British Legacy & Making of the Indian Constitution

“I am sure that British will leave this country one day. However I am sure that before leaving, British will leave so much dirt and filth, that generations of Indians will not be able to clean it.”

Rabindranath Tagore

1] Legacy of the British Rule

According to Bipin Chandra, there is a legacy of British rule because unlike China, India did not start with a clean slate. If China has gone through the communist revolution, what happened in India was ‘transfer of power’. Indian elites, educated in the western liberal education system had preference for the liberal, democratic, political order.
To talk from Gramscian perspective, the legacy of the British rule show the continuing hegemony of the British. If we apply the perspective of structural Marxist, Hamza Alvi, the elites in South Asia preferred to continue with ‘the overdeveloped state’ as it provides lot of privileges to the ruling class. Hence there are different ways of explaining the continuation of legacy. British legacy is evident in almost all spheres of life. From administration to art and architecture.

British legacy can be seen in following spheres.

1] Economy

Even after independence, Indian economy remained colonial. India continued to be the supplier of raw materials and the market for the goods of the western countries. In international economy, India continues to reflect the nature of colonial economy, categorized as the state in periphery or semi periphery.
The continuing regional imbalance show that we have not been able to overcome the impact of colonialism. Rural backwardness, rural poverty, lack of public investment in agriculture, failure of land reforms, agricultural crisis show the continuation of the colonial approach towards the development. Besides agriculture all other sectors of economy with the exception of service sector show that there is no distinct break from colonialism.
[ Despite its more than 50% population dependent on agriculture, India chose industry as prime moving force for its economy after independence. The growth had not been equitable and huge imbalance prevails in country. According to Oxfam report of 2017, in India 1% of people posses 70% of its wealth. ]

2] Indian society

The continuing social conflicts, the politics of caste, religion, language can be seen as the legacy of the British Raj. Many contemporary problems have been because of the divide and rule policy of the British. Unfortunately Indian elites preferred continuity over change.
[ Communal identities were emphasized by British to create division in society and suppress feeling of nationalism. In contemporary times, same strategies are applied with purpose of electoral gains. This renders society divided on various lines e.g. Religion, caste, region (language) etc. ]

3] Political system

It is surprising that there has been extreme protests against Simon commission. Govt. of India Act 1935 is based on the recommendations of the Simon Commission. Govt. of India Act 1935 has become the foundation for India’s political system. The nature of Indian federation, the institution of governor, ordinance making powers, emergency provisions are drawn from colonial constitution which has been framed with the objective to maintain the hold of the raj. GOI Act has not been framed with the objective of shifting the political power from the hands of administrators into the hands of the people. Hence Jayaprakash Narayan called for ‘Lokniti’ against ‘Rajaniti’.

4] Bureaucracy

Bureaucracy in India continues to manifest the colonial character. Indian elites preferred the continuation of Draconian acts like preventive detention law. It is unfortunate that preventive detention has constitutional status in India. We should not forget that Pandit Nehru who was a major civil rights activists, during freedom struggle, promised that there will be ‘no black laws’ in Independent India.
Bureaucracy in India continues to thrive under ‘cloak of secrecy’, giving rise to new despots. Govt. has continued with Official Secrets Act 1923, which dilute the transparency and accountability. Only in 21st century govt. could institute ‘right to information’. Different part.. of govt. specially on civil services highlight that Indian bureaucracy continue to posses colonial mindset…. [Alagh Committee]
Our criminal justice system has hardly changed over period of time. If any change has come, it has come because of civil society working in coordination with judiciary . Many laws based on Victorian norms had been continued. Only recently SC had decriminalized Homosexuality (Art 377), Adultery 497. Thus brought change in the interpretation of sec 377.  Similarly on adultery Section 497, only recently the approach had been made free from Victorian mentality.

5] Education system.

British education system aimed at the production of clerks. It emphasized on rote learning, it was actually against developing creative and rational thinking. One of the most unfortunate continuation of the British rule has been the continuation of Macaulay’s system of Education.

6] Foreign policy.

The partition of the subcontinent has been one of the worst legacies of the British rule. Unfortunately elites on the subcontinent could not overcome the legacy of the partition. South Asia remains the least integrated of all regions, only next to middle east. The South Asian elites have brought South Asia on the brink of the nuclear war. They continue to remain plaything in the hands of neo imperialist power. According to C Rajamohan, Nehru’s policy towards neighbours was based on Curzon’s policy. Nehru’s ‘treaty diplomacy’ with South Asian neighbours like Nepal, Bhutan is nothing but superficial modification of the treaties entered by British with these Kingdoms. Indian neighbours continue to believe that India has colonial mindset.
Thus India reflect more of a continuity and less of change from the Raj. Unfortunately there are more negative consequences of the legacy. Rabindranath Tagore was right when he held that – ‘I am sure that British will leave this country one day however I am sure that before leaving, British will leave so much dirt and filth that generations of Indians will not be able to clean it.’

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Constituent Assembly: Representativeness and Legitimacy

Context of the debate.

It has been argued that Indian constitution is neither the product of the will of the people, nor it represents the views of all sections of the society. It has been argued that Indian constitution is ‘Congress Constitution’. Constituent assembly was a one party assembly and to quote Churchill ‘the assembly of Brahmins’. Assembly was neither elected by the people, nor people determined its structure and mode of the functioning. It is to be noted that Dr. Ambedkar, who was the chairman of the drafting committee himself said that ‘if I find the constitution being misused, I shall be the first to burn it.’

Evolution of the constituent assembly.

In 1922, Gandhi promised that Swaraj will not be ‘the free gift of British’. Swaraj will be the expression of Indians.
In 1934, Congress working committee adopted a resolution that constituent assembly will be elected on the basis of universal adult franchise. However in practice  1) Constituent assembly was the ‘gift of the British’. It was based on the Cabinet Mission plan approved by the parliament of Britain.
Members of the constituent assembly were not directly elected, they were indirectly elected by the members of provincial legislative assemblies. In
1945-46, elections for the provincial assemblies took place, in the elections, there was no mandate that these persons will also be electing the members of the assembly.
The entire assembly was not even indirectly elected. The members from the princely state were nominated. We should not forget that at that time only five percent of Indians had right to vote. Unlike other countries e.g. France, the constitution of India was not put to referendum to know the will of the people.
In terms of social representativeness, 80% of the members were from upper caste, 25% were Brahmins.

In around 70 years of its existence, constitution has been amended for more than 100 times whereas US constitution, which emerged in 18th Century has seen only 27 amendments so far. In case of India, the very first amendment took place in the very first year of the republic.
Hence there has been a question mark on the legitimacy of the constitution and whether the present constitution is able to meet the aspirations of Indians in the 21st century. There has been lot of ambiguity and internal contradictions among the different provisions of the constitution, resulting into legal battles and political conflicts. There has been a conflict between Right to Equality and Freedom to practice religion in case of uniform civil code. Similarly the rights of the individual often come in conflict with the rights of the community as seen in Sabarimala case. The constitution is called as Lawyer’s paradise.

Counter Arguments.

Though above arguments are factually correct, yet these arguments themselves do not establish that Indian constitution does not reflect the will of the people. We can give following arguments.
1] Time was not conducive to hold elections.
2] Supreme Court in Keshavanand Bharati case has settled the matter with respect to the will of the people. According to the Supreme Court, there is no point examining the factual correctness of the phrase ‘we the people’. We have to accept it as correct.
3] Though dominated by Congress, but as suggested by ‘Granville Austin’ who is treated as the best authority on Indian constitution – ‘Congress was India and India was Congress’. Parties like Hindu Mahasabha or Ambedkar’s Republican Party of India didn’t get even single seat. In the words of Granville Austin, it was one party assembly in one party state. However Congress co-opted the members of other parties so that constitution becomes a consensus document. It is to be noted that majority of the provisions were adopted by consensus rather than by majority. There used to be extended debates on almost all features of the constitution. Unlike the constitution of Nepal, which is a majority constitution, Indian constitution is consensus document.
4] If we look at the results of the first General elections, we can see that the composition of members had not changed. This shows that even when election had taken place, composition would not have been different.
5] NCRWC [National Commission for the Review of the Working of Constitution] which was set up by non-congress govt. led by NDA did not recommend any far reaching changes or the need to call for the new assembly.

Above discussion show that, there cannot be a question mark on the representativeness and legitimacy of the constitution. According to Granville Austen, Indian constitution itself is ‘cornerstone’ of a nation. It means nation is existing because of the constitution.
According to Pratap Bhanu Mehta, Indian constitution is a unique experiment in the field of constitutionalism. Indian constitution is not an ordinary document unlike other constitutions. It is sacrosanct. Unlike other countries, where revolutions led to the formation of the constitution, Indian constitution is itself revolutionary. In India revolution started after independence. India is an example of social revolution through the constitution. We have put the entire faith on the constitution to transform a highly traditional society into a modern society.
According to Pratap Bhanu Mehta, Indian constitution is cosmopolitan constitution. It means our constitution is based on universalist values like Liberty, Equality, Fraternity. It also means that it is drawn from multiple sources. It is situated at major cross currents of the global constitutional law. Indian judiciary while interpreting the constitution takes precedence from different constitutions and judicial traditions. Like Indian culture, it is syncretic and eclectic.

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Different Social and Political Perspectives of the Indian constitution

The constituent assembly was essentially a deliberative platform. People from different social and economic, as well as ideological background were the members of the assembly and participated in it. Hence there were lot of debates in the assembly. One of the reasons for lengthiest constitution is that it accommodates different perspectives. Some of the major debates in the constituent assembly can be discussed as

1] Nature of the Political System.

Modernists like Nehru and Ambedkar preferred parliamentary democracy whereas Gandhians were demanding Panchayati Raj. Ultimately modernists won the debate and Gandhians got place in part 4 of the constitution. A non enforceable part.

2] Nature of Federation.

The members of the parties like Hindu Mahasabha and other groups preferred loose federation. On the other hand, Nehru and Sardar Patel, won over those who preferred stronger states. This has resulted into a highly centralized federation often termed as quasi-federal.
Nehru preferred Parliamentary system whereas the leaders of Hindu Mahasabha favored Presidential system.

3] System of Elections.

Members of the minority like Pocker Sahib demanded separate electorate. However Sardar Patel, Govind Vallabh Pant strongly opposed. Sardar Patel held that separate electorate will be suicidal for the minorities. It will always prevent them from becoming the integral part of the nation.
The members of minority like Begam Aizaas Rasul also opposed separate electorate.

4] Uniform Civil Code (UCC)

One of the most debatable issue was uniform civil code. Members of minority like Pocker Sahib, Ismail Sahib were against UCC whereas women members like Hansa Mehta, Rajkumari Amrit Kaur and leaders like K.M. Munshi strongly favoured UCC.

5] Fundamental Rights

There have been elaborate debates on fundamental rights. Longest debate had been on right to property. There has been dissatisfaction over the status of DPSP. Leaders like NG Ranga, Jaipal Singh, Ambedkar wanted guaranteed rights found in part 4 of the constitution.

6] Nature of Judiciary

The nature of judiciary was another debated issue. Constituent assembly did consider the system of appointment of judges by judges for the sake of independence. However it was opposed by Ambedkar on the ground that there can be no ‘Imperium in imperio’ i.e. No state within the state.

7] Institution of Governor

There was huge concern with the nature of the institution of the governor. Pandit Thakurdas Bhargav recommended Pandit Nehru to make elaborate provisions on the qualifications of the governor rather than leaving it on conventions.

Thus constituent assembly had adopted different provisions after elaborate debates and with consensus. We should appreciate the wisdom of the members of the constituent assembly. Constitution making is ‘work in progress’ and as mentioned by Supreme Court, Indian constitution is ‘organic document.’ It is a mix of rigidity and flexibility. Besides the formal process of amendment, the provisions of constitution have been continuously amended to meet the aspirations of the people in an informal manner by judiciary and adoption of the new conventions.

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