Musings On The Constitution- XXIII Narasimhan Vijayaraghavan

Musings On The Constitution- XXIII
Narasimhan Vijayaraghavan

Nehru-Ambedkar axis on any issue was too powerful to dislodge by any other member or group.

Rajendra Prasad swearing in B.R Ambedkar
So they had their way on the mode and manner of appointment of judges, as well as the fixation of ages for Judges for constitutional courts. And when there was the discord between Ambedkar and Nehru on Art.370, Ambedkar literally withdrew himself to the background. Not much literature on the ‘why’ of it. That lent a huge opening and possibility for Jawaharlal Nehru to play politics. And though Sardar Vallabhai Patel was opposed to the grant of special status as the archives reveal, he too left it to ‘Jawahar Royega’ culmination. If only, If only…..

With Kashmir comes the inevitable connectivity to Secularism, a hot potato. Add the potion of Socialism, you have a perfect recipe for controversy and conundrums. Before the term Socialist was added by the 42nd Amendment in 1976, the Constitution had socialist content in the form of certain Directive Principles of State Policy. The term ‘socialist’ used here refers to democratic socialism, i.e. achievement of socialist goals through democratic, evolutionary and non-violent means. Essentially, it means that (since wealth is generated socially) wealth should be shared equally by society through distributive justice, not concentrated in the hands of few, and that the government should regulate the ownership of land and industry to reduce socio-economic inequalities.

Secular means that the relationship between the government and religious groups are determined according to constitution and law. In Hindi it is known as panthanirapekṣata. It separates the power of the state and religion. And that too is a contested expressed. The word Dharma in our culture is undefinable. It encompasses to many faculties and literally leaves none.

By the 42nd Amendment in 1976, the term “Secular” was also incorporated in the Preamble. There is no difference of religion i.e. Hinduism, Buddhism, Jainism, Sikhism, Christianity and Islam are equally respected and moreover, there is no state religion. All the citizens of India are allowed to profess, practice and propagate. Explaining the meaning of secularism as adopted by India, Alexander Owics has written, “Secularism is a part of the basic structure of the Indian Constitution and it means equal freedom and respect for all religions.”
Without getting into the minefield of what Secularism is or whether we needed the word to be in there for India to be a secular country or whether our economic philosophy to the teeming millions had to be put there to proclaim, we can get back to our rebel K T Shah who backed those two expressions in the Preamble. He had his reasons and despite his strong interventions, as usual Babasaheb had his say and nixed them both.

In November 1948, Prof. K.T Shah, representing Bihar, proposed the following amendment. “India shall be a Secular, Federal, Socialist Union of States.” Shah made a strong case for the inclusion of socialism.
“By the term `socialist’ I may assure my friends here that what is implied or conveyed by this amendment is a state in which equal justice and equal opportunity for everybody is assured, in which everyone is expected to contribute by his labour, by his intelligence, and by his work all that he can to the maximum capacity, and every one would be assured of getting all that he needs and all that he wants for maintaining a decent civilised standard of existence”-
-said Shah. Ambedkar turned down the proposal by explaining his understanding of the Constitution. He felt that it was a mechanism for the purpose of regulating the work of various organs of the state.

Building on this understanding, Ambedkar 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.”
He concluded by observing that some of the directive principles in the Constitution are socialist in their direction.
In fact, there is an illuminating discussion in the Constituent Assembly debates of November 15, 1949, when Professor K.T. Shah wanted to include the words “secular, federal, socialist” in Article 1 of the Constitution, the article that now reads, “India, that is Bharat, shall be a Union of States…”
Prof. Shah said,
“As regards the secular character of the state, we have been told time and again from every platform that ours is a secular state. If that is true, if that holds good, I do not see why the term could not be added or inserted in the Constitution itself, once again, to guard against any possibility of misunderstanding or misapprehension… The secularity of the state must be stressed in view not only of the unhappy experiences we had last year and in the years before and the excesses to which, in the name of religion, communalism or sectarianism can go, but I intend also to emphasise by this description the character and nature of the state which we are constituting today….”

Dr. B.R. Ambedkar, in reply, said,
“Mr. Vice-President, Sir, I regret that I cannot accept the amendment of Prof. K.T. Shah. My objections, stated briefly, are two. 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. 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 judgment, 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 to decide it for themselves. This is one reason why the amendment should be opposed. The second reason is that the amendment is purely superfluous. My honourable friend, Professor Shah, does not seem to have taken into account the fact that apart from the Fundamental Rights, which we have embodied in the Constitution, we have also introduced other sections which deal with Directive Principles of State Policy..

What I would like to ask Professor Shah is this: If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be. Therefore my submission is that these socialist principles are already embodied in our Constitution and it is unnecessary to accept this amendment.”
Prof. Shah’s amendment was defeated but two things stand out in this exchange. First, the economist in Dr. Ambedkar dominated his exchange with Prof. Shah. He only discussed the economic philosophy of the Constitution and did not deal with the questions of secularism and federalism. Second, he felt that what was already explicit in the Constitution need not be reiterated.
K T Shah was a man of many parts. There is such a wealth of literature on his life and times. But, all surfacing only when the Supreme Court chooses to get in Constitutional History and the debates in the Constituent Assembly . A not so frequent occurrence. Khushal Talakshi Shah was a rare genius and a rebel, for sure.

The same is true….

(Author is practising advocate in the Madras High Court)

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