Musings on the Constitution-LXI Narasimhan Vijayaraghava n-The “Why’ for the Debates in the Constituent Assembly having been done and dusted, we may need to go into the “How’. Ordinarily, it may seem that as and when we read a provision in the Constitution, as it is, or there arises a need to interpret a provision, we may

Musings on the Constitution-LXI
Narasimhan Vijayaraghavan

The “Why’ for the Debates in the Constituent Assembly having been done and dusted, we may need to go into the “How’. Ordinarily, it may seem that as and when we read a provision in the Constitution, as it is, or there arises a need to interpret a provision, we may need to tuck into the Debates surrounding it, to get at the ‘root or the feel of it’ as a commentator put it. Of course, our Supreme Court at the apex is the final arbiter of what the Constitution says and means. The “How” to read the Debates rises its head because of the of the nature ,manner and mode of the Making of our Constitution. The Debates were not all inside the Assembly. ‘They were happening all over the place” as a member K M Munshi said.

Justice Sir Harilal Jekisundas Kania being sworn in as Chief Justice.

Most importantly, the Debates followed the presentation of the Draft from Prof B.N.Rau. There were other drafts too, if not on all provisions, on most important of them. This apart, the Constituent Assembly itself had entrusted the work of drafting specific Chapters or provisions to various Committees. Deliberations went on there and the drafts got prepared and presented to the Assembly. Those ‘deliberations’ were ‘debates’ too. Even if one was not privy to the deliberations in the said Committees, the “Documents’ presented by the various committees captured the ‘essence of the Debates as they were’, as contemporaneous news reports suggest.

Those “Documents” and ‘deliberation in the Committees’ come to the fore, alongside the Debates themselves, to throw light on the provisions, as they were finally enacted. But that was not all. There were Track I, II diplomatic missions triggered by various leaders that took place among themselves or missives sent and positions taken for the Debates. All of which took place in the periphery or outside of the Assembly chambers, but were ‘as important if not more than the Debates themselves’ as Prof. B.Siva Rao alluded to them.

Before we formally get into the ‘How” to read the debates, as a constitutional framework of things, it may be apt to muse on what Vikram Raghavan wrote on the Supreme Court as the Guardian of the Liberties.
“The Court’s founding in 1950 was a momentous occasion. According to K.M. Munshi, it was an event “no less spectacular and important” than India’s inauguration as a Republic two days before. It took place in the ornate, oak-panelled Princes’ Chamber of Parliament House because the Court had no premises of its own (it moved to its present building only in 1958). Chief Justice Kania donned a distinctive red Gujarati turban, and he and his five other colleagues wore flowing black robes for the occasion. Nehru, Patel, and other cabinet ministers; chief justices and judges of the high courts; and lawyers and diplomats attended the glittering function.

Attorney General Motilal Setalvad opened the proceedings. He pointed out that the Constitution conferred the Court with unprecedented powers and a jurisdiction wider than that of its counterparts. He pledged the bar’s “loyal and whole-hearted cooperation” for the tasks ahead. Responding from the bench, Kania declared that the Court would “stand firm and aloof from party politics and political theories”. It would administer law with “goodwill and sympathy for all”, but without being allied to anyone. Kania also predicted, accurately, we can say with hindsight, that the Court would have “far-reaching influence in the constitutional history and progress” of India.
As the Parthenon of our democracy, the Court’s principal role is to interpret and protect the world’s longest written constitution. Unlike the executive and the legislative branches of government, the judiciary’s powers are not divided between Centre and the States. The Court, therefore, enjoys unrivalled national jurisdiction to resolve cases and controversies, including the disputes between the Centre and States and among States. It has the extraordinary power to issue writs to remedy fundamental rights violations. It also serves as the final appellate forum for the thousands of civil and criminal cases that navigate a maze of lower courts and tribunals. In addition, the Court can advise the President on important questions of law and fact.”

Back to the ‘How’. Under the Chairmanship of Prof. B. Shiva Rao (Benegal Shiva Rao (26 February 1891 – 15 December 1975) was an Indian journalist and politician. He was a member of the Constituent Assembly of India and an elected representative of the South Kanara constituency in the First Lok Sabha (later named Mangalore, currently Dakshina Kannada). He was the correspondent of The Hindu and then of the Manchester Guardian. He was also a member of the Rajya Sabha from 1957 – 1960 and a recipient of the civilian honour of the Padma Bhushan. B. Shiva Rao was born in Mangalore on 26 February 1891 into a distinguished family. His father was B. Raghavendra Rao, was a renowned medical practitioner. He graduated from the Presidency College, Chennai. His elder brothers were Benegal Narsing Rau and Benegal Rama Rau. He joined labour movement and rose to be vice president of INTUC. In 1929, he married Kitty Verstaendig, an Austrian. Early in his life, he came under the influence of theosophical society and its leader Annie Besant. He is well known for his work Framing of India’s Constitution (in six volumes, 1968). He was an ardent admirer of Gandhi but one of the first to criticize his strategy for national movement. His objectivity and deep analysis endeared him to his readers including Nehru, Gandhi and S. Radhakrishnan. His participation in International labour movement continued after independence, as delegate to UN and ILO where he worked with Mrs. Vijaylakshmi Pandit and Babu Jagjeevan Ram. He remained a member of Lok Sabha from 1952–57 and Rajya Sabha from 1957–1960. After that, he retired from public life and concentrated on research. He also edited papers of his brother B. N. Rau as India’s Constitution in the Making (1960). He was one of the contributors to Cyril Henry Phillips and Mary Doreen Wainwright edited The Partition of India: Policies & Perspectives 1935-47. His last work was India’s Freedom Fighters: Some Notable Figures, published in 1972.

India owes so much to so few, just the three from the same family – the Rau brothers- forming the triumvirate….
(Author is practising advocate in the Madras High Court)

You may also like...