Musings on the Constitution-LXIV Narasimhan Vijayaraghavan

Musings on the Constitution-LXIV
Narasimhan Vijayaraghavan

To continue with Gautam Bhatia’s Blogpost

“The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates– in Committee and in the Assembly– around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.”

The case for “Why” we need to read the Debates in the Constituent Assembly and “How” to read them, may well have been made. No, not yet fully. For this author has not borrowed whatever needs to be fully. Our Constitution itself borrowed heavily from the Government of India Act, 1935, a colonial legislation, (it is said almost 70-75%), the U S Constitution, the Japanese, Irish, Australian and then from USSR. “Borrowing knowledge is wisdom” says an African proverb.

This author would like to be wise at least in borrowing. Short of stealing or plagiarising, these Musings fear that it would make robust common, logical and legal sense to tap into the Phases into which Gautam Bhatia has painstakingly siloed the Making of our Constitution. He has done all the hard work, so that we may have a constitutional feast. Gratitude is due to him. Well done young man. Power to your pen, fingers, words and voice.

A reading of the said phases as delineated by Gautam Bhatia with his summing up and the caveats thereto are appropriated in these Musings to affirm, confirm and reiterate that there is a method to the “How” in the reading of the Constituent Assembly debates.

In phases
“Constituent Assembly appoints Advisory Committee (seventy-odd members) —> Advisory Committee appoints Fundamental Rights Sub-Committee —-> Drafts and Notes on Fundamental Rights produced and sent to the Sub-Committee –> Sub-Committee deliberates and produces and Interim Report and Draft Bill of Rights —-> Comments and Notes of Dissent by Members —–> Fundamental Rights Sub-Committee Final Report —-> Comments and Notes of Dissent by Members —–> Final Report forwarded to Minorities Sub-Committee to examine from the perspective of Minorities —-> Interim Report of the Minorities Sub Committee —–> Both reports forwarded to the larger Advisory Committee —-> Advisory Committee deliberates —–> Advisory Committee produces an interim report and a modified draft bill of rights —–> Advisory Committee Interim Report and Draft Bill of Rights forwarded to the Constituent Assembly for consideration.”

“Advisory Committee’s draft bill of rights – three clauses sent back to the Advisory Committee – Advisory Committee deliberates and produces a Final Report with redrafted clauses and a set of non-justiciable rights – Final Report forwarded to the Constituent Assembly – Constituent Assembly debates, modifies and adopts t the Final Report – forwarded to the Drafting Committee.”

This phase can be summed up as follows:
“Appointment of Drafting Committee – B.N. Rau (Constitutional Advisor) prepares the first Draft Constitution on the basis of the Constituent Assembly’s “First Reading” – Drafting Committee scrutinises and modifies the Draft Constitution – Drafting Committee Publishes the Draft Constitution – Feedback, comments and amendments received from institutions and the public – Drafting Committee meets to consider feedback – President of the Constituent Assembly appoints a larger, Special Committee to also consider the issue – Special Committee submits suggestions and amendments – Drafting Committee, on the basis of the complete record, finalises the draft text, and decides to sponsor some amendments – Draft text along with sponsored amendments forwarded to the Constituent Assembly for a “Second Reading.””

This period is Committee Drafting: Phase Three (October 1949), and again, is simple:
“Drafting Committee scrutinises and finalises the Draft Constitution.

Third reading –> Final debate on the Constitution –> Adoption (26th November, 1949.”

To sum up: The framing of India’s Constitution was a mammoth task. The Constituent Assembly held eleven sessions, over a period of three years, and debated the Constitution for three separate rounds. The work of negotiation, framing, and drafting was carried out by multiple committees, culminating in the work of the seven-member Drafting Committee. Getting a handle on such a massive project, therefore, requires a systematic approach. Over the course of the last three essays, I have attempted to outline such an approach, by reading together the proceedings of the Constituent Assembly, and the work of the Committees, a large part of which has been reproduced in B. Shiva Rao’s book.

I have suggested breaking up the drafting process into six distinct – but interlocking parts: three phases of “Committee Drafting” and three phrases of “Constituent Assembly Debates”, which alternate with each other. Even this, however, is very difficult to wrap one’s head around: so I’ve suggested, further, a thematic approach, by taking the fundamental rights and Directive Principles chapter as an example. A good starting point – as outlined in Part I of this series – is to go back to the Sub-Committees that were constituted in early 1947 – the Fundamental Rights Sub-Committee, the Minorities Sub-Committee, the Union Powers Sub-Committee, and the Excluded Areas Sub-Committee. With this starting point, one can then trace how a particular set of provisions (dealing with fundamental rights, minority protection, structures of governance, the Fifth/Sixth Schedule etc.) – wound their way through the three-year long process. The blueprint outlined in these three posts can be used, keeping in mind, of course, that different parts of the Constitution went through different drafting processes outside the Assembly.

A few caveats: even the Constituent Assembly Debates plus Shiva Rao do not give you the entire picture. Shiva Rao, as we have seen, does not contain the entire set of Committee Proceedings, and – as members of the Constituent Assembly frequently observed – many particularly controversial provisions were ultimately settled even outside the Committees. To get the full picture, therefore, you’d need access to the private correspondence of many of the prominent figures in the Assembly – and even that would leave gaps. I’ve limited myself to the Debates and Shiva Rao, however, because the former are freely available online, and the latter can be accessed with some effort in a library (or purchased – admittedly – at significant expense). This approach, I feel, provides a reasonable picture of the framing, while also remaining accessible to people who lack access to historical archives (i.e., most of us).

One wonders whether these Musings have gone or going longer, as if a Pandemic Virus, which is simply refusing to go anywhere for now. Even the cures are not clear. No Vaccine is in sight. Of course, the button to inoculate oneself from these Musings’ Virus, is at your finger tip. A simple delete or block the invasion of your privacy. For, the author the journey has not gone a day more. That is as honest as it may come, but the reader is entitled to violently disagree.

We had mused on the Making of the Constitution not in the professorial or in a scholarly sense .This author has no such pretensions and he needs no reminding either. He readily admits he has and knows his limitations. It was more of a ‘nibbling on the edges’ as Michael Sandel wondered in a different context. And that is no constitutional blasphemy or sacrilege?

Not to test the patience…

(Author is practising advocate in the Madras High Court)