Samvidhaan – Episode 9/10
Articles,  Blog

Samvidhaan – Episode 9/10

Our Constituent Assembly met in the Central Hall of this grand structure with its colonnade of 144 pillars. But do you know the number of pillars that support our Constitution? It is said that the Constitution of India stands on three pillars – the Legislature, the Judiciary and the Executive. Although, of late, a fourth pillar is also recognized – the Media. In 1942, socialist-economist and Gujarati playwright Prof K T Shah in a note, talked of the trinity of the Executive, Legislature and Judiciary. Dear Dr Rajendra Prasadji, as promised, I am enclosing a note on ‘general directives’ which I prepared last June at the behest of Pandit Nehru. It is based on American, British and French models. A division of powers and functions of government is also made as between the three organs of the State and each of the three should be exclusively sovereign in it’s allotted sphere. As Prof K T Shah said, there were many models before the Assembly the British cabinet-model, the directly elected executive of Switzerland and the American Presidential model. The Chairman of the Constituent Assembly Dr Rajendra Prasad decided to consult the Constitutional Advisor Sir Benegal Narsing Rau. Come Rau Saheb. Please take a seat. You should be addressed as ‘Sir’, Sir Benegal Narsing Rau. Tell me, is it essential that we model our Constitution on the British, Swiss or American constitutions? But unlike you, not many of us – including good lawyers, know enough of the constitutions of various countries. That will give us a peek into everyone’s mind in the shortest time. Then maybe we will finish making the Constitution by June 1948. On the 17th of March 1947, prepared a questionnaire with 27 questions. With the questions he also gave illustrations from constitutions elsewhere in the world. For example after the question: ‘Can a President be elected a second time?’, the questionnaire explained: ‘In America, except for Roosevelt who was elected 4 times, a President can be elected only for two terms. But in Switzerland the President cannot be elected again. In Ireland, the President can be re-elected for 1 more term.’ Members of Provincial Assemblies and the Constituent Assembly were sent this questionnaire. Only two answers? If this be the case, how will we draft the Constitution? With it you will have to draft the clauses as well. And believe me, the moment a structure is made, everyone will start nitpicking. But no one pitches in at the beginning. Rau Saheb wanted the President to be elected by the entire nation. But this was not accepted. Alladi Krishanswami Ayyar and Gopalaswami Ayyangar also prepared a memorandum giving lot of powers to the President. This proposal, for the first time, saw the President as the Commander-in-Chief of the Armed Forces, and gave the President the Right to reject bills passed by Parliament and dissolve Parliament at the recommendation of the Cabinet. Based on these proposals, the Union Constitution Committee prepared its report, which in July 1947 Pandit Nehru presented to the Assembly. The first part of the first clause goes thus: The Head of the Federation shall be President – Rashtrapati – to be elected in the following manner: the members of both houses of Parliament and members of legislatures of all units… and of the lower house of legislatures that are bicameral will take part in the electoral college. To secure uniformity in representation of the units, votes shall be weighted in proportion to their population. One point about which we have to decide at the very beginning, is the kind and shape of government that we want. What shall be its composition? Whether it will be a system of ministerial responsibility or the Presidential System: as prevails in America where the ministers are not from the legislature but chosen from the outside, as per Presidential choice. After much thought we concluded that the Presidential system would not be suitable for us. Firstly because we want to emphasise the ministerial character of the government where responsibility lies with the Legislature, Cabinet and the Ministries, and not with the President. Yet we do not want the President to be a mere figurehead. Therefore the President if elected by adult franchisee yet not given any real powers, is an anomaly, besides being expensive in terms of time and money without any tangible results. Personally, I like the democratic procedure, but there is such a thing as too much of a democratic procedure. If we have such wide range of elections, all we will do is prepare for elections and stage elections and there will be no time left for anything else. Pandit Nehru had also said that: It will be better if the President does not belong to any party. Perhaps this is not possible in practice. But on being elected, the President should be non-partisan and safeguard the Nation and the Constitution without prejudice.” That is the system we have followed till now. But Dr Rajendra Prasad had some doubts. Will the President have any discretion in giving assent to bills, sent by the Cabinet? Even if the bill is ultra vires of the Constitution? And if… And if such a coalition ministry loses support and becomes a minority will the President still be bound to listen to its ministers rather than dissolve it and choose a new Prime Minister? So, if a Prime Minister, who has lost the mandate of the people, does not advise the President to dissolve the House, will the President have the prerogative to dissolve the House? I pray that no President of the Republic, has ever to see such a day. Should Cabinet Ministers be selected from MP’s, or elected by the people, or as in the USA nominated at the will of the President? A heated debate on this began in December, 1948. The cabinet shall consist of 15 ministers elected by and from within the members of both Houses of Parliament and from these 15 they will choose one as the Prime Minister. Both elections will be based on proportional representation, with a transferable vote. I must say that the kind of Democracy obtained in what is called Parliamentary Democracy is far from being Democratic. My conception of future politics is non-party politics. In Switzerland after members are elected to the Parliament, they elect their own Ministers to the Cabinet. They have no such thing as one party coming into power and suppressing or oppressing another party. Tell me, is Switzerland a country or a five star hotel? I move: That in Clause 1 of Article 61, the words “with the Prime Minister at the head” be deleted. By keeping the designation out of the Constitution, I am not opposing the institution of the Prime Minister. A Prime minister has no place in the British Constitution. His social status, official prestige, and other precedences, are by way of Orders in Council, not by any provision in the Constitution. How can Prof. Shah say that the Constitution of England does not acknowledge the Prime Minister’s existence, when the whole world knows that there is a Prime Minister of England? The Prime Minister as an institution is not to be abolished. Nothing of the kind. But as far as the Constitution goes, all Ministers in the Cabinet should be equal; and any separate status should be kept out of the Constitution to permit a degree of flexibility that isn’t there right now. I further beg to move: “That on every change in the Cabinet, and particularly of the Prime Minister, he should be presented before the Parliament for a vote of confidence. In the event of an adverse vote, the Minister concerned should forthwith cease to hold office and a new Minister appointed. If the entire council of Ministers do not get the vote of confidence, the Council as a whole would stand nullified and a New Ministry formed in its place.” Obviously such amendments about the Prime Minister and Cabinet were negated. But doubts regarding the election of the President persisted, and at the end of 1948 Prof K T Shah raised the issue again. I still take the view that we will have a better system if we elect the President directly by adult vote, instead by this indirect roundabout method. Because your Parliament is liable to be dissolved at any time. The President on the other hand will be elected for a definite period. So I commend this for consideration and hope you accept it. And thus the matter of the President’s election was settled. But issues remained regarding other aspects of the Executive. Some minority representatives wanted a non-parliamentary Executive Government to be formed, in which the Cabinet would be chosen by proportionate community representation. Even Dalit Congressmen wanted minority reservations in the Cabinet. Dr Ambedkar even issued a pamphlet on this issue. Write… Now send it for printing. I can understand the Muslim League and Dr Ambedkar, but even our own Jagjivan Babu has asked for reservation for minorities and backward classes in the cabinet? Since the demand for Proportionate Representation of Minorities was not accepted, they have chosen this path. But why don’t they believe that in a Democracy people themselves would give representation to all classes. And the Drafting Committee has also said that as far as possible the President should ensure inclusive representation from different minorities and classes in the cabinet. They will not give up so easily and will demand a vote in the sub-committee. Perhaps we should issue a whip about this in the party. We should not issue whips all the time. When the proposal is voted upon, we will see. In a democracy why be afraid of a fair vote. But we must impress upon everyone that in a constitution everything is not written down. Some things are best left for tacit conventions. I will rest now. You complete your walk. We must learn to trust ourselves, our country and our government. The proposal to give reservations in the Cabinet was defeated by 8 votes to 7 in the sub-committee. Gradually most people did appreciate the spirit of this clause. And on 4th of November 1948, while presenting the draft of the Constitution, Dr Ambedkar himself defended this proposal. If we have a non-Parliamentary Executive, Cabinet members would be free to do their job. Else, to survive, they would be at the mercy of their supporters. Therefore in a Parliamentary Executive the government is naturally weak and ministers are forced to depend on communally-minded supporters for their survival. Democracy means rule of the majority, voted in freely and independently But what we find in our country is that votes are not free. They are cast on the influence of a few people. And if the votes are influenced, there is no democracy. I therefore say this Parliamentary System must go. Under the Parliamentary System people from different parties manipulate votes and get a majority to form a government. This is a serious and dangerous matter. We clearly see that such people do everything only to please their relatives and party men. But Prof K T Shah and others were not happy with all the provisions of the Legislature, Judiciary and Executive. “The powers of the principal organs of the state – legislature, executive and judiciary… …shall be completely separate from one another.” According to me this is more important than all other things, if we want to maintain civil liberties and rule of law. It is of the utmost importance that the Judiciary should be above suspicion, and therefore, above any contamination. I hope it is not too hard a word. The judiciary should be kept free from every political bias. And no political party is free of this disease. The same logic, in a different form, applies to the Legislature and the Executive. The Executive can, if it wants, corrupt the Parliament. The Executive can lure Members of Parliament with posts or Ministerial berths and thus buy their votes. The western Parliamentary model which we are aping… its biggest downside is that ministerial appointments depend on how many votes the individual brings, rather than the service he can render to the society or country. Do not cast aspersions on future ministers. I know. I know that my voice may be but a voice in the wilderness. But I want to stress that this is not a very healthy system we are providing, and it will be better for us all and the nation if we keep the trinity of the Executive, Judiciary and Legislature far away from an all powerful cabinet. But others had differing views. I feel Dr Ambedkar would have preferred the American system. I agree about the evils of the present Parliamentary system. We have seen Parliamentary parties in many provinces where Ministers try to keep their parties by giving bribes to the people who have even four or five votes so that the majority party may remain in power. Probably our slavery has led us to imitate the British system. If left to ourselves we would have copied the American system. In that system the Judiciary is free from the Legislature and the Legislature is free from the Executive. They are independent of one another. The Legislature there, for the welfare of the nation, can pass any law and the President has to obey it. Here the Leader of the House must have majority in the House. The House will only pass those laws which the majority party thinks are necessary. Dr Ambedkar had studied in America. But he himself pinpointed weaknesses of the American Constitution. K.M.Munshi stood up in defence of Dr Ambedkar. Of the two executive models, the American and the British, there can be no question of preference. The British model has been approved by every one including American constitutional experts as being better suited to modern conditions. Besides, we must not forget that during the last 100 years, we have drawn upon the traditions of British Constitutional Law. Our constitutional traditions have slowly become Parliamentary. Why should we then give up a tradition built over a century, and try a new system which itself was framed 150 years ago, and has been found wanting even in America? I would like to reiterate that the views of Prof. Shah have neither been accepted by this House, nor have they yielded good results elsewhere. Besides, it is against the tradition built up in India. Therefore, I submit that the amendment be rejected. Prof. K T Shah proposed many good amendments. Like he suggested that every Minister must be educated. But Mr. Mahavir Tyagi argued that neither Akbar, Ranjit Singh or Shivaji were literate, but each one was a brilliant administrator. Why then should it be mandatory for our ministers to be educated? Prof. K T Shah further suggested that every Minister, before joining the Cabinet, give details of his properties. Dr Ambedkar argued that in that case the minister must also give these details on leaving office, and also give reasons for increase in wealth. And if there was any hint of any ill-gotten wealth then the quantum of punishment would also have to be decided. This proposal was rejected at that time. But today, we wish we had that clause in our Constitution. But the question was not only of the Executive. The Legislature’s form, powers, duties, tenure and even its name were topics of hot discussion. My amendment is that instead of ‘Parliament of the Federation’, it should be ‘Congress of the Federation’. We attained freedom under the flag of the Indian National Congress and the name ‘Congress’ should be perpetuated in our Constitution. The same point was put forth by Begum Aijaz Rasool. The Legislature of the Union shall be called the Indian National Congress and shall consist of a President and two Houses to be known as the Council of States and the House of the People. The proposers were all non-Congress members. But Ananthasayanam Ayyangar made an interesting point. Thus the bi-cameral Parliament was named RAJYA SABHA and LOK SABHA. But the tenure of the 2 Houses posed a problem. The Union Constitution Committee fixed Lok Sabha’s tenure at 4 years. But Pandit Nehru and Netaji’s hero, the revolutionary Irish President Eamon De Valera had said: 4 years is too short for elected representatives as they invest a year in understanding the working of the system and the last year is gone in preparing for the elections. Hence the tenure of the Lok Sabha was fixed at 5 years, And the tenure of the Rajya Sabha was fixed for 6 years, of which one third of the house retired every two years. This ensured an unbroken continuity. After the Executive and the Legislature, let’s turn towards the third pillar – the Judiciary. I am grateful to Justice Vardhachariar, who despite not being a member of the Constituent Assembly, but to lay out the Constitution and powers of the Supreme Court, has agreed to head this ad-hoc committee. Because now, we will need our own Supreme Court. This Supreme Court will be the guardian of our Constitution, and also uphold the equality of every Indian that we long desired during the rule of British and feudal Princely-States. This Supreme Court will be a weapon of that social revolution that will break old shackles and set us free. The foundation of a new court was thus laid. About the inter-relationship between Legislature and Judiciary and the hierarchy between the two, Dr. Ambedkar made a succinct point on the 13th of December 1948. The Constituent Assembly found that both the Legislature and Judiciary are equally important for a democracy. And so keeping the freedom of the Judiciary in mind, decided that the selection of High Court and Supreme Court judges will have no interference from Cabinet ministers. This will be the direct responsibility of the President who would only select from names put forward by the Chief Justice. This point was raised on the 24th May, 1949 by B Pocker Sahib. After the rules and functions of the Judiciary were completed, the eminent lawyer and the wise old man of the Assembly Alladi Krishnaswami Ayyar got up to address the Assembly. You may speak while seated. Dr. Ambedkar dreamt of a Supreme Court that would deal with civil, criminal and constitutional cases and give judicial remedy and justice in all these matters and thus uphold the unity of the nation. That dream is now a reality. We forged the trinity of the EXECUTIVE-LEGISLATURE-JUDICIARY into such a seamless web, that the worlds largest democracy is firmly held together by it.


Leave a Reply

Your email address will not be published. Required fields are marked *