Authors: Patrick French
During the months after August 1947, similar scenes of retribution were played out across the north, and an estimated one million people were murdered. In Punjab, in particular, each community killed and was killed, raped and was raped, looted and was looted. Because India was perceived as the natural successor to the Indian empire and retained many of its institutions, Pakistan found itself in a desperate situation, financially insecure and lacking the key structures that were needed in a fledgling nation. In a terrible irony, it became the opposite of a place of safety. Jinnah’s dream of a secular homeland for Muslims—“You may belong to any religion or caste or creed, that has nothing to do with the business of the state,” he had told his people at its foundation—was replaced by a kind of chaos, as they struggled to establish a functioning country.
21
Many hoped the partition would be temporary, and Pakistan and India might reunite; you did not require a passport to travel between the two new nations in those days.
22
In the rush to gain freedom, nobody had worked out what division might entail. Nehru’s niece, Nayantara Sahgal, unwittingly summed up the problem: “As children the idea of Pakistan was a joke—literally a joke. It was so outlandish and absurd to imagine that we would have such a thing happen in India.”
23
Everywhere, there was change, as traditions were uprooted. The character of Delhi altered forever as hundreds of thousands of Muslims fled to Pakistan, to be replaced by an even larger number of homeless Sikh and Hindu Punjabis. Yet despite the chaos, killing, kidnapping, food shortages and refugee camps, discussion was quickly under way in India about a constitutional settlement. Indeed, less than a week after the transfer of power from the British, politicians were busy in New Delhi debating such trivial matters as flag protocol in Hyderabad, and the president of the Constituent Assembly had to remind these leaders—never slow to express an opinion, or a number of opinions, since in India people tend to have more than one answer—of the matter at hand: “May I point out that we have met here today for the purpose of proceeding with the framing of the Constitution.”
24
Just over two years later, a document was agreed which has remained in place to this day, even during a brief hiatus in the 1970s when a state of emergency was declared. Free India was to be a secular, democratic republic, with strong reformist instincts. In the Muslim homeland, the framing of a constitution was postponed after Jinnah’s death only a few months later
and democratic politics were to be offset by decades of military rule; Pakistan’s constitution has been suspended and reworked several times, and is still up for debate.
Earlier, both opponents of independence like Winston Churchill and supporters like Franklin D. Roosevelt had been sceptical of the idea that India would adopt a universal franchise. Could Asiatics rule themselves? Was democracy possible in such a fissiparous and undeveloped place? Remarkably, the new constitution was arrived at after vigorous discussion between rival interest groups: tribal people, communists, Muslim women and Hindu fundamentalists all had their say, and the final document, the longest constitution in the world, was overseen by Dr. Bhimrao Ambedkar, a formidable lawyer who had been born an “untouchable,” a man who came from a community that was still expected to step aside when walking in the road rather than cross the path of someone from a higher caste.
Sovereignty was to be derived from the people, and justice, liberty, equality and fraternity were to be the aspiration of each citizen. Like the United States, modern India was founded on the idea that a few good men (and women, in this case) might come together and dream of a great nation, and enshrine that dream in law.
Stung by suggestions that the new dispensation would be a stitch-up for Congress, Nehru in particular was adamant that all shades of opinion should be heard. Dr. Ambedkar was recruited as law minister, although he had long been a political opponent. Nehru helped to shake up the very social rules that had brought him—the only son of a family of Kashmiri Pandits or Brahmins, who was sent abroad to be educated at the same boarding school as Churchill—to prominence. The constitution was to be about more than politics; it would be about society, on a grand scale.
The makers of the Indian Constitution met for the first time on 9 December 1946 (the very day on which a baby girl called Sonia Maino was born in Italy, handcuffed to history). In the Constituent Assembly in New Delhi bright new lights and electrically heated desks were in place, and leading figures in the soon to be victorious independence movement sat in tiered rows in semi-circles facing the dais. The assembly’s members included historic names such as Nehru, Ambedkar, Patel, C. Rajagopalachari, Shyama Prasad Mookerji, Sarat Chandra Bose, J. B. Kripalani, Nehru’s son-in law Feroze Gandhi, Jagjivan Ram, Maulana Azad and G. B. Pant. The chairman advised delegates to think carefully and to look to “the historic Constitutional
Convention held at Philadelphia by the American constitution-makers, for their country. Having thrown off their allegiance to the British King in Parliament, they met and drew up what has been regarded, and justly so, as the soundest, and most practical and workable republican constitution in existence.”
25
The United States was an important example for Indians, a large and diverse nation which had thrown off the British colonial yoke and invented itself as a new country with a fresh identity.
Over the succeeding months, the Constituent Assembly framed the future shape of the Indian nation, for better or for worse. It would be a parliamentary democracy, rather than an executive presidency, and would use the first-past-the-post electoral system. Many leaders contributed to the discussions: Nehru drew the big picture, Patel did the heavy lifting in committee, Ambedkar thought on his feet. Although their ambitions were in the main liberal, diverse and progressive, nearly all of the delegates came from within the Congress family. Their intellectual influences combined Indian traditions and ideas with European and American principles of creative popular sovereignty. The process was full of questions. What is the ideal way to run a very large country? Should power be held at a local level, giving people the opportunity to make their own decisions about the best way to live? Or was it better to retain control at the centre, to help develop a common national purpose at a time of change and reconstruction? Who organizes elections? How do you select the judiciary? How do you respect the position of minorities without letting them dominate? Of course, there were digressions.
A delegate from Assam in the far north-east said the death penalty should be abolished since it gave glory to the recipient, while a Christian member from Travancore was concerned the assembly should not sit on a Sunday.
A representative from Orissa asked about the problem of nepotism: “We know today the Government of India contains people who are the wife’s brother or sister-in-law’s cousin … The evil tradition is there. It is a very bad tradition.”
26
How would it be prevented, when everyday Indian life was still built around devotion to membership of the extended family (unlike the English, who went nuclear in the thirteenth century)?
A Muslim politician argued strongly that followers of minority religions should “consider themselves and one another as full and equal citizens of a secular state,” because in her opinion the reservation of parliamentary seats for Muslims had encouraged cultural divisions.
27
But the reservation of seats for disadvantaged lower castes and undeveloped indigenous tribes was agreed.
Hansa Mehta, a Hindu lawmaker from Bombay who translated Shakespeare and Molière into Gujarati, believed the tradition across many communities of keeping women in seclusion was “an inhuman custom” which had to be abolished. “As far as the Hindu religion is concerned,” she said, “it does not enjoin purdah. Islam does. But, I feel that Islam will be better rid of this evil. Any evil practised in the name of religion cannot be guaranteed by the Constitution and I hope that our Muslim friends will remember that.”
28
The previous year, Mehta had been responsible for altering the text of Article 1 of the Universal Declaration of Human Rights from “All men are born free and equal …” to “All human beings are born free and equal in dignity and rights.” Her objection was not a matter of feminist semantics; when Eleanor Roosevelt told Mehta that “the word ‘men’ used in this sense was generally accepted to include all human beings,” she rightly pointed out this was not true in much of India, where a newborn girl child might be left unnamed or even left to die.
29
A delegate from Mysore spoke in a language few listeners could comprehend: “My information is that he is speaking in Canarese [Kannada],” said a puzzled speaker. “This is the third occasion when a gentleman has spoken in a language which is not understood by the bulk of the members present here.”
30
The member, T. Channiah, was making a valuable symbolic point: many Indians did not speak Hindustani, the widely used composite of Hindi and Urdu.
31
Another day he suggested—in English—that India’s figurehead president should be chosen alternately from north and south, to avoid dominance by northerners.
32
India’s presidents have been picked from all across the country, but only two out of fourteen prime ministers so far have come from the south, and neither was from the far south.
Although the Constituent Assembly contained political and social revolutionaries, there were also many traditional types who wanted a return to time-honoured values. They believed that religion, as practised in ancient times, offered a pure template for living. For many Hindus, it was essential the slaughter of cows be banned. Others wanted the creation of village republics, as Mohandas Gandhi had demanded. The
Gandhian Constitution for Free India
, drafted in 1946 by his disciple S. N. Agarwal, proposed the primary political unit would be the panchayat, or village council, which should control interest rates, the collection of land revenue and cooperative farming, with assistance from patwaris (keepers of land records, who had a reputation for taking bribes). Chowkidars, or village watchmen, would guard the polity, armed with sticks. Political parties would disappear or be abolished, and a strong central government would not be needed, only an
“All-India Panchayat” supervising customs, defence, the currency and economic development plans. India would be a radically decentralized rural society. Whether an army of Gandhian chowkidars would have been sufficient to check the invasion of Kashmir in October 1947 by Pathan fighters from Pakistan remains open to question.
33
Ambedkar for one was determined that the village, which he regarded as “a den of ignorance”—not surprisingly, given the humiliations he had experienced as an untouchable—should never be empowered in this way. Drawing on other countries’ constitutions and borrowing heavily from the surprisingly progressive terms of the Government of India Act of 1935, he fashioned what he called “a flexible federation.” There would be a single integrated judiciary, which would be distinct from the executive. “Subject to the maintenance of the republican form of government,” he said tellingly, “each state in the U.S.A. is free to make its own constitution, whereas the constitution of the Indian union and of the states is a single frame from which neither can get out and within which they must work.”
34
The list of new rights was substantial. The Indian citizen could not be turned away from a shop, hotel, public well, bathing ghat or water tank on the grounds of sex, race, caste, place of birth or religion. At the stroke of a pen, untouchability was abolished and its practice in any form was forbidden. Every citizen had the right to freedom of speech and expression, the right to assemble peaceably and form associations, and the right to move freely within the territory of India. No accused person could be compelled to be a witness against him- or herself. Minority groups with a distinct script or language (there were several hundred) were permitted to use them freely. No religious instruction was to be provided by state educational institutions. The sort of tribalism that beset many new nations after freedom from colonial rule was specifically refuted in this document. It did not escape the makers of the Constitution that other countries, such as Turkey, were seeking to promote unity by preventing minorities from using separate languages; or indeed that the former colonial power had an established religion and no written constitution. The range of options available to the creators of the Indian Constitution was enormous, and there was nothing inevitable about the framing of the final result. Much of the world was still colonized by the European powers: the Indians were the pioneers, with few political models to go by, seeking to achieve something luminous and unprecedented.
The solution to the clash between traditionalists and progressives was to turn contentious subjects into Directive Principles of State Policy—meaning
they were aspirations rather than laws. In this way, matters like the promotion of cottage industries or “prohibiting the slaughter of cows and calves” became directive principles of the Constitution. Crucially, and unwisely, a common religious or personal law for all citizens was not agreed. Instead, India retained the separate “civil codes” that had been created by the British after the mutiny or rebellion of 1857 to keep minority communities tame. This meant Muslims in particular were able to maintain antiquated laws on matters such as polygamy and inheritance. Changing this system (“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”) became an aspiration that could be deferred indefinitely.
35
They got around the problem of “India” being originally a name given to the subcontinent by Persian outsiders by beginning the Constitution with the phrase: “India, that is Bharat, shall be a Union of States.” After that, there were no further references to the subject except in the index: “BHARAT–
See
INDIA.” It was a clever move: it had been presumed before 1947 that the new leaders would pick the less inclusive “Hindustan.”