Initial Criticism

The Constitution of India contains 395 articles and 8 schedules, making it the longest in the world. By November 1949, it had been debated for over 165 days, and 7,635 amendments were suggested. The constituent assembly finalised the preamble, Schedules and the articles. The rest of the acts which affect the life of a common man were carried forward. Large parts of the Constitution were heavily borrowed from the Government of India Act, 1935, the prevailing Constitution of colonial India that had been enacted by Britain’s Parliament in August 1935. This act already has a ready-made framework with 321 sections and 10 schedules.

Colonial powers occupy countries primarily to secure personal, economic, political, or religious benefits, placing their interests above the well-being of the local population. Their governance is characterised by suppression and oppression, with the central aim of maintaining control and exploiting resources rather than promoting the development of the occupied territories. The laws and rules established by these powers are strategically designed to marginalise the local populace, embedding systemic oppression within the legal framework. Rather than encouraging reform or progress, these laws are intended to instil fear of punishment, ensuring the colonial power’s dominance while hindering the growth and autonomy of the occupied people. Our freedom fighters suffered the brutalities, yet we didn’t rethink these laws and rules. Some of the oldest acts mentioned the East India Company and “Her Majesty.” Some of them still in use in India are the following, many of which date back to the British colonial era.

1. Police Act, 1861 - Governs the functioning of police forces in India.

2. Indian Contract Act, 1872 - Regulates contracts and agreements.

3. Transfer of Property Act, 1882 - Deals with property transfer laws.

4. Indian Trusts Act, 1882 - Governs private trusts and trustees.

5. Negotiable Instruments Act, 1881 - Pertains to promissory notes, bills of exchange, and cheques.

6. Religious Endowments Act, 1863 - Relates to the management of religious endowments.

7. Cattle Trespass Act, 1871 - Addresses issues related to cattle trespassing.

8. Indian Treasure Trove Act, 1878 - Governs the discovery of hidden treasures.

Indian Penal Code (IPC), 1860 has been just replaced by the Bharatiya Nyaya Sanhita, 2023. This new law modernises criminal provisions, introduces community service as punishment, and removes outdated colonial-era elements. Indian Evidence Act, 1872 has been just replaced by the Bharatiya Sakshya Adhiniyam, 2023. This act emphasises the admissibility of electronic evidence and updates terminology to align with contemporary practices. These modifications are also on the surface level and haven’t altered the philosophy as per the Indian Traditions.

Abhinav Chandrachud in his article, ‘Why India’s Constitution still thrives after 75 years of scrutiny” The Constitution became lengthy because it contained even the trivial details as to how states cannot tax electricity consumed while constructing railways (Article 287), how the deputy chairman can preside over a state legislature in the temporary absence of the chairman (Article 184), and how judges in the subordinate judicial service of a state should be appointed (Article 234). Seth Govind Das, a Congressman who had been imprisoned five times during the freedom movement and who would serve as an MP for nearly five decades (between 1923 and 1970), highlighted how some felt that the Constitution had “become too bulky”, that it contained “too many articles as also many details which could well have been left out”. Laxminarayan Sahu, a prolific writer from Odisha, called the Constitution a “Khichri” or “cocktail”, a “queer and unwholesome amalgam” which borrowed heavily from the old Government of India Act, 1935, and from other constitutions of the world, and which would “break down soon after being brought into operation”.

BR Ambedkar, chairman of the drafting committee of the Constitution agreed that the Constitution contained far too many administrative details, but felt that its length had been necessitated by the fact that India lacked a culture of constitutionalism, which he called “constitutional morality”.

Ambedkar had taken a course called “History 121” at Columbia University in the US in 1914-15. He quoted from a 19th-century British historian called George Grote. He wrote that “constitutional morality” was “the indispensable condition of government at once free and peaceable”. In the Constituent Assembly, Ambedkar explained that it was only once India had internalised a culture of constitutionalism that banal details could be left out of the Constitution. At the time, however, Ambedkar explained that constitutional morality in India was “not a natural sentiment”; it had to be “cultivated” because democracy was “only a top-dressing on an Indian soil, which is essentially undemocratic”.

The constitutional morality has to be rooted in the Constitution. When the people engage with the Constitution, they should find philosophical validations that align with reality, fostering a sense of constitutional morality among the people. Without such validations, the protectors may prioritise personal career and safety, traders may focus on personal gain, learned individuals may exploit knowledge for self-advantage, and the service class may take shortcuts in their work, and none of them would feel guilty about it. Without ethics and morality, self-interest, bias, and incompetence will take control of people, and institutions will become weak, have inadequate resources, and have poor accountability mechanisms. This will pave the way for anarchy in which interested parties will collude together to fill power centres. Conversely, when constitutional morality is present, it inspires people to evolve to their best version and encourages a collective commitment towards the common good, which is essential for a functioning republic.

By the phrase ‘a culture of constitutionalism’, probably Ambedkar meant the culture of following the book and not by individual judgement. Indian society has been a democratic society from the grassroots, as villages were governed by the Panchayats. In ancient India, republics were known as "Ganas" or "Sanghas" and were characterised by democratic governance where power rested with the people through elected officials and popular assemblies, with key examples including the Licchavis, Shakyas, Mallas, and Vajjis, who primarily existed in the northern Indian region during the 6th century BC; these republics functioned with a degree of self-governance and often had a council system to make decisions collectively.

According to D.R. Bhandarkar, an authority on the ancient history of India from 650-325 BC, 'The meaning of republic and federation was a group of well decided and well-organised men.' However, it seems that a unit of a federation was usually called a republic. Several republics made a federation. Thus, many Grihas made a Kul and a group of Kulas formed a republic.

The banal details were not the doing of the Constituent Assembly because they were just continuing the style of the British. Britishers were foreigners in India, and they were not so familiar with the native languages, customs and traditions of India. They had to mention the details because for them, continuation would become easier. Most of the administrative service officers are also tenure-based, and the detailed record meant less confusion and easier handing over, taking over of duties. Details also indicate a lack of a central philosophy, a lack of universal governing principles and a lack of cognitive depth.

In the Constituent Assembly in the first speech in November 1948, BR Ambedkar addressed, “I make no apologies, there is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a constitution.” It is a clear admission that people holding sway in the constituent assembly were either not conversant with Indian knowledge or had no respect for it. If there is a bright idea and we don’t make use of it, we would be termed as naive, but if we ignore our knowledge, we are impressionable, gullible and of low intellect.

In his next speech, on November 25, 1949, Ambedkar made the most important point. “[H]owever good a constitution may be,” he said, “it is sure to turn out bad because those who are called to work it, happen to be a bad lot”. Equally, he added, “[H]owever bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”

What is means is that such a large book of Constitution can not be held responsible and the people who follow it would be responsible. The Constitution is supposed to be the fountainhead of governance in India. The difference between the Constitution and reality gets transformed into structural flaws, corrupt practices and the unforeseen challenges in implementation.

Lack of good governance and accountability is because of poor governance methodologies, which are largely responsible for the public office corruption, pollution, a slow, less effective judicial system, caste based and populist politics, unaccountability and many other conditions. K Hanumanthaiya, a lawyer who later became the chief minister of Mysore state and a union minister of law and railways. Hanumanthaiya, who had been imprisoned seven times by the colonial regime, said that many members of the Drafting Committee had never been part of the freedom movement, and their draft Constitution lacked a certain Indianness. “It is something like this,” he said, “We wanted the music of the Veena or Sitar, but here we have the music of an English band.”

The Origins

The Indian Constitution is built upon a foundation of ideas, principles, and philosophies drawn from various sources, aiming to establish a democratic, just, and inclusive society. It takes inspiration from various sources, including the constitutions of the United States, the United Kingdom, Ireland, and the Universal Declaration of Human Rights, whilst also incorporating unique features. An article published in the Indian Express by Abhinav Chandrachud, ‘Why India’s Constitution still thrives after 75 years of scrutiny’, mentions many such instances. A summary is presented hereunder.

“Large parts of the Constitution were heavily borrowed from the Government of India Act, 1935, the last Constitution of colonial India. It was enacted by Britain’s Parliament in August 1935. In 1946, the constitutional adviser to the Constituent Assembly, B N Rau, prepared a 115-page dossier for members of the Assembly containing extracts from the constitutions of several countries like Lithuania, Hungary, Peru, Syria, South Africa, Sweden, Switzerland, Canada, and so on.

The words “equal protection under the laws” in Article 14 were copied from the 14th Amendment to the US Constitution. In Article 19(2), the framers of India’s Constitution decided to adopt the Irish example of setting out the exceptions to the freedom of speech and expression in the text of the Constitution itself. The phrase “procedure established by law” in Article 21 was borrowed from Article 31 of the Japanese constitution, after a discussion Rau had with Justice Felix Frankfurter of the US Supreme Court.”

The Underlying Philosophy

The Indian Constitution was supposed to embody the hopes and aspirations of Bharat. Its philosophy is encapsulated in the Preamble, which declares India to be a "Sovereign, Socialist, Secular, Democratic Republic", and none of these words relate to any Indian knowledge or tradition. Though in both democracy and the republic, people participate, and yet they have very different connotations. The ideal constitution suggested by Plato, called ‘the Republic’, is a ten work reflecting on complete aspects of life, society and state. These words can not be used interchangeably or in a complimentary way. Though we celebrate the Republic Day, and also declare ourselves the world’s largest democracy. It is committed to securing justice, liberty, equality, and fraternity. The concept and implementation of all these are foreign. Justice is needed in every society, however, our judicial system does not reflect our principles. One of the key requirements for justice is epistemology, i.e. how to collect the required knowledge. These are part of the Evidence Act. Indian philosophy of Nyaya and its epistemology has been much superior to Western beliefs.

Western Influence

The philosophical foundations of the Indian Constitution are drawn from multiple sources, some indigenous and mostly foreign. It incorporates ideas from Western liberal democracies, such as the rule of law, fundamental rights, and separation of powers. The influence of the U.S. Constitution, the British parliamentary system, and the French ideals of liberty, equality, and fraternity. It reflects a Westernised, elitist vision that is disconnected from India's traditional values and grassroots realities. They contend that its emphasis on individualism and legal formalism overlooks the collective and community-based ethos of Indian society.

We need to understand every word written in the Preamble about the type of governance, principles and values. Is India a democracy or a republic?