Opinion | Constitution@75: Why India Veered Away From The US Model – News18

Last Updated:November 25, 2024, 14:49 IST

Unlike the US, India emerged from colonial rule and partition. This context shaped its constitutional choices, favouring a strong central authority and parliamentary democracy

The Indian Constitution (1949), as published by the Government of India, spanned 278 pages. The recent diglot edition (2022) extends to 400 pages. (Representative image)

The first three words of the constitutions of the US (1787) and India (1949) are tellingly common – “We, the People”.  The expression was apparently imported by Sir BN Rau, the Constitutional Adviser, who submitted his draft Constitution in October 1947. This draft Constitution was shared with the Drafting Committee on October 27, 1947. The Drafting Committee, chaired by Dr BR Ambedkar, chose to retain these words though changed the rest of the Preamble based on the Objectives Resolution (introduced by Jawaharlal Nehru on December 13, 1946) adopted by the Constituent Assembly on January 22, 1947. The expression appears in the Draft Constitution (1948) prepared by the Drafting Committee.

The American Constitution (1787) should be noted for at least three pathbreaking achievements. First, it identified people as the source of sovereignty, even as the American War of Independence (1775-83) had catapulted common people to the forefront of history, thereby successfully challenging the divine right/instrumentality of monarchy, as exemplified by the British sovereign, George III. Second, it introduced the concept of a written and unified constitution, which, by default, places certain limitations on the powers of the legislature and executive. This very feature also renders it subject to judicial review. Third, it globally popularised the concept of a Constituent Assembly (Constitutional Convention at Philadelphia, 1787) as a model for formulating constitutions.

When the Constituent Assembly first met on December 9, 1946, to formulate the Constitution of India, Dr Sachchidananda Sinha, the seniormost member, was made the temporary chairman. Dr Sinha invoked the example of the Constitutional Convention at Philadelphia (1787), as a model for framing independent federal constitutions in various countries across the world. For more than a century, Indian constitutionalists had looked towards the British Parliament to achieve constitutional/political reforms under the colonial government. However, Britain furnishes no example of constitutional law different from statutory laws.

In Britain, Parliament is supreme, and can do everything, as Jean-Louis de Lolme famously stated, “except make a woman a man, and a man a woman”. All constitutional developments in colonial India had come down from the British Parliament, beginning with the Regulating Act, 1773 to the Government of India Act, 1935. However, when the hour of reckoning came for Indians to frame their own Constitution, they looked towards the American example of the Philadelphia Constitutional Convention (1787).

The American model held an additional appeal for the Indians, as independent India was poised to set up a federal polity. While it is true that the British under the Government of India Act, 1935 had redistributed the powers to the provinces thus forming a federal type of government, the federation that the Congress aimed for an independent India was of a more pronounced nature. With the Muslim League remaining opposed to the Congress’ dominance, to the extent of absenting themselves from the Constituent Assembly’s proceedings, and the loyalties of princely states still undecided, the Congress was ready to concede greatest possible autonomy to the provinces, reserving only a few subjects to the Centre. This approach, however, could have dangerously undermined the authority of the Centre.

The exit of the Muslim League from the scene, with the partition of India, proved to be a blessing in disguise. It removed a cankerous element from the body politic of India, thereby helping other constituents reach a consensus on the Constitution. The world’s longest-written Constitution, comprising 395 articles and eight Schedules, was adopted within less than three years.

There was a dilemma regarding the type of democracy India would adopt—parliamentary, presidential, or a mixed system. During the early sessions of the Constituent Assembly, there was a strong sentiment in favour of the American presidential system. This inclination was reflected in certain decisions of the Assembly, as noted by Constitutional Adviser B. N. Rau. He explains that this was evident not only in the mode of election for the head of the Federation and the heads of the constituent states but also, to some extent, in the relationships between the heads of states and their ministers. However, the current was already ebbing by June 1948 when Rau addressed IAS probationers in New Delhi (B.N. Rau, India’s Constitution in the Making, P.316).

Rau’s brother, B Shiva Rao, who was also a member of the Constituent Assembly, notes that the Union Constitution Committee, at its meetings on 8 and 9 June 1947, unequivocally decided in favour of the parliamentary form of government. In this system, the President would not possess any special powers personally vested in him but would exercise all functions, including the dissolution of the lower chamber of Parliament, on the advice of his ministers (The Framing of India’s Constitution: A Study, p. 339).

BR Ambedkar, while presenting the Draft Constitution before the Constituent Assembly on November 4, 1948, captured the relative merits and drawbacks of the presidential and parliamentary forms of government.

He described it lucidly: “The Presidential system of America is based on the separation of Executive and Legislature. So that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognise this principle. Only members of Parliament can become Ministers. Ministers have the same rights as the other members of Parliament namely, that they can sit in Parliament, take part in debates and vote in its proceedings. Both systems of Government are of course democratic and the choice between the two is not easy. A democratic executive must satisfy two conditions – (1) it must be a stable executive and (2) it must be a responsible executive. Unfortunately, it has not been possible so far to devise a system which can ensure both in equal degree. You can have a system which can give you more stability but less responsibility or you can have a system which gives you more responsibility but less stability.  The American and Swiss systems give you more stability but less responsibility. The British system on the other hand gives you more responsibility but less stability.”

II

The most striking difference between the American Constitution and the Indian Constitution lies in their length and use of language. The US Constitution originally comprised 4,543 words, which, with 27 amendments, has increased to 7,591 words. It can be easily read in a single sitting. In contrast, the Constitution of India (1949), as published by the Government of India, spanned 278 pages. The recent diglot edition (2022) extends to 400 pages. The US Constitution’s clarity and brevity stand in sharp contrast to the legalistic language of the Indian Constitution, which makes it far less accessible for casual reading. For example, the phrase “notwithstanding anything”, which has the power to nullify the main proposition within an article, clause, or part, appears 115 times in the text.

What explains the difference in length between the US and Indian constitutions? The answer lies in differing historical contexts and perspectives. The framing of the Indian Constitution coincided with the attainment of independence. Its drafters were creating a governing document for a newly sovereign nation that needed to establish itself as a stable democracy in the global arena. This explains their preference to secure many things in the Constitution, which could have been otherwise left to statutory lawmaking, as in the US or Japan.

The United States, on the other hand, sought to avoid adopting a written constitution for as long as possible. This explains why, despite gaining independence in 1783, the Philadelphia Convention was not convened until 1787. While the Declaration of American Independence (1776) coincided with the War of Independence (1775–83), there was no comparable urgency to frame a constitution. Viscount James Bryce (1893) notes that in 1777, the 13 American states formed a “firm league of friendship” for both offensive and defensive purposes during the war by drafting the Articles of Confederation and Perpetual Union. Under these articles, each state retained its “sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.”

This confederation, not ratified by every state till 1781, was a league rather than a national government, which virtually possessed no central authority or had any jurisdiction over individual citizens. There was no federal executive, federal judiciary and no means of raising the money except by voluntary contributions, which states were slow to render, and no power to compel the obedience of either states or individuals (The American Commonwealth Vol-1, P.20).

George Washington described the affairs as no better than anarchy. It was the sad experience of internal difficulties and the contempt with which the foreign governments treated them, affirms Viscount Bryce, that at last produced a feeling that some firmer and closer union was needed. A convention of delegates from five states met at Annapolis, Maryland in 1786. It drew up a report to condemn the existing affairs, and recommended that Articles of Confederation should be revised (The American Commonwealth Vol-1, P.21).

The Philadelphia Convention (1787) was the outcome of the Annapolis Conference. 55 delegates sat for nearly five months to draft the Constitution of the US. The debates were all secret, and not published before 1819. The US Constitution, it might be seen, is minimalist as the states were suspicious of a strong central authority. The Constitution actually came as a compromise.

The situation in India was markedly different. India emerged as a successor to British India, already unified as a nation. The framers of the Indian Constitution aimed to establish a strong, united, and viable democracy. This aspiration explains the “unitary bias” present in India’s Constitution. Initially, princely states were granted the freedom to draft their own constitutions and join the Union of India on their own terms. However, this approach was later deemed unnecessary, resulting in a single Constitution for the entire nation.

An interesting feature of both the US and Indian Constitutions, known for their federal polity, is the complete absence of the word federation in either. In the deliberations of various committees of the Constituent Assembly, and even in the first draft of the Indian Constitution (October 1947) prepared by BN Rau, the term federation was used. However, the Drafting Committee, chaired by BR Ambedkar, replaced it with the term Union for India, which became the standard description. Similarly, the US Constitution, in its Preamble, refers to forming “a more perfect Union”.

A constitution is essentially a rulebook for the government, inclusive of all its branches viz. legislature, executive and judiciary. There are certain sections which also relate to the people, making it a people’s document. The first ten amendments to the US Constitution, collectively known as the Bill of Rights (1789), marked the first recognition of fundamental rights in world history. Similarly, the Fundamental Rights in the Indian Constitution (Articles 12 to 35) have been assigned a dedicated section, Part III.

However, the recent effort to transform the Constitution of India from a document to a deity (a holy book) appears somewhat misplaced. The makers of the Indian Constitution did not perceive it in such a light.

That said, it must be acknowledged that the US Constitution has historically resonated more deeply with its citizens. For instance, under the Naval Act of 1794, when the USA commissioned its first six frigates, one was named USS Constitution. This connection, however, stems not just from the brevity and clarity of the text but also from the unique historical nature of the American republic. The USA, being a relatively recent creation in world history, is an immigrant nation with little ancient or medieval history to boast about. It can best express its national identity through its Constitution.

India, on the other hand, is an ancient civilisation, with a long history of cultural continuity despite political disruptions. As such, Indians have less need to turn their Constitution into a deity.

The writer is author of the book ‘The Microphone Men: How Orators Created a Modern India’ (2019) and an independent researcher based in New Delhi. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.