A Right of Center Retrospective on the Constituent Assembly Debates
So how exactly did we end up a Parliamentary Democracy. The Constituent Assembly Debates make for some very interesting reading on this subject. The present day heated debate surrounding the Presidential election between UPA-Left Pratibha Patil and the independent but NDA BJP supported Bhairon Singh Shekhawat is an opportune occasion to revisit the Presidential versus Parliamentary debate.
It was in July 1947 well into the 4th session of the Constituent Assembly that the founding fathers get to the question of what model of constitution the soon to be born nation would adopt. The debate began with Sardar Vallabhbhai Patel presenting a report on “The Principles of a model Provincial Constitution”. In his remarks Patel for the first time alludes to the preference for a Parliamentary system of government in the provinces or states.
came to the conclusion that it would suit the conditions of this country better to adopt the parliamentary system of constitution, the British type of constitution with which we are familiar
accordingly suggested that this constitution shall be a parliamentary type of. Cabinet
The first objections to this came immediately and surprisingly from Maulana Hasrat Mohani a Muslim member from what was then United Provinces and later on Uttar Pradesh.
I want to tell you, and through you, my nationalist and national-socialist friends, who are present here, that my objection is a vital and far-reaching one. If you lightly pass over this objection, then I am sure you will have to repent this action of yours and regret it some day
Patel was not amused as the debate was on the states and not on the Union. But the Moulana impressively enough said
you do not put up the Provincial Constitution before the Union Constitution is put before the House
At this time Nehru stepped into the debate and offered to table the Union Constitution first for debate. Another muslim member Mohd Tahir came to the Maulana’s support and argued that
unless we know the constitution of the Indian Union, it would not be fair to consider the principles of the provincial constitution
Interestingly enough the original model for the states was to have the Governor directly elected by the people.
For each Province there shall be a Governor to be elected directly by the people on the basis of adult suffrage
Somewhere later on this got diluted and we ended up with the present system of political stooges holed up in Raj Bhavans in the states. Patel made a very important point that
very limited powers are given to the Governor, and yet he has to be elected by a process which is very. cumbersome and therefore the question may naturally arise that if the Governor has got limited, powers, why do we go through the process of election which involves so much difficulty because an election in a province by the process of adult franchise is a very difficult job
Patel provides a compelling reason why the Governor must be directly elected.
it is considered necessary because of the dignity of the office which a popular Governor will hold and naturally a Governor who has been elected by adult franchise of the whole province will exert considerable influence on the popular ministry as well as on the province as a whole. His dignity and status also demands that he should have the unanimous and general support of all the sections of the people in the country
Now isn’t that a slap in the face of Abhishek Singhvi and Prakash Karat who have been ridiculing the idea of a people’s president. The notion of a popular people’s president is not alien to our constitutional fabric, it was something the founding father’s envisioned for the office of the Governor.
Now why this notion was not eventually extended to the President of the Union, we will understand in the subsequent debates.
The first arguments in favor of an American System of executive came once again from a muslim member Mr. Aziz Ahmad Khan.
After mature consideration, I am convinced that the English system of democracy does not suit India.
Some very compelling arguments for a strong executive came from Sri M. Ananthasayanam Ayyangar, Madras.
the Ministry should lee a strong and stable Ministry and that it should not be subject to the whims and fancies of the party or legislature to which it is responsible
Sad we did not listen to him back then.
in India which is so young in democracy, where the sense of responsibility is neither ingrained nor so well developed, we should have a strong and stable Ministry which can initiate long-range policies and be uninfluenced daily by the repercussions in its party
60 years on the democracy continues to be influenced daily by the repercussions in the political parties.
In arguments against a strong executive emerges the dominant sentiment that eventually saw the weak executive model that we have been cursed with for decades now.
We want responsible government. We want our Ministers to be responsible to our legislature.
Surprisingly speaker after speaker from the Muslim League argued in favor of a strong executive modeled on the American and Swiss systems of government. The reasons become obvious when Mahboob Ali Baig Sahib Bahadur joins the debate.
the Swiss Constitution is the most democratic, The Legislature elects its Ministers by a certain method which ensure that all the minorities are represented proportional representation
There on the debate goes downhill on Minority Rights, Separate electorates and proportional representation. The Constituent Assembly went on to debate the Provincial Constitution for a few more days after which it took up the Union Constitution on 21st July 1947. The Report on the Principles of the Union Constitution was moved by Nehru.
Nehru go on to the core debate at hand quickly.
The very first thing that comes up is how the Head of the Federation should be elected. I understand that there are several view points on that.
we have to decide at the very beginning is what should be the kind of governmental structure
whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of America
So what argument does Nehru give against the Presidential System.
we want to emphasize the ministerial character of the Government that power really resided in the Ministry and in the Legislature and not in the President
if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result
Nehru’s argument runs contrary to Patel’s argument earlier in favor of having Governor’s elected. It came down to this. Having a Governor elected by the state was not as expensive as having the President elected by the country. Since the overwhelming political opinion was to have power resided in the Legislature the costs did not justify a ceremonial election by the people.
Nehru’s reluctance to have countrywide elections comes through further.
there is such a thing as too much of a democratic procedure
we have a wide scale wasting of the time, we might have no time left for doing anything else except preparing for the elections and having elections
I am quite convinced in my mind that if we try to adopt that here (American Presidential Government), we shall prevent the development of any ministerial form of Government and we shall waste tremendous amount of time arid energy
I think that having that type of election for our President would be a bad thing for us
Nehru however ridiculed the present scenario we have in the country.
The Central Legislature may, and probably will be dominated, say, by one party or group which will form the ministry. If that group elects the President, inevitably they will tend to choose a person of their own party. He will then be even more a dummy than otherwise. The President and the ministry will represent exactly the same thing.
How about responding to that Mr. Abhishek Singhvi ?
Some forceful arguments in favor of having the President directly elected by the people came from Prof. Shibbanlal Saxena
The scheme that we have accepted in the provincial constitution in regard to the election of Governors, should be adopted in the Union Constitution as well
It is clear from this, that Mr. Patel and this Constituent Assembly recognize what moral strength the Governors, elected on the basis of adult suffrage, will have and what will be its advantage. In the same way, I think, the “Rashtrapati” should also be elected for adult suffrage.
You have Shibbanlal Saxena 60 years ago envisioning a people’s president in the APJ Abdul Kalam mold, little did he know then this debate would be revisited in 2007.
We are hero-worshippers. By having an austere man and a genius as ‘Rashtrapati” our country will make speedy progress. A ‘Rashtrapati’ elected by twelve to thirteen crores of voters will be a genius and will command moral support.
He then goes on to demolish Nehru’s arguments.
to talk of the election of the ‘Rashtrapati on the basis of adult suffrage will be a sheer waste of time. and will create unnecessary confusion. I do’ not agree with this
He also predicts the travesty of the present day arrangement for electing President.
More opposition comes from Muslim League members who argue forcefully in favor of a U.S. style Presidency. Syed Kazi Karimuddin who demolishes Nehru’s arguments on
. it is necessary that, there should be a non-parliamentary executive
the only reason that has been advanced why adult suffrage should not be introduced is that a huge machinery will have to be set up for dealing with the elections and the energies of the nation will be consumed in holding these elections. But that is absolutely no reason
Under the present sub-clause 2 of Clause 1, the President will be a puppet of the majority party
After a few more speakers made ridiculous suggestions like having the President by rotation from North and South and Hindu, Muslim, Nehru rose to reply to the debate.
I am not prepared to believe that adult franchise is absolutely essential.
when the members of the Assembly themselves are being elected by the votes of millions where is the necessity for electing the President by adult franchise?
If you want to elect the President by adult franchise, then this would mean that we will have to waste much of our time in holding (Presidential) elections and we will not be able to act according to our new Constitution.
With that the objections were to put to vote and Nehru rammed through the Constituent Assembly the current indirect way of electing the President.
Offstumped Bottomline: It is becoming increasingly that all the words of warning that rang in the Constituent Assembly on the likely shortcomings of the present Parliamentary Democracy and a Ceremonial Presidency have all come true.
As the Right of Center Movement debates the future political path Offstumped once again furthering the debate in favor of a strong non parliamentary executive elected by universal adult suffrage.
An ancient symbol that comes to mind is the Shveta Chhatra - White Umbrella
a non theocratic symbol of sovereign political authority .
Not Saffron but the Shveta Chhatra should become the symbol of the new Indian Right in the 21st Century.
Filed under: Constituent Assembly, Pratibha Patil, Uncategorized
In fact, Indira Gandhi once played with the idea of having an elected president with full executive powers. Her reasons were of course different. She wanted to sidestep the parliament, impose herself (and later her son) as ‘people’s president’. Something made her change her mind. Iam sure if we had a elected executive with full powers in one man/woman’s hand, Ms Gandhi would have done much larger damage to the fabric of the country.
It ate another rather long comment!!! I forgot a security code was there, just hit the submit comment button after typing the comment. (I just don’t scroll all the way down and the stupid firefox clears everything.)
You have gotto move the security code box above the submit button, Yossarin….
Chandra – there you go
The greater problem initially i believe was the grant of “universal adult franchise” at one stroke! May be that was the greatest problem which we still have’nt overcome!
nicely crafted article
..have always wanted to read subash kashyap’s constituent assembly debates!
Swatantra – Thanks however I Have to disagree with you there on universal adult franchise. I dont believe people are to blame, we give far less credit to the people’s judgement than they deserve. The overwhelming motivation for all power to be vested in the legislature was the fear that the diverse identities that had all been welded together as a nation would go unrepresented. If you read the debates you will realize it was still not one nation, everyone thought of themselves a separate nation – the adivasi nation, the dalit nation and the princely states nations in of themselves. It took us many decades to overcome that and by that time it happened we were left with this weak executive at the mercy of the legislature.
What’s surprising about Prakash Karat’s ignorance or contempt for the Constitutional Assembly debates? He belongs to a party whose leading lights that were stooges and paid informants of the colonial powers, decried the declaration of Indian independence, was an active fifth column for the Chinese and the Soviet Union and today runs the underworld in Kerala and WB. Singhvi belongs to a feudal organisation where loyalty is the only thing that matters. expecting deep thought or reasoned inference from these sorts is futile.
Mugil – Well Abhishek Singhvi is a huge disappoinment, a man of exceptional talents but misapplied to use his own words.
I don’t think any infant democracy @ any point of time in history went for UAF in one step @ the stroke of independence. i agree with you on the note that we may have got disgruntled into many nations if we had not done it, but @ the same time if i am right, it was Rajaji and later SV patel who made the argument in favour of educating masses to appreciate and learn to be a part of such a humongous and large democracy, before empowering them with UAF! I confess i have’nt read the debates myself but i recall reading in an interview of Rajaji in which he eulogises on what would precisely lead us to in 50 years if we afford to commit that mistake! i believe he was a visionary statesman!
If at all you can pardon on the ignorance of illiterate masses, what do we say about intellectual ignorance(?) of our journalists – n.ram, V.mehta, Vir Sanghvi, prannoy roy and the list goes on- who would have been there on the streets if prathiba was a bjp candidate! Even the public response to the whole of this issue sounds like – let me not panic until my house is on fire! – this on an entirely different note!
Thank you Yossarin bhai…it saves me lot of agnst.
Swatantra, have to disagree with you also. Universal franchise is best thing that happened to India. Beyound the fact that most poor are politically aware, because vast majority are poor we would be a sham democracy without it. Not to mention, the commies would have succeeded in their revolt against a newly independent state.
As far electing president is concerned, I don’t think it makes sense to have adult suffrage to elect president with very limited powers as in parliamentary system. Unless our system is like the current French system where the PM is appointed to do the president’s bidding, direct elections of president doesn’t make sense. However, Nehru’s justification based on cost is bogus – as are most of his arguments, for example about not defending Tibet and supporting communists the world over even as commies within were plotting against the state. Apparently he can’t think through an issue – as most third rate politicians, he takes a stand first and find justifications later. Increasingly he is looking like a classic Indian intellectual – lot of hot air with little substance.
PRESIDENTIAL POLL [1]
(Published by the Hitavada, Nagpur, on June 9, 1992 with the title `Presidential Poll : Some Aspects’. The reference to films and sales tax omitted.)
Once again, the Republic is going to elect her head, the President of India. This author has written on the subject quite a few times, but regrettably the comments, quite relevant to our status as a republic, have only partially been acted upon. Most of and major Union Territories, an aberration on our federal structure, have attained statehood while the Delhi and the Pondicherry Assemblies are being given voting right in presiÂdential elections. The Seventy-sixth Amendment (Bill, assented to in August 1992, became the seventieth Amendment Act) is still in the process of legislation but nobody seems to be in any hurry so that they may particiÂpate in the forthcoming July 1992 election.
The first such article was `The States and Parliament’ published in the Hitavada of August 27, 1982. Another one, `The Presidency’ (Sunday Despatch, the Hitavada, July 26, 1987), began as follows:
“If you are a citizen residing in Delhi, the capital of India, and were to be told that you just do not count in the election of the PresiÂdent of the Republic, or have never been counted in any presidential election since 1956, how would you react? Incredible? But it is a fact.”
The purpose was to point out that citizens in the Union Territories of India are in no way inferior to their brethren in the States and, thereÂfore, are inherently entitled to equal treatment with them in presidential elections. And the forgotten fact is that this treatment they already had, but was lost in 1956 by an anomalous Seventh Amendment which changed the status of their region from that of `state’ to `union territory’. Equal representation in the Parliament, of which the presidency is but a part, is the first and the most basic right of the citizen in a republic.
The Seventy-sixth Amendment to the Constitution, passed by the Parliament but awaiting ratification by the States (which, according to this author, is not necessary) empowers the Delhi and Pondicherry AssemÂblies to vote in presidential elections. But that is not enough. It may again be emphasised that a union territory is not a colony under the Union Government and the people in the territories do not have to depend on the Central Government for their rights and privileges. They are inherent in their status as citizens of the Republic which even an amendment to the Constitution cannot take away. And to that extent the Seventh Amendment and the States Reorganisation Act, 1956 should have been declared void.
Delhi and Pondicherry are being given the right to participate in presidential elections. Can you give just one reason why other Union TerriÂtories, -Chandigarh, Lakshadweep, Daman-Diu, and Andaman-Nicobar, should not have this right? Or why they should have NO representation in the Rajya Sabha, the other organ of the Parliament? Or why the assemblies that remain dissolved at the time of a presidential election, like the Jammu and KashÂmir Assembly at the present juncture, should not be revived just for the purpose of the election? Are we someday going to hold presidential election when the Lok Sabha remains dissolved? It should be noted here that the Nagpur Corporation was revived to fully functioning status after it had been dissolved.
Another issue in the matter is the corruption introduced in the method of election in the last presidential election in which the present incumbent, Mr Venkatraman, was declared elected to the office. The Congress (I) had issued a whip directing its members in the electoral college, the Parliament and the State Assemblies, to cast only their first preference vote in favour of the party candidate, Venkatraman, and not to exercise any other preference.
Was it the intention of the Constituent Assembly that President be elected on party line, and only if and when the members of the electoral college so wished that they might give another preference, or was it that the President be elected by a (clear) majority of electoral votes, may he be, say, fifth preference for some of the electors? There is no doubt that it was the latter that the Assembly intended. But the relevant article, Article 55, came to be so put and operated, as we can see from the last presidential election held in July ‘87, as if the preferential voting was optional and a President could be elected by a minority of votes. Had it been so, in the 1969 election, Sanjiva Reddy, who secured the greatest number of first preference votes and not V. V. Giri who was elected by absolute majority in the second count, would have been the President.
It could have been plainly laid down in the Constitution that 1) for being successful, a candidate must receive more than half the number of total votes, and 2) the election shall be by preferential vote alone .
As the situation now exists, it carries an impression that the Constituent Assembly had heard about the system of election by single transferable votes called the system of proportional representation, and adopted it blindly without caring for the fact that it could be so operated as to render it to be a simple first past the post type system.
And what was, or rather is, the necessity of secret ballot in a presidential election? Shouldn’t we, the constituents, the People, know whom our representative has voted for?
Our Supreme Court, instead of going into the pros and cons of the situation, came down with a heavy hand on that quirk of a candidate, MithiÂlesh Kumar Sinha. It failed to appreciate the nature of the Congress(I) whip directing its members not only to exercise their votes in favour of the party candidate, but also NOT TO EXERCISE ANY OTHER PREFERENCE. Now if the Constitution, notwithstanding the Tenth Schedule, specifically allows the members of the electoral college the exercise of subsequent preferÂences, doesn’t the whip restraining voting to the first preference only, constitute interference in free exercise of a vote and, therefore, unfair election practice on the part of official supporters of the Congress(I) candidate vitiating the election? And all this, due to unclear language in the Constitution [2].
It is such casual attitude of the legislators and the court that is the cause of scant understanding and little respect for law in the public at large. For the laws, there seems to be little difference between fact and fiction. Out of legislative incompetency in drafting, every law is born with holes, big or small. It is the duty and function of the court to patch up such holes. Instead, the Court itself has been seen taking advantage of the holes and extending its jurisdiction to forbidden grounds, the preÂcincts of the legislative houses themselves. The Nadiad contempt case and the ruling on the Tenth Schedule, the Anti-defection Law, are the prime examples.
The author remembers an episode of a filmy court in which a witness, while testifying, confessed to a killing. And, lo and behold, the judge promptly acquitted him, the witness, of the crime. In the circumstances, the accused must wait for his day of judgment, perhaps, till the Quayamat. But our legislators are one jump ahead of such filmy law. The recent amendment to the Maharashtra Sales Tax Law not only shelves universally accepted principles of natural justice but seeks to penalise Peter for the fault of Paul [3].
An episode of the TV serial Sangharsha (May 15), invokes the Fifth Amendment, obviously, of the US Constitution [4] as if the Constitution of India had become irrelevant in India itself. A Quiz serial on the ConstituÂtion is scuttled with the very first episode, not because it misapplied Article 24 on child labour or altogether forgot about Article 45 on child education, but, according to our MPs, maligned the memory of Maulana Azad. Or was it to prevent the people from knowing their basic law [5]? News bulleÂtins on the electronic media, and even press [6], talk about `approval’ of budgets by the Rajya Sabha, while even a school-boy should know that the upper houses in a parliamentary system do not have any authority in money matters, to `approve’ or `disapprove’ budgets.
There is, therefore, no wonder that the most basic rights of the citizens, that of representation in their Parliament, is so cavalierly treated for so long a time, for more than a quarter of a century without a whimper from the so called representatives of the people [7].
Nagpur , June 6, 1992
——————————————————
1 Published by the Hitavada, Nagpur, on June 9, 1992 with the title `Presidential Poll : Some Aspects’. The reference to films and sales tax omitted.
2 The parties refrained from using whip in the next presidential election in 1997, apparently at the behest of the Election Commission, but that does not mean there were no party preferences.
3 The law was put into abeyance after an eight-day strike by the traders in Maharashtra. An almost total strike by about 5 lac traders was not worthy as news for the Door Darshan. That is how Article 19(1)(a) is practised.
4 Rights of the citizens against, say, police under the US Constitution.
5 The programme on the Constitution on July 8, 1992 showed the right to hold and dispose of property as one of the FundaÂmental Rights. The right was removed from the list of Fundamental Rights by repealing Article 19(1)(f) in 1978.
6 E. g., the Indian Express, like others, did the same mistake this year too, in 2007.
7 The publication by the Election Commission of electoral rolls for elections in which representative houses only are participating is unnecessary. On the date of the election, whosoever happens to be on the roll of such a house, even if he has taken the oath as a member on the same day, should be eligible to vote. I am not sure what the law in this reÂspect is. Please refer to the Supreme Court Judgment delivered on 30th June, 1992.
Nagpur , June 17, 2007.
Vithaldas Purushottam Divecha
c/o Hindusthan glass centre
67/68 Yashwant Stadium,
Nagpur 440 012.
[1] Published by the Hitavada, June 9, 1992 with the title `Presidential Poll : Some Aspects’. The reference to films and sales tax omitted.
[2] The parties refrained from using whip in the next presidential election in 1997, apparently at the behest of the Election Commission.
[3] The law was put into abeyance after a eight-day strike by the traders in Maharashtra. An almost total strike by about 5 lac traders was not worthy as news for the Door Darshan. That is how Article 19(1)(a) is practised.
[4] R ights of the citizens against, say, police
[5] The programme on the Constitution on July 8, showed the right to hold and dispose of property as one of the FundaÂmental Rights. The right has been removed from the list of Fundamental Rights by repealing Article 19(1)(f) in 1978.
[6] E. g., the Indian Express did the same mistake this year, in 2007.
[7] The publication by the Election Commission of electoral rolls for elections in which representative houses only are participating is unnecessary. On the date of the election, whoever happens to be on the roll of such a house, even if he has taken the oath as a member on the same day, should be eligible to vote. I am not sure what the law in this reÂspect is. Please refer to the Supreme Court Judgment delivered on 30th June, 1992.
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