Nani Palkhivala | The Democracies of India and the USA (1974)
(The following piece was published in a 1997 issue of Freedom First, and contains extracts from Nani Palkhivala’s 1974 book ‘Our Constitution — Defaced and Defiled.’ This is the first post in a two-part series.)
The U.S. Constitution has survived for 200 years, without a dent in its basic structure. The human freedoms and the basic framework of the Constitution have never been touched and have never been even attempted to be touched. No political party would survive in the United States if it tried to tinker with the fundamental rights of the people.
Some Basic Features
India and the U.S.A. — one, the most populous and the other the most powerful democracy in the world — have several features in common. To start with, in both the countries, the revolt against colonial rule was the genesis of freedom.
In both the countries, there is dual authority — the authority of the Union and the authority of the States — as part of the basic structure and framework of the Constitution. If this basic structure were ever dismantled, the Constitution would clearly suffer a loss of identity. There is a difference between the extent of jurisdiction reserved for the States in the U.S.A. and that reserved for the States in India, but the difference is one of degree and not of kind.
In both the countries, the Constitution was framed by a few handpicked individuals who were not elected on the basis of adult franchise. As regards the criticism that such a Constituent Assembly had no right to impose a permanent Constitution on the people, Dr. B. R. Ambedkar said:
“Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument. But the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate… It might easily have been worse. Power and knowledge do not go together. Often times, they are dissociated and I am quite frank enough to say that this house, such as it is has probably a greater modicum and quantum of knowledge information than the future Parliament is likely to have.”
Themistocles remarked: “Tuning the lyre and handling the harp are no accomplishments of mine; but I know how to raise a small and obscure city to glory and greatness.” Many of the framers of the United States and Indian Constitutions did not have the cheap talent to catch votes by making glib promises, but they had the great vision to formulate the fundamental law. It was the good fortune of the two countries that men of knowledge, intellect and high integrity framed their Constitutions. The US Constitution has survived for 200 years, without a dent in its basic structure. It has been amended in matters like grant of the vote to women and to Negroes, introduction and abolition of prohibition; but the human freedoms and the basic framework of the Constitution have never been touched and have never been even attempted to be touched. No political party would survive in the United States if it tried to tinker with the fundamental rights of the people.
In both the countries, the Constitution represents charters of power granted by liberty, and not charters of liberty granted by power. Liberty is not the gift of the State to the people; it is the people enjoying liberty as the citizens of a free republic who have granted powers to the legislature and the executive. By contrast, in England, freedom is the result of charters of liberty granted by power. Over the centuries, liberty has been wrested from the kings by charters like the Magna Carta (1215) and the Bill of Rights (1689), apart from the judicial pronouncements by judges of courage and sturdy independence.
The Most significant feature of both the Constitutions is the accent on basic human freedoms. India has its Fundamental Rights; the United States has its Bill of Rights. In the words of Frankfurter, “When we are dealing with the Constitution of the United States, and more particularly, with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice so rooted in the traditions and conscience of our people as to be ranked as fundamental — something without which ‘a fair and enlightened system of justice would be impossible’.”
High Moral Tone
One more point of similarity, and perhaps, the greatest, between the two Constitutions is their high moral tone. The preamble to the Declaration of Independence on 4 July 1776 states: “We hold these Truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness”. This lofty ideal is the enduring foundation of the American Constitution. The same noble note is struck by the preamble to our Constitution;
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THE CONSTITUTION”.
Our Constitution makers were so keen to uphold the nation’s honour and public integrity that they provided for a built-in mechanism by which every debt, however, big or small, owing by the Government would be duly discharged. Any creditor of the Government can file a suit for recovery of a debt, and once a decree is obtained, the amount becomes automatically charged on the Consolidated Fund of India under Article 112 of the Constitution, and Article 113 provides that even Parliament has no right to vote upon it.
A few extracts from the Constituent Assembly Debates would serve to illustrate the great sense of honour which actuated the labours of the outstanding men who framed our Constitution.
Brajeshwar Prasad said in the Constituent Assembly on 10 October 1949:
“A nation that sacrifices vital principles, that does not stand by its pledged word, has no future in politics…
“l do not know what kind of people will be there in the future Parliament of India. In the heat of extremism or at the altar of some radical ideology, they may like to do away with the provisions which we have made in the Articles of the Constitution … Our leaders have made certain commitments. We stand by them … We are sovereign and not the future Parliament. We can fetter the discretion of the Executive, Judiciary or Parliament. It is for this purpose that we are drawing up the Constitution”.
Sardar Vallabhbhai Patel said on the same day, referring to the guarantees which had been given to the covenanted services:
“Have you read history?’ Or is it that you do not care for recent history after you began to make history? If you do that, then I tell you we have a dark future. Learn to stand upon your pledged word. … Can you go behind these things? Have morals no place in the new Parliament? Is that how we are going to begin our new freedom?
“Do not take a lathi and say, ‘Who is to give you a guarantee? We are a Supreme Parliament’. Have you supremacy for this kind of thing? — To go behind your word? — If you do that, that supremacy will go down in a few days”.
Acharya J. B. Kripalani spoke eloquently in the Constituent Assembly on 17 October 1949:
“I want this House to remember that what we have enunciated are not merely legal, constitutional and formal principles, but moral principles; and moral principles have got to be lived in life. They have to be lived, whether it is in private life or it is in public life, whether it is in commercial life, political life or the life of an administrator. They have to be lived throughout. These things we have to remember if our Constitution is to succeed”.
It is difficult to imagine that these noble sentiments were uttered only twenty-five years ago in the same country in which there is such total negation of public morality today. Some politicians refer to the provisions of the Constitution as having become anachronistic with changed times. In fact, it is good faith and the sense of decency and honour.
(You can access the original piece here. Visit indianliberals.in for more works by Indian Liberals dating back to the 19th Century.)
