The Draft Constitution of India

By Prof. N. Srinivasan, M.A. (Oxon)

Introductory

THE Draft Constitution, now before the Constituent Assembly, is, both in its form and content, essentially in the British tradition. The comprehensive, detailed legal code that our future Constitution will be, is none the less inspired by the largely unwritten English Constitution. It is an adaptation of the English system of government to our country. For the peculiar conditions of India largely unfamiliar with constitutional forms of government, much that might safely be left to convention or ordinary legislation or convention has to be put into the text of a Constitution and invested with a certain rigidity. The length of the Constitution has been inevitably determined for us by the Government of India Act of 1935. The Draft with its 314 sections and eight schedules is, in fact, almost the same in length as the Government of India Act of 1935 with its 320 sections and ten schedules. The safe guards of the previous Constitution are now replaced by safeguards of a new kind–safeguards for constitutional government and special provisions for the variety of groups and interests in the country. A spirit of conservatism can be seen in the Draft which so largely embodies the working Constitution of today, with changes necessitated by our new status and the democratic urge in the country. It is proposed here to refer to the principal features of the new Constitution and offer a few suggestions.

India will be a sovereign democratic republic. No formal bond of union will connect us with Britain, though we may be associated with her for many common purposes. India will be a federal union of States with a single citizenship for all her citizens who will all have equal rights and obligations. India’s democracy will be based on full adult suffrage. Parliament and all Legislatures will be the choice of the entire people. We shall emerge almost overnight as a complete democracy, with the people as our political sovereign.

1. Fundamental Rights

Our Constitution begins with an enumeration of the fundamental rights of citizens and a chapter on the directives of State policy. The former are justiciable and the latter are not. The debt of the framers of the Constitution to the American and Irish Constitutions here is obvious.

The rights are under the heads of equality, religion, culture and education, and property. Some of the rights are of the usual type found in Western Constitutions, e.g., right to freedom of speech, assembly, association, etc.; but some are peculiar to India as, for instance, the prohibition of untouchability. Article 9 relating to non-discrimination in regard to access to public places, shops, roads, parks, places of entertainment, etc., seems to be hardly worthy of a place in the Constitution. Rights relating to religion, especially those dealing with religious instruction, need to be recast. The secular character of the Indian Union should be proclaimed and there should be a prohibition of public aid to denominational institutions. The provisions of the Constitution in this regard are not likely to help in the secularisation of our State or politics.

Among the cultural rights (section 23) the apparently innocuous sub-clause 2 would appear under existing conditions to have been inserted for the special benefit of the most advanced communities. These could make use of it to maintain their privileged position and to bar the way to the advancement of the ward classes under the guise of minorities’ protection. Equal opportunities at present mean the perpetuation of existing inequalities. A saving clause as in section 10 sub-section 3 expressly permitting State Governments to discriminate in favour of clearly demarcated regions, cultural and other minorities, and ward classes and tribes, would be necessary to secure justice.

It is not clear again whether under sub-section 3(b) discrimination in favour of educational institutions maintained by minorities would be permissible. What is the remedy if such institutions receiving State aid discriminate in favour of some?

The whole article would indeed need to be considered carefully and altered if we are to afford really equal opportunities for all sections of India’s population in the field of education. The problem is acute because of the absence of adequate facilities for all seeking higher education. This is the result of our economic position. The problem would disappear with the all-round economic development of our country. Under these circumstances would it not be better to remove this provision altogether from the chapter on rights and include (in the next part) a directive to the States to assure equal educational opportunities to all classes of citizens, bearing in mind the special needs of regional groups, cultural and religious minorities and ward communities?

The Constitution provides the usual channels of the writs of habeas corpus, mandamus, prohibition, etc., for safeguarding rights. It may be suggested that these will not be adequate and that, if protection is to be real, an agency of public defence of persons whose liberties have been infringed by the Executive must also be provided.

The inclusion of fundamental rights in the Constitution has both its merits and disadvantages. On the one hand the citizen has a clear perception of his rights and the official of the limits of his authority. The liberties of the subject are less likely to be invaded in this -ground. The citizen has a powerful defence. But on the other hand this might lead to considerable litigation. The Legislature’s powers would be constantly under challenge, and the Courts would have a power to nullify legislative enactment’s. No people has yet succeeded in safeguarding rights by the simple device of writing them into the Constitution.

The inclusion of rights in the Constitution may indeed be justified on the ground that they are an assurance to the numerous minorities in our country. This is certainly a powerful argument in its favour. Minorities have been given further and more tangible protection. In the Lower Houses of Parliament and the State Legislatures representation on the basis of their population has been reserved for Muslims, Scheduled classes, Indian Christians and Scheduled tribes. Anglo-Indians may secure representation in Parliament through Presidential
nomination. Discrimination in favour of ward classes and minorities to secure their adequate representation in the public services is specially permitted under Section 10, sub-clause 3. Anglo-Indians will receive special treatment to make smooth the transition from their present privileged position to one of equality with the rest. These provisions are just and fair.

2. Federalism

Federalism in the Indian Union will be centripetal. There is an exhaustive enumeration of legislative powers in three lists, Federal, State, and Concurrent. In the case of federal powers the appearance is, however, more formidable than the reality. The long list of 91 powers in the Federal List is not in fact materially different from the list of the Act of 1935. One may doubt if the authority of the Federal Government in India would be greater than that of the American or Canadian Federal Governments. Periods of emergency apart, our Federal Government will be about as powerful as any other Federal Government. We must remember that all Governments in India will function under judicial review, and much will depend on the interpretation of the Constitution by the Supreme Court.

In the federal list, in spite of the elaborate enumeration, it would be necessary to include a co-efficient clause enabling the Federation to make effective use of its powers, and a general welfare clause, and not leave these to inference as is done in the Draft.

The items 39 and 41 in the State lists (Weights and measures and standards, and relief of the poor and unemployment) may more appropriately be placed in the Concurrent list, because of the need for uniformity in the one case and the greater financial resources of the Federation in the other case.

Our Union will consist of two types of units, Part I States, (the old Provinces), and Part III States (the old States). There are a few differences between these two. The former automatically come into the Federation; they surrender a greater amount of power to the Federal Centre; and their Constitutions are framed for them by the Constituent Assembly. Their position is inevitably determined by their being the products of a process of devolution from a Unitary Centre. The States in Part III, for similar historical reasons, will occupy a different position. They are released from Paramountcy. But as a logical consequence they have had to democratise their Constitutions and enter the Indian Union. They surrender to the Federation the three essential functions of defence, external affairs, and communications. These subjects, it should be noted, cover more than 50 items in the Federal List and are by no means small. But they retain a constituent power and make their own Constitutions. They retain the entire field of the Concurrent and State lists and the items not covered by the three subjects surrendered to the Federation. This makes for a disparity in the position of the two types of units in the Federation.

The disparity, however, should not be over-stated. A revolutionary change has taken place in the position of the States in Part III since Independence. The integration of the States by merger with adjoining Provinces or by union among themselves, and the rapid democratisation and modernisation of their Governments and administrations are tending to create an equality and similarity among the federating units. There is a second hopeful feature. The latest union of States, the Phulkian Union, has agreed to come under the Federation to the same extent as the States in Part I. It is not unreasonable to hope that other States will follow suit. Indian nationhood, which knows no barriers within India, is surely powerful enough to achieve this end in the not distant future.

3. The Federal Government

The principal aim of the framers of the Draft Constitution is to set up a Parliamentary system of Government in India, both at the Federal Centre and in the States. Cabinet Government, as it has developed in England, is based almost entirely on conventions and it is a difficult task to reduce these conventions to the terms of a statute. Countries, which have adopted this system, such as the British Dominions, France, etc., have only a few provisions in regard to the Cabinet and its relations with the formal Head of the State on the one hand and to Parliament on the other. The Irish Constitution has made the most consistent effort to reduce the principles of Cabinet Government to writing. Our Draft makes a similar effort. Even so, the constitutional provisions are few and a great deal is left to understandings, which, it is hoped, may develop along the right path.

We may note the positions assigned to the President, the Cabinet, and Parliament.

The President is the Head of the State. He will be the choice of an electoral college consisting of Parliament and the Lower Houses of the Legislatures in the States. Each member of the electoral college will have a voting power directly proportionate to the people whom he represents. The executive power of the Union and the supreme command of its armed forces is vested in him. He is to exercise his powers in accordance with the Constitution and the law. By the terms of the Constitution, he will be guided by the advice of his Cabinet. His term is 5 years and he may be chosen as President only a second time, but not a third time. For violations of the Constitution he may be impeached by either House of Parliament and removed from office. He exercises the prerogative of mercy.

He chooses the Prime Minister and on the latter’s advice appoints other Ministers. There is here no absolute freedom of choice, as the person chosen as Prime Minister must be able to command the confidence of the House of People. The President is entitled to be kept informed of all decisions of the Cabinet on all administrative matters and proposals for legislation by the Prime Minister and such information as he may call for. He has the right to refer the decisions of individual Ministers to the Cabinet. These rights are a matter of course in a system of constitutional government but are here made part of the Constitution. So are the powers of the President in regard to the summoning, prorogation and dissolution of Parliament, and the right to address the Houses severally or jointly.

There are, however, two provisions which are inconsistent with Cabinet Government (Sec. 70 sub-sec. 2 and Sec. 91). These relate to messages from the President and assent to bills, and empower him to refer bills passed by Parliament with suggestions for its amendment and to refuse assent to bills passed by Parliament. From the terms of the Draft Constitution, it would appear that the President is expected to exercise a considerable influence on ordinary legislation. He can exercise an absolute veto on all ordinary legislation, and no method has been prescribed to enable Parliament to pass a measure over his veto. This is in fact a greater power than that possessed by the American President, at least, in the field of ordinary legislation.

This is clearly incompatible with the essential principle of ministerial responsibility. A real power to shape legislation, and to take up a position opposed to the majority in Parliament and the Cabinet, is totally at variance with Cabinet Government. This would make the President a court of appeal against Parliament for interests affected by a piece of legislation and would bring him into the arena of party conflict. The head of the State should be above parties and all his actions should be governed by ministerial advice. His consent to legislation should be automatic. The President’s powers should not extend beyond those mentioned by Bagehot: i.e., the right to be consulted, the right to encourage, and the right to warn. The President’s opportunities in these respects are ample under the terms of our Draft Constitution and should suffice. The mixing up of provisions appropriate to the Presidential system with the Parliamentary was tried only once in France under the Second Republic. The experiment was a failure, for the Parliamentary system soon succumbed to a Presidential dictatorship.

The position of the Cabinet is a straightforward one. It will be under the leadership of the Prime Minister, as it would consist of his nominees. They must be all members of one or the other House. Collectively they are responsible to the House of People. They hold office at the President’s pleasure. The President is to be guided by their advice. The initiative in financial legislation is in their sole charge–a vital provision for the effectiveness of the Government. Ministers could be present in both Houses and participate in their proceedings, though they could vote only in the House of which they are members. There appears to be nothing in the way of constitutional provisions which may be added to make our future system approximate closely to the English system. We must note, however, that the vigour and strength of our Government would depend largely on extra-constitutional matters such as the absence of splinter parties and communal groups, and the non-existence of fundamental differences among political parties, tolerance of criticism by the Government, and the avoidance of factious opposition, as also the maintenance of stable economic conditions within the country.

The Federal Parliament would consist of a House of People based on the principle of population and adult suffrage as most lower houses of Federal Parliaments are. It would consist of not more than 500 members chosen directly by territorial constituencies. Communal electorates have disappeared, but for a period of 10 years there would be a reservation of seats for Muslims, Scheduled castes, and Indian Christians on the basis of their population. If our present districts are made the electoral districts, each will return from 3 to 4 members, on the average. The House of People would thus be fully representative of the entire people.

The term of the House is five years, but it is subject to dissolution earlier. It is possible to extend its term in a period of emergency as long as the emergency lasts, by one year at a time, but not beyond six months after the expiry of a proclamation of emergency.

The Council of States, the Upper House, will have a strength not exceeding 250 or half the Lower House. The representatives drawn from the States cannot exceed 40% of the total less the 15 seats to be filled by nomination by the President, to represent literature, art, science, education, agriculture, engineering, public administration etc., on the ground of their special knowledge or experience of problems connected with these subjects. The representatives of the States will be chosen by the Lower Houses of the Legislatures of the States forming part of the Federation. The Upper Chamber also will thus be based on universal suffrage, though indirectly.

Parliament, as the two Houses will be known collectively, is, as far as practicable, a faithful copy of the Parliament at Westminster. It is to be the centre of our political system. It must be summoned at least twice a year, and may meet oftener. The House of People chooses its presiding officers, a Speaker and a Deputy Speaker, and the Council of States chooses its Deputy-Chairman, for the Vice-President is its Chairman ex-officio. Each House makes its own rules of procedure, and members enjoy the privileges of the members of Parliament at West-minister.

The financial relations of the two Houses are based on the Parliament Act of 1911. The terms of that Act form part of our Draft. Financial legislation can only be initiated in the Lower House. Other legislation can be originated in either House. The powers of the Upper House in ordinary legislation are more limited than under the Parliament Act. The period of delay which the Upper House can impose is limited to six months from the date of the reception of a bill, and provision is made for the solution of deadlocks by a joint session, deciding issues by a simple majority.

The constitution of the Federal Upper House indeed satisfies the requirements of an ideal Second Chamber. The federal character of our polity has given a satisfactory basis for constituting it. But the federal character is modified in that the principle of equality of the federating units is abandoned in favour of the intrinsic importance of the unit on the basis of its population. It is predominantly elective. While it has been given a power of deliberation, it has not been invested with a power to block legislation. It is definitely assigned a secondary place in the constitutional system.

We may note that the Council of States, besides its right to impeach and to try impeachments brought by the House of People, serves as the body which investigates charges against Governors of States. This is because it is the Federal House. The same reason explains its unusual powers in regard to the amendment of the Constitution. It must separately agree to amendments of the Constitution by a majority of its total membership, and by a two-thirds vote of those present and voting. There is no provision for the solution of deadlocks in this field. The Council’s position is one of absolute equality with that of the Lower House in this respect. There is really no ground for this distinction, and this may prove to be a stumbling block in the way of constitutional change.

There will be a Federal Supreme Court with a jurisdiction rather less extensive than that of the American Supreme Court. A hierarchy of federal courts is not created, and not all cases arising out of federal legislation come before it. Only those which involve the interpretation of the Constitution, and substantial civil cases, whether under Federal or State laws, come before it on appeal. In cases to which the Union or the States are parties, the Supreme Court exercises original jurisdiction. The Supreme Court has also the right to safeguard the fundamental rights of citizens.

A safeguard has been included in the Constitution for the prevention of some of the evil consequences of the judicial review of legislation after the legislation has been passed. The President may request the court for an advisory opinion on any piece of contemplated legislation and the court must render an advisory opinion. This will be a security against legislation undertaken by Parliament being declared unconstitutional ex post facto.

Judges of the Supreme Court have been given security of tenure. They are appointed by the President and hold office until the age of 65. They could only be removed on a joint address of both Houses of Parliament adopted by a two-thirds vote in each House. Their salaries are fixed and are non-votable. The independence of the Judiciary is thus assured.

4. The Framework of State Government

The framework of government in the States in Part I is similar to the framework of Government at the Federal Centre. The principal aim is here also to set up a Parliamentary system. It consists of a Governor, a Council of Ministers, a Legislative Assembly–in some a Legislative Assembly and a Legislative Council and a High Court. Parliamentary Government is hedged in by a number of safeguards in the interest of peace and tranquillity in the State.

The Governor is the Head of the State Government. Two alternative methods have been suggested for the choice of the Governor. The first method is that of election by all the adult voters in the State. The second is the appointment of the Governor by the President from a panel of four elected by the State Legislature by the system of proportional representation with the single transferable vote. The functions assigned to the Governor make both methods inappropriate. In the main he is the constitutional head and to provide for his choice by a State-wide election is to lose all sense of proportion. Such a head may challenge the authority of the Council of Ministers, and harmony between them will be jeopardised. By a system of election by the people or the Legislatures it would be difficult to get a person who is above parties, much less a distinguished public man from another State. It should also be borne in mind that on occasions the Governor has to act as the agent of the Federal Government. The straightforward course under these circumstances is to continue the present system of appointment by the Federal Government which has none of these disadvantages.

The executive power in the State is vested in the Governor. But he acts on the advice of his Council of Ministers. His position, though essentially similar to the President’s, yet differs from the latter’s position in a few, but important respects. The sphere of his discretion is greater. He is to perform the following tasks in his discretion: (i) The appointment and dismissal of Ministers, (ii) the summoning and dissolution of the Legislature, (iii) the proclamation of a state of emergency and the functions which devolve on him as a result, (iv) assenting, refusing assent, reserving for the President’s consideration and requesting a reconsideration of a Bill passed by the Legislative Assembly by a message in States where a second chamber has not been provided for; and (v) appointing the Chairman and members of the State Public Service Commission and prescribing rules concerning it.

The Governor will be guided in his conduct by his Instrument of Instructions. He is to appoint Ministers in consultation with the person who is most likely to command a stable majority in the Legislature and such persons ‘including, so far as practicable, members of important minority communities’ who will best be able collectively to command the confidence of the Legislature. He must foster a sense of joint responsibility. He is to act on the advice of his Ministers. He is to do all that is in his power to maintain standards of good administration.

It should be noted that in the exercise of his discretionary functions, only in the case of emergencies, that the Governor comes directly and immediately under the control of the Federal Government. It is necessary that in the exercise of his other discretionary functions he should be under the general control of the Federal Government. This would mean a continuous responsibility of the Governor to the Federal Government which would be better than the provisions of the Draft which leave the Governor free to act, subject only to impeachment for a violation of the Constitution.

The Governor has the right to information regarding all decisions and proposals for legislation of the Council of Ministers and such information as he may call for. He has the right to refer decisions of individual Ministers to the Council of Ministers.

The Governor’s term of office is five years with a possible extension for another term. He may be impeached and removed from office for violations of the Constitution. The State Legislature can prefer a charge by a two-thirds vote and the Council of States investigates the charge through a commission and decides the issue on their findings. An appropriate salary, allowances, and official residences are provided. His salary and allowances and the expenditure on his staff are charged on the revenues and are not votable as in the case of the President.

The provisions relating to the Council of Ministers are similar to those relating to the Cabinet at the Federal Centre. Ministers are appointed by the Governor and hold office at his pleasure. They must be members of the Legislature and are collectively responsible to the Legislative Assembly. They have the initiative in all financial legislation. Their salaries and allowances are determined by the Legislature. They could appear in both Houses and participate in their proceedings though they can vote only in the House to which they belong.

The Legislature in the States is unicameral in some and bicameral in others. The Legislative Assembly will consist of representatives chosen by territorial constituencies on the basis of adult suffrage, at the rate of one member for every 100,000 of the population. No Legislative  Assembly, however, can have a strength exceeding 300 or less than 60 members. Seats will be reserved for Muslims and Scheduled classes in all States, and for Indian Christians in Bombay and Madras, for a period of 10 years on the basis of their population.

The term of the Assembly is five years, but it may be dissolved earlier.

The Legislative Councils, as the Upper Houses will be known, are not to exceed a fourth of the Legislative Assemblies in membership. The constitution of the Legislative Councils is a copy of the Senate in the Eire. Half the members of the councils are to be chosen from panels representing the Universities, literature, art, culture and science, Agriculture, fisheries, and allied subjects, engineering and architecture, and public administration and the social services. The panels must contain twice the number of members to be chosen by them. How and by whom these panels are to be constituted are not mentioned a serious omission. A third of the members will be chosen by the Assembly and the remaining sixth will be nominated by the Governor.

The Council is not subject to dissolution, but a third of it will be renewed every three years.

Both the Houses will choose their presiding officers and frame their own rules of procedure. Members enjoy the privileges of members of Parliament. The Legislature must be summoned to meet at least twice a year but may meet more often. The relations between the Houses are the same as in Parliament, with joint sittings to resolve deadlocks.

Every State, either individually or jointly with others, will have a High Court. The power of constituting a High Court belongs to the State Legislature. The power of appointing Judges is vested in the President. Every precaution has, been taken to assure the independence of the Judiciary. Judges hold office until the age of sixty and can be removed only on a joint address by Parliament adopted by a two-thirds vote. Their salaries are charged upon the revenues of the State and are non-votable, and the minimum salaries are fixed in the Constitution itself.

Finally, provision is made for the failure of constitutional machinery in the States as also for meeting any grave menace to the peace and tranquillity of the State. If, in the opinion of the Governors, such a contingency arises he is authorised to issue a Proclamation of Emergency and take over the government into his hands to the extent that he may choose. He may suspend any provisions in the Constitution relative to the State, except those governing the High Court or its powers. But the matter must be immediately reported to the President, who may revoke the Proclamation or take such action as he may under the Emergency Provisions of the Constitution. The control of the State Government in effect passes to the Federal Government, who thereby shoulder the ultimate responsibility for peace and order throughout India.

5. Emergency Provisions

There are three types of emergencies for which provision is made in the Constitution the failure of constitutional machinery in the States, internal and external threats to peace and security. On the report of the issue of a Proclamation of an Emergency in a State by the Governor either due to the failure of constitutional machinery or a threat to peace, the President may, by a further Proclamation, take over the executive power in the State and declare the legislative powers of the State Legislature exercisable by Parliament. Constitutional provisions in regarding to the High Courts may not be set aside. Such Proclamation must be immediately laid before each House of Parliament. Unless approved by Parliament the Proclamation will cease to have effect at the end of six months. If approved by Parliament it will continue in force for twelve months. Parliament may also further extend the period of emergency by resolution by a year at a time, but not beyond three years from the beginning of the emergency. (278)

In the event of a threat to the security of India by war or internal disturbances, the President may issue a Proclamation of Emergency. A Proclamation of Emergency must be immediately laid before either House of Parliament. Its duration cannot exceed six months unless approved by Parliament. It may, of course, be revoked earlier. The Federal Government during an emergency has the authority to issue directions to State Governments as to the exercise of their executive power, and Parliament may legislate conferring powers and imposing duties on any authority–Federal or State.

In a period of emergency the limits imposed on executive action by the enumeration of fundamental rights in article 13 (Freedom of speech, assembly etc.) and constitutional safeguards, Sec. 25 (Habeas Corpus etc.) provided by the Constitution will not operate.

6. The Amendment of the Constitution

We shall consider last the method prescribed for the amending the Constitution. An amendment of the Constitution may be initiated in either House of Parliament. It must receive the assent of a majority of the total membership of the House and also of two-thirds of the members present and voting when the matter is considered. This means that the attendance in the Houses when a constitutional amendment is considered should be more than three-fourths of its total membership. Amendments relating to the distribution of legislative powers, the representation of the States in Parliament, or the powers of the Supreme Court must, besides passing both Houses of Parliament separately in the above manner, be ratified by the Legislatures of at least half the States in Part I and by a third of the States in Part III. About the choice of the Governor of a State and the strength of its Legislature alone is a State Legislature given the right to initiate an amendment of the Constitution. It may almost be said that Parliament alone has the right of proposing constitutional legislation.

The procedure is extremely difficult. Any amendment may be blocked by either House. Any amendment concerning the distribution of legislative powers etc., may be blocked by either House or by a group of States in Part I or in Part III. The difficulty of amending the Constitution will make the Constitution unduly rigid. Unless the same political party is dominant in Parliament and in a majority of the States, amendments may be impossible in practice and changes in the Constitution may have to take place in devious ways. Some easier method that would safeguard the Constitution from hasty and ill-considered change, but would not place a veto in the hands of over a dozen Legislatures should be devised. At any rate, provision should be made for the solution of deadlocks between the two Houses of Parliament, as in the case of ordinary legislation, with perhaps the requirement of a special majority for the passage of constitutional legislation.