Our Constitution, A Beacon of Freedom

What difficult circumstances you might ask? The dual-purpose Constituent Assembly that wrote India’s Constitution sat as Parliament in the morning and drafting assembly in the afternoon, was a hardworking and resilient body. Swamped by the challenges of Partition while simultaneously governing a new post-colonial nation, the constituent-parliament spent the years 1946-1949 drafting a constitution that has endured. The members of the assembly could see and feel the refugees as they poured into Delhi, including taking shelter in Purana Qila, which was a few minutes away from where the constituent-parliament convened. I think of this often on my morning drive to the Supreme Court: What must it have been like to walk through a city that was being flooded with refugees while trying to write a founding text for generations to come?

Other challenges confronted the constituent-parliament. The body was meant to comprise 296 members but was boycotted by some members who would eventually move to Pakistan. Hence, the assembly would be a 210-member body at the initial sessions. Deft statesmanship, not rage was displayed in response to the boycott. To entice these members back, the chairman of the Drafting Committee Bhim Rao Ambedkar says, “This is too big a question to be treated as a matter of legal rights. It is not a legal question at all. We should leave aside all legal considerations and make some attempt whereby those who are not prepared to come, will come. Let us make it possible for them to come, that is my appeal.”

There were other juristic concerns. The colonial constitutionalist Ivor Jennings, who long sought to be involved in India’s drafting project but was refused later, asked, why the Constitution of India “plays down communalism?” This was a stinging question, for Partition was the result of communalism, how could any of us forget that? Ought the Constitution have specifically accounted for crimes and ideologies that were communal in nature?

Given these challenges, the women and men of the founding assembly continued thoughtfully, rigorously, and heroically. Their discussions culminated in who we would be — “We the People” all citizens, not subjects. And what we will become — “a nation that would secure liberty of thought, expression, belief, faith and worship, and ensure equality of status and opportunity”.

The drafting conversations at our founding meant that we would commit to making reparations for the structural injustices of caste that permeated our society. India’s Constitution is unique in its approach for making reparations for historical discrimination on grounds of caste that defines the present and future of so many Indians. By contrast, America’s Constitution makes no apology nor enables reparations for slavery. A sturdy provision that prohibited discrimination on grounds of religion, race, caste, sex or place of birth also meant that the new nation embraced those who had been left out of the fold of citizenship for so long — women, lower castes and minorities.

Despite being a body that was not significantly diverse, the founders, having appreciated the concerns of their people, were able to stand outside of their own privilege and conceive of a founding document that would speak for those who have been silenced for thousands of years. That may be why India’s Constitution has endured for so long. It has become an instrument for silenced minorities to express themselves, to have injustices redressed and in turn owe their allegiance to their Constitution.

As our Constitution turns 72 years old, let us not take its endurance for granted. In fact, enduring constitutions are the exception, and failing constitutions are the global norm. After having studied every constitution from 1789 to 2005, including 935 different constitutional systems for 200 nations, Tom Ginsburg of the University of Chicago School of Law and his colleagues concluded that on average a constitution survives for around 17 years. The vivid outlier to this norm is America’s constitution which is 234 years old. France with 14 constitutions, Mexico at five constitutions and neighbouring Pakistan with three constitutions typify the global experience.

India’s Constitution has endured because its founders, its interpreters — the constitutional courts — and litigants in the form of social movements have all ensured that it is used to consistently expand the freedoms of citizens, even if social morality thinks otherwise. The Constitution’s morality has stood firmly with disadvantaged castes, women, and religious minorities. In contemporary times, other marginalised groups like LGBT Indians have been heard by constitutional courts that have unanimously found for their freedoms and for a full equality.

Today, we marvel at the 72nd year of the adoption of our Constitution, and 72 years of our birth as “We the People”. But, as we revel in our good fortune, we must also be aware that its endurance is deeply rooted in the ability of all of us to commit to the project of expanding freedom, not contracting it. The commitment to each other’s freedom is what keeps this Constitution in place. I may not walk in your shoes, but I commit to ensuring that you will be able to walk.

Congratulations India! Happy belated 72nd Constitution Day. May we always protect and defend our Constitution.

This column first appeared in the print edition on November 27, 2021 under the title ‘The day India was born’. The writer is a Senior Advocate at the Supreme Court of India