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DYNAMIC RULEBOOK

YB WEB DESK. Dated: 11/28/2020 11:19:03 AM

ANURAG TIWARY While criticising the Constitution for the failure of those who are responsible in maintaining its sanctity, we are doing injustice to both, the founders and the text. November has by and large been an important month in history. On November 26, 1940, Nazi Germany began walling off the Jewish ghetto in Warsaw. In November 1941, the Japanese 1st Air Fleet, also known as the Kido Butai, in a surprise military move, left the Kuril Islands to strike Pearl Harbour during World War II. In November 1944, a German rocket hit a Woolworth’s shop in London, killing 168 people. Simultaneously, on the same day, Himmler, a leading Nazi soldier, ordered the destruction of the Auschwitz-Birkenau crematoria. World politics was in a state of turmoil. Populist leaders, who were born from democracy, and their obsession with expansionism were being severely criticised and held accountable globally. Back in India, the Hindu-Muslim tension and the differences between the Indian National Congress (INC) and the Muslim League (ML) were growing at an alarming rate. After a failed attempt at the Shimla Conference to mediate between the INC and the ML, the Cabinet Mission Plan was released by a threemember committee set up to decide the fate of an independent India by the Labour Party heading the Government in the UK. Since the Cabinet mission had rejected the demands made by the ML, the league was miffed and had declared the infamous “Direct Action Day”, which had led to widespread violence all across the country. Among all this chaos, on November 26, 1949, the Constituent Assembly of India formally adopted a Constitution for an independent and democratic country. After hours of debates, discussions and discourses that were held for close to three long years by more than 350 men and women of astute credibility and a proven track record, the Constitution was adopted. This was not an ordinary moment in India’s socio-political and constitutional history. For a majority of Indians, this was a “break from the past” moment. However, for the founding fathers, the task of framing a Constitution was far more sensitive. They had a dual role. On one hand, they had to justify to the world and future generations reading the text that India was the better of the two nations (the other being Pakistan) that were formed as a result of the Partition and on the other, they had to draft a Constitution that reflected the struggle of the founders. This second role, as Abhinav Chandrachud points out in his book, Republic of Rhetoric, had two competing goals — one was to transform India and the other was to keep things the same. Continuity and change were the two important aspects that rationalised the Constitution-making mandate of the Assembly. Granville Austin points out that the Constitution sought to bring about a “social revolution” while at the same time “trying to preserve national unity and stability.” The founders were fairly optimistic Indians. They framed a Constitution that wasn’t just ahead of its time but was also a positive and radical intervention in the Indian political scene. For instance, it abolished untouchability, made it unconstitutional for anyone to be granted titles and made a provision for affirmative action for those who had been historically marginalised by society. It granted universal adult suffrage to everyone, irrespective of their religion, caste, creed, gender or race and ensured a fundamental right to equality to every citizen of this country. All this at a time when the world was still not ready to accept these changes. For example, in the US, despite it being one of the oldest constitutional Republics around the world, it was only in 1954 in the Brown vs Board of Education case, when the “separate but equal” clause was held to be unconstitutional by the Supreme Court. Black women were allowed to vote only in 1965 under the Voting Rights Act and Affirmative Action for Blacks and Browns was held to be constitutional very recently in 2003 in the Grutter vs Bollinger case. The US Supreme Court made inter-racial marriage constitutionally permissible in 1967 and gave students the right to free speech in 1969 in the Tinker vs Des Moines case. Even as a proud India celebrated Samvidhaan Diwas yesterday, little do we know that the Assembly that framed the most egalitarian and forward-looking Constitution of its times was also criticised by several quarters. There were two kinds of criticisms that were levelled against the founders — moral and legal. The moral criticism was that the Assembly was anti-Gandhian and wasn’t a democratic one. Mahatma Gandhi had espoused the concept of village republics and had stated that power should be vested in the hands of the panchayat whereas the Constitution had followed a highly centralised top-bottom approach to governance. The Assembly was also stated to be non-representative because a majority of its members were Hindus and members of the INC, too. It was also argued that a colonial mindset prevailed in the Assembly whereby it followed a cutcopy- paste model of framing the Constitution. The legal shortcomings rest on the argument that the Assembly’s functioning was against the State paper and the Indian Independence Act of 1947. Many also felt that the Assembly laid the foundations for a non-secular India. However, there is no doubt that these criticisms had little to no bearing on the sanctity of the document. Onehalf of the Constitutions across the world don’t even get to see their 20th year. At the least, these criticisms show that dissent was very much a part of the Constitution-making process and virtually every leader in the Assembly had at one point of time or the other registered his/her concerns on issues that they felt strongly about. The Constitution was indeed adopted based on popular support and sovereignty that the Assembly enjoyed from every strata of the society. Today, the document enjoys the status of a holy book for all those who believe in its dreams for this great country. But before we hold the Constitution responsible for all that pervades in our socio-political landscape today, let’s take a step back and understand the role that this text is and was supposed to be playing in democracies like the one that exists in our country. Constitutions are inherently symbolic documents and all that they do is reflect the minds and hearts of the people. This is not to say that they include all that is not morally permissible. Constitutional texts assert and reiterate the dreams that a nation saw for itself. Seventy one years ago, our founders dreamt of a nation that would be free from all kinds of prejudice, hate and stigmatisation. We haven’t achieved this goal.