On this Republic Day, this speech by B.R. Ambedkar needs to be read and re-read for it lays out the original design principles behind our Constitution. Design Principles that need to be understood and appreciated for a lack of both has given the political class a free pass to deviate from them with over 100 amendments. This becomes even more acute as the Congress lead UPA government in Delhi deviates vastly from Ambedkar’s original design of what he called “Flexible Federalism”.
CONSTITUENT ASSEMBLY OF INDIA – VOLUME VII
Thursday, the 4th November 1948
MOTION regarding the DRAFT CONSTITUTION
Mr. President: I think we shall now proceed with thediscussion. I call upon the Honourable Dr. Ambedkar to movehis motion.
The Honourable Dr. B. R. Ambedkar (Bombay: General): Mr. President, Sir, I introduce the Draft Constitution assettled by the Drafting Committee and move that it be taken into consideration.
Ambedkar on the History of the Draft Constitution
The Drafting Committee was appointed by a Resolution passed by the Constituent Assembly on August 29, 1947.
The Drafting Committee was in effect charged with the duty of preparing a Constitution in accordance with the decisions of the Constituent Assembly on the reports made bythe various Committees appointed by it such as the Union Powers Committee, the Union Constitution Committee, theProvincial Constitution Committee and the Advisory Committee on Fundamental Rights, Minorities, Tribal Areas, etc. The Constituent Assembly had also directed that in certain matters the provisions contained in the Government of India Act, 1935, should be followed. Except on points which are referred to in my letter of the 21st February 1948 in which I have referred to the departures made and alternativessuggested by the Drafting Committee, I hope the Drafting Committee will be found to have faithfully carried out given to it.
Ambedkar on the composition of the Draft Constitution
The Draft Constitution as it has emerged from the Drafting Committee is a formidable document. It contains 315 Articles and 8 Schedules. It must be admitted that the Constitution of no country could be found to be so bulky asthe Draft Constitution. It would be difficult for those who have not been through it to realize its salient and specialfeatures.
The Draft Constitution has been before the public foreight months. During this long time friends, critics and adversaries have had more than sufficient time to expresstheir reactions to the provisions contained in it. I daresay some of them are based on misunderstanding and inadequate understanding of the Articles. But there the criticisms are and they have to be answered.
For both these reasons it is necessary that on a motion for consideration I should draw your attention to the special features of the Constitution and also meet the criticism that has been levelled against it.
Before I proceed to do so I would like to place on thetable of the House Reports of three Committees appointed bythe Constituent Assembly *
(1) Report of the Committee on Chief Commissioners’ Provinces
(2) Report of the ExpertCommittee on Financial Relations between the Union and the States, and
(3) Report of the Advisory Committee onTribal Areas, which came too late to be considered by that Assembly though copies of them have been circulated toMembers of the Assembly.
As these reports and the recommendations made therein have been considered by the Drafting Committee it is only proper that the House should formally be placed in possession of them.
Ambedkar explaining the Basic Design of the Constitution
Turning to the main question. A student of Constitutional Law if a copy of a Constitution is placed in his hands is sure to ask two questions. Firstly what is the form of Government that is envisaged in the Constitution and secondly what is the form of the Constitution? For these are the two crucial matters which every Constitution has to deal with. I will begin with the first of the two questions.
In the Draft Constitution there is placed at the headof the Indian Union a functionary who is called the President of the Union. The title of this functionaryreminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of Government prevalent in America and the form of Government proposed under the Draft Constitution.
The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system.
The two are fundamentally different.
Under the Presidential system of America, the Presidentis the Chief head of the Executive. The administration isvested in him. Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule theNation. He is the symbol of the nation. His place in theadministration is that of a ceremonial device on a seal bywhich the nation’s decisions are made known. Under the American Constitution the President has under himSecretaries in charge of different Departments. In like manner the President of the Indian
Union will have under him Ministers in charge of different Departments of administration. Here again there is a fundamental difference between the two. The President of the United States is notbound to accept any advice tendered to him by any of his Secretaries. The President of the Indian Union will begenerally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do any thing without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament.
The Presidential system of America is based upon the separation of the Executive and the Legislature. So that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognise this doctrine. The Ministers under the Indian Union are members of Parliament. Only members of Parliament can become Ministers. Ministers have the same rights as other members of Parliament, namely, that they can sit in Parliament, take part in debates and vote in its proceedings.
Both systems of Government are of course democratic and the choice betweenthe two is not very easy.
Ambedkar explaining the preference for a Parliamentary Executive
A democratic executive must satisfy two conditions -
(1) It must be a stable executive and
(2) it must be a responsible executive.
Unfortunately ithas not been possible so far to devise a system which can ensure both in equal degree. You can have a system which can give you more stability but less responsibility or you can have a system which gives you more responsibility but less stability.
The American and the Swiss systems give more stability but less responsibility. The British system on the other hand gives you more responsibility but less stability.The reason for this is obvious. The American Executive is a non-Parliamentary Executive which means that it is not dependent for its existence upon a majority in the Congress,while the British system is a Parliamentary Executive which means that it is not dependent for its existence upon a majority in the Congress, while the British system is a Parliamentary Executive which means that it is dependent upon a majority in Parliament. Being a non-Parliamentary Executive, the Congress of the United States cannot dismiss the Executive.
A Parliamentary Government must resign the moment it loses the confidence of a majority of the members of Parliament. Looking at it from the point of view of responsibility, a non-Parliamentary Executive being independent of parliament tends to be less responsible tothe Legislature, while a Parliamentary Executive being moredependent upon a majority in Parliament become more responsible. The Parliamentary system differs from a non-Parliamentary systemin as much as the former is more responsible than the latterbut they also differ as to the time and agency for assessment of their responsibility.
Under the non-Parliamentary system, such as the one that exists in theU.S.A., the assessment of the responsibility of theExecutive is periodic. It is done by the Electorate. InEngland, where the Parliamentary system prevails, theassessment of responsibility of the Executive is both dailyand periodic. The daily assessment is done by members ofParliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses. Periodic assessment is done by the Electorate at the time of the election which may take place every five years orearlier. The Daily assessment of responsibility which is notavailable under the American system is it is felt far moreeffective than the periodic assessment and far morenecessary in a country like India. The Draft Constitution inrecommending the Parliamentary system of Executive haspreferred more responsibility to more stability.
Ambedkar explaining the Original Design of “Flexible Federalism” in the Draft Constitution
So far I have explained the form of Government underthe Draft Constitution. I will now turn to the other question, namely, the form of the Constitution.
Two principal forms of the Constitution are known to history – one is called Unitary and the other Federal. The two essential characteristics of
a Unitary Constitution are:
(1) the supremacy of the Central Polity and
(2) the absenceof subsidiary Sovereign polities.
Contrariwise, a FederalConstitution is marked:
(1) by the existence of a Centralpolity and subsidiary polities side by side, and
(2) by eachbeing sovereign in the field assigned to it.
In other words.Federation means the establishment of a Dual Polity.
The Draft Constitution is, Federal Constitution inasmuch as it establishes what may be called a Dual Polity. This DualPolity under the proposed Constitution will consist of theUnion at the Centre and the States at the periphery eachendowed with sovereign powers to be exercised in the fieldassigned to them respectively by the Constitution. This dualpolity resembles the American Constitution. The American polity is also a dual polity, one of it is known as theFederal Government and the other States which correspond respectively to the Union Government and the StatesGovernment of the Draft Constitution. Under the American Constitution the Federal Government is not a mere league of the States nor are the States administrative units oragencies of the Federal Government.
In the same way the Indian Constitution proposed in the Draft Constitution is not a league of States nor are the States administrativeunits or agencies of the Union Government. Here, however,the similarities between the Indian and the American Constitution come to an end. The differences that distinguish them are more fundamental and glaring than the similarities between the two.
Ambedkar explaining how “Flexible Federalism” is distinct from American Federalism
The points of difference between the American Federation and the Indian Federation are mainly two. In the U.S.A. this dual polity is followed by a dual citizenship.In the U.S.A. there is a citizenship of the U.S.A. But thereis also a citizenship of the State. No doubt the rigours ofthis double citizenship are much assuaged by the fourteenthamendment to the Constitution of the United States whichprohibits the States from taking away the rights, privilegesand immunities of the citizen of the United States. At thesame time, as pointed out by Mr. William Anderson, incertain political matters, including the right to vote andto hold public office, States may and do discriminate infavour of their own citizens. This favoritism goes evenfarther in many cases. Thus to obtain employment in theservice of a State or local Government one is in most places required to the be a local resident or citizen. Similarly inthe licensing of persons for the practice of such public professions as law and medicine, residence or citizenship inthe State is frequently required; and in business wherepublic regulation must necessarily bestrict, as in the sale of liquor, and of stocks and bonds,similar requirements have been upheld.
Each State has also certain rights in its own domainthat it holds for the special advantage of its own citizens.Thus wild game and fish in a sense belong to the State. It is customary for the States to charge higher hunting andfishing license fees to non-residents than to its owncitizens. The States also charge non-residents highertuition in State Colleges and Universities, and permit onlyresidents to be admitted to their hospitals and asylums except in emergencies.
In short, there are a number of rights that a State cangrant to its own citizens or residents that it may and does legally deny to non-residents, or grant to non-residentsonly on more difficult terms than those imposed onresidents. These advantages, given to the citizen in his ownState, constitute the special rights of State citizenship.Taken all together, they amount to a considerable differencein rights between citizens and non-citizens of the State.The transient and the temporary sojourner is everywhereunder some special handicaps.
The proposed Indian Constitution is a dual polity witha single citizenship. There is only one citizenship for the whole of India. It is Indian citizenship. There is no Statecitizenship. Every Indian has the same rights of citizenship, no matter in what State he resides.
The dual polity of the proposed Indian Constitution differs from the dual polity of the U.S.A. in another respect. In the U.S.A. the Constitutions of the Federal andthe States Governments are loosely connected. In describing the relationship between the Federal and State Government inthe U.S.A., Bryce has said:
“The Central or national Government and the StateGovernments may be compared to a large building and a set of smaller buildings standing on the same ground, yet distinctfrom each other.”
Distinct they are, but how distinct are the StateGovernments in the U.S.A. from the Federal Government? Somei dea of this distinctness may be obtained from the following facts:
1. Subject to the maintenance of the republican form ofGovernment, each State in America is free to make its own Constitution.
2. The people of a State retain for ever in theirhands, altogether independent of the National Government,the power of altering their Constitution.
To put it again in the words of Bryce:
“A State (in America) exists as a commonwealth byvirtue of its own Constitution, and all State Authorities,legislative, executive and judicial are the creatures of,and subject to the Constitution.”
This is not true of the proposed Indian Constitution. NoStates (at any rate those in Part I) have a right to frame its own Constitution. The Constitution of the Union and of the States is a single frame from which neither can get outand within which they must work.
Ambedkar explaining the most distinctive feature of Flexible Federalism
So far I have drawn attention to the difference between the American Federation and the proposed Indian Federation. But there are some other special features of the proposed Indian Federation which mark it off not only from the American Federation but from all other Federations. All federal systems including the American are placed in a tightmould of federalism. No matter what the circumstances, itcannot change its form and shape. It can never be unitary.On the other hand the Draft Constitution can be both unitaryas well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as afederal system. But in times of warit is so designed as to make it work as though it was aunitary system. Once the President issues a Proclamationwhich he is authorised to do under the Provisions of Article275, the whole scene can become transformed and the Statebecomes a unitary state.
The Union under the Proclamation can claim if it wants
(1) the power to legislate upon anysubject even though it may be in the State list,
(2) thepower to give directions to the States as to how they shouldexercise their executive authority in matters which arewithin their charge,
(3) the power to vest authority for anypurpose in any officer, and
(4) the power to suspend the financial provisions of the Constitution.
Such a power of converting itself into a unitary State no federation possesses. This is one point of difference between the Federation proposed in the Draft Constitution, and all other Federations we know of.
Ambedkar explaining the elasticity in the design of “Flexible Federalism”
This is not the only difference between the proposedIndian Federation and other federations. Federalism is described as a weak if not an effete form of Government.There are two weaknesses from which Federation is alleged to suffer. One is rigidity and the other is legalism. That these faults are inherent in Federalism, there can be no dispute. A Federal Constitution cannot but be a written Constitution and a written Constitution must necessarily bea rigid Constitution.
A Federal Constitution means division of Sovereignty by no less a sanction than that of the law of the Constitution between the Federal Government and the States, with two necessary consequences
(1) that any invasion by the Federal Government in the field assigned tothe States and vice versa is a breach of the Constitution and
(2) such breach is a justiciable matter to be determinedby the Judiciary only. This being the nature of federalism,a federal Constitution have been found in a pronounced formin the Constitution of the United States of America.
Countries which have adopted Federalism at a later datehave attempted to reduce the disadvantages
following from the rigidity and legalism which are inherent therein. The example of Australia may well be referred to in this matter.The Australian Constitution has adopted the following meansto make its federation less rigid:
(1) By conferring upon the Parliament of the Commonwealth large powers of concurrent Legislation and few powers of exclusive Legislation.
(2) By making some of the Articles of the Constitution of a temporary duration to remain in force only “until Parliament otherwise provides.”
It is obvious that under the Australian Constitution,the Australian Parliament can do many things, which are not within the competence of the American Congress and for doing which the American Government will have to resort to the Supreme Court and depend upon its ability, ingenuity andwillingness to invent a doctrine to justify it the exerciseof authority.
In assuaging the rigour of rigidity and legalism theDraft Constitution follows the Australian plan on a far more extensive scale than has been done in Australia. Like the Australian Constitution, it has a long list of subjects for concurrent powers of legislation. Under the Australian Constitution, concurrent subjects are 39. Under the Draft Constitution they are 37. Following the Australian Constitution there are as many as six Articles in the Draft Constitution, where the provisions are of a temporary duration and which could be replaced by Parliament at anytime by provisions suitable for the occasion. T
he biggest advance made by the Draft Constitution over the Australian Constitution is in the matter of exclusive powers of legislation vested inParliament. While the exclusive authority of the Australian Parliament to legislate extends only to about 3 matters, the authority of the Indian Parliament as proposed in the Draft Constitution will extend to 91 matters.
In this way the Draft Constitution has secured the greatest possible elasticity in its federalism which is supposed to be rigid by nature.
Ambedkar explaining how exceptions built into the original design of “Flexible Federalism” were meant only for extraordinary National Issues
It is not enough to say that the Draft Constitution follows the Australian Constitution or follows it on a more extensive scale. What is to be noted is that it has addednew ways of overcoming the rigidity and legalism inherent in federalism which are special to it and which are not to be found elsewhere.
First is the power given to Parliament to legislate onexclusively provincial subjects in normal times. I refer to Articles 226, 227 and 229. Under Article 226 Parliament can legislate when a subject becomes a matter of national concern as distinguished from purely Provincial concern,though the subject is in the State list, provided a resolution is passed by the Upper Chamber by 2/3rd majority in favour of such exercise of the power by the Centre. Article 227 gives the similar power to Parliament in a national emergency. Under Article 229 Parliament canexercise the same power if Provinces consent to suchexercise. Though the last provision also exists in theAustralian Constitution the first two are a special featureof the Draft Constitution.
The second means adopted to avoid rigidity and legalismis the provision for facility with which the Constitution could be amended. The provisions of the Constitution relating to the amendment of the Constitution divide theArticles of the Constitution into two groups. In the one group are placed Articles relating to
(a) the distributionof legislative powers between the Centre and the States,
(b)the representation of the States in Parliament, and
(c) thepowers of the Courts. All other Articles are placed in another group.
Articles placed in the second group cover avery large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of notless than two thirds of the members of each House presentand voting and by a majority of the total membership of eachHouse. The amendment of these Articles does not requireratification by the States.
It is only in those Articleswhich are placed in group one that an additional safeguardof ratification by the States is introduced.
One can therefore safely say that the Indian Federation will not suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible federation.
Ambedkar explaining the basis for the Central List and why Uniform Laws were meant to encourage movement and trade across States
There is another special feature of the proposed IndianFederation which distinguishes it from other federations.
A Federation being a dual polity based on divided authoritywith separate legislative, executive and judicial powers foreach of the two polities is bound to produce diversity inlaws, in administration and in judicial protection.
Upto a certain point this diversity does not matter. It may be welcomed as being an attempt to accommodate the powers of Government to local needs and local circumstances.
But this very diversity when it goes beyond a certain point is capable of producing chaos and has produced chaos in many federal States.
One has only to imagine twenty different laws-if we have twenty States in the Union-of marriage, of divorce, of inheritance of property, family relations,contracts, torts, crimes, weights and measures, of bills andcheques, banking and commerce, of procedures for obtainingjustice and in the standards and methods of administration.
Such a state of affairs not only weakens the State but becomes intolerant to the citizen who moves from State to State only to find that what is lawful in one State is not lawful in another.
The Draft Constitution has sought to forge means and methods whereby India will have Federation and at the same time will have uniformity in all basic matters which are essential to maintain the unity of the country.
The means adopted by the Draft Constitution are three
(1) a single judiciary,
(2) uniformity-in fundamental laws, civil and criminal, and
(3) a common All-India Civil Service to man important posts.
A dual judiciary, a duality of legal codes and a duality of civil services, as I said, are the logical consequences of a dual polity which is inherent in a federation.
In the U. S. A. the Federal Judiciary and theState Judiciary are separate and independent of each other.The Indian Federation though a Dual Polity has no Dual Judiciary at all. The High Courts and the Supreme Court form one single integrated Judiciary having jurisdiction andproviding remedies in all cases arising under the constitutional law, the civil law or the criminal law. Thisis done to eliminate all diversity in all remedial procedure. Canada is the only country which furnishes aclose parallel. The Australian system is only an approximation.
Care is taken to eliminate all diversity from laws which are at the basis of civic and corporate life. The great Codes of Civil & Criminal Laws, such as the CivilProcedure Code, Penal Code, the Criminal Procedure Code, the Evidence Act, Transfer of Property Act, Laws of MarriageDivorce, and Inheritance, are either placed in the Concurrent List so that the necessary uniformity can alwaysbe preserved without impairing the federal system.
Ambedkar explaining why a Central Civil Service was meant only for Strategic Roles
The dual polity which is inherent in a federal systemas I said is followed in all federations by a dual service.
In all Federations there is a Federal Civil Service and a State Civil Service. The Indian Federation though a Dual Polity will have a Dual Service but with one exception. It is recognized that in every country there are certain posts in its administrative set up which might be called strategic from the point of view of maintaining the standard of administration. It may not be easy to spot such posts in a large and complicated machinery of administration. But there can be no doubt that the standard of administration depends upon the calibre of the Civil Servants who are appointed tothese strategic posts. Fortunately for us we have inherited from the past system of administration which is common to the whole of the country and we know what are these strategic posts. The Constitution provides that without depriving the States of their right to form their own Civil Services there shall be an All India service recruited on anAll India basis with common qualifications, with uniform scale of pay and the members of which alone could be appointed to these strategic posts throughout the Union.
Such are the special features of the proposed Federation.
Ambedkar responding to criticism of the Draft Constitution as a Copy Paste job
I will now turn to what the critics have had tosay about it.
It is said that there is nothing new in the Draft Constitution, that about half of it has been copied from the Government of India Act of 1935 and that the rest of it hasbeen borrowed from the Constitutions of other countries.Very little of it can claim originality.
One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when thefirst written Constitution was drafted. It has been followedby many countries reducing their Constitutions to writing.What the scope of a Constitution should be has long beensettled. Similarly what are the fundamentals of a Constitution are recognized all over the world. Given thesefacts, all Constitutions in their main provisions must looksimilar. The only new things, if there can be any, in aConstitution framed so late in the day are the variationsmade to remove the faults and to accommodate it to the needsof the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution. I have shown what is new in the Draft Constitution and I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee inperforming its duty has not been guilty of such blind and slavish imitation as it is represented to be.
As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government ofIndia Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobodyholds any patent rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisionstaken from the Government of India Act, 1935, relate mostlyto the details of administration. I agree thatadministrative details should have no place in the Constitution. I wish very much that the Drafting Committeecould see its way to avoid their inclusion in the Constitution. But this is to be said on the necessity whichjustifies their inclusion.
Ambedkar explaining Constitutional Morality
Grote, the historian of Greece,has said that:
“The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendency for themselves.”
By constitutional morality Grote meant “a paramount reverence for the forms of the Constitution, enforcingobedience to authority acting under and within these formsyet combined with the habit of open speech, of actionsubject only to definite legal control, and unrestrainedcensure of those very authorities as to all their publicacts combined too with a perfect confidence in the bosom ofevery citizen amidst the bitterness of party contest thatthe forms of the Constitution will not be less sacred in theeyes of his opponents than in his own.” (Hear, hear.)
While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately,generally recognized.
One is that the form of administrationhas a close connection with the form of the Constitution.The form of the administration must be appropriate to and inthe same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution,without changing its form by merely changing the form of theadministration and to make it inconsistent and opposed tothe spirit of the Constitution. It follows that it is onlywhere people are saturated with Constitutional morality suchas the one described by Grote the historian that one cantake the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.
The question is, can we presume such a diffusion of Constitutional morality?
Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on anIndian soil, which is essentially undemocratic.
In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.
Ambedkar explaining the need for a Republic over a federation of village states
Another criticism against the Draft Constitution is that no part of it represents the ancient polity of India.It is said that the new Constitution should have beendrafted on the ancient Hindu model of a State and thatinstead of incorporating Western theories the newConstitution should have been raised and built upon villagePanchayats and District Panchayats. There are otherswho have taken a more extreme view. They do not want anyCentral or Provincial Governments. They just want India tocontain so many village Governments. The love of theintellectual Indians for the village community is of course infinite if not pathetic (laughter). It is largely due tothe fulsome praise bestowed upon it by Metcalfe whodescribed them as little republics having nearly everythingthat they want within themselves, and almost independent of any foreign relations. The existence of these village communities each one forming a separate little State initself has according to Metcalfe contributed more than anyother cause to the preservation of the people of India,through all the revolutions and changes which they havesuffered, and is in a high degree conducive to theirhappiness and to the enjoyment of a great portion of thefreedom and independence. No doubt the village communitieshave lasted where nothing else lasts.
But those who takepride in the village communities do not care to considerwhat little part they have played in the affairs and thedestiny of the country; and why? Their part in the destinyof the country has been well described by Metcalfe himselfwho says:
“Dynasty after dynasty tumbles down. Revolutionsucceeds to revolution. Hindoo, Pathan, Mogul, Maharatha,Sikh, English are all masters in turn but the villagecommunities remain the same. In times of trouble they armand fortify themselves. A hostile army passes through thecountry. The village communities collect their little cattlewithin their walls, and let the enemy pass unprovoked.”
Such is the part the village communities have played inthe history of their country. Knowing this, what pride canone feel in them? That they have survived through allvicissitudes may be a fact. But mere survival has no value.The question is on what plane they have survived. Surely ona low, on a selfish level. I hold that these villagerepublics have been the ruination of India. I am thereforesurprised that those who condemn Provincialism andcommunalism should come forward as champions of the village.What is the village but a sink of localism, a den ofignorance, narrow-mindedness and communalism? I am glad thatthe Draft Constitution has discarded the village and adoptedthe individual as its unit.
Ambedkar spelling out his vision for why the Minority-Majority dichotomy must eventually cease to exist
The Draft Constitution is also criticised because of the safeguards it provides for minorities. In this, theDrafting Committee has no responsibility. It follows thedecisions of the Constituent Assembly. Speaking for myself,I have no doubt that the Constituent Assembly has donewisely in providing such safeguards for minorities as it hasdone. In this country both the minorities and the majoritieshave followed a wrong path. It is wrong for the majority todeny the existence of minorities. It is equally wrong forthe minorities to perpetuate themselves.
A solution must befound which will serve a double purpose. It must recognizethe existence of the minorities to start with. It must alsobe such that it will enable majorities and minorities tomerge someday into one. The solution proposed by the Constituent Assembly is to be welcomed because it is asolution which serves this twofold purpose.
To diehards whohave developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, canblow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The otheris that the minorities in India have agreed to place their existence in the hands of the majority. In the history ofnegotiations for preventing the partition of Ireland,Redmond said to Carson “ask for any safeguard you like forthe Protestant minority but let us have a United Ireland.”Carson’s reply was “Damn your safeguards, we don’t want to be ruled by you.” No minority in India has taken this stand.They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority.It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities willcontinue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.
Ambedkar explaining Fundamental Rights and Limits to Free Speech
The most criticized part of the Draft Constitution isthat which relates to Fundamental Rights. It is said thatArticle 13 which defines fundamental rights is riddled with so many exceptions that the exceptions have eaten up therights altogether. It is condemned as a kind of deception.In the opinion of the critics fundamental rights are notfundamental rights unless they are also absolute rights. Thecritics rely on the Constitution of the United States and tothe Bill of Rights embodied in the first ten Amendments tothat Constitution in support of their contention. It is saidthat the fundamental rights in the American Bill of Rightsare real because they are not subjected to limitations or exceptions.
I am sorry to say that the whole of the criticism about fundamental rights is based upon a misconception. In thefirst place, the criticism in so far as it seeks todistinguish fundamental rights from non-fundamental rightsis not sound. It is incorrect to say that fundamental rights are absolute while non-fundamental rights are not absolute.The real distinction between the two is that non-fundamentalrights are created by agreement between parties whilefundamental rights are the gift of the law. Becausefundamental rights are the gift of the State it does notfollow that the State cannot qualify them.
In the second place, it is wrong to say thatfundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. Thatthe fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one canrefer to at least one judgment of the United States SupremeCourt. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on theright of free speech contained in Article 13 of the Draft Constitution. In Gitlow Vs. New York in which the issue was the constitutionality of a New York “criminal anarchy” lawwhich purported to punish utterances calculated to bring about violent change, the Supreme Court said:
“It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured bythe Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose,or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not.
It is argued that if any fundamental rights require qualification, it is for the Constitution itself to qualifythem as is done in the Constitution of the United States and where it does not do so it should be left to be determinedby the Judiciary upon a consideration of all the relevant considerations. All this, I am sorry to say, is a complete misrepresentation if not a misunderstanding of the American Constitution. The American Constitution does nothing of the kind. Except in one matter, namely, the right of assembly,the American Constitution does not itself impose any limitations upon the fundamental rights guaranteed to the American citizens.
Nor is it correct to say that the American Constitution leaves it to the judiciary to imposelimitations on fundamental rights. The right to imposelimitations belongs to the Congress. The real position isdifferent from what is assumed by the critics. In America,the fundamental rights as enacted by the Constitution wereno doubt absolute. Congress, however, soon found that it wasabsolutely essential to qualify these fundamental rights by limitations. When the question arose as to the constitutionality of these limitations before the Supreme Court, it was contended that the Constitution gave no powerto the United States Congress to impose such limitation, theSupreme Court invented the doctrine of police power andrefuted the advocates of absolute fundamental rights by the argument that every state has inherent in it police power which is not required to beconferred on it expressly by the Constitution. To use the language of the Supreme Court in the case I have alreadyreferred to, it said:
“That a State in exercise of its police power maypunish those who abuse this freedom by utterances inimicalto the public welfare, tending to corrupt public morals,incite to crime or disturb the public peace, is not open toquestion. . . . . “
(What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights. There is really no difference in the result. What one does directly the other does indirectly. Inboth cases, the fundamental rights are not absolute.)
Ambedkar explaining the rationale for Directive Principles
In the Draft Constitution the Fundamental Rights are followed by what are called “Directive Principles”. It is anovel feature in a Constitution framed for ParliamentaryDemocracy. The only other constitution framed forParliamentary Democracy which embodies such principles isthat of the Irish Free State. These Directive Principles have also come up for criticism. It is said that they areonly pious declarations. They have no binding force. Thiscriticism is of course superfluous. The Constitution itselfsays so in so many words.
If it is said that the Directive Principle have nolegal force behind them, I am prepared to admit it. But I am not prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law.
The Directive Principles are like the Instrument of Instructions which were issued to the Governor-General andto the Governors of the Colonies and to those of India bythe British Government under the 1935 Act. Under the Draft Constitution it is proposed to issue such instruments to thePresident and to the Governors. The texts of theseInstruments of Instructions will be found in Schedule IV of the Constitution. What are called Directive Principles is merely another name for Instrument of Instructions. The onlydifference is that they are instructions to the Legislatureand the Executive.
Such a thing is to my mind to bewelcomed. Wherever there is a grant of power in generalterms for peace, order and good government, it is necessarythat it should be accompanied by instructions regulating its exercise.
The inclusion of such instructions in a Constitutionsuch as is proposed in the Draft becomes justifiable for another reason. The Draft Constitution as framed onlyprovides a machinery for the government of the country. It is not a contrivance to install any particular party inpower as has been done in some countries.
Who should be in power is left to be determined by the people, as it must be,if the system is to satisfy the tests of democracy. But whoever captures power will not be free to do what he likeswith it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainlyhave to answer for them before the electorate at election time. What great value these directive principles possess will be realized better when the forces of right contrive tocapture power.
That it has no binding force is no argument against their inclusion in the Constitution. There may be a difference of opinion as to the exact place they should be given in the Constitution. I agree that it is somewhat odd that provisions which do not carry positive obligations should be placed in the midst of provisions which do carrypositive obligations. In my judgement their proper place isin Schedules III A & IV which contain Instrument ofInstructions tothe President and the Governors. For, as I have said, theyare really Instruments of Instructions to the Executive and the Legislatures as to how they should exercise theirpowers. But that is only a matter of arrangement.
Ambedkar explaining the concentration of power in the Center as opposed to states
Some critics have said that the Centre is too strong.Others have said that it must be made stronger. The Draft Constitution has struck a balance. However much you may denypowers to the Centre, it is difficult to prevent the Centre from becoming strong. Conditions in modern world are suchthat centralization of powers is inevitable.
One has onlyto consider the growth of the Federal Government in the U.S.A. which, notwithstanding the very limited powers givento it by the Constitution, has out-grown its former self and has overshadowed and eclipsed the State Governments. This is due to modern conditions. The same conditions are sure tooperate on the Government of India and nothing that one cando will help to prevent it from being strong.
On the other hand, we must resist the tendency to make it stronger. It cannot chew more than it can digest. Its strength must becommensurate with its weight. It would be a folly to make it so strong that it may fall by its own weight.
Ambedkar on distinction between provinces and states (no longer relevant)
The Draft Constitution is criticized for having one sort of constitutional relations between the Centre and the Provinces and another sort of constitutional relations between the Centre and the Indian States. The Indian Statesare not bound to accept the whole list of subjects includedin the Union List but only those which come under Defence,Foreign Affairs and Communications. They are not bound toaccept subjects included in the Concurrent List. They are not bound to accept the State List contained in the Draft Constitution. They are free to create their own Constituent Assemblies and to frame their own constitutions. All this,of course, is very unfortunate and, I submit quitein defensible. This disparity may even prove dangerous to theefficiency of the State. So long as the disparity exists,the Centre’s authority over all-India matters may lose itsefficacy. For, power is no power if it cannot be exercisedin all cases and in all places. In a situation such as maybe created by war, such limitations on the exercise of vitalpowers in some areas may bring the whole life of the Statein complete jeopardy. What is worse is that the IndianStates under the Draft Constitution are permitted tomaintain their own armies. I regard this as a mostretrograde and harmful provision which may lead to thebreak-up of the unity of India and the overthrow of theCentral Government. The Drafting Committee, if I am notmisrepresenting its mind, was not at all happy over this matter. They wished very much that there was uniformity between the Provinces and the Indian States in their constitutional relationship with the Centre. Unfortunately,they could do nothing to improve matters. They were bound bythe decisions of the Constituent Assembly, and theConstituent Assembly in its turn was bound by the agreementarrived at between the two negotiating Committees.
But we may take courage from what happened in Germany.The German Empire as founded by Bismark in
1870 was acomposite State, consisting of 25 units. Of these 25 units,22 were monarchical States and 3 were republican cityStates. This distinction, as we all know, disappeared in thecourse of time and Germany became one land with one peopleliving under one Constitution. The process of theamalgamation of the Indian States is going to be muchquicker than it has been in Germany. On the 15th August 1947we had 600 Indian States in existence. Today by theintegration of the Indian States with Indian Provinces ormerger among themselves or by the Centre having taken themas Centrally Administered Areas there have remained some20/30 States as viable States. This is a very rapid processand progress. I appeal to those States that remain to fallin line with the Indian Provinces and to become full unitsof the Indian Union on the same terms as the IndianProvinces. Theywill thereby give the Indian Union the strength it needs.They will save themselves the bother of starting their ownConstituent Assemblies and drafting their own separate Constitution and they will lose nothing that is of value to them. I feel hopeful that my appeal will not go in vain andthat before the Constitution is passed, we will be able to wipe off the differences between the Provinces and theIndian States.
Ambedkar on the description of India as a Union of States and the explicit bar on Secession
Some critics have taken objection to the description ofIndia in Article 1 of the Draft Constitution as a Union of States. It is said that the correct phraseology should be aFederation of States. It is true that South Africa which isa unitary State is described as a Union. But Canada which isa Federation is also called a Union. Thus the description ofIndia as a Union, though its constitution is Federal, doesno violence to usage. But what is important is that the useof the word Union is deliberate. I do not know why the word’Union’ was used in the Canadian Constitution. But I cantell you why the Drafting Committee has used it. TheDrafting Committee wanted to make it clear that though Indiawas to be a federation, the Federation was not the result of an agreement by the States to join in a Federation and thatthe Federation not being the result of an agreement no State has the right to secede from it. The Federation is a Unionbecause it is indestructible. Though the country and thepeople may be divided into different States for convenienceof administration the country is one integral whole, itspeople a single people living under a single imperiumderived from a single source. The Americans had to wage acivil war to establish that the States have no right ofsecession and that their Federation was indestructible. The Drafting Committee thought that it was better to make itclear at the outset rather than to leave it to speculation or to dispute.
Ambedkar on ability to amend the Constitution
The provisions relating to amendment of the Constitution have come in for a virulent attack at the handsof the critics of the Draft Constitution. It is said that the provisions contained in the Draft make amendmentdifficult. It is proposed that the Constitution should beamendable by a simple majority at least for some years. Theargument is subtle and ingenious. It is said that thisConstituent Assembly is not elected on adult suffrage whilethe future Parliament will be elected on adult suffrage andyet the former has been given the right to pass theConstitution by a simple majority while the latter has beendenied the same right. It is paraded as one of theabsurdities of the Draft Constitution. I must repudiate thecharge because it is without foundation. (To know how simpleare the provisions of the Draft Constitution in respect of amending the Constitution one has only to study theprovisions for amendment contained in the American andAustralian Constitutions. Compared to them those containedin the Draft Constitution will be found to be the simplest.The Draft Constitution has eliminated the elaborate anddifficult procedures such as a decision by a convention or areferendum. The Powers of amendment are left with theLegislature Central and Provincial. It is only foramendments of specific matters – and they are only few – that the ratification of the State legislatures is required. Allother Articles of the Constitution are left to be amended byParliament. The only limitation is that it shall be done bya majority of not less than two-thirds of the members ofeach House present and voting and a majority of the totalmembership of each House. It is difficult to conceive asimpler method of amending the Constitution.)
What is said to be the absurdity of the amendingprovisions is founded upon a misconception of the positionof the Constituent Assembly and of the future Parliamentelected under the Constitution. The Constituent Assembly inmaking a Constitution has no partisan motive. Beyondsecuring a good and workable constitution it has no axe togrind. In considering the Articles of the Constitution ithas no eye on getting through a particular measure. Thefuture Parliament if it met as a Constituent Assembly, itsmembers will be acting as partisans seeking to carryamendments to the Constitution to facilitate the passing ofparty measures which they have failed to get throughParliament by reason of someArticle of the Constitution which has acted as an obstaclein their way Parliament will have an axe to grind while theConstituent Assembly has none. That is the differencebetween the Constituent Assembly and the future Parliament.That explains why the Constituent Assembly though elected onlimited franchise can be trusted to pass the Constitution bysimple majority and why the Parliament though elected onadult suffrage cannot be trusted with the same power toamend it.
Ambedkar’s closing remarks
I believe I have dealt with all the adverse criticismsthat have been levelled against the Draft Constitution as settled by the Drafting Committee. I don’t think that I haveleft out any important comment or criticism that has beenmade during the last eight months during which theConstitution has been before the public. It is for theConstituent Assembly to decide whether they will accept theconstitution as settled by the Drafting Committee or whether they shall alter it before passing it.
But this I would like to say. The Constitution has beendiscussed in some of the Provincial Assemblies of India. Itwas discussed in Bombay, C.P., West Bengal, Bihar, Madrasand East Punjab. It is true that in some Provincial Assemblies serious objections were taken to the financialprovisions of the constitution and in Madras to Article 226.But excepting this, in no Provincial Assembly was anyserious objection taken to the Articles of the Constitution.
No Constitution is perfect and the Drafting Committee itselfis suggesting certain amendments to improve the Draft Constitution. But the debates in the Provincial Assembliesgive me courage to say that the Constitution as settled bythe Drafting Committee is good enough to make in thiscountry a start with. I feel that it is workable, it isflexible and it is strong enough to hold the countrytogether both in peace time and in war time.
Indeed, if I may say so, if things go wrong under the new Constitution,the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile.
Sir, I move.