The Formation of India’s First Government

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. … The brave men, living and dead, who struggled here, have consecrated it [the battle ground], far above our poor power to add or detract. … It is rather for us to be here dedicated to the great task remaining before us … that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.” — Abraham Lincoln, “The Gettysburg Address”, November 19,1863.

For the masses of India, it was a long-awaited culmination for a hundred-year struggle. It should have been a “government of the people, by the people, for the people” that should have been formed. Instead, what was formed was a government of compromise or a series of compromises for power. As Munshi (1967:48) noted “In 1946-47, the Interim Government, formed at the Centre, of Congress and League representatives, was a ghastly failure.” He adds “[L]ooking back over the years … if the decision had been otherwise, the whole country would have been at the mercy of the Muslim League.” The bloodbath unleashed by the League on the ‘Direct Action Day’ on August 16, 1946, bear testimony to this.  

According to some analysts the INA trials of (Subhas Chandra Bose’s Indian National Army) which were held between November 1945 and May 1946 and the [Royal] Indian Naval Mutiny between February 18 and 25 1946 convinced the British that they could no longer hold on to power in India. The British ‘Cabinet Mission’ plan of June 1946 set a target date of June 1948 for what it called the ‘transfer of power’ to the Indian leadership. Appointed to execute the ‘plan’, Lord Mountbatten, however advanced the date to August 1947. His unseemly haste to score a personal achievement led to disastrous consequences, with about two million lives lost.  

As a first step for the ‘transfer’, the British formed an ‘Interim Government’, which was in fact, inclusion of a Cabinet of Indian leaders in the Viceroy’s Executive Council. A group of ministers headed by Jawaharlal Nehru [as Vice President of the Executive Council] was sworn in on September 2, 1946. Jawaharlal Nehru became the Vice President by virtue of his being the President of the Congress party. 

The ‘Constituent Assembly’ too was a British creation following the implementation of the ‘Cabinet Mission Plan’. However, the body was not constituted on the principle of universal adult franchise but indirectly elected from the provincial assemblies. Could a body constituted by the imperial power (which therefore it had the right to abolish it) has the moral authority to draft a ‘Constitution’ for governance of the liberated nation? Dr. B. R. Ambedkar (the Chairman of the Drafting Committee) acknowledged the moral dilemma and the weakness inherent in the Constituent Assembly to write the Constitution. (Deb, 1949: 1644-67)

Turning back to the formation of the ‘Interim Government’, by June 1946, when the ‘Cabinet Mission Plan’ was announced, it was clear that the president of the ‘Indian National Congress’ would be anointed the head of the government. Abul Kalam Azad who was the Congress president did not seek re-election (as he originally intended) but stood down in favour of Jawaharlal Nehru. (Azad, 1960:167). There were two contenders, one was Vallabhbhai Patel and the other J. B. Kriplani, who later became president in the same year. M. K. Gandhi made it clear that the president should be elected unanimously and favoured Jawaharlal Nehru. As he did on several earlier occasions (twice when Subhas Chandra Bose and once when Vallabhbhai Patel were the favoured candidates), he contrived to nullify the election and have ‘his man’ elected! Having headed the ‘Interim Government’, since September 1946, it was but natural for Jawaharlal Nehru to be ‘anointed’ the first prime minister of independent India in August 1947. He thus continued to be the unelected prime minister for another five years till the first general elections were held in 1952.

In the interim, between 1946 and 1952, the unelected ‘Constituent Assembly’ functioned as the parliament and carried out amendments to a ‘Constitution’ it wrote! The Constituent Assembly submitted the Constitution to the president on November 26, 1949 which was adopted on January 26, 1950. The first amendment was enacted on June 18, 1951, i.e., within eighteen months of its adoption! Curiously the very first amendment of the nascent democracy aimed at curbing freedom of speech and stalling judicial scrutiny of legislations.

References

Azad, Abul Kalam. (1960). “India Wins Freedom”. Longmans, Green & Co. London.

"Constituent Assembly Debates". Vol. IX, 17 September 1949.

Munshi, K. M., (1967). “Pilgrimage to Freedom”. Bharatiya Vidya Bhavan. Bombay.

Some Republic Day Thoughts

About 380 of the best and brightest minds assembled for nearly 3 years to discuss, debate and arrive at a consensus to draft for 'India that is Bharat' the longest written constitution in the world.

The draft was approved by the Constituent Assembly on November 26, 1949 and it was officially adopted on January 26, 1950.

However every time the rulers found a part of it inconvenient, they went about amending it with gay abandon.

The first amendment was enacted on June 18, 1951 that is within 18 months of adoption of the original document.

The modus for carrying out a Constitutional amendment was introduction of the amendment bill; first reading, second reading and third reading after which each clause was discussed, debated and voted. At least three fourths of the members of the house were to be present and two thirds of them should vote for it.

Fortunately for the first amendment, there was only one house then (the Constituent Assembly), as otherwise the process would have had to be repeated in the second house.

It was then sent to the states for approval by at least 50% of the them and Presidential approval.

Taking into consideration the entire process, the first amendment must have been introduced at least three to six months before its enactment in June 1951. This means it was introduced just twelve months after the adoption of the Constitution drafted by the best and brightest minds in the country.

What was the first amendment which was piloted by Jawaharlal Nehru himself? It was to place ‘reasonable’ restrictions on the freedom of speech. Thus was born Art. 19 (2).

It was all the precedence needed. After that, every time a Congress government felt inconvenienced by a provision in the Constitution or a court order, it went ahead and amended the Constitution.

In the last 70 years more than a 120 amendment bills were introduced and about 100 of them were actually enacted, most of them by the Congress governments. So what if Anantkumar Hegde proposed or envisaged some changes.

The Constitution is not etched in stone. It is a dynamic document (like the Manu Smriti) and can be changed or amended according to the needs of the time.

JAWAHARLAL NEHRU ADDRESSING THE CONSTITUENT ASSEMBLY

Why did India's original Constitution exclude the words ‘secular’ and ‘socialist’ in the preamble?

The Constituent Assembly debated at length on the inclusion of the words ‘secular’ and ‘socialist’ in the preamble. Dr. B. R. Ambedkar, the Chairman of the Drafting Committee explained why it would not be in the interest of democracy to tie the nation for eternity to concepts which seemed attractive at the time.

The Indian Constituent Assembly comprising 389 of the best and brightest minds worked for three years to produce the longest written Constitution in the world. The wise men of the Constituent Assembly debated the inclusion of the words ‘secular’ and ‘socialist’ at length and decided to leave them out of the Preamble. Dr. B. R. Ambedkar, the Chairman of the Drafting Committee opined that inclusion of these terms in the Preamble would limit the scope of democracy.

Ambedkar felt that the democratic system of governance with its stress on equality for all citizens would ipso facto ensure equal religious rights. He was of the opinion that the inclusion of the word ‘socialist’ would deprive the people of a possibly better system of governance than socialism at a future time. Here was what he had said:

“What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgement, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.”(Italics added.)*

It appears Ambedkar was prescient about the possibility of leaders or political parties using Constitution-tinkering as a political tool to usurp power. Here was what he had said in his speech:

“In the first place, the Constitution, as I stated in my opening speech in support of the motion I made before the House, is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism whereby particular members or particular parties are installed in office.” (Ibid. Italics added.)

The Constituent Assembly thereafter rejected a motion to include the words ‘secular’ and ‘socialist’ in the Preamble. However, Ambedkar’s prediction about political leaders using amendments to the Constitution as political tools did not have long to wait. In less than eighteen months after the Constitution was adopted on November 26 1949, Jawaharlal Nehru enacted the first amendment inserting Article 19 (2) to curtail the fundamental right of freedom of speech. There were other amendments but it was his daughter Indira Gandhi, who made wholesale changes to the Constitution during the 1975-77 Emergency, she imposed on the nation. Her 42nd amendment act included the words ‘secular’ and ‘socialist’ in the Preamble. Enacted in 1976, the one amendment rewrote more than 50 articles and Schedules! With the entire opposition in jail, she did not have to bother with the nuisance of debate and discussion of the clauses.

Thus, there are three different meanings to the word ‘secular’. The first was the original European connotation in which it meant separation the Church and the State. Then there is the connotation as envisaged by the Constituent Assembly and as defined by Ambedkar, which meant equality of all religions. The third connotation is the political tool, which the Congress party and more specifically Indira Gandhi and her successors put to good use for garnering minority votes. In essence, the use of secularism as a political tool involves appeasing minority vote banks to queer electoral arithmetic for electoral gains. It has different connotations in different political contexts. It has one meaning in Hindu majority states and quite a different meaning in other states where Hindus are in a minority. By the by Indira Gandhi’s famous Constitutional amendment which inserted the words ‘secular’ and ‘socialist’ in the preamble is yet to be applied in Jammu and Kashmir. The Hindu religious bodies alone are state controlled and their incomes appropriated by state governments. The Right to Education Act (RTE) 2009 enjoins public and private educational institutions to provide free education to students to the extent of 25% of their strength. However, the RTE act is not applicable to educational institutions run by minorities.

Excerpted from ‘TWISTING FACTS TO SUIT THEORIES’ & OTHER SELECTIONS FROM VOXINDICA pp. 126-128

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* Debate on November 15, 1948: “Constituent Assembly Of India - Volume VII”. Accessible from http://goo.gl/21N47W

Abolition Of Privy Purses Betrayal Of Constitution?

Admirers of Indira Gandhi have often described the abolition of ‘Privy Purses’ as one of her principal achievements, along with the nationalisation of banks and the victory in the 1971 war. The first two were populist measures intended to derive electoral advantage in an era in which socialism was seen as a panacea for all social and economic ills. The third, viz. the Bangladesh war was in a way thrust upon India. To give Indira Gandhi her due she had the political will to stand up to Pakistan overtly supported by the USA. While China offered covert support to Pakistan there was the lurking fear that she might open up a second front in the war.

Privy Purses

The rulers of the erstwhile princely States which were amalgamated in the ‘Union of States’ as the Constitution described the newly emergent nation were to sign two documents known as the ‘Instrument of Accession’(IoA)[1] and the ‘Standstill Agreement’ (SA)[2]. Under the IoA the princes were to surrender only Communications, Defence, External Affairs and some ancillary matters to the Indian Union.

As late as February 1947, Nehru had assured the Negotiating Committee of the Chamber of Princes that neither the monarchical form of government, nor the integrity of the States, would be touched. […] The grant of Privy Purses to the rulers was a sort of quid pro quo for the surrender by them of all their ruling powers and for the dissolution of their States.[3]

The privy purses were thus an important component of Sardar Patel’s negotiated settlement with the 562 princely States which were amalgamated in the Indian union. The settlement was incorporated in the Indian Constitution under Articles 291 and 362.

When they agreed to amalgamate their States in the Indian union, the rulers of the princely States had surrendered the towns and villages that comprised the States, thousands of acres of jagir land, palaces and other buildings, museums with their invaluable treasures, armouries and aircraft (which the larger states had) and other properties. The cash balances and investments of the States which were taken over alone amounted to ₹77 crore. This figure however excludes the cash balances of two large states, Hyderabad and Mysore as they were continuing States at the time. The interest accruals on these amounts alone would more than cover the payment of Privy Purses. In addition to all these assets, the rulers also surrendered a railway system of roughly 12,000 miles (which, to put in perspective was about one sixth of the length of the present track network) and rolling stock, without receiving any compensation.

The Indian government agreed to compensate rulers at a rate of not more than 8.5% of their annual revenues with a ceiling of ₹10 lakh. In subsequent negotiations the ceiling was waived off in eleven cases. Of the 562 princely States 398 were eligible to receive less than ₹50,000 per annum. The largest State, Hyderabad received ₹43 lakh (which in 1947-48 was just 2% of the State’s revenues), whereas the smallest State, Katodia received just ₹192 per year. The objective of the Privy Purses was to

enable the rulers and their successors to adjust themselves to the new order of things and to fit themselves into the modern social and economic pattern (Ibid.)

The Privy Purses were in effect a kind of pension that the Constitution of a sovereign nation guaranteed to pay to the erstwhile rulers, and as Menon put it

The Privy Purse is intended to cover all the expenses of the ruler and his family, including the expenses on account of his personal staff, his palaces and the marriages and other ceremonies in his household. (Ibid.)

The Privy Purses were to be gradually reduced. At the time of independence, the annual outlay for the purses was ₹6 crore. By the time they were abolished by Indira Gandhi in 1971, the figure came down to ₹4 crore. To put this figure in perspective, it amounted to 0.1% of the estimated annual revenue receipts (₹3867 crore) for the year 1970-71.[4]

The Privy Purses were to be paid by the Indian Union into which the princely Sates were absorbed. The rulers were initially apprehensive that they would be at the mercy of the whims and fancies of the popular ministries of the states into which their States were absorbed. The apprehension turned out to be not entirely groundless as in the case of Jammu and Kashmir, as soon as the State acceded to the Indian Union, Sheik Abdullah expelled its ruler from the state. He refused to honour the agreement to pay the negotiated Privy Purse to the Maharajah. The Government of India was forced to pay the Privy Purse and continued to do so till its abrogation by Indira Gandhi.

Political Vendetta?

As in all other matters, the Indian left-illiberal have one take on Jammu and Kashmir and quite a different one for the rest of India. The Privy Purses have been the subject of intense debate for long. For instance they argued for the perpetuation of the purely temporary Article 370; while on the other hand they contended that the Privy Purses were not compatible with an ‘egalitarian social order’.

What could have cooked their goose, perhaps, was that some rulers joined C. Rajagopalachari’s Swatantra Party and in the 1967 general elections defeated many Congress candidates. Indira Gandhi was incensed by this and wanted to teach them a lesson by abolishing the Privy Purses. In 1969 her government introduced the Constitution (Twenty-fourth Amendment) Bill. It was passed by the Lok Sabha with a majority of 332:154 votes but was defeated in the Rajya Sabha by 149:75 votes. Not one to bow to silly inconveniences like parliamentary procedures, she had a pliable President, V. V. Giri issue an order derecognizing the rulers. The September 6, 1970 order was challenged in the Supreme Court by N. A. Palkhivala (and others) in the famous Privy Purses Case and was struck down by the Supreme Court on December 15, 1970.[5]

After Indira Gandhi returned to power with a landslide majority in 1971, her government passed the Constitution (Twenty-sixth Amendment) Bill to abolish the Privy Purses.

Here was what Sardar Patel said commending the adoption of Article 291 in the Constituent Assembly

The Privy Purse settlements are therefore in the nature of consideration for the surrender by the rulers of all their ruling powers and also for the dissolution of the States as separate units. We would do well to remember that the British Government spent enormous amounts in respect of the Mahratta settlements alone. We are ourselves honouring the commitments of the British Government in respect of the pensions of those rulers who helped them to consolidate their empire. Need we cavil then at the small — I purposely use the word small — price we have paid for the bloodless revolution which has affected the destinies of millions of our people?

The capacity for mischief and trouble on the part of the rulers if the settlement with them would not have been reached on a negotiated basis was far greater than could be imagined at this stage.

Let us do justice to them; let us place ourselves in their position and then assess the value of their sacrifice. The rulers have now discharged their part of the obligations by transferring all ruling powers and by agreeing to the integration of their States. The main part of our obligation under these agreements is to ensure that the guarantees given by us in respect of Privy Purses are fully implemented. Our failure to do so would be a breach of faith and seriously prejudice the stabilization of the new order.[6]

In the light of what Patel said, the abolition of the Privy Purses can only be seen as one of the most shameful episodes in the history of our nation because it was betrayal of a solemn Constitutional guarantee.

It may be appropriate to quote here what Arvind P. Datar had to say of the betrayal of the Congress party:

Sardar Patel persuaded the Constituent Assembly to guarantee payment of Privy Purses and preserve the rights of the erstwhile rulers. But the Congress betrayed him 20 years later by abolishing the Privy Purses.[7]

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[1] It is an agreement signed by the ruler of the princely State and the dominion of India subjecting the princely State to the Government of India Act 1935. The Instrument of Accession binds the State to the jurisdiction of the Union government for making laws in the areas of Defence, External Affairs, Communications and some ancillary matters.

[2] It is an agreement that assures continuance of any ‘existing agreements and administrative arrangements in the matters of common concern’ existing between the Indian State and the British government. It specifies eighteen administrative areas in the Schedule attached to the agreement. It also signifies the end of Paramountcy of the British government. 

[3] Menon, V.P. (1955). Chapter XXV, “The Cost of Integration”: The Story Of The Integration Of The Indian States. Longmans Green & Co. London. pp. 324-328.

[4] Annual budget speech for 1970-71 delivered by Indira Gandhi in the Lok Sabha on February 28, 1970. Accessible from http://indiabudget.nic.in/bspeech/bs197071.pdf

[5] H. H. Maharajadhiraja Madhav Rao ... vs Union Of India on 15 December, 1970. Accessible from https://indiankanoon.org/doc/660275/

[6] Menon, V.P. (1955). Chapter XXVI, “Retrospect and Prospect”: The Story Of The Integration Of The Indian States. Longmans Green & Co. London. pp. 329-335.

[7] “Who Betrayed Sardar Patel” The Hindu. November, 19, 2013. Accessible from http://www.thehindu.com/todays-paper/tp-opinion/who-betrayed-sardar-patel/article5366083.ece

Who Wrote The Indian Constitution?

If in an open forum, had anyone made any of the following innocuous remarks, chances are they are likely to be contested. (1)Ambedkar was the Chairman of the ‘Drafting Committee’ of the Indian Constitution; there were other members who helped him write it … (2) Ambedkar was the Chairman of the ‘Drafting Committee’ of the Indian Constitution but he alone did not write it … (3)Ambedkar alone did not write the Indian Constitution … The only politically correct statement about the writing of the ‘Indian Constitution’ is, ‘Dr. B. R. Ambedkar wrote the Indian Constitution.’ The fact of the matter, however, is

“The Constitution of India was not ‘written’ (as in writing a book) entirely by B. R. Ambedkar as popularly believed, nor was entirely ideated by Jawaharlal Nehru as some seem to believe. It was the collective effort of the best and the brightest minds who comprised the Constituent Assembly (of India), who toiled for about three years between 1946 and 1949. Nehru proposed the ‘Objectives Resolution’ and Ambedkar was the Chairman of the ‘Drafting Committee’. There were originally 389 members in the Constituent Assembly but after partition in 1947, some members who represented the states / areas which were carved out as Pakistan left. The residual Constituent Assembly had 299 members. 

Sir B. N. Rau, a constitutional expert and adviser to the Constituent Assembly, prepared a draft Constitution based on the 1935 Government of India Act and his studies of the British, Irish, Canadian, US and other constitutions. The Constituent Assembly used the draft as the basis for developing the Indian Constitution.    

The Index at the end of “The Makers of Indian Constitution - Myth And Reality” (Chavan, Sesharao. 2000. Bharatiya Vidya Bhavan), has a curious entry: plagiarism. The issue of plagiarism was discussed in Chapter 4, “Draft Constitution” (pp. 51-88). The chapter details how Sir B. N. Rau prepared the draft constitution comprising 240 clauses and 13 schedules. Sir B. N. travelled to Great Britain, Ireland, United States of America and Canada to study their Constitutions before preparing his draft. He had discussions with President Harry Truman of the USA, Prime Minister D’ Valere of Ireland and many other constitutional experts. It was his draft that was put before the Constituent Assembly to suggest suitable modifications to the “Draft Constitution”. The Constituent Assembly appointed the following members to the ‘Drafting Committee’ at its sitting on August 29, 1947:

Shri Alladi Kuppuswami Ayyar

Shri N. Gopalaswami Ayyangar

Dr. B. R. Ambedkar

Dr. K. M. Munshi

Syed Muhammad Sa’adulla

Sir. B. L. Mitter

Shri D. P. Khaitan

The Committee elected Dr. B. R. Ambedkar as its Chairman in its first meeting on August 30. From then on, it met on forty four days till February 13 1948 and the first draft of the Constitution was presented to the President the next day, February 14 1948. The draft was put up for the public to study for eight months. On November 4 1948 it was formally presented to the Constituent Assembly for clause by clause discussion, debate and amendments.

While introducing the Draft Constitution to the Constituent Assembly Ambedkar acknowledged the role of various Committees whose reports formed the basis for drafting articles:

“The Drafting Committee in effect was charged with the duty of preparing a Constitution in accordance with the decision of the Constituent Assembly on the reports made by various committees, appointed by it such as the Union Powers Committee, the Union Constitution Committee, the Provincial Constitution Committee and the Advisory Committee on Fundamental Rights, Minorities, Tribal Areas etc.”

He then explained the rationale for using Government of India Act of 1935 as the basis:

“It is said that there is nothing new in the Draft Constitution that about half of it has been copied from the Government of India Act of 1935; and that the rest of it has been borrowed from the Constitutions of other countries that very little of it can claim originality.”

There you have it from the horse’s mouth. Ambedkar went on to say:

“One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than 100 years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitution to writing. What the scope of a Constitution should be has long been settled. Similarly what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new thing, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.”

Ambedkar explained that while the Constitutions of other countries were used as the basis, appropriate modifications were made to suit the Indian context:

“The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution. I have shown what is new in the Draft Constitution and I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee in performing its duty has not been guilty of such blind and slavish imitation as it is represented to be.”

He explained why, in writing the Constitution, it was not necessary ‘to reinvent the wheel all over again’:

“As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. No body holds any patent rights in the fundamental areas of a Constitution.”