On 10 April 1948, speaking at Delhi University’s Law College, Ambedkar said, “The difference between ancient society and modern society lies in the fact that in ancient societies law-making was not the function of the people. Law was made by God or by the law giver. The function of society was merely to obey law that was made either by the divine power or the law maker. This was the fundamental reason for ancient societies not having any continuous civilization.”
He further said that, “The true function of law consists in repairing the faults of the society. Unfortunately ancient societies never dared to assume the function of repairing their own defects; consequently they decayed. One of the reasons for the decay of Hindu society is that it was governed by law which had either been made by Manu or Yajnavalkya. Law that has been laid down by these law-makers is divine law. The result was that Hindu society was never able to repair itself.”
In the same speech he added that there is no country in the world which has undergone so many revolutions as this India. “This country has been in a conflict between ecclesiastical law and secular law long before the Europeans sought to challenge the authority of the Pope. Kautilya’s Arthshastra lays down the foundation of secular law. In India unfortunately ecclesiastical law triumphed over secular law.” He said that in his opinion, it was one of the greatest disasters in this country. The unprogressive character of Hindu society was due to the notion that law cannot be changed.
These excerpts from Ambedkar’s speech exemplify his understanding of the law. He believed that the law should be secular, not in the sense of Sarva Dharma Sambhava (treating all religions equally) but in the sense of the state not associating itself with a particular religion. Secularism is the soul of the law, no matter which country. If law is not secular, it belongs to a temple, church or a mosque, not to a state. Ambedkar tried his best to ensure that the Indian Constitution is based on the principle of secularism.
The critics of the Indian Constitution, especially the intelligentsia supporting the Rashtriya Swayamsevak Sangh (RSS), do not consider Ambedkar as the maker of the document. One reason is that they can’t believe that a Dalit could have had the scholarship required to write a nation’s constitution, and the second is that they neither know nor want to know the process by which the Constitution came into being. The making of the Indian Constitution involved taking into consideration a mind-boggling diversity of religions, communities, castes and faiths. Indians belong to different regions, speak different languages and have different cultures. No individual is a repository of knowledge of the diverse faiths, castes, communities and so on, and nor can be. And when politics is also involved, the making of the constitution becomes even more complex. It was in view of these complexities that the Constituent Assembly constituted different committees and subcommittees to deal with different subjects. All these bodies had different heads. Ambedkar headed the drafting committee, which was mandated with drafting provisions in the Constitution on the basis of the reports of the different committees and subcommittees. It was on the basis of these reports that Ambedkar prepared a draft of the Constitution, to which other members and those associated with the drafting committee like B.N. Rau contributed majorly. It was Ambedkar’s responsibility to present the draft before the Constituent Assembly, analyze its articles and build unanimity after considering the amendments proposed and the suggestions made by the different members. Some of the provisions made in the draft were approved, many were changed and amended and others were deleted. This was how the Constitution was made and was passed by the Constituent Assembly. Ambedkar’s contribution to this process can be understood by studying the Constituent Assembly debates, published by the government in multiple volumes.
Ambedkar was a democrat, a socialist and a secularist. But the Constituent Assembly that cleared the Constitution did not have socialists in majority. A majority of the members believed in secularism and political democracy, but some of them were capitalists, communalists and casteists, too. That was why many socialist provisions, mainly the provision for land reforms, could not become a part of the Constitution. That led to Ambedkar admitting that the Constitution was not the constitution of his dreams and if needed, he would be the first person to burn it.
How complex the process of the making of the Constitution was can be gauged by reading the speech which Ambedkar delivered while presenting the draft for the consideration of the Constituent Assembly on 4 November 1948. In this speech, he answered the critics of the draft. He said, “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?” Most of the members, who were impressed with the structure of the American government, wanted a presidential system. However, Ambedkar made it clear that the draft does not propose a presidential system but a parliamentary democratic system. He said that in the proposed parliamentary system, “The President is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation …The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice.” Thus, unlimited powers were not vested in the Indian President. Instead, it was Parliament which was vested with all the powers. That was meant to obviate the possibility of the country slipping into dictatorship. Ambedkar was well aware that the bearers of power in India, as a class, are not democrats but communal and casteist. If a person of such character happened to become President and if the Constitution gave him all the powers to rule the country, he would surely turn into a dictator and become a threat to the nation. That is not to say that a dictator cannot emerge in a parliamentary democracy but a multi-party opposition would act as a counter-balance.
Here it might be mentioned that the Rashtriya Swayamsevak Sangh (RSS) and its affiliate the Bharatiya Janata Party (BJP) do not believe in parliamentary democracy, and one of the reasons why they want to change the Constitution is that they are ardent advocates of a presidential form of government.
Many Hinduvadi members of the Constituent Assembly were critical of the Draft Constitution on the grounds that it didn’t represent the ancient Indian polity. They were of the view that the Indian Constitution should be based on the ancient Hindu model and not on Western principles. Their ancient Hindu model envisaged rule of the village panchayats. Some others didn’t want provincial and central governments but only village governments. They argued that panchayats from village to district levels should rule India. They had a communal and casteist mindset and they could not digest the idea of a democracy based on quality and liberty. Ambedkar made a satirical comment on them in his speech. He said that “The love of the intellectual Indian for the village community is of course infinite if not pathetic.” The fact is that the Dwijs’ love for the village was rooted in their faith in the varna system, which they believed to be the best system in the world. Answering the critics who were insisting on a village panchayat-based system, Ambedkar told the Assembly that only a small section of the rural residents are proud of the villages. This section doesn’t think about the majority population of the villages that it rules. In the villages, the Dwijs are always the rulers and the Shudras are always the ruled. He said, “I am therefore surprised that those who condemn Provincialism and communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism?” He asked whether villages have any place for knowledge and science, for equality, liberty and fraternity. The villages are manufacturers of the caste system. “Thank God” was Ambedkar’s reaction to the Constituent Assembly rejecting the resolution proposing a village-panchayat based government in India.
The Hinduvadis were also critical of the Constitutional provisions for the protection of the minorities. He said, “The Draft Constitution is also criticized because of the safeguards it provides for minorities … It is wrong for the majority to deny the existence of minorities.”
He urged the majority to draw a lesson from the example of Ireland. He said, “In the history of negotiations for preventing the partition of Ireland, Redmond said to Carson, ‘Ask for any safeguard you like for the 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.’”
Ambedkar asked whether India can withstand another partition. He said, “No minority in India has taken this (Carson’s) stand. They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority.” He added, “It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority.”
But the minorities haven’t vanished from India. They are very much there, so are the Dalits. Seventy years is long enough to end social discrimination. But the rule of the majority, in which not only the minorities but also the Dalits reposed their faith, has not ended the discrimination against the minorities or the Dalit castes. On the contrary, over the past 70 years, the majority has only served to sharpen social discrimination between the Hindus and the minorities and the Hindus and the Dalits. That happened because the majority never seriously strove to become democratic. It continues to be communal and casteist. When it did not reform itself, how it could have reformed society. Ambedkar had rightly said that no matter which party enjoys political majority, the social majority is always communal.
That is the reason change in political majority does not make any difference to society. The BJP government that is ruling the country now represents the communal majority of the country and it has been instrumental in manifold increase in violence and hatred against the minorities.
A section of the critics of the Constitution was also opposed to the provision for fundamental rights. In the words of Subhash Kashyap, “Dr Ambedkar had described Part 3, that lists the Fundamental Rights, as the most criticized part of the Constitution. The provision was discussed for 38 days – 11 days by the sub-committee, two days by the consultative committee and 25 days by the Constituent Committee. Part-I on Fundamental Rights includes Articles 13 through 35. They include the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. Fundamental rights were a novelty for the communal and casteist Hindus, especially the Brahmins, who were ardent believers in the varna system, which allocates duties and grants rights to the people on the basis of their varna. The varna system has no place for equality and liberty. But the fundamental rights sought to end the graded equality and bring all the people on a par. The Hindu Law, on the other hand, treated Brahmins as first-class citizens, Thakurs as second class, Vaishyas as third and the rest as fourth-class citizens. The provision for Fundamental Rights in the Constitution inaugurated a new era of equality in the country.
There is little doubt that if the BJP government changes the Constitution, which is its basic agenda, it will do away with many kinds of freedoms and draft a new version of the fundamental rights based on the varna system and in keeping with it being a representative of the communal majority.
Dr Ambedkar, in his speech, also dealt with the criticism made by the communists and the socialists. He said, “The Communist Party wants a Constitution based upon the principle of the Dictatorship of the Proletariat. They condemn the Constitution because it is based upon parliamentary democracy. The Socialists … want the freedom to nationalize or socialize all private property without payment of compensation. The second thing that the Socialists want is that the Fundamental Rights … must be absolute and without any limitations.”
Answering the criticism, he said that the Drafting Committee should not be blamed for it. What he meant was that when the Communists and the Socialists were not in the government, when they did not have a majority in the committees and the subcommittees, then how could the drafting committee be blamed? He said, “I do not say that the principle of parliamentary democracy is the only ideal form of political democracy. I do not say that the principle of no acquisition of private property without compensation is so sacrosanct that there can be no departure from it. I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted. What I do say is that the principles embodied in the Constitution are the views of the … Constituent Assembly.”
In an obvious reference to the Communists and the Socialists he said, “If those who are dissatisfied with the Constitution have only to obtain a two-thirds majority and if they cannot obtain even a two-thirds majority in the parliament elected … their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.”
It is sad that let alone obtaining a two-thirds majority, the communists and the socialists have not even formed a government at the Centre over the past 70 years. Far from it, they are facing an existential crisis. What should, instead, have happened is that these parties should have emerged as a powerful alternative to the right-wing parties. If that could not happen, it was because they were preoccupied with battling capitalism, deluded by the belief that it is capitalism, and not Brahmanism, that ails India.
(Translated from the original Hindi by Amrish Herdenia)
Forward Press also publishes books on Bahujan issues. Forward Press Books sheds light on the widespread problems as well as the finer aspects of Bahujan (Dalit, OBC, Adivasi, Nomadic, Pasmanda) society, culture, literature and politics. Contact us for a list of FP Books’ titles and to order. Mobile: +917827427311, Email: info@forwardmagazine.in)
