From Jan 26, 1950: Biggest liberal experiment in democratic govt

An analysis of the Indian constitution, published in HT on the first Republic Day -- January 26,1950.
From Jan 26, 1950: Biggest liberal experiment in democratic govt
From Jan 26, 1950: Biggest liberal experiment in democratic govt
Updated on Jan 22, 2022 02:43 AM IST
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ByKENNETH C WHEARE

When people in Britain try to understand and appreciate the written Constitutions of other countries, they are always at a disadvantage because they do not live under such a Constitution and have no direct experience of it. Of course Britain has its system of government, Constitutional law, Constitutional usages, customs and conventions, but its people have not attempted to define, describe and codify these rules in a single, comprehensive, agreed document. Yet though the people of Britain have not given themselves a Constitution they have given Constitutions to every other community within the Commonwealth.

By this process of Constitution making the people in the U.K. have come to learn a good deal about the problems involved in contriving a system of government for other members of the Commonwealth. Of no country is this more true than of India. In the long process by which the Government of India Act of 1935 was framed, people in Britain learned much of the difficulties of making a Constitution for India, and anyone who followed the discussions of these years, in which Indians and British alike strove to devise a good government for India, will be slow to criticize the work which the Indian Constituent Assembly has done. It has been a tremendous task and to have produced any Constitution at all which can command so wide a measure of agreement is a great achievement.

PARLIAMENTARY FORM

Perhaps the first point which interests a British student of the Indian J Constitution is the fact that the Constituent Assembly should have chosen the Parliamentary form of executive---the cabinet system as understood in British countries-in preference to the non-Parliamentary or presidential form of executive which prevails in the United States. It was a difficult choice and there was much to be said on both sides, as the members of the Constitutional Assembly realized full well. It is impossible to prophesy how the system will work. So much will depend on factors such as the shape of the party system to come and upon the working of universal suffrage.

India needs a strong and stable executive, but there can be no certainty that the Parliamentary executive will be strong. France provides sufficient evidence of that. Yet on the whole it was the wiser choice---if one may venture an opinion upon so controversial and uncertain a matter.

The presidential executive, if one may generalize from experience in North and South America, is usually too strong or too weak; it seldom strikes the happy meaning. The Cabinet system has usually had a better record in this respect. Undoubtedly British students of government will follow the working of the Cabinet system, both at the Centre and in the States of the Indian Union, with the greatest interest and sympathy. They will feel, perhaps-as is only human-some gratification that the framers of the Indian Constitution should have chosen a form of executive which is distinctive British in its origin and development. These common institutions must surely strengthen the day-to-day working of the Commonwealth; they will help us to understand each other.

Second matters of major interest to a British student are the Constitution provisions which deal with the relations between the Union and the States. Inevitably he looks back to the Act of 1935 and compares its provisions with those now adopted. The Constituent Assembly has thought it wise to adopt, as did the Act of 1935, three legislative lists--Union list, State list and concurrent list.

There were no doubt good reasons for this, but I have always felt disappointed that it was deemed unavoidable. Since it is intended that the residual powers in the Union should rest with the Centre, why is it necessary to do more than enumerate the powers of the States, and the concurrent powers, and then to say that all that is left rests with the Centre? Would not two lists suffice?

The problems of interpreting these three lists, set out in such detail, will surely provide some complicated cases for the Supreme Court. The experience of Canada is a solemn warning against over-enumeration, and the concurrent list in Canada is, in any case, very limited. The Constituent Assembly had to consider a variety of factors in deciding this matter. It is unfortunate, however, that the Assembly could not have adopted a much simpler and shorter method of dividing the powers.

FEDERAL FEATURES

On the whole it seems evident that the Constituent Assembly intends the Union to be more centralized than was proposed by the Act of 1935, although in that case also there were methods of intervention permitted to the Centre in the affairs of the provinces which reminded one more of the Canadian conception of federation than of the United States one. The new Constitution goes further still. It establishes, indeed, a system of government which is at most quasi federal, almost devolutionary in character; a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features.

That, however, is what appears on paper only. It remains to be seen whether in actual practice the federal features entrench or strengthen themselves as they have in Canada, or whether the strong trend towards centralization which is a feature of most Western governments in a world of crises, will compel these federal aspects of the Constitution to wither away. To an outside observer, however, it would seem wise on the part of the Constituent Assembly to have placed the stress on unity, for in the immediate future at any rate India needs not only a strong executive but equally, a sense of unity and direction.

Therefore, the Indian Constitution may not be strictly speaking “federal.” in the sense in which the Constitution of the United States is called “federal.” it does not follow that it is any the worse for that. Federalism is not necessarily good government: it is at the most a device which may secure good government in some cases. The framers of the Indian Constitution may have done well in not following slavishly any existing federal Constitution. They have chosen rather to make use of such elements in federal Constitutions as they thought likely to be of value to them.

LIBERAL CONSTITUTION

Finally, the Indian Constitution is a liberal Constitution. There is something heroic these days in a people declaring publicly that they have established their government in order to secure to all its citizens justice, liberty, equality and fraternity. These words have an old-fashioned, 19th century ring about them, yet they need re-assertion these days. The British student will feel perhaps that the Constitution contains rather too much assertion of abstract rights, for like the Irish Constitution, the Indian Constitution undertakes to guarantee a wide range of rights and privileges to the people.

Difficult to justify to the practical minded British observer, perhaps, is the large section embodying the “Directive Principles of State Policy. “

As these principles cannot be enforced in any court they amount to little more than a manifesto of aims and aspirations. In this matter of declarations of rights and of directives of State policy, the Indian Constituent Assembly has followed the Irish Constitution and European practice rather than the less colourful and more legalistic documents which serve as Constitutions for the other members of the Commonwealth.

One thing is certain. If these declarations of liberal principles, strange as they may seem in a legal document to British eyes, help the Indian Constitution on its way and assist its people in working their government, they are more than justified. This is the biggest liberal experiment in the government of men by themselves that has ever been tried. We will wish it all success.

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Friday, May 27, 2022