Constitutional predilections

James Chiriyankandath

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On 26 November 1949, after almost three years of deliberation, the Constituent Assembly of India adopted a constitution for what remains the world’s largest liberal democracy. From our vantage point 50 years later, it is instructive to reflect on how the ‘founding fathers’ (along with a handful of ‘mothers’) sought to address issues of diversity. After all, in a world in which more than a third of all states possess constitutions acquired only in the first half of the 1990s, our constitution has survived the test of time far better than most of its post-colonial counterparts.

The debate in the Assembly reflected the paradoxes of the Indian situation. To begin with, there was the problem of reconciling the political form (i.e. the liberal democratic state) of a model of modernity based upon features that were relatively weak in India – industrialisation, rationalism, the secularisation of society, individuation and democratisation – with the reality of India. This reality was of a society in which more than four-fifths of the population was illiterate and derived their livelihood from the land, 15 out of every 100 infants born died and the average life expectancy was just 32 years.

It was an especially daunting challenge to conceive of a secular state in a country that had just been partitioned on the basis of religion. Where, while there were over 50 million Muslims, Christians and Sikhs, and another 78 million belonged to Scheduled Castes or Tribes, nearly 85% of the population of 361 million was classified as ‘Hindu’ in the 1951 census. The nationalist movement itself had, especially under Gandhi, acquired an aura of religiosity so that the secular stance of Prime Minister Jawaharlal Nehru resembled a kind of splendid isolation.



It was scarcely surprising that the form of secularism that found expression in the Constitution was ambiguous. Leaders like Deputy Prime Minister Sardar Patel, Rajendra Prasad, the President of the Constituent Assembly, and K.M. Munshi, Patel’s right-hand man in the Assembly, were sensitive, if not openly sympathetic, to the majoritarian Hindu sentiments voiced by a number of Congressmen in the Constituent Assembly. They knew that their predilections were widely shared, especially among upper caste Hindi-speaking members from the United Provinces (U.P..), the Central Provinces (C.P.) and Berar, Bihar and Punjab.

The result was that the Constitution sought to do several things. It made some allowance for the role played by religion, especially Hinduism, in Indian life. It also gave statutory recognition to minorities, thereby implicitly accepting the existence of a majority. It aimed to foster a common civic identity but then compromised this by the provision of reserved seats in legislatures to Schedule Castes and Scheduled Tribes (initially meant to last 10 years, no Parliament has contemplated doing away with this and its regular extension has become a formality).

While such measures may be regarded as having been defensible under the circumstances (i.e. the Constitution was as secular as it could have been), it meant that issues not definitively resolved by the Constitution continued to form the subject of public controversy. Cow slaughter, religious conversion, the status of Hindi as the national language, the preservation of a distinct Sikh identity, the right of religious minorities to maintain their own personal law and reservation for the low castes have all occasioned not just heated debate but violent conflict over the past five decades.

An irony of independent India’s birth as a secular state was that the midwife – the Constituent Assembly – represented the final outcome of the communal politics that dominated the final years of British India. The Assembly was elected by the provincial assemblies of British India grouped into three sections – Muslim-majority areas in the north-west and north-east and the remaining Hindu-majority provinces. With each province allotted seats proportionate to its population, members were elected by legislators belonging to religious categories. The predictable outcome was that while the Muslim League claimed 73 of the 78 Muslim seats and the Panthic Akalis three of the four Sikh ones, Congress won 202 of the 210 ‘general’ seats.



The Congress leadership sought to ensure that minority groups were adequately represented in the ‘general’ category. These included non-Congressmen seen as leaders of their respective communities such as B.R. Ambedkar, the Scheduled Castes spokesman, and the Anglo-Indian, Frank Anthony. In all some 30% of the post-partition Constituent Assembly (37.5% excluding the members from the former princely states) was made up of representatives of minorities. This reflected the makeup of Indian society – according to the 1951 census 37.8% of the population were either non-Hindu or belonged to the Scheduled Castes and Tribes.

However, it would not be true to assume from this that the Assembly represented a microcosm of Indian society. Most strikingly, Brahmins, who formed about 5% of the population, accounted for around a quarter of the total of 407 individuals who served in the body between 1946 and 1949 (it had 307 members in 1949).1 Their preponderance was especially evident among members from U.P. and Bombay – more than a third.



The Assembly also presented a contrast to society at large in other respects. Only 15 women ever got to sit in it and whereas only one in six Indians were literate, an analysis of the membership of the Provisional Parliament reveals that 68% of the members were graduates with a further 18% having attended college or high school.2 In a country where more than 80% of the population still lived on the land, people with a professional background formed over three-fifths of its first legislature – lawyers alone contributing almost a third.3

But what was perhaps most significant about the Assembly members in terms of the task they had to undertake was the fact that almost half (200 of the 407) were serving members of other legislatures at the time of their election and nearly one in six (61) also served as ministers either at the centre or in the provinces. Since the Assembly also functioned as independent India’s first Parliament, this experience tempered its nationalist fervour and Gandhian idealism with an awareness of what was practical and prudent.



Its debates revealed a range of attitudes towards secularism. Analysing the contributions of the hundred or so members who spoke on pertinent issues, they can be grouped in five broad, sometimes overlapping, categories: dogmatic secularists, those favouring ‘unity in diversity’, majoritarian Hindus, Gandhian critics, and minority advocates of special rights or protection.

Some of the most uncompromising proponents of a secular state belonged to religious minorities – notably the Christian Minister of Health Rajkumari Amrit Kaur, the Parsi (and erstwhile socialist) Minoo Masani, the socialist economist K.T. Shah (a Jain), Tajamul Husain, a Shia Muslim landlord, and Frank Anthony. Among the others were two Congress-women (Hansa Mehta and Renuka Ray), a former leader of the defunct National Liberal Federation (H.N. Kunzru) and a newspaper editor from Madras who led the opposition to the imposition of Hindi as the sole national language (K. Santhanam). To this atypical collection can be added Babasaheb Ambedkar, whose contributions were made more circumspect by his concern for the advancement of the Scheduled Castes and his role as chairman of the drafting committee.

More influential within the Assembly were those who interpreted secularism to mean religious pluralism and the equal treatment of all religions by the state. Among those who favoured such an attitude were religious-minded members from different faiths including the Tamil Brahmin philosopher (and future President) Sarvepalli Radhakrishnan, and a Catholic Jesuit priest, Jerome D’Souza. The idea also appealed to the romantic in Nehru – ‘the glory of India has been the way in which it manages to keep two things going at the same time: ... infinite variety and ... unity in that variety’ (speech on 8 November 1948, Constituent Assembly Debates4 VII, p. 323).



A report by a commission on university education chaired by Radhakrishnan held that, ‘The absolute religious neutrality of the state can be preserved ... if what is good and great in every religion is presented, and what is more essential, the unity of all religion.’5 D.E. Smith has pointed out how such an idea, to which Gandhi also subscribed, represented an unverifiable religious dogma, the propagation of which was not the proper function of a secular state, however useful it might be in strengthening it. This inconsistency, based as it was upon the assumption that Hinduism was somehow naturally secular,6 has caused the Indian state to be described as ‘majoritarian’.7

In fact many Hindu majoritarians harboured misgivings about the Constitution. While Sardar Patel and K.M. Munshi were instrumental in getting rid of separate electorates and reserved seats for religious minorities, their preparedness to accommodate minority sensitivities in religious and social matters, as well as the lack of reference in the Constitution to God, to a distinctly Hindu identity or to central tenets of Brahminical Hinduism such as the notion of dharma, left the majoritarians dissatisfied. Those expressing majoritarian sentiments included a sprinkling of Congressmen from eastern and southern India but were mostly upper caste Hindi speakers from U.P., Bihar, C.P. and Berar and East Punjab. The most prominent was Purushottamdas Tandon, elected Congress President with Patel’s support in 1950 (he was forced to resign after Patel’s death and a confrontation with Nehru the following year).



Those criticising the Draft Constitution as ‘un-Gandhian’ included some majoritarians but the feeling that it had abandoned Gandhian ideals was more widespread. Arun Chandra Guha, a violent revolutionary turned Gandhian from Bengal, was among the many members unhappy with the draft tabled by Ambedkar in November 1948. Responding to Ambedkar’s scathing attack on village India as ‘a sink of localism, a den of ignorance, narrow-mindedness and communalism’ (cad vii, p.39), he regretted that the document bore ‘no trace of Gandhian social and political outlook’ and argued that the village be made the basis of the machinery of government (cad vii, p. 256).

After Partition, Muslims and Akali Sikhs advocating special provisions for religious minorities found themselves isolated. Members belonging to other non-Hindu groups, notably Christians and Parsis, tended to adopt either the dogmatic secularist or ‘unity in diversity’ viewpoints, holding that the best guarantee of equal treatment lay in the development of a common civil identity irrespective of religious differences. Though the odd Muslim or Sikh went along with this, the peculiar situation facing them left most Muslim and Sikh representatives torn between struggling for the retention of political safeguards and facing up to the new realities.



The Muslim Leaguers in the Assembly were in an unenviable position. Bereft of leadership as the most prominent left for Pakistan, the majority of north Indian Muslims eventually acquiesced in the abandonment of reserved seats while seeking to preserve religious freedoms. Only an isolated handful of members from Madras led by Mohammed Ismail decided to revive the League and continue to hold out for the maintenance of reserved seats (and even separate electorates). The position of the marginalised nationalist Muslims within Congress was not any easier and Abul Kalam Azad, the most senior Muslim Congressman and Education Minister, who has been described as forming, together with Nehru, Patel and Prasad, the ‘oligarchy within the Assembly’,8 was conspicuously silent in the debates on secularism.

The case of the Sikhs of Punjab, as the community that had suffered most from Partition, was a bit different. The Akali representatives felt that they had the right to demand special protection and the seemingly grudging concessions made by Sardar Patel left them embittered (the two Akali members refused to sign the Constitution).

The debate on minority rights involved the consideration of three different kinds of rights: political representation, freedom of religion and cultural autonomy. The writers of the Constitution faced a dilemma. Underwriting any minority ‘rights’ could be seen as compromising the secular character of the state but if such rights were left unprotected, there was the danger that the state might be secular in form but unrestrainedly majoritarian in practice.

In the aftermath of Partition there was wide agreement among Congressmen that there was no place in an independent India for the separate communal electorates introduced by the British under the Morley-Minto reforms of 1909. Nevertheless, the Report on Minority Rights, tabled by Sardar Patel as the Chairman of the Advisory Committee, initially recommended the continued reservation of seats (on the basis of common electorates) in legislatures for Muslims, Christians and the Scheduled Castes (the case of the Sikhs was left pending owing to the dislocation occasioned by the partition of Punjab).



But behind the scenes Sardar Patel and K.M. Munshi, supported by Professor H.C. Mookerjee, the Christian Chairman of the Minorities Sub Committee, and Tajamul Husain,9 an ex-Muslim Leaguer who struck a stridently secular pose, sought to persuade minority representatives of the inadvisability of insisting on separate representation. Eventually, the majority of erstwhile Muslim Leaguers, demoralised by their abandonment by Jinnah following the creation of Pakistan, came around to accepting an end to reservation even before the nationalist Muslims.

In May 1949, six months before the Assembly concluded its deliberations, Sardar Patel moved the final Report of the Advisory Committee on Minorities, abandoning reservation for minority religious groups. The principle of universality was only to be diluted by the temporary retention of reservation to redress the age-old social discrimination suffered by Scheduled Castes and Tribes (as well as to address the special problems faced by the small Anglo-Indian community) (Arts. 330-342 of the Constitution). The end of separate representation on the basis of religion was hailed by Patel, without any apparent hint of irony, as making it possible ‘to lay, with the grace of God and with the blessings of the almighty, the foundations of a true secular democratic state’ (26 May 1949, cad viii, p. 354).



This pious reaction was indicative of the rather different attitude taken by the makers of the Constitution when it came to dealing with the religious concerns of minorities. When Minoo Masani, together with Ambedkar and the two women members (Rajkumari Amrit Kaur and Hansa Mehta), pressed in the Fundamental Rights Sub-Committee for an enforceable commitment to a uniform civil code, this was successfully opposed by the male upper caste Hindu majority on the committee.10 As a result, and mainly in deference to the vocal opposition of Muslim members to any threat of state interference with their personal law, the objective of a uniform civil code for all citizens was relegated to the status of a non-justiciable directive principle of state policy (Art. 44).11

A similar concern showed itself in Sardar Patel’s proposal to omit a clause, vehemently opposed by Christian members and organisations, that explicitly outlawed conversion from one religion to another through coercion or undue influence. Despite the strong objections to the very idea of conversion expressed by majoritarian Hindu Congressmen such as Purushottamdas Tandon (speech of 1 May 1947, cad iii, p. 492), the Constitution’s only reference to religious liberty was thus a positive one, affirming ‘the right freely to profess, practice and propagate religion’ (Art. 25.1). This was denounced by one majoritarian Congressman, Lokanath Misra, as ‘a charter for Hindu enslavement’ (3 December 1948, cad vii, p. 822).



Article 29 of the Constitution protected the right of any section ‘having a distinct language, script or culture ... to conserve the same,’ while Article 30 enshrined the right of ‘minorities, whether based on religion or language ... to establish and administer educational institutions of their choice.’ Like Articles 25 and 44, they reflected the distinction drawn between granting political recognition to minorities and respecting their religious and cultural autonomy. On this there was no difference between the secular-minded Nehru, desiring national cohesion but sensitive to minority fears, and Patel, who despite his majoritarian instincts, was pragmatic enough to recognise the distinction. Perhaps this was because, when considered together with some of the ‘Hindu’ concerns that found expression in the Constitution, it was a distinction that was central to the subdued majoritarianism of the ‘unity in diversity’ viewpoint.

In the Hindu majoritarian discourse, cultural and religious themes, such as caste and the reform of Hinduism and the adoption of Hindi as the sole national language, loomed large.

Inspite of the misgivings of Christian missionaries and others, the British colonial rulers had continued to act, albeit in more limited fashion, as the patrons and protectors of religious institutions. So, the immediate state tradition that the makers of the Constitution had to draw upon was not one that conformed to a Jeffersonian ‘wall of separation’ doctrine of secularism. In any case, scarcely any Congressmen argued that this was desirable, given the need to deal with the widespread practice of untouchability in Indian society, a concern lent urgency by Gandhi’s struggle to eliminate it and Ambedkar’s fight to win political recognition for the untouchables.



Politically, the Hindu majoritarians, overwhelmingly caste Hindu by background, were concerned first with establishing the ‘Hindu’ identity of out-castes. In August 1947, Sardar Patel accepted an amendment to the first Minority Rights Report from K.M. Munshi that explicitly referred to the Scheduled Castes as a ‘section of the Hindu Community’ (cad v, p. 234). The Constitution prohibited the practice of untouchability in any form (Art. 17), further empowering the state to make any law ‘providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus’ (Art. 25.2b). Significantly, an explanation was added that the reference to ‘Hindus’ included Sikhs, Jains and Buddhists.

The wide powers granted to the state in pursuit of the reform of Hindu social practices sharply contrasted with the concern not to be seen as interfering with the religious practices of Muslims or Christians. By associating the Indian state with the reform of the social practices of people belonging to a particular religious tradition, it placed the state in a unique position in relation to that tradition.



Of all the majoritarian themes that found expression in the Assembly debate, the most contentious was the adoption of Hindi as the sole national language, discussion of which was postponed almost to the very end of the deliberations. Fears of Hindi domination among both Urdu-speaking Muslim members and non-Hindi speakers, especially from the South, contributed to an imperfect congruence of the pro and anti-camps in the debates over secularism and language.

In an uncompromising speech (delivered in Hindi, unlike the majority of speeches which were in English12), Seth Govind Das, the foremost spokesman for the Hindi enthusiasts, described Urdu (written in Arabic script and strongly influenced by Arabic and Persian) as drawing ‘inspiration from outside this country’ and supported by people who were communal in their outlook. Rejecting the notion that the acceptance of a secular state implied the acceptance of cultural heterogeneity, he declared that, ‘For thousands of years one and the same culture has all along been obtaining here.... It is in order to maintain this tradition that we want one language and one script for the whole country.’ (12 September 1949, cad ix, p. 1328)

But what the language debate actually did was highlight the fact that religious identity represented only one of the potential fissures in the Indian body politic. Recognising this, even some erstwhile Hindi enthusiasts like K.M. Munshi became convinced of the need for compromise. 13 A committee assigned to find a way out of the impasse evolved a formula by which Hindi in the Devanagari script would become the official language of the Union and international (rather than Nagari) numerals be used for official purposes (Art. 343). The proviso was that English would continue to be used for official purposes for 15 years with Parliament allowed to provide for its continued use thereafter.



As with minorities and separate electorates, the one attempt to unambiguously define political identity along majoritarian lines also failed. In August 1949, P.S. Deshmukh, a Congressman from the Central Provinces, proposed an amendment giving all Hindus and Sikhs the right to become citizens of India, arguing that, ‘Here we are an entire nation with a history of thousands of years and we are going to discard it, in spite of the fact that neither the Hindu nor the Sikh has any other place in the wide world to go to... But we are a secular state and do not want to recognise the fact ... If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs have India as their home?’ (cad ix, p. 356)

The reference to a secular state drew an exasperated response from Nehru who asked, ‘May I beg with all humility those gentlemen who use this word often to consult some dictionary before they use it? ... it is brought in all contexts, as if by saying that we are a secular state we have done something amazingly generous.... We have only done something which every country does except a very few misguided and backward countries in the world.’ (cad ix, p. 401)

Attracting the support of only a handful of members, the amendment was easily defeated. However, the fact that such a proposal could have been made by someone like Deshmukh, who held a doctorate from Oxford14 and had served as a provincial minister, is significant as is the fact that he went on to serve under Nehru for 10 years as a Union minister of state. Clearly, the majoritarian discourse was one shared by a large number of middle-ranking Congress leaders whom Nehru, despite his commanding stature, could not disregard.



Could the makers of the Constitution have tackled the challenge presented by India’s religious plurality any differently? It is difficult to see how. Indian secularism represented the outcome of contradictions: between the secular form of the modern state and a religious society; between contending visions of what India should be, embodied by some of the principal figures involved in drawing up the Constitution – Nehru, Patel, Prasad, Ambedkar; between the anxieties of minority religious groups and the majoritarian inclinations of many Hindu Congressmen; between the enthusiasts for Hindi and the fears of the non-Hindi speaking majority; and between the demands of a putative nation and the pressures of a diverse federal polity. These contradictions have not disappeared.

Obscured for a time by being internalised within the Congress Party, over the past two decades the rise of Hindu nationalism and the growing political strength of regional and low caste parties have helped expose the tears in the fabric. But the fact that the cloth has not been rent testifies to the lasting utility of the deliberately ambiguous concept of ‘unity in diversity’.



* I am grateful to Sarah Cave, and colleagues in the Department of Politics and Modern History, London Guildhall University, for comments and suggestions.

1. From data collected from a wide range of documentary sources it appears that of the 407, 122 were non-Brahmin caste Hindus (30%), 95 Brahmins (23.3), 53 other caste Hindus, including both Brahmins and non-Brahmins (13), 33 Scheduled Castes (8.1), 45 Muslim (11.1), 14 Sikh (3.4), 12 Christian (2.9), 6 Parsi (1.5), 5 tribals (1.2), 4 Anglo-Indian (1), 4 Jain (1), 3 Brahmo Samaj (0.7), 2 Nepali Gurkhas (0.5). It was not possible to ascertain the caste background of nine members (2.2). I am grateful to Christophe Jaffrelot for helping fill some of the gaps.

2. Subhash C. Kashyap, History of the Parliament of India, Vol. II, Shipra Publications, Delhi, 1995, p. 49.

3. W.H. Morris-Jones, Parliament in India, Longmans, London, 1957, p. 120.

4. Hereafter CAD.

5. D.E. Smith, India as a Secular State, Oxford University Press, Princeton, 1963, p. 150.

6. K.N. Katju, an Assemblyman who later became Nehru’s Home Minister, declared in 1953 that ‘without a Hindu majority, India could not have adopted a secular constitution’ (ibid., p. 405).

7. Prakash Chandra Upadhyaya, ‘The Politics of Indian Secularism’, Modern Asian Studies 26(4), 1992, p. 845.

8. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Clarendon Press, Oxford, 1966, p. 21.

9. The fact that Husain was a Shia Muslim is significant. Jinnah’s Muslim League was dominated by Sunnis and the Shia Political Conference had decided to support common electorates without reservation.

10. Minoo Masani, Against the Tide, Vikas, New Delhi, 1981, pp. 4-5

11. Constitution of India (with selective comments by P.M. Bakshi), Delhi, Universal Law Publishing Co., 1996.

12. On average the Constituent Assembly (Legislative) recorded ten minutes or less of Hindi reporting a day (Morris-Jones, op. cit., p. 145).

13. K.M. Munshi, Pilgrimage to Freedom, 1902-1950, Bharatiya Vidya Bhavan, Bombay, 1967, pp. 217-218.

14. His thesis was entitled ‘The Origin and Development of Religion in the Vedas’.