16

Ambedkar: Constitutionalism and State Structure

Mahendra Prasad Singh

Background: Political Mobilization

The 1980s may be regarded as the phase of Indian electoral democracy that witnessed two major developments: the fruition of the process of federalisation of a predominantly parliamentary regime and the political arrival of the dalit citizens. It is not my argument that these two trends were entirely new in Indian politics. The antecedents of both may well be traced back to the entire post-Independence decades. However, it was by the 1980s and later that these two processes crossed the thresholds of new moments of efficacy in the politics of the Indian nation. Ambedkar is a posthumous purodha (high priest) of the dalit political assertion and arrival.

There have been two models of political mobilization and participation of the section of the Hindu society variously called thepanchmang (the fifth class beyond the four Varnas of Brahmins, Kshatriyas, Vaishyas, Shudras), most depressed classes, scheduled castes, Harijans (by Mahatma Gandhi), and daits (by Ambedkarites) through the ages. We may delineate here two models of politics, i.e., the Harijan model of political mobilization and the dalit model of political participation. If the Harijan identity formation and Jagjivan Ram in Congress politics since the mid-1930s represented the first model, the Bahujan-daÆt identity formation and Bhimrao Ramji Ambedkar since the late 1920s represented the second model.¹

With minor variations, both Ambedkar and Jagjivan Ram initially conformed to the sanskritization-cum-Westernization model of social change and political participation. Ram began as a liberal and Gandhian brand of Congressman who believed in a secular and modern Hindu identity and never wavered from the Congress path of national freedom struggle against the British colonial rule. Ambedkar also began with a secular and modern Hindu identity, but subsequently graduated to a more radical assertion of dait political identity, and after much soul-searching embraced Buddhism in 1956. Apparently, under the belief that in the context of the Indian, especially Hindu society, social reform with a focus on the emancipation of untouchables must precede political independence, Ambedkar took his political plunge in organizations and activities of radical Hindu social reform. In his submission to the Simon Commission in the late 1920s and during his participation in the first Round Table Conference on Indian constitutional reforms in January 1931 (boycotted by the Congress and Gandhi), Ambedkar supported separate electorates for untouchables (like the one for the Muslims). Ambedkar changed this stance only in the face of a fast unto death by Gandhi and settled for reservation in the general electorate meant for Hindus.

Ambedkar has written intensively and extensively on the basic structure of the Hindu society as well as the fundamental structure of the Indian state. Since the recent spurt in Ambedkar and dalit studies has already produced tomes on the first dimension, this paper purports to discuss Ambedkar’s contributions to the making of the Indian Constitution and the praxis of the Indian state.

Constituent Assembly Entrée

The Constituent Assembly of India was elected in July 1946 under the British Cabinet Mission Statement of May 16. The desire of the Congress nationalists for a directly elected Constituent Assembly was rejected in favour of an indirect election by the Provincial Legislative Assemblies elected on the basis of a franchise restricted by educational and property qualifications that gave voting right to about 25 per cent of Indians under the Government of India Act, 1935. Elections were held for 296 seats from British Indian provinces under the direct rule of the Crown. The remaining 93 seats were allotted to the Indian princely states holding suzerainty under the paramountcy of the British Crown. By agreement between the elected component of the Constituent Assembly and its prospective princely part, at least 50 per cent of the latter’s representatives were to be elected by assemblies in princely states wherever they existed and the remainder could be nominated by the rulers.

It was such a Constituent Assembly that Ambedkar entered as the leader of the All India Scheduled Castes Federation, a party he founded in 1930. This party could elect only two representatives to the Constituent Assembly, one from the Central Provinces and the other, Ambedkar himself, from Bengal. There were four independent scheduled caste members from Bengal besides Ambedkar. I could not ascertain how many scheduled caste members were elected on Congress tickets, except that Jagjivan Ram, President of the All-India Depressed Classes League, was there as a nominee of the Indian National Congress. Congress as a party commanded the overwhelming majority in the Indian part of the Constituent Assembly, especially following the partition of India under the Mountbatten Plan of 3 June 1947. In addition to being a party leader, Ambedkar’s eminence at that time also rested on the fact that he was an ex-member of the Governor-General’s Executive Council.²

Work in Various Preparatory Committees

In pursuance of paragraph 20 of the Cabinet Mission’s Statement of 16 May 1946, the Constituent Assembly resolved to constitute an Advisory Committee consisting of not more than 72 members who might include persons who were not members of the Assembly on a resolution moved by Govind Ballabh Pant (the Premier of the United Provinces and elected on a general seat) on 24 January 1947. Ambedkar was a member of this all-important committee of the Assembly chaired by the President, Rajendra Prasad himself, to determine the fundamental rights and minority rights of citizens and appoint subcommittees to prepare for the administration of the north eastern (and north western) tribal areas and the excluded and partially excluded areas from both British India and Indian states. Besides Ambedkar, the Congress Harijan Jagjivan Ram was also a member of this committee.

Besides this advisory committee of overriding importance, there were over eighteen committees or subcommittees of standing and ad hoc character. Among other substantive committees were the following with the names of their chairs:

1. States Committee: Jawaharlal Nehru
2. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas: Ballabhbhai Patel
3. Union Powers Committee: Jawaharlal Nehru
4. Union Constitution Committee: Jawaharlal Nehru
5. Provincial Constitution Committee: Ballabhbhai Patel
6. Drafting Committee: B.R. Ambedkar

Overview notes and questionnaires were first prepared by Benegal Narasimha Rao, who had served earlier as a member of the famed Indian Civil Service (ICS) and a high court judge and finally became the legal advisor to the Assembly and its president. Partial drafts were produced by the myriad committees and sub-committees. These were then passed on to the drafting committee for scrutiny, settlement, and presentation for clause-by-clause debate in the Assembly. Besides Ambedkar, the other members of the drafting committee included Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, K. M. Munshi, Saiyed Mohammed Sadulla, B. L. Mitter, and D. P. Khaitan. Ambedkar had occasionally participated in the debate on the reports of the committees and sub-committees. His main task was to present the draft Constitution once it was crafted by the drafting committee for debate in the Assembly, defend it, and finally reply to the debate which spanned over 13 months.

Piloting the Draft Constitution

Ambedkar presented the draft constitution for debate in the Assembly on 4 November 1948 and rose to reply to the deliberations on 24 November 1949. I will take the texts of these two memorable addresses as the basis of my explication of Ambedkar’s understanding and interpretation of the philosophy and basic structure of the Constitution³. He began by explaining its ‘salient and special features’. He drew attention to the fact that even before its formal tabling in the Constituent Assembly, the draft constitution had already been in the public domain, and its ‘friends, critics and adversaries have had more than sufficient time to express their reactions to the provisions contained in it’.⁴ Ambedkar went on in his masterly and magisterial exposition to make the point that the form of government preferred was parliamentary rather than that of executive presidency. Said he:

Under the draft constitution the President occupies the same position as the King under the English Constitution. He is the head of the state but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the Nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.⁵

Despite this clear-cut postulation, Ambedkar did leave a few ambiguities. Consider, for example, a few of the pregnant sentences in this address:

The President of the Indian Union will be generally bound by the advice of his Ministers. (The emphasis is mine)⁶

He can do nothing contrary to their advice nor can do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament.⁷

Ambedkar proceeded to say that a democratic executive must satisfy two requirements: it must be stable, and it must be responsible. Stability is the hallmark of the U.S. and Swiss executive, whereas responsibility is characteristic of the British executive. ‘Draft constitution is recommending the Parliamentary system or has preferred more responsibility to more stability.’⁸

Having explained the ‘form of government’ under the draft constitution, Ambedkar went on to discuss the ‘form of constitution’ in the draft, making a distinction between unitary and federal constitutions exemplified classically by the United Kingdom and the United States respectively, Ambedkar made the perceptive point that even though the USA and India had both adopted the federal form of constitution, the two were very different. To quote him, ‘The differences that distinguish them are more fundamental and glaring than the similarities between the two.’⁹ The fundamental differences between the two federations that Ambedkar specified boiled down to dual citizenships and dual constitutions that the US federation and the federating states maintained unlike India.¹⁰

Why did Ambedkar not bring in here the obvious and patent difference between the presidential-federal system and the parliamentary-federal system? Was it deliberate? I am raising this question with the benefit of hindsight as with the advent of a multi-party system with federal coalition governments in New Delhi and the rise of strong regional parties the Indian political system is becoming more confederal in its dynamics.¹¹ By now it is becoming evident that due to the phenomenon of divided governments in a fragmented society, the parliamentary federal system is showing signs of a separation-of-powers political configura-tion.¹² Ambedkar next tried to draw attention to ‘some other special features of the proposed Indian Federation which mark it off not only from the American Federation but from all other Federations’.¹³ In his opinion, the American and other federal systems ‘are placed in a tight mould of Federalism’ that can never be broken. Contrariwise, the draft Constitution was a two-in-one framework of government, which ‘can be both unitary as well as federal according to the requirements of time and circumstances’. In times of constitutionally contemplated emergencies, the same constitution gets transformed into a unitary one.¹⁴

Ambedkar then took up two typical weaknesses of federal constitutions, especially the American, namely, rigidity and legalism, and scored a debating point on how the draft constitution had intentionally tried to avoid both. Like the Australian constitution (Ambedkar here could have also easily added the Canadian Constitution), the draft constitution had kept rigidity under check by giving the Parliament wide powers of concurrent legislation. Moreover, the draft constitution also sought to escape rigidity and legalism by keeping the amending procedure fairly easy. On this point, it must be added, Ambedkar did not visualize the present political scenario when due to the phenomenon of divided government and differentiated party systems in the two chambers of the Parliament and at the Union and state levels, the task of constitutional amendment has become extremely difficult, if not impossible.

A third way to reduce rigidity and legalism in the draft constitution was, according to Ambedkar, to avoid the American practice of having dual citizenship and dual constitutions, one for the state and one for the nation/federation. In addition, the draft constitution also preferred an integrated single hierarchy of courts, uniformity in fundamental laws of the land (civil and criminal - it was intended have a common civil code as well), and a common All India Services system to man the highest posts in both orders of governments.¹⁵

Reading this long presentation speech of Ambedkar in the Constituent Assembly, it is difficult not to be amply convinced of Ambedkar’s abiding conviction in nationalism, strong state, democracy, and minority rights. His defence of the draft constitution, the values it stood for, and the state apparatus it intended to establish is absolutely unambiguous and unexceptionable.

Ambedkar finally rose to reply to the debate on the draft constitution on 24 November 1949. He meticulously took up the criticisms made by ideologues—Communists, Socialists, Gandhians—as well as those made by legal experts and political activists about specific details in the constitution. He stood by the liberal-democratic credentials of the constitution, pointing out that India did not need either communist dictatorship of the proletariat or socialist collectivism or the Gandhian traditionalist village society because all these were undemocratic and unjust. An important point of constitutional import in the critique to the constitution that Ambedkar chose to reply related to fact that too much of centralization reduced the states to municipalities. He argued that the crux of federalism lay in the demarcation of legislative and executive powers between the union and states umpired by a judiciary. And this was, in his opinion, the constitutional order envisaged by the draft constitution in normal times, barring constitutional emergencies.

Finally, he philosophically reflected on the paradox that India, under the constitution, would come to have procedural democracy without a substantive democracy. He laid down three conditions to actualize this goal. First, India must ‘hold fast to constitutional methods of achieving our social and economic objectives.’¹⁶ Secondly, he stressed that ‘Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and eventual dictatorship’.¹⁷ Thirdly, he emphasized that ‘We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.’¹⁷

On Safeguards for Scheduled Castes

The problems of the scheduled castes were always uppermost in the thoughts and actions of Ambedkar, especially prior to his deep involvement in the making of the constitution for India. Since he was born an untouchable, he had been a victim of untouchability himself. This remained unchanged even after his elitist higher education and his marriage to a Brahmin lady, Savita Ambedkar.

His views on what the Constituent Assembly could do to better their lot can be gleaned from a memorandum he prepared on this question to be submitted to the Constituent Assembly on behalf of the Scheduled Castes Federation. It was subsequently published in 1947 (Preface date) for wider readership. He countered the view that the scheduled castes were not minorities; in fact, he also referred to Gandhi’s editorial in the Harijan (21 October 1939, ‘The Fiction of Majority’) saying that in India the scheduled castes were the real minority among minorities.¹⁸ Religious affiliation was not the only criterion of a minority; the correct test was social discrimination, Ambedkar argued.¹⁹ He deplored the tendency of dubbing any demand on the part of minorities for power sharing as ‘communal’. In his opinion the scheduled castes were in a worse condition than any other minority. He made out a case for constitutionally entrenched rights for the scheduled castes and reservations for them in legislatures, executives, and civil services in proportion to their population in the country. He also pleaded for constitutional provisions casting special responsibility on the union and state governments for state-funded higher education for the scheduled castes.²⁰

On Linguistic States

The Constituent Assembly left the task of the reorganization of internal boundaries of the federating states unresolved. The matter was forced upon the post-independence Nehru government by linguistic agitations in several states in western and southern India. A reluctant Nehru government first appointed a States Reorganization Commission in the early 1950s, and on the basis of the commission’s report (1955) enacted the States Reorganization Act (1956). The approach of the commission as well as the government was to maintain, wherever possible, multi-lingual composite states, and concede the demand for a linguistic states only in face of a strong mass pressure.

During the parliamentary debate on the 1956 Reorganization Act, Ambedkar was incapacitated by illness. Yet he took pains to write a critique of the States Reorganization Commission Report (SRCR) in a pamphlet, Thoughts on Linguistic States (Preface date December 23, 1955)²¹

In the booklet, Ambedkar candidly admits what other Indian nationalists fought shy of, even those who agreed with the arrangement which the British settled on the eve of their departure:

I was glad that India was separated from Pakistan. I advocated partition because I felt that it was only by partition that Hindus would not only be independent but free. If India and Pakistan had remained united in one State, Hindus, though independent, would have been at the mercy of the Muslims … A merely independent India would not have been a free India from the point of view of the Hindus. It would have been a Government of one country by two nations, and of these two the Muslims without question would have been the ruling race …²²

Interestingly, while Ambedkar perceptively welcomed the partition based on religion in 1947, he lamented the divisiveness of the linguistic states and their penchant to make regional languages as their official languages. To Ambedkar, it ‘will be a death knell to the idea of united India.’²³

Ambedkar’s main criticisms of the SRCR may now be briefly enumerated:

1. It regarded apparently that the vastly varying sizes of various states was federally irrelevant. This was ‘the most terrible error’. He referred approvingly to the dissenting note to the Report given by K. M. Panikkar that the federating units were left very asymmetrical and the undermining effect of this factor on the federal structure was left unmitigated by the failure of the constitution to give them equal representation qua state in the Rajya Sabha. Ambedkar added that the failure of the constitution in this respect was in not making the federal second chamber equal in power with the popular parliamentary chamber.²⁴

   Ambedkar’s solution to this problem was a thorough reorganization of states in India to make them comparable in size in terms of population and territory.

2. The SRCR willy-nilly contained the effect of consolidating the North and Balkanising the South in as much as the former region would have smaller linguistic states, while big states in the North like Bombay, U.P, Bihar, and Madhya Pradesh would remain intact. He asked: ‘How can the rule of the North be tolerated by the South? Already there are signs of the South wanting to break away from the North.’²⁵ Ambedkar also narrated what C. Rajagopalachari once told him: ‘You are committing a great mistake. One federation for the whole of India … will not work … you should have two Federations, one Federation of the North and one Federation of the South, and a Confederation of the North and the South with three [common] subjects for the Confederation to legislate upon and equal representation for both the Federations.’²⁶

   Ambedkar’s solution to this problem was a trifurcation of the old Bombay state into Western, Central, and Eastern Maharashtra. Uttar Pradesh was to be similarly divided into three parts and Bihar and Madhya Pradesh into two parts.

3. The SRCR in Ambedkar’s opinion had ignored the fact, or failed to realise that smaller states were a safeguard to the minorities. With the safeguards of separate electorates gone in the constitution of post-colonial India, ‘The lambs are shorn of the wool,’ and ‘They are feeling the intensity of the cold.’²⁷

   The solution to this problem was offered as follows: ‘It would be [simple] enough to have plural-member constituencies (of two or three) with cumulative voting in place of the system of single-member constituency embodied in the present constitution. This will allay the fears which the minorities have about Linguistic States.’²⁸

4. Ambedkar alleged that the SRCR conceded in agitating states that all people speaking one language should be brought within one state. Ambedkar’s preference was that ‘people speaking one language may be grouped under many States, provided each state has under its jurisdiction people who are speaking one language.’²⁹ To quote Ambedkar again: ‘The formula one state; one language, must not be confused with the formula of one language, one state.’³⁰
5. Climatic conditions, feeling of the people of the South, and considerations of defence prompted Ambedkar to suggest two capitals for India, Delhi and Hyderabad.³¹

Conclusion

Ambedkar’s political thought may well be the gateway to the constitutional architecture of the state in India. Those who have surveyed the entire spectrum of his social and political thought would probably find it difficult to determine whether he can be said to be primarily a theorist of the Hindu social structure with special reference to the formerly untouchable castes and their emancipation or primarily a comparative political theorist of constitutional engineering and constitutional government. In my opinion, he was, on hindsight, a statist in both the social and political domains. The overriding role of the state loomed large in his political thought not only in the realm of the internal structure of governments in India’s parliamentary-federal democracy but also in the spheres of the civil society and economy. Consider, for example, his proposal at one stage to reform the temple establishments by instituting the system of recruitment of priests across the caste divisions and their training and appointment under a positive law.³² Moreover, his memorandum on rights of and safeguards for scheduled castes to the Constituent Assembly that were largely incorporated in the constitution also banked upon state law and action. The same memorandum also proposed collective farming under state ownership in agriculture and state socialism in the industrial sector. Neither tenant ownership nor consolidation of land holdings would, he was sure, benefit the scheduled castes. State socialism to his mind was essential for the rapid industrialization of India.³³ These arrangements were not to be instituted by parliamentary enactment or executive action, as Jawaharlal Nehru unsuccessfully pleaded cooperative farming for the agricultural sector at the Awadi session of the Indian National Congress in 1955 and successfully introduced state ownership through the process of planning since the early 1950s in the public industrial sector in the framework of mixed economy. Ambedkar advocated state socialism with constitutional entrenchment that could not be undone by legislative or executive action.