Who Lives if the Nation Dies?

This Constitution of India must be scrapped. It is designed to maintain status quo ante and substantially it is only an adaptation of the Government of India Act, 1935. It has failed to give any impetus to national integration; on the contrary, it has divided the people, it has encour-aged corruption instead of rooting it out. It has helped criminalisation of the administrative and political system of the country. It has dismally failed to establish real parliamentary democracy. It has allowed criminalisation of the election system. Even its amendments—ninetyfour times in sixtytwo years of its existence (which is a world record)—have failed to sanctify it.

B.R. Ambedkar, the Chairman of the Drafting Committee for the Constitution of India, said in the Constituent Assembly:

Indeed, if I may say so, if things go wrong under the Constitution, the reason will be not that we had a bad Constitution, what we will have to say is that the man was vile…

Compared to the Constitutions of other democratic countries of the world the Indian Constitution is amongst the worst.

Yes, the man was vile, unscrupulous, corrupt, parochial, divided by castes and lacking in national outlook. But Ambedkar knew that these vices in the people existed from years before this Constitution was framed and these corrupt, anti-social and divisive forces were nourished by the British colonials for centuries because these features helped them to exploit the resources of this country to enrich England. They ruled this country with the help of Indians themselves. It was cent per cent loyalty of the Indian bureaucracy, Indian Police, Indian Army which formed the pillars for successful British rule over India for centuries. The Government of India Act, 1935 was a means to that end. No real and effective change was brought about for Indians in the matter of governance by its purported provincial autonomy. The Act continued all the anti-democratic devices pre-existing. It only enhanced the vileness in man which Ambedkar spoke of.

Another serious impact of the Government of India Act, 1935 was a perceptible erosion of national outlook and idealism. Non-violence, which was the creed of the Congress party during the Civil Disobedience Movement of 1931, was lost. This became too evident during the ‘Quit India’ movement of 1942. Violence and sabotage were freely resorted to. A large part of the Indian population kept away from the movement. The British Government successfully crushed the movement by force with the help of the Indian Police, Indian Army and the Indian bureaucrats.
But thousands of brilliant young men and women, idealists with burning zeal to win freedom by force, chose the way of armed rebellion. India lost a generation of those brave, brilliant young lives in the hands of the armed police and the Army. Many of them rotted in the British jails and concentration camps suffering torture by the police. They were mentally and physically ruined when they ultimately came out. But hardly any top Congress leader was killed or tortured by the police. They remained safely lodged in British jails. If there were a few exceptions they only went to prove the rule. There was strong rumour that many of these netas later on secured their release by tendering apology and promising to behave in the future to the British Government. One such letter is quoted in Maulana Abul Kalam Azad’s book India Wins Freedom. Another such letter was released by a Minister recently to remove the statue of Vir Savarkar from the jail in the Andamans.

Neither the Central nor any of the provincial governments under the Government of India Act, 1935 from 1936 to 1946 was either responsible or responsive or open to public scrutiny. It had corrupted all its departments, it divided the people on religion, language and caste, its innovation of a new caste called ‘Scheduled Caste’ is casting its shadow even today.

The important question that arises is: why was this colonial statute adopted as the model and basis for our Constitution? The answer lies in the sequence of circumstances leading to the drafting of the Constitution.
The British Government wanted to transfer power not to the people but to the Indian National Congress. Clement Atlee described in the British Parliament the Indian National Congress as the successor to the British in India.

There were huge protests against that statement of Atlee in the Indian press. The Statesman editorial wrote a scathing criticism of Atlee’s statement. Yet the fact remained that Indian independence was a transfer of power to the Congress. It was the transfer of power from a totalitarian monarchy to a single political party. The British objective was to maintain the status quo to the extent possible. We must remember that England was totally devastated in the Second World War and needed the goodwill of the Indian Government to repair its economy which was completely shattered. India was industrially and economically strong.

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IT is necessary also to look at the sequence of events leading to the drafting of the Constitution to see how the Government of India Act, 1935 crept into the Constitution.

On July 18, 1947 the British Parliament passed the Indian Independence Act, 1947. Prior to that an elaborate exercise had been undertaken to divide the country into India and Pakistan. The Indian Independence Act vested full legislative power to the Indian legislature. But by Section 8 of the Act it empowered the Governor General of India to continue, with suitable adaptation, the Government of India Act, 1935 during the interregnum till the framing of the Constitution. The Governor General therefore passed the India (Provisional Constitution) Order, 1947 under which the Government of India Act, 1935 continued with necessary adaptation.

The Constituent Assembly appointed a Drafting Committee with B.R. Ambedkar as its Chairman and some eminent lawyers. But the Draft Constitution was prepared actually by the officers in the Legislative Department of the Central Secretariat. B.N. Rau was the Constitutional Adviser. S.N. Mukherjee, Secretary, Legislative Department of the Government of India, got a lot of publicity those days as one of the architects of the Constitution.

Apart from the chapter on Fundamental Rights and the Directive Principles of State Policy the rest of it was entirely based on the Government of India Act, 1935 with only necessary adaptations and alterations to provide for universal adult franchise etc. The total absence of any provision imposing public accountability or any kind of democratic check on governmental functioning, continuation of secrecy by the Official Secrets Act went unnoticed. The entire civil services remained unanswerable to the public and continued to enjoy protection against prosecution for offences without prior sanction from the department as before. It is understandable that the bureaucracy was apprehensive of their past role in the struggle for freedom and ensured their protection to continue as far as possible.
The wonder of wonders was that no debate worth the name took place in the Constituent Assembly on the complete absence of any direct democratic check on the functioning of the government, nor on the complete absence of any accountability and the total secrecy of the government’s functioning.

Even a conservative diehard like Winston Churchill said that statutes like the Official Secrets Act must be confined only to Defence and Foreign Affairs. There is no democratic country in the world which has a legislation like the Indian Official Secrets Act, not even England.

In the old days common people in Bihar used to call the civil servants “Kala Angrej”. Today perhaps the compliment can be easily given to our political leadership. The attitude and behaviour of the ruling political leadership in Singur in West Bengal, by the Bajrang Dal in Karnataka and Orissa, killings in Assam etc. eminently qualify them for the title. If statistics can be collected impartially it will show that Indian nationals killed in police firings and slaughtered by goons and religious fanatics of the ruling parties during the last half-a-century by our national governments far exceed the number killed during British rule. Some of the killings are no less dastardly than the one at Jallianwala Bagh.

I remember with great respect and admiration Brajeshwar Prasad, a Congress Member of Parliament in the fifties or sixties of the last century. He used to live in a room in the Eastern Court on Janpath. I also recall with great respect Mrs Violet Alva who was also a Congress MP whom I met in Brajeshwar Babu’s room. One evening there was a very animated discussion over post-independence India in Brajeshwar Babu’s room. There were one or two other persons present. I was young and impetuous and a little too emphatic in my assertions. Brajesh Babu shouted at me in Hindi: “Arre Angrej Gaya to Kangrej Aya, Tumko Keya Farak Para Ye Batao. (Look here, the British have gone and their place has been taken by the Congress. Tell me, what change that has brought for you).”

A few months after independence Gandhiji wrote in the Modern Review (published from Calcutta by Ramananda Chatterjee): “…Today politics has become corrupt. Anybody who goes into politics is contaminated.” (Dr Manmohan Singh quoted these lines in his address to the Lokayukts in 2005.)

Parliament has gone weaker and weaker due to corruption and criminalisation. Ideology has completely disappeared. It is evident that a thoroughly corrupt selfish aristocracy has captured political power by giving lip-service to democratic ideals just to hoodwink the voters. A weak Constitution has helped them to strike their roots deep enough to make it difficult to be dislodged. They call themselves Communists, Socialists, Leftists or Rightists or by any name that suits them. Some of them even pose to be upholders of religious faith. To the Indian voter today, in the time of election, the contending political parties are very much like one another, “irrespective of how leaders may quarrel and partisan hate partisan”. (H.S. Main)

Industrialisation, raising the GNP are certainly necessary but these are not the goals. These must not be used to conceal poverty, lack of education, poor standard of living. The fact that Mittals, Ambanis and others are joining the club of the richest men in the world is no consolation to the vast masses of half-starving, uneducated, poor Indians. Nor is mere economic advancement a protection or shield to the independence of the country. India was an economically prosperous and militarily strong country when the British conquered us at Plassey. Treachery of the rich Jagat Sheths, Umichands and Mirzaffars caused the defeat. At the dawn of independence, India was industrially more developed than many countries of the world.
India is industrially more developed than many less fortunate countries and is reckoned as the seventh or eighth among the world’s industrial nations… (Nehru in his address to the US Congress in 1949)

What has caused us to slide down while other countries have gone ahead? Why this slide down?

The Constitution of the country is said to be the engine which takes the country forward. If that is true, ours is an engine which has taken the country in the reverse. Let us call a proper Constituent Assembly and frame a new Constitution to take the country forward.
Do not think that freedom once won has come to stay. A little negligence and carelessness can imperil our freedom. It has happened many times in history…
 —Jawaharlal Nehru

We are making our democracy illusory. Our present political leadership is devoid of idealism, selfish, corrupt, vote-oriented, hence parochial, dynastic and partisan. The country today has no national leader worth the name.

A defective election system, costly and crimina-lised, has prevented a healthy and honest leadership to grow. It is impossible to rectify the maladies without changing the Constitution. The nation is on its last breath. We all live if the nation lives. If the nation dies, who lives? n
The author is a Senior Advocate of the Supreme Court of India.