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Mainstream, VOL LVII No 17 New Delhi April 13, 2019

Ambedkar and Constitutionalism

Saturday 13 April 2019

by Vivek Kumar Srivastava

Constitutionalism is structured on the ideals of limited government, rule of law, regulations and democratic values. The idea of constitu-tionalism was a major theme during the freedom movement which matured in the thoughts of Nehru, Ambedkar and so many greats of the age but these two giants were in a position to implement the pillars of constitutionalism as both worked in different capacities in the Constituent Assembly and in governance.

Ambedkar was unique in the sense that he developed his own ideas about constitu-tionalism in legal-social terms. He was a constitutional expert who looked at legislature, a law making body, as ‘a product of its social conditions’ which could be limited by a federal order in a diversity-filled country like India. Federalism divides the power in the written Constitution and is a living structure. Ambedkar was a believer in the evolutionary theory of the Constitution and studied the Government of India Act 1935, which proposed a federal order, with penetrating eyes and concluded that ‘in this Federation there is no provision for growth. It is fixed. It cannot move. A change by evolution is not possible and where it is possible it is not binding unless it is accepted.’1 For him, the Constitution was an organic whole which must adapt to the needs of the time. The amendment procedure in the Indian Constitution is testi-mony to it where several Articles are amended but are not deemed to be the amendment. In the Government of India Act he did not discover the true federal spirit and felt that ‘the motive is to use the Princes to support imperial interests and to curb the rising tide of democracy in British India’.2

Constitutionalism demands restricted powers; extension of the power of the state is anathema to constitutionalism. Ambedkar, while discussing the taxation system in the Bombay legislature, explicitly stated that ‘Government is a respon-sible body, is subject to public opinion, is subject to the opinion of this House, and therefore can never do the mischief which a private profiteer can do.’3 Thus the state is different from the private company as well, a significant postulate which differentiates the pubic administration from the private one. The role of public opinion is on effective preventive tool to limit the powers of the government. Ambedkar subscribed to the ideal that the creation of public opinion is a major component of the democratic political world.

In October 1927, he made a speech supporting the ‘amendment to the Bombay University Bill moved by Mr Noor Mohmed to raise the number of nominated senators from 40 to 50’4 where he enunciated the doctrine of free vote, an integral component of the constitutional order. He stated: ‘I think it is only fair that in a matter like this, where the feelings of the backward communities are so high and where they think that their interest will not be safeguarded unless they get representation on the Senate, the Government should consider whether it is proper that the Government should use its official force to put the backward classes at the mercy of the upper classes. I think it would be wise and I appeal to the Honourable Leader of the House to leave this question to the free vote of this House. Let the House decide in any way it likes best.’5 He established that the official force of the state is inferior to the force of the elected representatives because if an institution is a democratic institution then ‘the elective principle should prevail over the nomination principle’.6

Ambedkar was opposed to the bureaucratic control of the politically organised society, as during the age of dyarchy, the ICS did not accept the control of Ministers. They contended they were appointed by the Secretary of State and not by the Ministers. Ambedkar, participating in a debate on Primary Education Amendment Act in 1938, supported via media as adopted by the Lee Commission and the Classification Rules, which had established the control of Ministers over the bureaucracy. Ambedkar opined that ‘the formula that was devised was that the civil servants should remain servants of the Secretary of State, liable to be dismissed by the authority who appointed them, but during the period that they were working as servants in the department, they should be subject to the disciplinary control of the Minister in charge of the department’.7 Ambedkar enunciated the principle of demo-cratic control of the bureaucracy which is a practice in the representative democracy.

Democracy is the edifice on which constitu-tionalism survives. If in any socio-political life the democratic system is lacking or deficient then constitutionalism cannot live. When he went to attend the Round Table Conference, he called the British Government a bureaucratic government. He proclaimed that Swaraj with its indigenous Constitution is the prerequisite to good governance and good life. In this respect his warning to the British Government is relevant. ‘We feel that nobody can remove our grievances as well as we can, and we cannot remove them unless we get political power in our own hands. No share of this political power can evidently come to us so long as the British Government remains as it is. It is only in a Swaraj Constitution that we stand any chance of getting the political power into our own hands, without which we cannot bring salvation to our people’8 and ‘no Constitution will be workable which is not acceptable to the majority of the people. The time when you were to choose and India was to accept is gone, never to return. Let the consent of the people and not the accident of logic be the touchstone of your new Constitution, if you desire that it should be worked.’9

In this respect he recognised the value of ‘parliamentary democracy (as) there is the Legislature to express the voice of the people; there is the Executive which is subordinate to the Legislature and bound to obey the Legislature. Over and above the Legislature and the Executive there is the Judiciary to control both and keep them both within prescribed bounds. Parliamentary Democracy has all the marks of a popular Government, a government of the people, by the people and for the people.’10

Ambedkar conceptualised constitutional order impregnated with constitutional morality as the edifice of good life for the people of India. He was instrumental in its elaboration and establishment in the country. Speaking in the Constituent Assembly he summed up the true soul of the Constitution, when he said: “By parliamentary democracy we mean ‘one man, one vote’. We also mean that every Government shall be on the anvil, both in its daily affairs and also at the end of a certain period when the voters and the electorate will be given an opportunity to assess the work done by the Government. The reason why we have estab-lished in this Constitution a political democracy is because we do not want to install by any means whatsoever a perpetual dictatorship of any particular body of people.’11 His statement in the Constituent Assembly that ‘I therefore submit that both the words “fundamental” and “directive” are necessary and should be retained’12 limits the powers of government as the Fundamental Rights and Directive Principles of State Policy can exercise sufficient limitations on the powers of any government in power. In recent time. The Supreme Court’s direction to the Union Government to appoint a Lokpal is practical expression of his ideas of constitu-tionalism.

[All references have been adopted from Writings and Speeches of Dr Babasaheb Ambedkar, Ministry of External Affairs, GOI, and Constituent Assembly Debates]

Dr Vivek Kumar Srivastava is the Vice Chairman, CSSP, Kanpur. He can be contacted at vpy1000[at]yahoo.co.in

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