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Tag Archives | Constitution of India

The Importance of the Constituent Assembly in Framing the Indian Constitution

By Madhav Chandavarkar ( @MadChaP88)

The Constitution of India is the rule-book for democratic governance in India. It came into force on 26 January 1950 and to date remains one of the biggest milestones in the history of our country. Framing a constitution is never a simple task but it was especially hard for India given the extremely tumultuous situation at the time. A newly independent country with a highly unequal social order was a daunting challenge to deal with, especially when it was still reeling under the effects of partition.

The Constitution was framed by the Constituent Assembly established under the Cabinet Mission Plan of 1946. The 299 individuals who comprised the Constituent Assembly can therefore rightfully be termed as the founding fathers and mothers of the Republic of India. Certain members of the Constituent Assembly played a key role, the foremost of whom was Dr. B.R. Ambedkar, whose role as the Chairman of the Drafting Committee of the Assembly has earned him the popular moniker of ‘Father of the Indian Constitution’. Other Congress stalwarts like Prime Minister Jawaharlal Nehru, Dr. Rajendra Prasad, and Maulana Azad were also dominant voices in Assembly proceedings. A special mention must go to Constitutional Advisor, Dr. B.N. Rau who compiled the initial draft that the assembly debated after taking inputs from constitutional experts at home and abroad.

Challenges in framing the Constitution

The Constitution took a significant amount of time to be framed and though it continues relying on many institutions established by the British it borrows different aspects from various constitutions. However, widespread demands for an indigenous Constitution meant that a lot of the initial debates were about whether it would be wise to follow the model created by the British. Undoubtedly, the biggest challenge facing the assembly was to create a political framework that would keep the various communities and princely states happy in India and prevent Balkanisation. The members were acutely aware of this as Delhi was facing enough violence that they often needed curfew passes to attend Assembly sessions. The fact that the Assembly also functioned as an interim Parliament would have also informed the members about the scale of administrative work needed to ensure unity.

Other major challenges faced by the assembly were:

  • To frame a constitution which would uplift downtrodden sections of society. This meant providing an assurance to minorities regarding the protection of their rights as well as creating a welfare State that could improve their social and economic status.
  • To ensure democratic processes for citizens in perpetuity – the fathers wanted their vision of the country to remain after their death.
  • To frame a constitution capable of effectively handling communal violence. This was largely motivated by the violence occurring due to the partition.
  • To frame a constitution which could integrate princely states and their various demands.

At the time, the Congress party was the dominant political force in the country and was so in the Assembly as well. Yet the Congress actively sought out non-Congress luminaries such as Ambedkar to make sure that the best minds would be involved and that as many communities would be represented. There was even considerable divergence of opinions among leaders of the Congress itself. It is therefore a testament to the dedication of the constituent assembly that despite such odds, a consensus was reached.

This was perhaps the outcome of a recognition of the role unanimity in conceptualising the constitution would play in its durability and continuity. Issues were therefore debated until decisions as unanimous as possible could be made and proceedings were open to members of the public and the press. Many discussions also took place outside the halls of the Assembly in and between the various committees. These debates and committee proceedings have now been transcribed and published.

The completion and adoption of the Constitution was an historic event that was being avidly observed by the entire world. The decision to grant universal adult franchise was a tremendous gamble for the Indian State but was also one of the most transparent displays of democratic fervour.

The drafting of the Constitution is now considered a monumental feat of democracy for which the members deserve immense respect. These individuals, despite being a multicultural set of people from various communities, were collectively committed to achieving the historic task of establishing a democratic republic in India. Today, as we have entered the 70th year of our independence, our Constitution still stands as a shining beacon of democratic governance. It is because of the members of the constituent assembly that our flag flutters proudly over the Parliament in Delhi.

Madhav Chandavarkar is a Research Analyst at the Takshashila Institution. His Twitter handle is @MadChaP88

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The Predominance of the ‘Rule by Law’

How the Indian Government is using laws to undermine the ‘rule of law’

By Devika Kher

In the last few weeks, we have seen the government use its powers to restrict what we watch, hear or eat. These bans and restrictions have been made at the cost of fundamental rights such as the freedom of speech and the protection of personal liberty. They are good examples of how the ‘rule by law’ is taking over the ‘rule of law’ within India.

In his paper “What is Governance,” Francis Fukuyama explains the difference between the rule of law and the rule by law. ‘Rule of law’ refers to the principle that no one is above the law, including the makers and enforcers of the law. ‘Rule by law’ on the other hand, refers to the use of laws by the government as an instrument of power. In India, the rule of law is secured by the Fundamental Rights included in the Constitution of India; Article 13 (a) states that any law made by the legislative has to be in conformity with the Fundamental Rights of the Constitution, failing which it will be declared void. Some of these Rights include Article 14, which creates the right to equality and Article 21, which states that no person’s life and personal liberty can be restricted except according to the procedure established by law. The ‘Rule by Law’ also derives its legitimacy from the Constitution. For example, Article 73 states that the executive power of the Union extends to matters on which Parliament can legislate.

An example of the rule by law stepping over the rule of law would be Section 66A of the Information Act 2008 which punishes those people who send “offensive messages” online. Terms like “offensive” are ambiguous and their meanings vary from case to case; this makes them hard to enforce without personal bias. Such terms give unfettered powers to the government as described by Fukuyama. Section 66A was used to controversially restrict the broadcast of India’s Daughter, a documentary by Leslee Udwin about the infamous Nirbhaya case.

The documentary came into the news after the publication of an interview with one of the convicted rapists, in which he expressed his regressively patriarchal views. The uploading, transmission and publication of the footage of the interview was restricted by the Municipal Magistrate who used Section 66A as one of his grounds. The magistrate did not question the need for such an order before issuing it. The order is now being reviewed by the Delhi High Court.

The other famous recent event which makes the case for the predominance of the rule by law is the ban on beef in Maharashtra. Article 48, which enables the prohibition of cattle slaughter, was used to pass the amendment which essentially enforced the religious beliefs of the majority of the population. The rules set in the Constitution were used as per the whims of the government as an instrument to fulfil their motives.

The Constitution is the basis on which the Government of India functions. The Constituent Assembly designed its Articles to ensure that the ‘rule by law’ is limited by the ‘rule of law’. Unfortunately, going by the government’s decisions in the last few weeks, it appears that the law instead of being the king of the land has been reduced to an instrument of power of the government of the day to push through its own agendas.

Devika Kher is a Research Associate at Takshashila Institution. Her twitter handle is @DevikaKher

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