Presenting the Draft Constitution in the Constituent
Assembly Ambedkar answered certain criticisms.
The form of government
– Parliamentary Executive
The Draft Constitution proposes a Parliamentary
Executive. The ministers in Parliament alone administer their respective
departments. They are responsible to the Parliament. The President of India is a
ceremonial Head and is bound by the advice of his ministers. This arrangement is called Parliamentary
system of Executive. It is similar to the one in England (= Westminster model).
The responsibility of the ministers to the Parliament is assessed daily as well
as periodically. The daily assessment is done by the members of Parliament through
questions, resolutions, no-confidence motions and debates. The periodic assessment
is done by you (= the electorate) through elections. Though this arrangement
has the advantage of responsibility to the Parliament it may leave the
Executive unstable. That is, when it loses majority in the Parliament it will
have to resign. A stable Executive, on the other hand, is not responsible to
the Parliament and will continue in power irrespective of its strength in the
Parliament. Thus, the Draft Constitution
prefers an Executive that is responsible to the Parliament to an Executive that
is stable but not responsible to the Parliament. (Note: You can assess how
responsible our Executive is to the Parliament. Under the arrangement of
responsibility, laws are to be made by the Parliament. There is also a
provision enabling the Executive to make law in emergencies. Democracy requires
that this provision should not be routinely used. Recently the Govt. have made
as many as four Ordinances- laws made by the Executive- soon after the last
session of Parliament. This has drawn much flak from the Press and the public)
The form of the
Constitution – Federal system with a dynamic element
The form of the Constitution can either be Unitary or
Federal. The Draft Constitution recommends a Federal system - a government in
the Centre (= the Union government) and also governments in the States. Thus
there is Dual Polity which divides sovereignty between the Union and the States.
The Central and State Governments will be sovereign in the respective fields assigned
to them by the Constitution (subjects in the Union and State Lists). But dual
polity does not result in dual citizenship.
One is an Indian citizen and not merely the citizen of her State. She
has the same rights of citizenship wherever she is in India.
States in India have to work within the Indian
Constitution. They have no right to secede or to make a Constitution of their
own.
Our federation can convert itself into a Unitary
Constitution in times of emergency. When the President proclaims an emergency,
the Union government acquires powers to make laws on subjects even though the
Constitution assigns these subjects to the States. It can also issue directions
to the States as to how they should use their executive authority in matters
assigned to their charge.
The two faults
of a Federal system – Rigidity and Legalism
A federal Constitution has two inherent weaknesses,
rigidity and legalism. As there is division of sovereignty in a federal
Constitution, it must be a written Constitution. A written Constitution is necessarily rigid. There
is also the possibility of invasion by the Union as well as by the States into
each other’s powers leading to breach of the Constitution. Then, the Judiciary
alone has to determine the issue in terms of the Constitution. Hence, there is the weakness of legalism.
However, the
Draft Constitution provides remedies to these faults. First, even in normal times the Parliament
can legislate on subjects in the State list when these subjects become matters
of national concern. The Rajya Sabha adopts a resolution by two-thirds majority
to enable the Parliament to assume this power. At times of emergency also the
Parliament gains this legislative power. The States can also agree to Parliament
making laws for subjects in their charge. You can see that the division of
subjects between the Union and the States is not final and unalterable.
Secondly,
certain Articles of the Constitution can be amended by the Parliament by a
double majority* and certain others by a double majority and ratification by
the States.
Therefore, the Draft Constitution is free from the
weaknesses of rigidity and legalism and can be described as a “flexible
Federation”. This may be a paradox, but
it is this paradox that distinguishes the Draft Constitution from the
Constitutions of other countries.
Federation with
Unity ensured – Special feature of the Draft Constitution
Since federation is sharing of powers, each State is
free to devise its own laws, its own methods of administration and its own ways
of judicial remedies. This situation will work against uniformity and the unity
of the country. What does the Draft
Constitution do to protect the Unity of the country while it seeks to
constitute a federation? The Draft Constitution adopts three ways: 1. India has
a single Judiciary. The Supreme Court and the High Courts of the States form
one integrated judiciary – they have jurisdiction to decide all Constitutional
issues and issues of civil and criminal laws. 2. Basic civil and criminal laws
of the land, procedural laws, law of evidence, of marriage, divorce, property,
inheritance are put in the Concurrent List so that both the Union and State
governments can have legislative power over them. This will ensure uniformity
in these matters. 3. There is an all-India Service and Civil Servants borne on
this service will ensure a certain uniform standard of administration.
(Material prepared by Dr. Jayaraman, Department of English, for the I.M.Sc students)
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