Articles —
TOWARDS A REVIEW OF THE INDIAN CONSTITUTION
by J. K. Bajaj

The Perspective

The Indian Constitution was created under extremely difficult circumstances. In the initial phases of the work of the Constituent Assembly it was not clear whether the Muslim-majority areas of the country shall remain within the Indian Union or not. After formalisation of the Partition of the country, the Assembly worked under the shadow of the chaos and violence associated with this climactic event in the history of India. This, along with the prevailing uncertainty about the position of the princely states, created fears about the unity and stability of the country.

Under the circumstances, keeping the administrative machinery intact became the main concern of the makers of the constitution. This perhaps was the major reason why the Government of India Act of 1935, under which the colonial administration was functioning, became the basis of the constitution of free India. The concern with keeping the machinery of colonial administration intact is strongly reflected in the debates that took place on those parts of the constitution which went beyond the Act of 1935, especially the parts relating to fundamental rights and federal structures. In the debates on these aspects of the constitution, the members seem to be constantly worried that granting various freedoms and rights to citizens and the states of the Union may weaken the administrative apparatus inherited from the colonial administration. They seem to be constantly hedging the rights of the individuals and the states with a variety of provisos and limitations.

Besides the fear of loss of administrative control, the other major concern that informed the makers of the constitution was their firm belief that the Indian people needed to be guided towards economic and political maturity through the intervention of the state. This belief was partly a hangover of the arguments advanced by the British, who had always pretended that they were in India to provide a paternalistic administration since the people of India themselves were incapable of governing and improving themselves. The belief was reinforced by the socialist milieu of the times. Those were the times when almost everyone in the world believed that the economic and political development of nations was the responsibility of national bureaucracies.

This fear of the political and economic immaturity of the Indians led the makers of the constitution not only to provide constitutional protection to the colonial administrative machinery, but also to give extraordinary powers to the judiciary to oversee the functioning of the political legislatures. The makers of the constitution, it seems, were not sure that the legislatures chosen by the people of India, who they believed were largely illiterate and politically immature, would always act wisely. So they created a judiciary that is known to be more powerful than any other judiciary in the world.

The concern with keeping the colonial administrative machinery intact combined with the fear of the immaturity of the Indian people led to the emasculation of the political executive. The constitution first placed all initiative in the hands of the central government. And then the initiative of the central government was so hedged in by the sanctity accorded to the bureaucratic structures and the all-pervasive judicial overseeing that the political executive at the Centre itself became powerless to initiate anything substantive. The government that came into being under the constitution was thus a caricature of the colonial government; the colonial administrative machinery remained intact but the power and initiative that vested in the Viceroy and even the provincial governors to direct and purposely utilise this machinery evaporated.

The emasculation of the central political executive did not become too tangible till men like Patel and Nehru, who were looked upon as respected peers by the bureaucracy and judiciary, led the government. Though even for Nehru and Patel the struggle to defend political legislature and executive from judicial intervention began from almost the beginning. But, later Prime Ministers of India and their governments felt the lack of constitutional space for any political initiative at every step. The situation has deteriorated further and further, and today the political executive seems to have ceded much of its authority to the various bureaucratic and judicial structures created by the constitution. This is how India has come to be the proverbially soft state of the world.

The makers of the constitution also seem to have believed, along with the colonial British administrators, that India is not one nation, it is a conglomerate of numerous minorities placed alongside an uncaring and orthodoxy-ridden caste-Hindu majority. Therefore there was a deep concern to provide extraordinary constitutional protections for the minorities on the one hand, and on the other hand to give powers to the state to act in order to “reform” the Hindu majority. The provisions regarding the minorities were fortuitously kept under some control because the partition had made it imperative for the leaders of diverse minorities to be somewhat accommodative. But, the concern of reforming Hindu society through the intervention of the state remained strong.

Many of the concerns and beliefs that we have outlined above perhaps were inherent to the process that was adopted for making the constitution. The constituent assembly was chosen by an electorate that constituted less than one third of the adult population of India. The members of the assembly largely came from the section that was familiar and conversant with the functioning of the colonial administrative and legal machinery. At that time there were probably a few thousand Indians who had acquired such familiarity with the colonial apparatus, and the assembly was drawn mainly from these. The constituent assembly further left the detailed working out and drafting of the constitutional provisions to a select group of legal and administrative luminaries of the time. There were perhaps about 21 experts who directed all facets of the making of the constitution, ranking members of all significant committees of the constituent assembly were drawn from these. Of these 21 experts, 12 were lawyers, another 4 were career administrators, and one had been a medical doctor. At least 6 of this select group had never had any relation with the Congress, and several of them were known to be opposed to the spirit of the freedom movement. It seems that from the beginning the making of the constitution was taken not as a political task, but as an exercise in legal and administrative expertise.¹

The concerns that informed the making of the Indian constitution have become irrelevant today. Though there continue to be some fissiparous tendencies on the borders of India, the unity and integrity of India is hardly in doubt. The people of India have shown extraordinary political maturity and sagacity in most circumstances. And, the belief that national bureaucracies would guide the nations to economic and political strength has become outdated all over the world.

India today is strong enough to let the different constituents take the initiative in matters of political, social and economic development. The times, in fact, demand that such initiative is encouraged at all levels. Through the process of economic liberalisation, we are trying to squeeze some economic initiative out of the clutches of the bureaucratic machinery. But, in the absence of thoroughgoing changes in the colonial administrative and judicial arrangements enshrined in the Indian constitution, the political executive at the national and lower levels is likely to remain emasculated. And the initiative of the Indian people at all levels is likely to remain tied down in the maze of bureaucratic and legalistic rules and regulations. There is therefore an urgent need to review the constitution from this perspective.

In the following, we outline some of the fundamental changes that, we believe, are minimally required to restore some dynamism into the constitutional arrangements.

Preamble of the Constitution

A constitution is not meant to merely create the legislative, administrative and judicial structures and establish the necessary balance between these institutions. The larger objective of a constitution is to remind the nation of its civilisational genius, urges and seekings. By thus reminding the nation, a constitution motivates the people to make the necessary effort so that the genius of the nation may find a forceful expression and the urges and seekings may be abundantly fulfilled in the present day world. The legislative, administrative and judicial structures that a constitution creates are mere mechanisms to facilitate such expression and fulfilment of the national genius and urges. This mechanism of course has to be made powerful and appropriate to the seekings of the nation. But the main objective of the constitution is to define the seekings and to give expression to the national resolve to fulfil these.

The preamble of a constitution is the appropriate place for defining the civilisational genius, urges and seekings of a nation. Thus, the preamble of the modern Chinese constitution makes lofty references to the history, culture and geography of China. “China”, the preamble begins, “is one of the countries with the longest histories in the world. The people of all nationalities in China have jointly created a splendid culture and have a glorious revolutionary tradition.” And it states that, “Taiwan is part of the sacred territory of the People’s Republic of China. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.”²

The Japanese, while promulgating a modern constitution for themselves in 1898, went to great lengths to relate their new constitution with the deepest past of Japan. The promulgation of the new constitution was made to coincide with the 2549th anniversary of the supposedly mythical founding of Japan. On the morning of that day, the Emperor presented himself in front of his imperial ancestors to assure them on oath that the new constitution was being promulgated to “the end of preserving the ancient form of government bequeathed by them to the country.” Later, a Shinto priest delivered this message to the “myriad gods” at the palace shrine. And, special imperial messenger, who had been previously dispatched, reported the message to the Ise shrine and to the spirits of Emperor Jimmu, the founder of Japan, and Emperor Komei, father of the then Emperor Meiji. Only after thus informing the gods and the ancestors was the Constitution of Japan published for the world in a glittering secular ceremony held in the afternoon. And, even this secular ceremony was designed to convey and preserve the mythical significance of the promulgation of the constitution.³

The preamble of the Indian constitution, unfortunately, makes no such effort to relate itself to the civilisational history or the sacred geography of India. It makes no reference to the genius, urges or seekings of the Indian people. On the contrary, it refers loftily to the concepts of Justice, Liberty, Equality and Fraternity derived from the French revolution. These sentiments can raise no resonance in the hearts of the people of India, who are hardly expected to be acquainted with the history of Europe or to be moved by the European ideals.

If the Constitution of India is to strike a chord in the hearts of the people of India, the preamble must be amended to include appropriate references to the deepest urges of our civilisation. Much thought shall have to be given to the appropriate phrasing of this part of the Constitution. But it shall have to include words to the effect that: “The Republic of India is dedicated to the service of the sanatana civilisation of India. The Republic is founded to preserve and project the great glory of the sanatana Indian civilisation in the modern times. Keeping this objective in view the Republic shall persistently endeavour to further develop the unmatched spiritual and material capabilities of the Indian people. The Republic shall endeavour to ensure that all people of India get the opportunity to exercise these capabilities of theirs and thus to powerfully manifest their civilisational genius, urges and seekings.”

Citizenship

Citizens constitute the basic units of a nation. Constitutions of different nations expect those who would be citizens to have a certain commitment to and faith in the civilisational genius, urges and seekings of the nation, and to acquire virtues appropriate to the spirit of the nation. Most nations impart training in citizenship and patriotism to their young in diverse ways.

Soon after the promulgation of the Constitution in 1889, the Emperor of Japan issued a Rescript on Education, which sought to lay down the personal and moral virtues expected of a citizen of Japan. Issued in 1890 after much deliberation and extremely careful drafting, the Imperial rescript was soon enshrined at the core of moral education. Bowing before the Rescript and ceremonially reading it out became part of the morning ritual in the schools. The Rescript arouse such interest and devotion amongst the people of Japan that by 1940 there were as many as 595 book-length commentaries interpreting and explaining its intentionally terse and heavily meaning-laden phrases.⁴

Meiji Japan, of course, pursued the task of patriotism training, nation building and inculcation of virtue extremely vigorously. Other nations however do not neglect the task. The Constitution of India is probably unique in not expecting any particularly Indian commitment or virtue from the citizens. The main clause regarding citizenship in the Constitution (Article 5(c)) laid down that every person who had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution was entitled to be a citizen of India. According to this clause almost all of the British persons in India at the time of Independence could have chosen, if they so wished, to stay on as citizens of Independent India, and probably continued to occupy the administrative and other positions they were holding.

Except for providing such guarantees of citizenship to various classes of persons, the Constitution makes little provision regarding citizenship. Most of the matters concerning citizenship are left to the discretion of the parliament and future judicial interpretations. The chapter on fundamental duties (Article 51A) introduced through the much maligned 42nd amendment of 1976 does lay down some expectations from the citizens, but these are in the nature of common platitudes and hardly anyone seems to pay any attention to these duties.

The citizenship provisions of the Constitution need to be tightened up so that being a citizen of India becomes both a high honour and a deep responsibility. We can probably add words to the effect that, “It is expected of the citizens of India that they shall have faith and loyalty towards the sanatana civilisation of India and shall be ever ready to sacrifice all for defending the glory and greatness of India and the Indian civilisation.” The exact virtues to be defined and the words to be used shall of course have to be selected after much thought and discussion.

But it is not merely a matter of adding a few high-sounding words to the constitution. Having made the enabling provisions in the Constitution, we must introduce proper citizenship and patriotism training in our schools, so that the future citizens begin to realise the glory and the responsibility of being an Indian.

States of the Union

Just as the Constitution makes little attempt to define the specific virtue of being an Indian citizen, similarly it gives little recognition to the specific identity of the Indian states that together constitute the Union. As far as the Constitution is concerned the States of India are such amorphous entities that the Parliament has been given the right to increase or diminish the area of a State, alter its boundaries or change its name. And for doing all this, the Parliament needs to only ascertain the views of the legislatures of the concerned State or States; their consent to the changes is not necessary. The Parliament can effect such far-reaching changes in the boundaries and names of the States under its normal legislative powers; such changes do not even have the sanctity of a constitutional amendment. (Articles 3 and 4).

At the time the Constitution was promulgated, it was perhaps necessary for the Parliament to be given such overriding powers concerning the States. After the princely states were merged into the Union, reorganisation of state boundaries drawn by the colonial administration and renaming of many states had become essential to accommodate the legitimate regional identities and aspirations. But, there is no justification for the Parliament to retain this untrammelled right to reorganise and rename States after fifty years of independence. There is a need to seriously review these provisions.

The States of India are not mere administrative units. Indian civilisation has manifested in diverse linguistic, historic, literary and cultural forms in the diverse regions of India. One of the greatest achievements of the Indian civilisation is in having kept these diverse forms together within the umbrella of an overarching and essentially unified Indian-ness. Therefore the greater glory of Indian civilisation is best sought in the further development and blossoming of the diverse forms in which it manifests in the different regions of India.

We should therefore now endeavour to provide constitutional stability to the boundaries of the States of India so that their specific identity receives formal recognition. The responsibility of accommodating sub-regional cultural or linguistic aspirations of groups within the States can then be legitimately left to the States themselves. In this context it should be recalled that Mahatma Gandhi, had always insisted that the boundaries of the Indian States are not a matter of mere administrative convenience; there existed natural cultural boundaries, which he felt were best determined on a linguistic basis. And, in the first Constitution of the Indian National Congress that he drafted in 1920, he provided a list of Provinces on the basis of language.⁵ How can we keep such natural boundaries administratively fluid after fifty years of independent functioning?

There are several provisions in the Constitutions that regulate the relations between the Union and the States, and most of these tend to vest the Union with overriding powers. Articles 249 to 254 vest the Union with the power to legislate on subjects in the States list under various circumstances. Article 256 and 257 give the Union executive the power to issue directions to the States on various subjects. Articles 268 to 280 make provisions for the distribution of resources between the Union and the States, and these provisions establish an explicit ascendancy of the Union over the major sources of revenue. All these and related provisions need to be reviewed, so that the States may acquire the greatest possible responsibility in legislative, judicial, administrative and fiscal matters.

The list of subjects in the so-called Union List, State List and Concurrent List also need to be reviewed. These lists originated in the Government of India Act of 1935. The British delegated certain subjects to the States, and then circumscribed the responsibility of the States by creating several provisions that vested in the Union the authority to intervene in these matters. In addition, they created a Concurrent List of subjects in which the responsibility of the States was made explicitly subject to the higher control and supervision of the Union.

We should arrive at a clear assessment of what issues and subjects may be handled by the States, and then the entire responsibility for these should be placed on them. Central intervention in such matters should then be restricted only in case of clear and imminent emergency. Duality of responsibility in most matters, as is the case today, seems only to breed irresponsibility all around, with the States blaming the Union for their failures and the Union doing likewise.

Making the States thus clearly and solely responsible for matters that fall within their domain shall help the States contribute effectively to the development of the Indian civilisation in its diverse forms. This shall also greatly reduce the burden on the Union executive, and thus give it the freedom to energetically pursue the larger national and international objectives that necessarily fall within the domain of the Union. Vesting the States with such clear and well-defined responsibility is particularly apt in the current international situation, when there is intense pressure on the Union to cede larger and larger areas of national sovereignty to multilateral control, supervision and direction. With the States becoming solely responsible for matters falling within their domain, the Union shall be forced to effectively consult the States before opening any new area of national economy and polity to global access. This shall help the Union withstand pressure in multilateral negotiations. For this strategy to succeed, it is important that the States should have no power to deal directly with foreign or international agencies. States ought to be autonomous within India, but their economic or other dealings with the rest of the world must take place only through the Union. The current tendency of allowing the States to seek and negotiate foreign collaborations directly needs to be curbed immediately.

Provisions Concerning the Minorities

Every self-confident nation makes provisions for the protection of minority groups. Such protection is accorded so that the diverse cultural, linguistic and other capabilities of minority groups may contribute to and thus enrich the national mainstream, which naturally is constituted of the majority. Section 29 of the Constitution that guarantees protection of the minorities, however, almost invites diverse groups to claim special rights in the name of their distinct language, script or culture. The other provision regarding minorities, Article 30, gives the minorities the right to establish and administer educational institutions of their choice and thus creates an invidious distinction against the majority. The right to establish and administer educational institutions of their choice is a natural right of all communities, whether constituting a minority or a majority. The article does not in fact give any special right to the minorities, but takes away a valuable natural right from the majority.

These two articles together have created a premium upon various groups to break away from the national mainstream. Groups that would have been happy and proud of being distinct yet inseparable parts of the mainstream have therefore begun to discover and claim separate identities. These constitutional provisions, instead of providing protection to the minorities, have had the effect of creating new minorities and vitiating the integrity and depth of the national mainstream.

There is an urgent need to seriously review both these provisions. The minorities of course must be provided guarantees of protection. But such guarantees must be such as not to create pressures on diverse groups to separate from the mainstream. Article 29 certainly needs redrafting. And, the protection of Article 30 needs to be equitably extended to all people of India.

Provisions Concerning Freedom of Religion

Article 25 grants “freedom of conscience and the right freely to profess, practise and propagate religion.” Freedom to profess and practice the religion of their choice is of course a natural right of all citizens in a secular state. But, the freedom to “propagate” that has been included in this clause is highly unusual. No secular state guarantees the freedom to propagate and convert people from other faiths. This freedom has been fortuitously circumscribed by the judicial interpretations of the term “propagate”, which have held that “propagation” does not mean “conversion”. But the phrasing of the original clause leaves much scope for intense proselytising activity on behalf of various religions and sects.

The second clause of the Article makes two provisos to the freedom of religion. The first proviso gives the State the authority to regulate or restrict “secular activities” associated with religious practice, and the second proviso vests in the State the power to make laws for “social welfare and reform” of Hindu religious institutions.

The first of these provisos is applicable to all religions, but in practice has been used to control and regulate the functioning of only the Hindu institutions. The second proviso is specifically aimed at Hindus and their institutions alone. Judicial interpretations of these provisos have so extended the definition of “secular activities associated with religious practice” as to allow the State to take over control of all aspects of the Hindu religious institutions, and directly interfere with the established rituals and customs. In several States, especially in the South, under the protection of these provisos, temple properties have been frittered away, temple incomes are being applied towards the salaries of highly paid government officers, and temples are being run more or less as departments of the State government. The States do even claim and exercise the right of not only prescribing the qualifications and conditions of service of the priests, but also the language and form of the ritual.

This certainly amounts to invidious interference in the religious affairs of the majority of the Indian people. Religion is at the core of Indian civilisation. Provisions concerning religious freedom in the Indian constitution should therefore be the ideal for the world. India ought not to restrict or control the religious practice of any group, whether that of the majority or minority. The first clause of Article 25 already makes the freedom of religious practice subject to public order, morality and health. The only other proviso we need to add is that such practice may not interfere with the security and integrity of the nation; and that the religious affairs and religious institutions of no religion in India may be subject to foreign control or domination.⁶ The right to freedom of religious practice ought not to be circumscribed by any other provisos. People of India ought to be left free to organise, institutionalise and practise their religious affairs themselves, neither the State in India nor any foreign agencies or bodies need have any say in it.

The current provisions of Article 25 instead of granting religious freedom have the effect of taking away the right of the Hindus to run their own religious institutions and affairs. These also give the State the right to aggressively interfere with the custom, rituals and beliefs of the Hindus in the name of social reform. This article therefore needs to be reviewed seriously.

Judiciary and Administration

The Constitution of India is perhaps the longest constitution in the world. This extraordinary length of the Indian constitution arises in large part from the detailed provisions it makes regarding the public services and the Judiciary. The Constitution records in great detail the structure of administrative and judicial institutions, and the rights, privileges and also the salaries and allowances of public and judicial officers at various levels. Most democratic constitutions of the world record only the fundamental principles of governance, and leave such detailed working out of the administrative and judicial arrangements to the wisdom of the Parliaments. Such institutions are almost always created by legislative acts of Parliaments, not by constitutional fiats.

The leaders of the Constituent Assembly deliberately chose to include detailed administrative and judicial arrangements in the Constitution of India. One reason for this decision was that in the prevailing circumstances, the leading founding fathers were keen to retain intact the administrative and judicial arrangements of the colonial administration. And therefore they found it necessary and expedient to provide constitutional guarantees to the high administrative and judicial officers that their domain of authority as well as their salaries, perquisites and privileges would remain unaltered in independent India. But perhaps even a more pressing reason was that many of the leading founding fathers had little faith in the wisdom and maturity of the people of India and the Parliaments chosen by them. They were afraid that Parliaments might chose to make drastic alterations in the administrative and judicial structures of the colonial administration, which many of them believed were ideal for the governance of India.

Dr. Ambedkar, known as the father of the Indian Constitution, expressed his fears openly, declaring that the details of administrative and judicial arrangements must be enshrined in the Constitution because ‘it is perfectly possible to pervert the Constitution without changing its form by merely changing the form of adminstration’.⁷ Dr. Ambedkar in fact was of the view that independent India does not need a new constitution, the Government of India Act of 1935 could itself form the Constitution of India.⁸ Eventually, as we have mentioned earlier, the Act of 1935 did become the basis of the Constitution of India.

The extraordinary sanctity provided to the administrative and judicial structures in the constitutional arrangement has served to severely restrict the initiative and authority of the Indian people and their elected representatives. That these arrangements were going to so restrict the initiative of the political authorities in carrying out any fundamental changes in the social milieu left behind by the British became clear at the very beginning. Several judgements of the various High Courts and the Supreme Court in the very first year of the coming into force of the Constitution challenged the authority of the Parliament and State Legislatures at a level that leaders of the stature of Patel and Nehru began to feel frustrated. And they felt the need to effect the first amendment of the Constitution to get around judicial pronouncements rather soon. The process to carry out the amendment was initiated in October 1950 and the amendment was passed by the provisional Parliament in May 1951, even before the first election under the new Constitution was held.⁹

It is possible to read the constitutional history of India as a tug of war for supremacy between the judiciary and the political authority, as a meticulous scholar of Indian Constitution seems to do in a recent study of the working of the Constitution during the first four decades.¹⁰ This tug of war gave rise to traumatic events in the current history of the nation. But more than anything else it has diverted the attention and energies of the nation from the primary task of nation-building to legalistic debates that have occupied the centre stage in the life of the nation.

The same level of controversy has not arisen about the constitutionally sanctified public services. But, clothed with constitutional protection, the administrative services, have continuously expanded their areas of influence, and curbed the initiative of the people at all levels. Only recently, under the influence of the global tilt towards free-market principles, has some effort been begun to lessen the rigours of the all-encompassing bureaucratic apparatus.

Whatever the reasons of the Constituent Assembly for enshrining the colonial administration and judiciary in the Constitution of free India, these arrangements cannot be allowed to be permanent. It is probably now high time to begin altering these arrangements and making them appropriate to the genius and seekings of the Indian people. As a first step towards this restructuring of the administrative and judicial apparatus of India, we need to bring these arrangements out of the Constitution and recreate these through legislative acts of the Parliament and the State Legislatures, as is done everywhere in the world.

We need to remove the constitutional protection provided to these arrangements, even if we chose to keep the arrangements entirely intact and unaltered at this stage. Such changes in the Constitution shall probably change nothing immediately, but it shall restore the dynamism to the development of administrative and judicial structures, and open the way for far-reaching changes in the future.

Sources for Rethinking the Constitution

The constitutional changes that we have suggested above are the minimal changes that we need to undertake to alter the colonial ways and structures that we inherited. Even after all these and similar other changes the resulting Constitution shall remain European in content and spirit; its basic structures shall remain unaltered. But it shall at least be an indigenously adapted European arrangement, which shall give due respect to the identity, dignity and initiative of the Indian people and their civilisation.

In order to bring the Constitution in consonance with the Indian sensibilities and the classical Indian ways of governance, we shall have to draft a new Constitution. That exercise is probably far in the future. Meanwhile we can certainly carry out an intensive study to the various sources that may be of help in moving in that direction.

One of the major sources of such rethinking about the Indian Constitution is the life and works of Mahatma Gandhi. Indian freedom movement under the leadership of Mahatma Gandhi was aimed at restoring initiative in all matters to the people of India and to the basic political and economic unit of grama around which they were organised. Mahatma Gandhi was not much enamoured of the European and socialist ideal of state taking the responsibility for social and economic revolution. He preferred to leave the initiative in such matters with the people and their gramas. Mahatma Gandhi gave much consideration to how the grama was to be revived and restored to its central position in the Indian polity. It is indeed tragic that the leading founding fathers, entrusted with the task of drafting a Constitution that was to formalise the freedom won under the leadership of the Mahatma, gave so little importance to gramas and their panchayats. The first draft of the Constitution did not even include the term grama or panchayat. And, when several members vociferously objected to the omission, a single clause desiring the States to “take steps to organise village panchayats and endow them with such authority as may be necessary to enable them to function as units of self-government” (Article 40) was included amongst the ‘Directive Principles of State Policy’.¹¹

The Gandhian thought on polity was to a large extent derived from the basic principles of Indian civilisation concerning polity and governance. There is a vast corpus of classical Indian literature on these issues. And this literature is unanimous on the basic principles of political and social organisation.

In addition to the Gandhian and classical Indian thought, the experience of other nations of the world can also be of help in rethinking about the Indian Constitution. Many other countries of the world during the last couple of centuries have tried to build modern nations through the constitutional process. Some of these, like Japan in 1890, created a modern constitution with the deliberate intention of protecting themselves from the colonial influences that had subdued most nations around them. Other countries, like China in the 1980’s, have created constitutions to celebrate the revival of their civilisational greatness at the end of a couple of centuries of submission to alien civilisations. It shall be of help to look into these various constitutions. Within Europe, countries like Germany have created modern constitutional arrangements that continue to protect the traditionally high status and role of the local communities in the functioning of the polity. Scholars like Solzhenitsyn have also meditated on the constitutional arrangements that are likely to suit the traditional community-based organisation of Russia.

We need to study and comprehensively examine these sources to begin moving towards the creation of a Constitution that shall be Indian in content and spirit and express the national resolve to restore the civilisational glory of India in the modern times. But the minimal changes that we have suggested earlier in this paper and many other similar changes shall have to be undertaken immediately, to open the path for this larger restructuring.

Dr. J. K. Bajaj
Centre for Policy Studies, Chennai
044-8474352, 011-2714144, e-mail: policy@vsnl.com
July 2000

Footnotes

1) For details of the membership of the Constituent Assmebly, See, Granville Austin, The Indian Constitution: The Cornerstone of a Nation, OUP, New Delhi1966, paperback reprint, 1999, particularly p.10 and p.19-21. The primacy of professional expertise was emphasised in an unusually candid note sent by N. G. Ayyangar, one of the 21 key people involved in the making of the Constitution, to B. N. Rau, who as the constitutional advisor was at the centre of the exercise. As early as March 1947, before the Constituent Assembly began any serious work, Ayyangar wrote to Rau, “I believe ?in preliminary decisions on these issues (concerning the basic principles of the Constitution) being taken by small numbers of selected people including party chiefs after those issues have been investigated from all points of view with the help of informed people like you. ?Public opinion in such matters requires both a firm lead and skilled guidance.” (Granville Austin, above, p.314) Incidentally, both Ayyangar and Rau were career administrators and their concern for keeping “public opinion” out of the expert task of making the constitution is indeed understandable.

2) The Constitution of the People’s Republic of China, adopted on December 4, 1982, Foreign Language Press, Beijing 1983, p.1 and 6.

3) See, Carol Gluck, Japan’s Modern Myths: Ideology in the Late Meiji Period, Princeton University Press, Princeton 1985, p.42-45.

4) See, Carol Gluck, 1985, cited earlier, p.120-7 and p.146-8. The official translation of the Imperial Rescript reproduced by Gluck (p.121) reads:

Know ye, Our Subjects:

Our imperial Ancestors have founded Our Empire on a basis broad and everlasting and have deeply and firmly planted virtue; Our subjects ever united in loyalty and filial piety have from generation to generation illustrated the beauty thereof. This is the glory of the fundamental character of Our Empire, and herein also lies the source of Our education. Ye, Our subjects, be filial to your parents, affectionate to your brothers and sisters; as husbands and wives be harmonious, as friends true; bear yourself in modesty and moderation; extend your benevolence to all; pursue learning and cultivate arts, and thereby develop intellectual faculties and perfect moral powers; furthermore advance public good and promote common interests; always respect the Constitution and observe the laws; should emergency arise, offer yourselves courageously to the State; and thus guard and maintain the prosperity of Our Imperial Throne coeval with heaven and earth. So shall ye not only be Our good and faithful subjects, but render illustrious the best traditions of your forefathers.

The Way here set forth is indeed the teaching bequeathed by Our Imperial Ancestors, to be observed alike by Their Descendants and the subjects, infallible for all ages and true in all places. It is our wish to lay it to heart in all reverence, in common with you, Our subjects, that we may all thus attain to the same virtue.

The 30th day of the 10th month of the 23rd year of Meiji (1890).

5) The Collected Works of Mahatma Gandhi, The Publication Division, Government of India, vol.19, Delhi 1966, p.191.

6) Incidentally, the 1982 Constitution of the People’s Republic of China, cited earlier, makes just such provisions regarding religious freedom. See Article 36, p.32.

7) Constituent Assembly Debates, VII, i.38.

8) Speech to the Scheduled Caste Federation, May 6, 1945. Quoted from Austin, cited earlier, p.3.

9) See, Granville Austin, Working a Democratic Constitution: The Indian Experience, OUP Delhi, 1999, p. 40-50.

10) Granville Austin, above.

11) For the history of this article in the Constituent Assembly, See, Dharampal, Panchayat Raj as the Baisis of Indian Polity: An Exploration into the Proceedings of the Constituent Assembly, AVARD, New Delhi 1962.