34513349 Advanced Constitutional History of India

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Advanced Constitutional History of India I: The History of Social

Justice

[Optional]

Part I: Positive and Negative Liberty:

1. Introduction: Sixty Years of Growth: Civil Rights and Socio-

Economic Justice in India

The study of the Indian Constitution is an imperative for students of Indian

history, political science, and law. Law makers in India draw their experiences, ideas and

principals as well as laws of codification from the system of values enshrined in theConstitution. Social transformation in the first instance, leading to revolution, was the

avowed objective of the framers of the Constitution. Mostly drawn from the ranks of the

new Indian meritocracy, and also from the old Indian aristocracy, indeed in the truest

sense of the term natural leaders, the Constituent Assembly dealt with the principle ofsocial revolution as judiciously and with as much wisdom as one would show at the time

of the independence when the new Indian rulers inherited a plundered economy and adesperately poor population.

This course will deal with the origins of the social revolution, its course and

development in the first sixty years of the emergence of the Indian nation. GranvilleAustin charts this period as the period of growth of civil rights in India [Granville Austin,

Indian Constitution: The Cornerstone of a Nation]. I will seek to shift the focus to the

development of socio-economic justice. While most of the articles in the Constitution

deal with the attempt to foster this revolution, the core of the commitment to socialrevolution lies in Part III and IV [Fundamental Rights or negative obligations and

Directive Principles of State Policy or positive obligations]. These two are called theconscience of the Constitution. In the first part I will discuss the origins or the historicalantecedents of the principle of social and socio-economic justice. In the second module I

will discuss the roots of socialist thought and the development of socialism within the

context of the national movement which was later enshrined in the Indian Constitution. Iwill discuss the phase of socialist development in India.

2. Historical Antecedents of Social and Socio-Economic Justice in the

Civil Rights Movement:

The roots of the two parts of the Constitution are to be found in Indias struggle

for independence, and the search according to some historians in the tree of liberty. TheFundamental Rights are those rights of citizens or those negative obligations of the state

to prevent the encroachment upon individual liberty. They are negative in the sense of the

notion of negative freedom, as enumerated by Sir Isaiah Berlin in his Two Concepts of

Liberty. This principle was popular since the eighteenth century and since the drafting of

the Bill of Rights of the American Constitution. They represent a liberal tradition. They

have their origins in the necessity to frame principles to protect the individual minoritiesagainst the [a] caprices of the state, through [b] arbitrary and pre-judicial state action as

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well as the need to frame articles to protect individuals against the [c] actions of other

private citizens.

3. The Concept of Positive Obligations in the Directive Principles of

State Policy:

Social revolution finds much clearer and broader mention in the Directive

Principles of State Policy or Part IV of the Indian Constitution. It is this part that the

principle of socio-economic justice through revolution is explained and carried forward.Part III only introduces the principles in its elementary form. The underlying aim of

socio-economic justice in the Constitution is to make the Indian masses free in the

positive sense, i.e. free from passivity, endangered by centuries of coercion and bynature.

The positive sense of the word liberty derives from the wish on the part of the

individual to be his own master. [i] I wish my life and decisions to depend on myself, not

on external forces of whatever kind. [ii] I wish to be the instruments of my own destiny,

not of other mens acts and will. [iii] I wish to be a subject, not an object; to be moved byreason, by conscious purposes, which are my own, not by causes which affect me, as it

were, from outside. [iv] I wish to be somebody, not a nobody; a doer with the power ofdeciding. Not one who is decided for. One who is self-directed and not acted upon by

external nature or by other men as if I were a thing, or an animal, or a slave incapable of

playing a human role, that is of conceiving goals, and policies of my own and realizingthem. [Isaiah Berlin,Four Essays; Ch. 1: Two Concepts of Liberty, p. 131]

The mode of operations, i.e. the method of carrying out the promise of freedom in

the positive sense or positive obligation of the state is possible according to the

Constitution through the application of certain precepts or assumptions or requirementsor provisions contained in the Directive Principles of State Policy themselves. These

precepts cannot be enforced by the courts, i.e. they are not justiciable. But they are stillfundamental for the good governance of a country. One of them [obligations of the state],described as the essence of the Directive Principles, lies in Article 38, that also echoes the

Preamble: [a] it states that the state must strive to promote the welfare of the people

through the fostering of a social order ensuring justice, social, economic and political,that shall inform the institutions of national life; [b] other precepts included the ensuring

of adequate means of livelihood. Operation of economic systems and ownership and

control of material resources of the country should subserve the common good of thecountry, such as the health of the workers, including which must not be abused and

pregnant women should be showed consideration; [c] agricultural and industrial workers

were to have adequate standards of living. They should be allowed to enjoy leisure and

cultural and social opportunities. Standard of living and level of nutrition was to beraised. This was a primary duty of the Indian state. Within the first ten years the state was

to ensure free compulsory education for all children up to the age of 14 years; [d] the

state shall contribute to the securing of the renovation of the Indian agrarian society byimproving the techniques of agriculture, animal husbandry, cottage industry, etc.

The provisions that place pressure on all governments point towards the common

goal of future Indian governments, observes T.H. Green in Liberal Legislations andFreedom of Contract, to tread the middle path between individual liberty and public

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good, i.e. between preserving the property and privilege of the few and bestowing

benefits on the many so that the powers of all men are liberated for contributions to the

common good of the nation.In negative liberty I am normally said to be free to the degree to which no man

or body of men interferes with my activities. Political liberty in this sense is simply the

area within which a man can act unobstructed by others. If I am prevented by others fromwhat I could otherwise do: I am to that degree unfree; and if this area is contracted by

other men beyond a certain minimum, I can be described as being coerced, or it may be

enslaved. One lacks political liberty and freedom only if one is prevented from attaining agoal by human beings. Negative liberty consists in not being prevented from choosing

what I want to do. [Berlin,Four Essays, Ch. 1: Two Concepts of Liberty, pp. 122-3].

Part II: Social Justice:

4. Commitment to Socialism: An Aspect of Positive Liberty:

Right at the outset of the writing of the Indian Constitution the Indian left and leftoriented intelligentsia had committed themselves both intellectually and emotionally to

socialism. The principle thesis of this commitment was that socialism is everyday politics for social regeneration. It also stated that democratic constitutions are

inseparably associated with the drive towards economic equality. This was the

resolution adopted at the Kanpur Conference, 28 February 1947. The ObjectivesResolution, which is associated with the ideological framework espoused by Nehru,

reiterated that the Constitution must be dedicated to some form of socialism and to social

regeneration of India. The Congress Socialist Party [CSP] passed a resolution in 1947

stating that there could be no socialism without democracy.Added to Nehrus voice were those of Rajendra Prasad, S. Radhakrishnan and K.

Santhanam. Prasad said that it was the governments aim to end poverty to abolishdistinction and exploitation. Radhakrishnan called for the removal of all socialdisabilities of man-made inequalities and injustices and [to] provide for all equality of

opportunity. [CAD, Vol. 5, No. 1, p. 2; Prasad and Radhakrishnan, Occasional Speechesand Writings, Ministry of Information and Broadcasting, GOI, New Delhi, 1956, p. 362].Santhanam wrote that to get India out of medievalism based on birth, religion, custom

and community and reconstruct her social structure on modern foundation of law,

individual merit and secular education was the aim of the framers of the IndianConstitution. [Hindustan Times, 8 September 1946]. The Congress ensured that the new

constitutional government would be socially revolutionary and socialist. Gandhi added

the end of untouchability and other forms of discrimination to it. The 1928 Nehru Report

declared that the Congress was dedicated to the Fundamental Rights well known in theUK and the USA and added others such as protection of minorities, language and

educational rights, and freedom and conscience of religion. [Report on the Committee to

Determine Principles of the Constitution for the All Parties Conference, 1928, pp. 89-90].The centre-left stance of the Constituent Assembly debates, and the views

expressed by the Objectives Resolution was tempered and improved by a movement

towards liberalism. The influence of the industrial and commercial classes whodominated the Congress leadership and formed the backbone of the partys finances, was

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vital in this regard. Nehru himself, despite his socialism, was inclined towards accepting

a liberal constitutional framework of governance that could inform the structures of a

welfare state. He was not a doctrinaire socialist. Evidence of his and other framersproclivity towards liberalism can be found in the [a] right to work; [b] right to living

wages; [c] right to basic education and [d] other welfare requirements that were

categorized as non-justiciable Directive Principles of State Policy. Authors have said thatat the beginning of the Indian nation, the Constitution marked a triumph of benevolent

liberalism. [F.A. Machery and Maneesha Tikekar, Constitution, Polity and Society: AStudy of Indian Political System, Bombay, 1987, pp. 55-6].

The two leaders who were responsible for this centrist shift were J.L. Nehru and

Vallabhbhai Patel. Patels conservative influence possibly did have a moderating

influence on the radical left wing views of Nehru. The other two in Austins Oligarchy

were Rajendra Prasad and Maulana Abul Kalam Azad. They had their differences,especially with regard to the approach and modus operandi of the implementation of the

Indian Constitution, but their attitudes were uniformly rooted in a humanitarian outlook.

5. Requirements for the Implementation of Socialist Principles:

5.1. Centralization: The framers of the Indian Constitution opted for a centralizedConstitution to protect the principle of socialism, social regeneration, democratic

institutions and aspects of parliamentary governments which were different aspects of

social regeneration. The immediate reason for such a decision was the nature of humanmaterial that the fledgling nation-state had at its command. For instance when the interim

government took office in September 1946 near famine conditions existed in parts of

Madras. The overall national rise in food prices, low grain reserves, a conflict between

the administration and the market, and also between surplus and deficit provinces led theCentre to formulate and institute a national policy on the methods of the control of grain

supplies, prices and destitution.By centralized planning or centralization, the framers implied [i] the development

of modern agricultural methods, transport, communications, heavy and light industry,

electric power and technical advancement in general. It was also suggested that for

technical and cultural advancement, advanced and path breaking scientific research wasneeded. All this was to benefit village society. [ii] Another requirement for the success of

the social revolution was the adoption of the promise of direct elections by adult suffrage.

The demand for adult suffrage had been placed by the Congress since the 1920s. Nehrubelieved that direct elections rather than indirect elections serve as pillars of social

revolution, since they imply the fullest implementation of the promise of democracy.

Through adult suffrage the basic structures of the Indian society could be rebuilt. It would

help in bringing consciousness and awareness to individuals in the villages. The objectiveof creating new allegiances, national instead of local, by definition, caste, and purely

local loyalties. [iii] A third requirement for the success of the social revolution was the

success of economic progress, i.e. the guaranteeing of food security, clothing and shelter.

5.2. Direct and Indirect Elections: The reason why framers chose direct overindirect elections was that in the case of indirect elections, candidates would often haveto adhere to traditional and ethnic loyalties, which had been and indeed would have been

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detrimental to national progress and unity. Indirect elections would have entrenched caste

at the village level, retaining power in the hands of the traditional upper castes in the

village societies or the handful of economically mobile and ascendant minorities.Traditional moorings responsible for the creation of local issues would have dominated

the economic scene, such as the issue of the DMK in Madras. In the event of indirect

elections the creation of a national ethos via a national consciousness would not havebeen possible. It is doubtful if the peasantry gains from direct elections representing the

interests of the nation. But direct elections at least have a binding effect on the electoral

system in the country, which ultimately benefits the peasantry.The second reason for the rejection of direct elections by the Assembly members

was the realization that direct elections might help/protect village societies from getting

fragmented even more. A system of values and structures of local governance had already

become schematic and had started to fall prey to increasing factionalism. The Assemblymembers felt, perhaps not entirely incorrectly, that the Gandhian notion of Panchayati

Raj would give excessive encouragement to party politics, which in a non-totalitarian

state system necessarily produces groups organized around political programs meant to

serve narrow and often sectarian political ends. And when the rival political parties optout of the race for the exploitation of dissention in the villages, they are misused and

captured for rival factions for local ends. This was the view given by Ashoka Mehta inThe Opposition of New States. So there was a qualitative rejection of the panchayat

system in Indian politics and elections for the success of the principles of socio-economic

justice.

5.3. Panchayati Raj:It was argued that the utility of Panchayati Raj system shouldbe restricted and applied to purely administrative functions by the drafting of a direct

parliamentary constitution. Panchayat development through the productive use of Article40 should be encouraged, it was felt. But this case even there were objections

Jayaprakash Narayan said that the panchayats at the administrative level even was notentirely possible, if there was a direct electoral system at the centre, due to the atomismof the parliamentary society. There is an emphasis on individualism and party

competition which disrupts the community which will act as a dampener on the principle

and ideal of Panchayati Raj. The panchayats are/will be unable to function in thewholesome manner that everyone desires. J.P.Narayanan said this in A Phase of

Reconstruction of the Indian Polity.

The opposite view came from S.K. Dey in his Panchayati Raj where he said that it

is ignorant and silly to try and impose artificial unity on villages, especially sinceopposition parties provide the very spark of life. The first aim of the policy makers and

the state should be to bring the villages out of their stagnation and channelise the released

energies of the people into constructive efforts throughpanchayats.

6. First Stirrings of Socialism in India: Roots of Socialist Thought:

In this section I will discuss the emergence and impact of socialism on nationalist

thought in the 1920s and 1930s in India, especially on the speeches, conversations and

writings of Indias most articulate and urbane socialist, J.L. Nehru. There was anintellectual and emotional commitment of the future members of the Constituent

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Assembly to socialism. Most of these members ranged from old style Marxists to

Gandhian socialists to conservative capitalists with their brand of social regeneration and

economic equality. The only exceptions were the nascent and much younger group ofradical communists who actively sought to disassociate themselves from Fabian

socialism, or Laskite vision of politics. This ragtag band of socialists formed the CSP,

which identified socialism with democracy. [Granville Austin, The Indian Constitution:Cornerstone of a Nation, Oxford, 1966].

1. Nehrus flirtation with socialism started from his days in Cambridge, where he readMarx for the first time. He made a trip to Europe and Russia in 1926-7 which

convinced him of the great good fortune of living under a socialist regime. The

coming of the Bolshevik Revolution [1917-18] and its after effects in Russia also had

a galvanizing effect on the way Nehru thought.2. Nehrus closeness to Fabian socialism was also due to his fondness for Dr. Annie

Besant. Besant was one of the original Fabians and theosophists to have influenced

Indian minds in the first twenty years of the 20th century. She succeeded in impacting

the nationalists through her Home Rule League Movement, a plan for which wasdeclared in 1915 in the Madras based newspaperNew India and Commonwealand the

Bombay based paper Young India [early 1916]. Besants League had an all Indiacharacter. It was formally established in September 1916. Its headquarter was in

Adyar [Madras] with 200 odd local branches [132 of them in Madras Presidency

alone. Its dominance was evident in the membership drive 27, 000. It had

influenced not only Nehru, but also Chaudhuri Khaliquzzaman [Lucknow],Satyamurthy [Madras], Jitendralal Banerjee [Calcutta], Jamnadas Dwarkadas, Umar

Sobhani, Shankerlal Banker and Indulal Yagnik from Bombay and Gujerat. The

League under Besant, with a membership of 26, 000 held meetings at ShantaramsChawl in an area inhabited by government employees and industrial workers. The

meetings would comprise of 10, 000 12, 000 activists. These meetings were the first

examples of socialist stirrings in India. [Sumit Sarkar, Modern India, 1885-1947,Delhi, 1985].

3. A third source of socialist ideas for the new Indian Congress leadership was the

passing of the Commonwealth of India Bill, which was drafted in India, revised bythe Labour Party leaders in London, and accepted unanimously by the Executive

Committee of the Parliamentary Labour Party. It had its first readings in the House of

Commons in December 1925. Although the Bill failed after the defeat of the Labour

government and the return of the conservatives, it had succeeded in altering theperceptions of the British and Indians alike with regard to the status of India from a

colony to a self governing dominion. It also impacted the question of whether India

should follow the socialist path or not. The memorandum accompanying the Bill saidthat they sought an honourable agreement which the British had denied the

Americans after the American War of Independence. [Bipan Chandra et al., India

After Independence, New Delhi, 1999; see also B. Shiva Rao, [ed.], The Framing of

Indias Constitution: Select Documents, Vol. 1, New Delhi, 1996].

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7. Salient Features of Socialism in India:

Socialism in India had a number of salient features which helped the ideology to thrive in

its initial years. They come out in sharp contrast when the ideology is sought to becompared to other political ideologies.

1. Socialism was married wit the principle of representative democracy and the fullrange of civil liberties for individuals. Emphasis was laid on the introduction of

parliamentary democracy and its institutions. The popular electoral process was

endorsed. Democracy in this sense implied introduction of adult franchise. Socialismmade inroads into democratic forms of government. Conversely, democracy also

made inroads into the socialist ideology. For instance, much attention was paid to the

defence of the freedom of press and speech in a socialist party, which in the 1920s,

30s and 40s were seen as nationalist challenges to the numerous cases of pre-meditate

attacks carried out by the colonial authorities. So there was a defence endorsement ofsemi-democratic and semi-socialist arenas of co-habitation. The string of electoral

victories in 1937 gave teeth to the demands of the CSP and the CPI regarding theextension of civil liberties to the resurgent peasants, workers, and students

movements.

2. Socialism was also evident in the complex and sophisticated critique of the salientfeatures of Indias colonial economy, especially regarding the subordination of the

Indian economy to British requirements. The broad economic strategy of centralized

planning meant to overcome Indias backwardness and under developmentdemonstrated Indias commitment to socialism. One feature of the critique was a

vision of a self reliant and independent economy. Self-reliance was not defined as

autarchic. It did mean the endorsement of international trade and Indias participationin it. A second feature was the development of modern agriculture and industry on thebasis of modern science and technology. Full industrialization became the objective.

The leaders said that there had to be a close link between industry and agriculture.

Industrial development was seen as a pre-requisite for rural development and the mostimportant step towards the reduction of the population pressure and eradication of

unemployment. Thirdly, the creation of indigenous heavy capital goods and machine

making sectors was emphasized. Medium, small scale and cottage industry were alsoto be set up for the production of essential consumer goods.

3. The third arena where socialism was evident and where a socialist commitment was

made was the nationalist opposition to the unrestricted entry of foreign capital since it

had the dubious distinction of replacement and suppression of Indian capital after thecompany assumed the responsibilities of dual government in India. The nationalist,

committed to socialism, asserted that real and self reliant development could come

only through the infusion of indigenous capital. But such an economic policy wasapplicable to a colonial economy managed and controlled by Britain. If India were to

become a free country, it would have to evolve its own economic policies and would

have to allow the judicious use of foreign capital to supplement indigenous efforts.

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This was so because India needed vast capital resources and also had to import in

1947 foreign machinery and advanced technology to an under-developed country.

4. The fourth arena where the socialist commitment is evident was the envisaging of the basic restructuring of agrarian relations. Intermediate rent-receivers, such as the

zamindars and other levels of landlords were to be abolished. They said that

agriculture was to be based on peasant proprietorship. In this sense, the followers of Nehru and socialists were giving in to communist principles, i.e. principles of

dictatorship of the proletariat and the peasantry.

5. Planning was another aspect of socialism as envisaged in the economic critique.Systematic state intervention was advocated. Massive development of the public

sector was widely interpreted and accepted in the 1920s. The state was to develop

large scale and key industries. In addition, they were also to build the infrastructure

fore the new nationalist projects, which included [a] power, [b] irrigation, [c] roads,and [d] water supply for which foreign help was to be sought. In the resolution on

Fundamental Rights and Economic Programmes adopted at the Karachi Session of

the INC in 1931 it was stated that the state in independent India shall control key

industries and services, mineral resources, railways, waterways, shipping and othermeans of public transport. [Pattabhi Sitaramayya, The History of the IndianCongress, 1885-1935, p. 779]. This resolution had the support of Vallabhbhai Patel,J.L. Nehru, and Gandhi. The Congress also sponsored the founding of the National

Planning Committee [1938] to promote planning as an instrument of integrated and

comprehensive development. The Indian capitalists formulated the Bombay Plan in

1943. The only voice of discord which questioned the dominant socialist viewpointwas that of Gandhi. Through the 1930s he held the view that machine industry was

not an unacceptable, but it still displaces human labour as well as homestead. He also

suggested that all large scale industries should be owned by the state and not privateindividuals. His accommodative approach and his coming halfway induced the

socialists to accept the Gandhian perspective on cottage and small scale industries,

which found full reflection in the second Five Year Plan.

8. Resolution on Fundamental Rights and Economic Programmes

[Karachi Resolution, 1931]:

The dominant voices in the Karachi Resolution were those of J.L. Nehru, S.C.

Bose, members of the Congress Socialist Party, the communists and the Revolutionaryterrorists. The principle concerns of the socialists were to strive to give the national

movement a socialist orientation and to popularize the vision of a socialist India after

independence. Nehru said that it was the objective of the Congress to create an egalitarian

sate in which all citizens would be entitled to [a] equal opportunity and a civilizedstandard of living, [b] equity and social justice and [c] greater social and economic

equality. Nehru, leading the socialists and other leftists aimed to bring basic changes in

society, economy and polity. This was also the first time that the Congress clearly definedwhatswaraj would mean for the masses. The Resolution stated that in order to end the

exploitation of the masses, political freedom must include real economic freedom of the

starving millions.

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There were broadly three arenas where equality was debated in the Resolution: [a]

economic empowerment through [a.i] free primary compulsory education; [a.ii] lowering

of taxes for the poor and the members of the lower income groups; [a.iii.] reduction ofsalt taxes as well as land revenue; [a.iv.] giving debt relief and creating provisions for

cheap credit to agriculturists; [a.v.] protection of tenants rights and abolition of

landlordism; [a.vi.] providing of land to the tillers; [a.vii.] Workers right to adequateliving wage; [a.viii.] shorter working hours for the workers; [a.ix.] the peasants right to

organize themselves; and [a.x.] the reform of the law and order machinery. It was stated

in the resolution that all this was needed for the achievement of real economic freedom.A second aspect of equality and socialism as discussed in the Karachi Resolution

was the national movements opposition to all forces of inequality, discrimination and

opposition based on gender and caste. The principle found its way into the successive

drafts of the Indian Constitution. Promise of upliftment of women and the lower casteswas envisioned. The reforms agenda included improvement of the social position of

women including the granting of right to work and education. Equal political rights were

also guaranteed. Women for the first time allowed to vote. The passages of the Hindu

Code Bill was made easier through a prolonged debate in the 1940s and 1950s. It waspassed in the 1950s.

The struggle for the abolition of casteism was also written into the KarachiResolution. This was the third aspect of equality. The abolition of untouchability became

a major task since the 1920s. Gandhi advocated the total abolition of casteism. This

awareness led to the mooting of the proposals to bring reservation for the Scheduled

Castes and Scheduled Tribes in the Constituent Assembly debates.The Karachi Resolution was the first such resolution to directly address socialism

as a requirement for the emergence of the idelogical framework of the new India. Even

though the most visible face in that ideological framework was that of J.L. Nehru and hisfellow comrades in the CSP, the person who decisively influenced him was Gandhi. With

regard to the question of gender relations and caste, Gandhis views mattered the most.

Even with regard to economy Gandhi had a moderating influence on the way theresolution was framed.

9. Development of Socialism:

Stage 1: The next step in the development of socialism in the Indian Constitution camewith the development of the idea that the conference method had to be replaced by aConstituent Assembly elected on the basis of the widest possible franchise. There was a

shift from constitutionalism and council politics to democracy based on the principle of

elections. J.L. Nehru was the first national leader to articulate this view in 1933,

borrowing some of his ideas from M.N. Roy, the Marxist ideologue. In June 1934 theCongress Working Committee rejected the white paper presented by the British

government on further constitutional reforms and opted for Nehrus plan of opting for a

constitution drawn up by a Constituent Assembly elected on the basis of adult suffrage oras near to it as possible. This was stated in the Text Resolution. This demand, which

reflected the leadership commitment to socialism, was continually repeated through the

1930s, especially in the Congress partys manifesto for the 1936-7 elections. On 27 28Feb. 1937, the Congress legislators were reminded before assuming office that they were

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bound by the Faizpur Congress Resolution which had demanded the establishment of the

Constituent Assembly based on the principle of adult franchise as soon as possible.

Stage 2: The Party convened the Convention of Congress Legislators and AICCmembers at Delhi. Nehru was in the chair. He said that the goal of the party was to move

towards Panchayati Raj, the responsibility for which was to fall on the ConstituentAssembly. Nehru said that such a body would be a Grand Panchayat of the nation,

elected by all our people. Thus yet again he was committing himself to the promotion of

socialism through the advocacy of Panchayati Raj, ensuring the widest possible franchiseat the rural level, to be safeguarded by the Assembly for its inclusion in the Indian

Constitution.

Stage 3: Through 1937, Nehru kept up his demand. At times he would seem impatient,which was his second nature but he eventually succeeded. Eventually he managed to

convince Acharya Kripalani to prepare a draft resolution and pass it through the Working

Committee of the Congress. The Resolution which was later passed by all the Congress

provinces Bombay, Madras, UP, Bihar, Orissa, CP and NWFP stated that the Act of1935 should be repealed and replaced by the Constitution of free India framed by the

Assembly which would include the demands of elections on the basis of adult franchise.A resolution to this effect was passed on Sept 17 1937 in the Central Legislative

Assembly. The veteran Congress leader S. Satyamurthy introduced it. This demand was

repeated in the Haripura Session of the Congress in Feb. 1938. Through the war years[1939-45] Gandhi advocated the cause of adult franchise. In the article entitled The Only

Way he said that the cause of democratic swaraj lay only through a properly constituted

Assembly. He wanted a body based on unadulterated suffrage including both men and

women which was used to fight communalism and bring mass political education.

Stage 4: Through the World War II years the British government resisted Indiasdemand for a Constituent Assembly and all notions of equality and socialism in aninstitutionalized form. The government declared a state of emergency all over India, and

the administration of the whole country was left in the hands of the Governor General,

Governors, and their permanent staff. Gandhi and Nehru came together at a meeting ofthe CWC held at Wardha [15-19 April 1940], where Gandhi emerged as the dominant

voice, saying that the establishment of the Constituent Assembly only after the

achievement of independence was wrong. He refuted Nehrus view. He said that firstthere had to be the Assembly and then independence. What followed in quick succession

was the August Offer of Lord Linlithgow [1940] by which Indians were given the

responsibility to frame their own constitution. He also offered to set up a body of

representatives of the principal elements of Indias national life in order to devise theframework of the new constitution. The August Offer still did not spell out how this body

was to be constituted whether by direct or indirect elections based on adult franchise or

by nomination. But both Gandhi and Nehru had made one condition clear the Assemblyhad to be eventually set up and the principle of election had to be accepted in full

measure. No where were they refuting their earlier commitment to socialism.

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Stage 5: Within the next two years there was a democratic change in British attitudes.This was due to two reasons: 1. The British forces had suffered disastrous defeats in

difficult theatres of war and 2. The international situation had become so unfavourable toBritain with Japan almost at the doorstep of the Indian Empire that she had to seek the

support of the popular forces in India. With this end in view, Sir Stafford Cripps, a

member of the British government was sent to India for a special mission for finding a just and final solution to the Indian political problem. The Cripps Mission envisaged

complete transfer of power to Indians after the war, a partial transfer during the war. In

return, the British wanted wholehearted prosecution of the war effort. The INA declinedthe Cripps offer. [M.V. Pylee,An Introduction to the Constitution of India].

The proposals of the Cripps Mission, as the constitutional concessions were

called, spelt out the procedure for the establishment of the Constituent Assembly. It

stated that immediately after the declaration of the results of the provincial elections afterthe end of the war, all members of the lower house of the provincial legislatures were to

meet as a single electoral college and proceed to the election of a constitution making

body by a system of proportional representation. The determination of the framers to

integrate the Indian states into the overall political system thus bringing parity inrepresentation was evident. It stated that the Indian states shall be invited to appoint

representatives in the same proportion to their total population as in the case of therepresentatives of British India as a whole and with the same powers as British Indian

members. The principle of socialism was extended to integration as well. Proportional

representation tied in well with socialist values advocated by Nehru. The 1940s started asa high noon of socialism, having been initiated through the 1930s.

Stage 6: The following stage came with the arrival of the Cabinet Mission Plan [24March 1946]. The Cabinet Mission consisted of 3 members of the British government Sir Stafford Cripps, Lord Pethick Lawrence, and A.V. Alexander. From the third week of

March to the middle of June 1945 the three British ministers had a series of conferenceswith important political leaders from India representing every important party. The Planannounced its own scheme of setting up a constitution making machinery which would

be based on elections by adult franchise. The planners also acknowledged that such a step

would take a long time to evolve and for the time being it was decided the newly electedlegislative assembly of the provinces were to elect the members of the Constituent

Assembly on the basis of one representative for roughly one million of the population.

Sikh and Muslim legislators were to elect their quota on the basis of their population. TheMission also proposed that the Constituent Assembly after meeting to elect its chairman

should divided into sections. The provincial representatives in their respective sections

should meet and decide on a constitution or a group constitution. Then representatives of

all the provinces should come together along with representatives of the Princely Statesto settle the Union Constitution. The Union was to deal with foreign affairs, defence and

communications.

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Part III: The Fundamental Rights:

10. Formation of the Advisory Committee for the Drafting of the

Fundamental Rights:

The Cabinet Mission laid down in its 16 May Plan that the Constituent Assembly

should have an Advisory Committee whose duty it would be to report to the Assembly on

The list of Fundamental Rights, the clauses for the protection of minoritiesand a scheme for the administration of the tribal and excluded areas and to

advise whether these Rights should be incorporated in the Provincial,

Group or Union Constitution. [Cabinet Mission Plan, Para 20, Gwyer andAppadorai, p. 283; see also Para 19 [IV], Second Five Year Plan, pp. 22-

23].

The Cabinet Mission recommendations and the intentions coincided: the Working

Committee of the Congress drew up a resolution establishing the Advisory Committee at

a meeting of December 1946 [Minutes of the meeting, Prasad papers, File 16-P/45-6-7]the day before the Constituent Assembly voted to create the Advisory Committee. It was

originally to have been elected by the Assembly, but instead the Congress leadership

arranged that the members be chosen in off-the floor conferences held between Assembly

leaders and the chief members of each minority group. For this reason the variousreligious minorities, the Scheduled Castes and the backward tribes were all proportionally

represented on the committee and, because the minorities had been consulted when the

committee was being established, their representatives were of their own choosing.Twelve well known influential Congressmen [including two women] were also

members of the committee representing a general category. Among them were V.B.

Patel, who became the chairman of the Advisory Committee, and Acharya Kripalani,who was to be the Chairman of the Fundamental Rights Subcommittee. Five others from

this group were also members of the Rights Subcommittee the members of the Rights

Subcommittee were the two ladies, Rajkumari Amrit Kaur and Hansa Mehta, Acharya

Kripalani, Minoo Masani, K. T. Shah, A.K. Ayyar, K. M. Munshi, Sardar Harnam Singh,Maulana Azad, B.R. Ambedkar, J. Daulatram, and K.M. Panikkar who was appointed

to the committee to represent the Princely States by President Prasad in March, but who

sat with the committee only from 14 April onward. Three of the members already hadsome familiarity with the rights issues. K. T. Shah and K.M. Munshi had both been

members of the Congress Experts Committee, which had drafted a list of rights for the

Assemblys guidance. Ambedkar had attended the Round Table Conference and had

taken a strong interest in the rights issue. At the subcommittees first meeting, themembers chose Kripalani as Chairman.

When the Subcommittee began drafting the rights in March 1947, the members

found that although there were some disagreement on techniques, there was littledisagreement on principles; history had done much of the members work for them. What

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disagreement there was centred primarily around the classic predicament of the degree to

which personal liberty should be infringed to secure governmental stability and public

peace, of how conditional the statement of a right should be. The members of theSubcommittee quickly decided that the Fundamental Rights should be justiciable, that

they should be included in the Constitution, and decided what form these rights should

take. The Rights to Freedom were drafted with only brief argument over the wording ofthe proviso to the Right to Freedom of Association. The provision abolishing

untouchability was adopted with equal swiftness, as were the provisions giving protection

against double jeopardy, ex-post facto laws, etc.That Fundamental Rights, while protecting individual freedom, were not to

prevent state intervention in the interests of the social revolution became apparent in the

drafting of several rights provisions. It had long been evident for example that a clause

protecting freedom of conscience and the profession and practice of religion would be inthe Constitution. Yet in the Subcommittee meetings, Amrit Kaur opposed allowing the

free practice of religion since this would include such anti-social practices as purdah and

sati and because it might invalidate such secular gains as Window Remarriage Act. Ayyar

came to her support and cited the example of the 1935 Act, when the BritishParliament had refused to insert any provision that might interfere with social reform.

[Quoted from a letter from Ayyar to B.N Rau, dtd. 4 April 1947 ] This protest had itseffect: the Advisory Committee altered the Subcommittees provisions and in its own

report laid down that the right to freely practice ones own religion should not prevent the

state from making laws providing for social welfare and reform, a provision that was

carried into the Constitution.Equality before the law was another right that might have been thought to be

unexceptionable. Yet, Ayyar believed that it could hamper reform. It might prevent the

passage of laws differentiating between men and women factory workers, therebydenying women special protection. It might also prevent treating children and adults

differently in criminal courts. Equality before the law, Ayyar maintained, was a fine

principle of English law, but it was self defeating when written into the Constitution. Hepreferred using the phrase that no person should be denied the equal protection of the

law. The Advisory Committee heeded Ayyars advice, for despite the contrary

precedents in the Nehru Report and in the Fundamental Rights Subcommittees report,the clause in the Advisory Committees Interim Report read that no person should be

denied equality before the law and this wording was carried into the Constitution.

The conflict between individual liberty and the states responsibility was also

evident in the provision concerning forced labour. The Nehru Report had a thinlydisguised clause aimed at eliminating it. And the Fundamental Rights Subcommittee

found that they were in no disagreement about abolishing forced labour, begar, [a form of

forced labour practiced particularly in the United Provinces] and traffic in human beings,but they disapproved strongly on the question of involuntary labour in the form of

military and social conscription.

The protection of minorities took two forms. First was the inclusion in the

Fundamental Rights of the Freedom of Religion, and other such provisions, plus those

special provisions relating to the protection of script and culture, the rights of minorities

to maintain their own educational institutions, and so on, that appear in the Cultural and

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Educational Rights of the Constitution. Protection of this kind had, as we know, long

been part of the rights demand, and this continued to be the case in 1947. Minority groups

of all kinds Buddhists, Jains, Christians, Sanatanists, Shia, Muslims, Harijans,Kumaonis, linguist groups and so on wrote letters to the Assembly asking that special

consideration be given to their problems and interests protected. Although the Advisory

Committee and Subcommittees took note of these sentiments, they found that minoritygroups were well represented among the Assemblys members In April, using replies

as a model, the Subcommittee framed a list of minority rights and included the list in its

report to the Advisory Committee. On 17, 18 and 19 April the Minorities Subcommitteeunder the Chairmanship of H.C. Mookerjee considered the minorities provisions of the

report and on 19 April sent its own report to the Advisory Committee, having made few

changes of substance in the Rights Subcommittees recommendations A most

important exception to this was the question of language which it had been thought atshould be included in the Fundamental Rights. The Advisory Committee, however,

omitted it from the Interim Report on Rights, and the subject ultimately came to be

treated in a separate part of the Constitution.

The second type of protection of the minority interests was the inclusion in theConstitution but not within the Fundamental Rights of the provision providing for

adequate minority representation in legislatures and the civil services and other forms ofspecial considerations. These provisions were a good deal more controversial that the

issue of safeguards for religion and cultural rights, where there was little important

difference of opinion. The matter of reservation, representation, electorates, etc., was

close to the heart of the minorities and involved the crucial questions of constitutionaland social philosophy Although some Assembly member had doubts about

enfranchising the masses, in general the right to vote was considered fundamental. The

Fundamental Rights Subcommittee unanimously voted that there should be universalsuffrage and secret and periodic elections. The Advisory Committee, when considering

this provision in the Subcommittees report, agreed with the principle, but recommended

that these provisions find another place in the Constitution. The Assembly adopted thesuggestion and provided for adult suffrage in Article 326 of Part XV on elections.

Having made the Fundamental Rights justiciable, the Subcommittee next included

within the Rights the legal methods by which they would be secured. To do this theyadopted the English device of prerogative writs, or directions in the form of writs.

Munshi, Ambedkar, and Ayyar strongly and actively favoured the inclusion of the right

to constitutional remedies and the other members of the Subcommittee agreed with them.

Munshi in his draft constitution had included two clauses relating to prerogative writs;one laid down that every citizen had the right to move for a writ for a civil right, and the

second named these habeas corpus, mandamus, prohibition, and certiorari. Munshi

explained to the Subcommittee members that in England the prerogative writs were anextremely powerful device. He believed that they had been brought to India by Judge

Impey who, when drafting the charter, gave the Calcutta Supreme Court the powers of

the Kings Bench Division in England. Ayyar, although favouring the principle of writs,preferred supplanting them with directions in the nature of writs, for in England, he said,

these directions had proved to be the more convenient device for the protection of rights.

The decision to include prerogative writs in the Constitution was taken by the Rights

Subcommittee at its meeting on 29 March 1947. At this time Ayyar moved that all High

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Courts and the Supreme Court should have the power to issue writs of habeas corpus.

This suggestion ultimately led to the inclusion in the constitution of a provision saying

that Parliament could empower any court in India to issue these writs in the same manneras had previously been done by the Supreme Court and certain High Courts.

Although ordinary remedies exist for the protection of rights, the prerogative writs

have put teeth in the Fundamental Rights provision. The writs have become popular forthey are commonly believed to be the cornerstone of freedom and liberty. The impetus

this belief had given towards the achievement of the social revolution has, one expects,

been very great.

11. Limiting Rights:

Although the rights to be included in the Constitution were considered to be

fundamental and enforceable by the courts, they could not, Assembly members realized,

be absolute. The question was to what extent and in what ways the rights should belimited. The rights it was decided would best be limited by attaching provisos to the

particular right and by providing for the rights to be suspended in certain circumstances In the Karachi Resolution, for example, the right of free speech was not to contravene

law or morality The device of limiting the rights by suspending them, as we shall see,

grew in favour as the Assembly proceed with its work.Additionally, the rights had to be qualified, Assembly members found in two

directions. About the need to limit individual liberty by allowing state intervention for

certain social purposes, there was little argument. The right to equality was not to prevent

the state form making special laws protecting women and children. And, as we have seen,freedom of religion was not to prevent the state from passing social reform legislation.

About the need to circumscribe the basic freedoms of speech, assembly andassociation, and movement, however, there was not easy agreement. At issue was thealways dedicated and explosive question of freedom v. state security and to a lesser

extent of liberty v. licence in individual behaviour. The two strongest advocates of the

limitation of rights in the subcommittee were A.K. Ayyar and K. M. Munshi and withone or two exceptions their fellow members supported them. At its meeting on 25 March

1947 the subcommittee drafted the Rights to Freedom of the Constitution and voted to

qualify each with the proviso that the exercise of these rights be subject to public orderand morality. [Minutes of the meeting; Prasad papers, File I F/4]. To the freedom of

assembly it attached the restrictive proviso of the Irish Constitution. At this meeting the

members also decided to limit the rights according to categories of persons. Certain rights

were extended to all persons of India; others were to extend to only Indian citizens.Freedom of association, for example, as well as freedom of assembly, the right to bear

arms and secrecy of correspondence were confined to citizens. The inviolability of the

home and no deprivation of life or liberty without the due process of law extended to allpersons. Within several days however all the rights to freedom were limited to citizens

with the exception of the right to life and liberty which applied to aliens as well

Several attempts were also made at this time principally by K.M. Panikkar, the PrincelyStates representatives on the Subcommittee to have the rights divided into two lists: one

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embodying general rights, would apply to the Union, while a second list, consisting of

relatively less consequential rights, would be enforceable only by the province and the

states. The Subcommittee heartily disagreed with the proposition, believing that the rightsmust be uniformly applied.

A few days later, Munshi suggested that both the provincial governments and

central government be given the power to suspend these rights to freedom in times ofemergency. The majority of the subcommittee balked at this, however, rejecting the idea

as one which would make the rights illusory and refused to incorporate the proviso in its

draft right of 3 April. This decision so perturbed Ayyar that he wrote a letter to B. N. Rauwho in his position as Constitutional Advisor usually attended the meetings of the Rights

Subcommittee. The recent happenings in different parts of India have convinced me

more than ever, wrote Ayyar, referring to unrest in Assam and Bengal, and to communal

riots in the Punjab and the NWFP, that all the Fundamental Rights guaranteed under theConstitution must be subject to public order, security and safety, though such a provision

may to some extent neutralize the effect of the rights guaranteed under the Constitution.

[Letter dtd. 4 April 1947; Ayyar papers] Ayyar followed up this letter with a note to

members of the Subcommittee in which he suggested that if the rights were not madeliable to suspension in times of emergency, the words sincerity and defence of the state

or national security be added to the already existing proviso.

12. The Fundamental Rights and Directive Principles: A Summing Up

It is quite evident that the Fundamental Rights and the Directive Principles were

designed by the members of the Assembly to be the chief instruments in bringing about

the great reforms of the social revolution. Have they one may ask, helped to bring Indian

society, closer to the Constitutions goal of social, economic, and political justice for all?Briefly, the answer is yes. The purpose of a Bill of unwritten rights is to create or

to preserve individual liberty and a democratic way of life based on equality among themembers of society only in theory are rights and liberties separable from democracy. InIndia it appears that the Fundamental Rights have both created a new equality that had

been absent in traditional Indian [largely Hindu] society and have helped to preserve

individual liberty A strong indication, therefore, of the reasonably healthy condition ofcivil liberties in India is the lack of criticism of their absence and there is no reason not

to attribute this in some measure to the Constitution. The number of Rights cases brought

before the High Courts and Supreme Court attest to the value of the Rights, and frequent

use of prerogative writs testifies to their popular acceptance as well Those who argueagainst rights cite public opinion as the greater safeguard of rights, but in a politically

underdeveloped country like India, which also lacks the rapid communications necessary

to the formation and expansion of public opinion, it may be that written rights come closeto being a necessity.

13. The Directive Principles of State Policy:

The Directive Principles of State Policy set forth the humanitarian socialist

precepts that were, and are, the aims of the social revolution. The Principles emergedfrom Nehrus Objectives Resolution, which was yet another statement of socialism. Even

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though from the beginning there were dissenting voices such as that of T. T.

Krishnamachari, who called the Directives a veritable dustbin of sentiments [CAD, VII, 12, 583], it was an influential enough body to give shape to the direction thatsocialism was to take in the following years.

13.1. The Origins:

The roots of the Directives are to be not only seen in the ever growing current of

socialism principles of the 1920s, and the Karachi Resolution of the Congress, twothemes that I have already discussed in the previous classes, but also in the Congress

longstanding affinity with the Irish national movement. The example of [a] constitutional

socialism expressed in the Irish Directive Principles of Social Policy proved to beespecially attractive to the large majority of the Assembly members. [b] Alongside, the

ideal of secular socialism/western rationality in the European style received strong

support from the members of the Congress Socialist Party [CSP]; [c] The Hindu outlook

and the Gandhian experience/Gandhian notions of rationality also made themselves felt

in the Assembly debates and affected the content of the Directive Principles. The Hinduoutlook however did not force upon the constitution makers a religious ethic based on

ancient Indian Brahminical rites, customs, conventions and norms. Mainly, for the formand structure Nehru and his colleagues made allusions to ancient roots of Indian

socialism. There was little conviction involved in the acceptance of the marginalized role

of ancient Indian customs and beliefs. The underlying assumptions of the framers wasthat the Directive Principles were a statement of socialist principles expressed through

socio-economic justice. But from the debates in the Assembly, what emerged was the

general acceptance of the fact that the Directives right at the outset failed to go far

enough towards establishing the preliminary structures of a socialist state. The reactionbecame clear from March 1948 onwards as amendments to the Draft Constitution began

to come into the Assembly secretariat. By November 1948 there were scores ofamendments to the Principles.

The strongest supporters of the view that the Principles were meant to set up a

socialist state and that they had substantially succeeded, included B. N. Rau and A.K.

Ayyar and then B. R. Ambedkar and K. T. Shah. These leaders offered a liberal outlook.Of these forces, Rau was the most successful. Even though they approached the question

from a standpoint of skepticism, Munshi, Ambedkar and Shah went on to suggest that

rigorous social programmes should be made justiciable. Munshi recommended theinclusion of the provision for the protection of women and children and guaranteeing the

right to work, a decent wage and a decent standard of living. He also recommended the

inclusion of Rights of Workers and Social Rights. He and others said that the

implementation of socialist principles was becoming problematic because of the gapbetween socialist thinkers and the defenders of feudalism. Ambedkar went to the extent

of suggesting a list of fundamental rights. He suggested that a social scheme mainly for

the backward castes, had to come into force in ten years. He suggested that all keyindustries should be owned and operated by the state. All land should be nationalized and

agriculture should become a state industry, with organized plots to be formed by

villagers. Insurance ought to be a state monopoly and every adult Indian ought to becompelled to draw out a life insurance which would be along the lines of American social

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security. Shah, the most doctrinaire socialist in the Assembly, said that all natural

resources should be state property, as well as key industries and other aspects of the

economy.Another aspect of the Directive Principles was the emphasis given on certain

institutions and principles central to Gandhian teaching. The majority of the amendments

that was brought after November 1948 encouraged development of [a] village life andeconomy; [b] panchayat system of village organization; [c] the promotion of cottage

industries and governments role in it; [d] the banning of the slaughter of cattle and the

improvement of methods of animal husbandry; [e] promotion of agriculture; [f]prohibition of the production of harmful drugs and drinks a principle found in Gandhian

Puritanism; [g] alleviation of socially and physically depressed industrial workers; [h]

encouragement of home spinning for psychological and economic reasons and [i]

providing alternative supply of textiles to the hated foreign cloth. Gandhi aimed atfighting poverty. However, cottage industry since 1950 received little or no attention

from the central or state governments.

The reason for the inclusion of these Gandhian principles was to show a certain

degree of respect for Hindu society and the preservation of the structures. The religiousaspects of cow protection had longstanding political ramifications. Protection of cow

slaughter had existed for sixty years prior to the foundation of the Assembly. The demandfor the ban was furthered by the Hindu revivalists. The reference to cow slaughter was

found to be distasteful by many, especially Nehru. Since the Irish Constitution is also

Roman Catholic, Article 48 of the Indian Constitution demonstrated the Hindu sentiments

of the Indian Constitution. But the limits of Hinduism were to remain within theframework of Gandhian idealism.

Prohibition was yet another issue which found mentioned in the Assembly

debates dealing with the Principles. It appealed to both Hindus and Muslims, sincedrinking was never common among the Indian middle classes, perhaps for climatic

reasons. The Assembly adopted a revised version of the amendment moved by a Muslim

and a Hindu. The prohibition of liquor and harmful drugs, for example opium, becamefundamental principles of governance.

The Directives also revealed little commitment to the requirements of the

promotion of socialist societies. Hollow promises were made. For instance the call fornationalization of various industries, establishment of a socialist order and socialist

economy. One amendment also said that the profit motive in production [should be]

entirely eliminated in due course of time [Amendment 894 submitted by V. D. Tripathy].

Another amendment aimed at giving in the fields and factories effective control of theadministrative machinery of the state [Amendment 866 submitted by A. R. Shastri].

However, most of these amendments were voted down in the Assembly meetings or even

sometimes withdrawn by their initiators. The collective wisdom, guided by the Oligarchy,believed that the principles should be kept general having enough room for people of

different ways of thinking in order to reach the goal of democracy. [CAD VII, 9, 494-5;

Ambedkar]. The Congress Party and in general the nationalist leaders paid lip service tosocialism. Socialism was the goal, which had to be set, to be achieved. In the end less

was achieved than was set out to be.

The Directive Principles of State Policy are divided into five categories: economic

directives, social directives, educational directives, judicial and executive directives, and

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directives dealing with Indias role in the maintenance of international peace and

security.

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