to move the Supreme Court directly for enforcement of a fundamental right was itself guaranteed as a fundamental right and this provision according to Ambedkar “is the very soul of the Constitution and the very heart of it…”

The founding fathers did not mince words when it came to criticising one another. Ambedkar got it in the neck because of his remark that “democracy in India is only a top dressing on an Indian soil which is essentially undemocratic” and also for his disparaging references to the village as a “sink of localism, a den of ignorance…”

In the course of debates relating to the emergency provisions, H V Kamath admonished that “by this one simple chapter (emergency provisions) we are seeking to lay the foundation of a totalitarian state. Mahavir Tyagi also prophetically warned that “many rich and precious lives, the lives of many a learned and the patriots will be in danger if this pernicious article is allowed to creep into this Constitution”.

The debates also had their lighter side. Lok Nath Mishra referred to the profession of the law as one which “feeds on fat fees and forged facts”. Thank God, no lawyer went on strike.

H V Kamath also moved an amendment for the insertion of the words “in the name of God” in the beginning of the Preamble to the Constitution. Rohini Kumar Choudhary protested that “if we bring in the name of God at all, we should bring in the name of Goddess also”. When Kamath’s motion was defeated, he moaned: “This, Sir, is a black day in our annals. God save India”.

As I conclude, my mind goes back to November 26, 1949, the end of the constitutional yatra of framing of India’s Constitution. On that day Ambedkar delivered some home truths. He said that “on the 26th of January 1950, we are going to enter into a life of contradictions” and “if hereafter things go wrong, we will have nobody to blame except ourselves. …Bhakti in religion may be a road to the salvation of the soul. But in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship”. These words have a compelling relevance in the present context where rank political opportunism is prevalent and defections are the order of the day. These failures are attributable not to the Constitution but because in the memorable words of Ambedkar, “Man is vile, Sir”.

The writer is a former Attorney General for India

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