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About our Constitution

 
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See interview of Ashok  Kothare

On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. These members were,

  1. Kanaiyalal Maneklal Munshi,

  2. Alladi Krishnaswamy Iyer,

  3. N Gopalaswami Ayengar,

  4. B L Mitter,

  5. Md. Saadullah and

  6. D P Khaitan.

The constitutional advisor was Sir Benegal Narsing Rau. Later B L Mitter resigned and was replaced by Madhav Rao. Owing to death of D P Khaitan, T T Krishnamachari was included in the drafting committee. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26 Nov. 1949, the process was completed and Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete. This clearly shows that the constitution was prepared by the help of all these and more people together with B.R. Ambedkar as the compiler. In this work contribution of Sir Benegal Narsing Rau was extensive. In addition to this there were other members of the Union Constitution Committee like Dr. Rajendra prasad and above all Pandit Javaharlal Nehru who regularly advised and to a great extend interfered in the process of making of this voluminous document. Looking to these facts we cannot say that Dr. B. R. Ambedkar was sole writer architect of this constitution as popularly portraid.

The architects of Indian constitution were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of USA, including the separation of power among the major branches of government, the establishment of a supreme court. The principles adopted from Canada were Unitary government with strong center and also distribution of powers between central government and provinces along with placing residuary powers with central government. From Ireland, directive principle of state policy was adopted. From Germany the principle of suspension of fundamental rights during emergency was adopted. From Australia the principle of Concurrent list and Language of preamble was adopted.

With all these inclusions the authors of constitution forgot to give definitions of various terms used in the document. Leaving the treacherous job of interpretation to the readers was the measure lacuna in this book. While preparing such influential document extreme care should have been taken to give definitions of terms used in the work to avoid any misinterpretation of them. Had this precaution were taken, this Constitution would become a better document to guide the readers. Today we see many wrong meanings construed from these terms and that leading to further confusion. For example: word “responsive”, “responsible” are used; here responsive or responsible to whom(?), to what(?), not cleared. This leads to many wrong interpretations and the subject to response or responsibility, chosen by convenience to mislead the process altogether. Throughout the Constitution this anomaly we find making the document very much vulnerable. To sight other measure defect; many topics are taken for granted for example, elected members are taken for granted as being law abiding or law respecting and also honest to people or to say gentlemen; whereas, what we see today, shows that, had the author taken care to be very specific of that, conditions would have been better today. Today we see criminals sitting in the Parliament and also in upper House instead of gentlemen as presumed by the author of the constitution. This has a very telling effect on our political life. We generally presume that such document is designed to protect Gentlemen/ladies but as this is not clear it has become a democracy for criminals rather than gentlemen!

The basic form of the Union Government envisaged in the Constitution is as follows,

A democratic executive must satisfy two conditions:

1. It must be a stable (what is stable?) executive, and
2. It must be a responsible (responsive to whom and what response?) executive.

To date, both conditions have not been attained to an equal degree concurrently.

There are some rumors and if they have any substance they deserve consideration in today's context. Ambedkar wanted to use term “serve” wherever in British imperial law “rule” word was used but Pandit Nehru interfered and insisted that “rule” and “ruler” words remain. By new concept of democracy what Ambedkar wanted, appears to be more appropriate but Nehru had better hold on the committee and finally Ambedkar had to withdraw. Similarly, Ambedkar wanted something similar to what Anna is contemplating, Lokpal bill, but here also Nehru interfered and that provision did not see the day. Dr. B. R. Ambedkar wanted to replace all draconian laws British had imposed on us, by laws, more sensible and appropriate with the concept of democracy but here again, Nehru insisted that those laws are consistent with concept of rule and ruler and so shall continue, and so they continued. This shows that, if this is true, we should understand that the true author of our constitution was Pandit Nehru and not Ambedkar as popularly believed. This also means, had Ambedkar a free hand without interference of Pandit Nehru, we would get a totally different Constitution.

Parliamentary Democracy

The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the head of state, and all the business of the Executive and Laws of the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers. Due to this arrangement, the president is actually of the government and not the country as presumed. So he/she should be addressed as 'President of the government of India' and not 'President of India' as we do. However, this blunder continues till this day.

One more thing that we should take a note of here that, in constitution all powers are with Prime Minister and his Cabinet, while President is only to say yes to them. This arrangement definitely appears very odd. By any commonsense understanding final power must be with the head of the State and not his Prime Minister but our constitution had this obviously wrong arrangement only because Nehru wanted it that way and that was so because, Nehru wanted to be the Prime Minister in the upcoming Government. Today we are suffering due to all these wrong arrangements and unfortunately, the blame goes to Dr. B. R. Ambedkar. Enthusiasts of Ambedkar should take a note of this and clear the blemish put on his good name for having written a faulty constitution of Indian country.

The Prime Minister and the Council of Ministers exercise their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either the Lok Sabha or the Rajya Sabha, the upper house, of the Parliament. Thus, the Parliament exercises control over the Executive. This arrangement smells of hidden desire to bring all powers in the hands of a few people and people, the citizens, who are told to be the owners of the country are left to the streets to protest against what their representatives are doing in the House. By arrangements provided in our constitution people have no authority whatsoever after they vote; that is the end of their power as citizens of democratic Indian State. The government they chose 'rules' on them and not 'serve' them as in true democratic system we expect. In short, what we have is an imperial government in democratic garb.

Independent Judiciary!!

The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and as an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates the provisions of the Constitution.

Apparently though, it looks that Judiciary is independent, in actuality it is not true because, appointments of Judges and decisions about their postings and many other things such as their salary and perks are decided by the Cabinet. That means there is a remote tag on the Judiciary people and obviously that tag is used to get things straightened whenever required.

Changing the constitution

Amendments to the Constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority and voting. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.

As of January 2012 there have been 115 amendment bills presented in the Parliament, out of which 97 have been passed to become Amendment Acts. Most of these amendments address issues dealt with by statute in other democracies. However, the Constitution is so specific in spelling out government powers that many of these issues must be addressed by constitutional amendment. As a result, the document is amended roughly twice a year.

The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that not every constitutional amendment is permissible, the amendment must respect the "basic structure" of the constitution, which is immutable.

In year 2000, the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution.

Before I conclude on this topic let me ask a question.

How come, there is no mention that the Constitution of India is a barely disguised version of the Government of India Act of 1935? The Act of 1935 is the single most important antecedent, far more important than all the other constitutions so extensively paid homage to. Its absence here is surprising, since it is mentioned in many of the references cited in this article.

For example, M. V. Pylee, in his, “Constitutional Government in India", says on the first page of text (p. 3), "The makers of the India Constitution drew ... especially much from the British-made Government of India Act of 1935. Thus the Constitution of India is the result of considerable imitation and adaptation rather than of originality." Then again two pages later, "The Constitution derives directly from the Government of India Act, 1935, many of its provisions almost verbatim." This explains why basic nature of our constitution is more imperial and less democratic.
Democracy means as per Oxford dictionary, this is form of government where people have a say about who will hold power and how it will work. Republic means, a State where form of government is democratic.
Words such as democracy and republic are frequently used but the definition of these words are not clearly given which is the most important thing to avoid any misinterpretation of these terms. We generally believe that a government is formed to protect gentlemen citizens but nowhere in the section on Judiciary these words are defined.

You may contact me on my Email ID given below,

ashokkothare@gmail.com

You are, invited to visit my other blogs if interested.

Ashok Kothare for stories

Ideas and tips on any subject for intelligent discussions.

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