Author: Raj Dave Gujarat Law Society, Ahmedabad
India, which is a sovereign, socialist, secular, democratic, republic is the only nation with the longest written constitution in the world. The formation of the rule book of the country had begun immediately after independence. A committee consisting of 296 members drafted the Indian Constitution in a span of 11 months and 18 days, specifically 166 hours of dedication to mold the nation in a free democracy by gifting it the ultimate rule book. As we all know that the constitution is borrowed from the constitutions of various countries worldwide and thus the constituent assembly which was headed by Dr B. R. Ambedkar. It is a fact that the lengthiest constitution which consists of 395 articles in 22 parts and 8 schedules is formed just in this time.
Isn’t it shocking?? The fact is that the Constitution of India is a mere fabrication of existing laws of other nations and it was never an invention. When we question the value of any part of the Rulebook, it is clearly visible that because of the compilation of different ideas and principles there are basic lacuna and discrepancies within the structural formulation. To explore the greater aspects of such a representation we need to look at the principles which are borrowed from various sources. These are :
Starting with the Government of India Act of 1935: This act was formed by the British government during the colonization for the purpose of ruling the nation according to their command from the British. We have borrowed several principles like- The Federal Scheme, Emergency Provisions, Public Service Commissions, Office of Governor, Judiciary, Administrative Details. These are the provisions that are copied from this act during the formation of the Constitution.
We then chose to take principles like Parliamentary form of Government, Idea of single citizenship, The principle of Rule of law, and Writs etc. from the United Kingdom Constitution, it is noteworthy that we took the liberty of just taking the idea of the nation and putting it in our book which has a major impact on the nation.
The United States of America is a nation that is way more developed than ours and their government is having direct command over its economic growth. When we say ‘PREAMBLE’ we get a picture of our Preamble but we forget that the idea of having the preamble at the beginning of the Rulebook is a mere fabrication of existing USA principle. Even the Fundamental Rights that we enjoy are not formed by our assembly but we are following the standards of a nation we compete with. Electoral College, Independence of the judiciary and separation of powers, Judicial review, President as Supreme Commander of Armed Forces, Equal protection of law etc are some other laws taken from them.
Ireland is a small country that gave us the basis of voluntary cooperation between the centre and state i.e Directive Principles of State Policy and also an important role in the Parliamentary process like-Nomination of members to Rajya Sabha, Method of President’s election.
Canada and France are the two nations that gave India a quasi-federal form of government and the latter gave the idea Republic nation and the ideals of Liberty, Equality and Fraternity in the Preamble and ironically these principles have been of prime importance for us otherwise we would not have had the privileges that we have today.
The committee made visible changes in the grammar of the law copied but failed to provide a clear understanding of what is the idea of borrowing it from them. We took the provisions of emergency from Germany and the fundamental duties are a result of the USSR and Russian Constitution. Similarly, we have taken other ideas from Australia, Japan and South Africa as well. In my opinion, taking some ideas from an established law is not a virtual crime but an ethical mistake of prejudice that the principles that we borrow are the only concerned and prospectives for the nation. It is believing that what other nations are doing is correct and we need to consider and follow them, whereas the ideology behind the formation of the Constitution was to gift ourselves with the foremost power in the world and giving ideas to other nations.
Do you think that this is an invention or mere plagiarism of principles?
I firmly believe that this is a plagiarism of ideas and not the whole constitution of these nations. The reason for this is during that time Drafting committee was given a draft of Government of India Act of 1935 for the consideration of existing law and so the Constitution of India in 1950 was a by-product of the legacy started by the Government of India Act 1935, which was the longest act passed by the British government with 321 sections and 10 schedules. This act had drawn its content from four sources – Report of the Simon Commission, discussions and deliberations at the Third Round Table Conference, the White Paper of 1933 and the reports of the Joint select committees. As we all are aware of the rebellion against the Simon commission by the freedom fighters, the struggle hyped and surprising is the fact that the Third round table conference took place made with the recommendation of the Simon commission. Therefore it is clear that the formation of the Act of 1935, was not backed by a good motive and this act resulted in discrepancies with the Constitution of India. I agree to the fact that the rule book is not vague documentation but its inception was in itself a copy of existing principles which were just grammatically twisted and moulded into achieving the longest document across the world.
Is this Constitution worthy or prevails an Unsuccessful story of drafting?
Only after 3 years of the adoption of the Constitution, it’s chief architect, Dr B. R. Ambedkar publicly disowned in the Parliament. It was quite astonishing that the rule maker himself blurted out that,
“Sir, my friends tell me that I made the Constitution. But I am quite prepared to say that I will be the first person to burn it out. I do not want it, it does not suit anybody.”
This statement and the reason that he gave for such a big outburst proves that there were numerous problems with the drafting of the Constitution and he was aware of the fundamental problem of application of the Rulebook in a democratic country like India. And I think that his statement was a guiding force for us but we failed to serve the purpose of forming a constitution which did not have to be such as this document which is a rigid constitution but ironically amended 104 times after its adoption, just within 73 years of Independence.
The understanding of the statements by Mr Sachchidananda Sinha (Indian lawyer, parliamentarian, and journalist), Jawaharlal Nehru (the then Prime Minister of India), Sardar Vallabhbhai Patel (Indian Politician and freedom fighter), Sarojini Naidu (Indian activist and philanthropist), Rajkumari Amrit Kaur (Indian activist and Politician ) and many more eminent members of the constituent assembly derives that the imagination behind an independent nation and the intentions our freedom fighters who fought for the independence will not be fulfilled by this constitution”. Thus the Indian constitution was not the drafting of original ideas but mere fabrication of existing principles.