A Constitution Should Represent The Will Of Its People. Does Nehru’s ‘Slave’ Constitution Do So?

This is a sequel to my earlier article entitled ‘The Constitutional subjugation of Hinduism: A Hindu cry for Equal Rights’ published in Swarajya magazine on 7 August 2020.

I had argued therein that our Constitution has been designed to subjugate Hinduism by treating Hindus as dhimmis or second class citizens in matters of religion, culture and education. That analysis led to natural curiosity as to how this could happen when the Constituent Assembly comprised mostly of Hindus. A peep into the making of the Constitution may help understand the context.

Questions About The Legitimacy Of The Constituent Assembly

Against the demand of the Indian National Congress for the creation of a representative body elected through universal adult franchise to draft a Constitution, the British Parliament enacted a Constitution for India which was called the Government of India Act, 1935 (Act of 1935). The Congress characterised it as a “slave constitution that attempted to strengthen and perpetuate the economic bondage of India”.

The Cabinet Mission Plan of 1946 created the Constituent Assembly of India. They rejected universal adult franchise for elections to the Constituent Assembly. Instead they ordained indirect elections by members of the Provincial Assemblies who were recently elected through a very limited franchise under the Government of India Act of 1935.

Consequently, 229 Constituent Assembly members were indirectly elected by a small subset of the population and 70 were nominated by the princely states (strength in post-partition India).

On 5 November 1948, Sri Damodar Swarup Seth, a Socialist Member of the Constituent Assembly, moved a motion that as the Constituent Assembly was not elected through universal adult franchise, it did not have the representative credentials to make a Constitution for India.

He pointed out that members to the Assembly were indirectly elected by provincial assemblies, which in turn were elected by a mere 15 per cent of Indians. Let us hear him at length in his own words, as it brilliantly sums up the whole legitimacy question:

“Sir, I was saying that it is easy to ridicule a resolution or amendment or to ridicule the views of its supporters but it requires some courage to understand the reality and to appreciate it. I am afraid that this amendment of mine may displease some of my friends. But everyone has a duty to perform.

“It is the duty of every man unhesitatingly and fearlessly to give expression to the voice of his conscience and nature before his fellow beings, regardless of the consequences that may follow or of the opinion people may form about him, and this because I believe, Sir, that in the lives of nations as in the lives of individuals also there is sometimes a situation in which they have to swallow the bitterest pill.

“I think that the consideration of the Draft Constitution has brought such an occasion in our country and, therefore, we need not worry about our views being welcome or unwelcome to one person or the other. We have to perform our duty. I shall at first try to throw light on the representative character of this Constituent Assembly which is assembled here and which is going to consider the Draft Constitution and to pass it.

“Sir, the first characteristic which a constitution-making body of a free country should possess is that it should be able to claim that it represents the will of the entire people of that country. Sir, with your permission I would put it to the honourable members present in this House whether they can sincerely claim that they represent, in this House, the entire people of India. I can emphatically say that this House cannot claim to represent the whole country.

“At the most it can claim to represent that 15 percent of the population of India who had elected the members to the provincial legislatures. The election too, by virtue of which the members of this House are here, was not a direct one; they are here by virtue of an indirect election.

“In these circumstances, when 85 percent of the people of the country are not represented in this House and when they have no voice here, it will be, in my opinion, a very great mistake to say that this House is competent to frame a Constitution for the whole country.

“Besides the representative character of the Draft Constitution that is being placed before the House, we have also to consider its nature. We see that the Constitutions of the United States of America and Britain have been copied in this Constitution. Some articles have been borrowed from the Constitutions of Ireland, Australia and Canada. A paper has rightly remarked that this is a slavish imitation of the Constitutions of these countries.

“Sir, the conditions that prevailed in America, Britain, Canada or Australia do not obtain in our country. This Constitution as a whole, instead of being evolved from our life and reared from the bottom upwards, is being imported from outside and built from above down-words.

“This is not an ordinary matter. We should not treat this constitution-making as a light and playful business. On the contrary it is a step pregnant with historic consequences. Therefore, no amount of thought we can give to this Constitution can be too much.

“The coming generations will only deplore such a course of action on our part. Therefore, if we take into consideration the unrepresentative character of the Draft Constitution that is before us and its nature and structure, we come to the conclusion that it is not in harmony with our present conditions, our culture and our customs.

“Therefore, it is necessary that we should postpone its consideration for the time being and should form a new Constituent Assembly on the basis of adult franchise so that it may go through this constitution, consider it and amend it where necessary. As I have said we are going to frame the Constitution of United India; it should be a new and ideal Constitution.

“Instead we have copied the constitutions of other countries and incorporated some of their parts and in this way prepared a Constitution. As I have said, from the structure of the Constitution it appears that it stands on its head and not on its legs. I have no hesitation in saying that if lakhs of villages of India had been given their share on the basis of adult franchise in drafting this Constitution, its shape would have been altogether different.

“With your permission, therefore, Sir, I would appeal to the House that, treating this Constitution not as ordinary but as a historical document, they should give proper consideration to it. And I would appeal to you, Sir, that consideration of the Draft Constitution be postponed for the present and the country be given an opportunity to express itself so that the Constitution that may be framed may really be a democratic Constitution.”

Truth is independent of number of its supporters. Even though the motion of Damodar Swarup Seth was defeated, the truth bared naked by him continued to prick the consciences of not only the members of the Constituent Assembly but so many others too. Even today.

As a result, there have been all sorts of glib justifications given that the Constituent Assembly and the Constitution it produced are indeed representative of people of India. One such assertion is that notwithstanding the questions about the representative credentials of the Constituent Assembly, its child, the Constitution, is legitimate because it has been in operation for 70 years.

Such a justification is as bizarre as saying that as the British colonised India for about two centuries their rule ought to be legitimate.

Even if we discount the legitimacy question, the more important concern is whether our Constitution is rooted in and reflects our ancient civilisational ethos and aspirations. The answer to this is a resounding ‘NO’, notwithstanding the sketches of some Hindu gods and goddesses drawn in its original text.

Drafting Of The Constitution

B N Rau was known to Jawaharlal Nehru since his student days in England. He was working in the Viceroy’s Secretariat. Curiously, even before the Constituent Assembly was formed and before he was appointed as Constitutional Adviser to it, Rau had already prepared an outline of a New Constitution by January 1946. But why did Rau do so?

Nehru was Vice-President of the Viceroy’s Executive Council, which later became the Interim Cabinet and thereafter the Interim Government of which he became the Prime Minister. No prizes for guessing who was behind Rau’s outline of the new Constitution which was made ready by January 1946, awaiting the formal stamp of the future Constituent Assembly.

Unsurprisingly, Rau was appointed the Constitutional Adviser to the Constituent Assembly by the Nehru government. Dr B R Ambedkar became Chairman of the Drafting Committee. Rau furnished his Draft Constitution to the Drafting Committee in October 1947. “The Drafting Committee, between October 1947 and February 1948, scrutinised, tweaked and added to Rau’s Draft” and on 21 February 1948 submitted the Draft Constitution of India to the President of the Constituent Assembly.

What was the framework of Rau’s Draft?

The Government of India Act of 1935, which the Congress earlier characterised as the “slave” constitution. Nehru cleverly led the Constituent Assembly to debate, improve and adopt the Draft Constitution of his protege, nay his own. One gets an eerie feeling that Nehru shrewdly short-shrifted Ambedkar.

Ambedkar seemed to be aware of the farce. On 2 September 1953, speaking in the Rajya Sabha, he candidly clarified, “People always keep on saying to me: ‘Oh, you are the maker the Constitution.’ My answer is I was a hack. What I was asked to do, I did much against my will…. But I am quite prepared to say that I shall be the first person to burn it out.”

Had Ambedkar got a free hand he may have given us a Constitution that reflected our ancient civilisational ethos, and the country would have been a totally different one.

The wonderment is how an assembly of 299 eminences could not even think of a framework for the new Constitution of free India beyond the colonial Act of 1935, which their own Congress party characterised a decade earlier as the ‘slave constitution’? Actually, it is much beyond wonderment. They ridiculed and rejected the suggestion of Damodar Swarup Seth as quoted above.

Primarily there seems to have been two reasons for this: First, the majority of the Constituent Assembly’s members were Macaulayites with Hindus names, who were very much part of the colonial intelligentsia. They were “Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect.”

Second, and more importantly, while moving the Aims and Objects Resolution on 13 December 1946 in the Constituent Assembly, Jawaharlal Nehru revealed, “…the British Government has a hand in its (Constituent Assembly’s) birth. They have attached to it certain conditions. We accepted the State Paper, which may be called the foundation of this Assembly, after serious deliberations and we shall endeavour to work within its limits.”

So, admittedly there was an obligation to the British to frame the Constitution for ‘free’ India in a certain way. To rephrase, was our Constitution an outcome of a secret quid pro quo between the colonial British and Nehru for transferring the power to him by making him the Prime Minister?

Such a view gets bolstered by the fact that even before the Constituent Assembly was formed, Nehru's friend B N Rau, then working in the Viceroy’s Secretariat, was ready with an outline of the Constitution. Would he do that unless he was asked to do so by the Viceroy and Nehru as per their unstated understanding?

Basic Purpose Of The Constitution

The one overarching purpose of any Constitution is to bind and glue all its citizens. We rightly accuse the British of divide and rule/destroy policy. But what about our own Constitution?

Does the majority-minority division on religious lines ordained by our Constitution, whereby the majority Hindus are denied equal rights on a par with the minorities (articles 25-30), make us cohesive or divisive?

It may not be an exaggeration to say that many of our problems are a result of the Constitution pampering the so-called minorities at the cost of the majority Hindus, secularism, and the national unity and integrity.

Let us go back to Damodar Swarup Seth, who was so prescient. On 8 December 1948, this Socialist member moved an amendment to Article 30 (Article 23 of the Draft Constitution) to restrict the scope of this article to linguistic minorities, as it would undermine the very nature of secular state.

Let us hear him again: “I feel, Sir, that in a secular state, minorities based on religion or community should not be recognised. If they are given recognition then I submit that we cannot claim that ours is a secular state. Recognition of minorities based on religion or community is the very negation of secularism.

“Besides Sir, if these minorities are recognised and granted the right to establish and administer educational institutions of their own, it will not only block the way of national unity, so essential for a country of different faiths as India is, but will also promote communalism, and narrow anti-national outlook as was the case hitherto, with disastrous results.

“I, therefore, submit that only minorities based on language should be recognised and be granted the right to establish and administer educational institutions and that too for the purpose of promotion of their language and literature and for imparting primary and pre-primary education in their own language.”

I did a Twitter poll from 7 August 2020 on the question: “What is the hallmark of a truly secular democracy?” It had two options, namely, (i) Equal Rights for All; or (ii) Special Rights for Minorities. The response was humongous by Twitter standards. An overwhelming 94 per cent of the total 100,505 votes polled, voted for first option (i), Equal Rights for All.

This Twitter poll is an eye-opener as it reveals the enormity of the Hindu grievance of subjugation in religious, cultural and educational matters. It may be noted that none of the rights and privileges of minorities are sought to be taken away. The Hindu demand of equal rights on a par with the minorities is not a zero-sum game.

Therefore, Hindus earnestly appeal to the Honourable Prime Minister, Sri Narendra Modi, to correct this terrible constitutional wrong and give equal rights to them on par with minorities in all respects at the earliest.

The author is a former In-Charge Director, CBI. The views here are personal.