India's Mai-Baap System Beats Original Constitutional Vision of A Maternal State

Even post 1950, organs of State continued as if social justice regime had not been inaugurated by the Constitution.

Constitution Day 2023

(Photo: Arnica Kala/The Quint)

(This article was first published on 26 November 2022 and has been reposted from The Quint’s archives to mark Constitution Day)

As the members of the Constituent Assembly wound up a gargantuan task, winter set in Delhi. They had deliberated over several sessions and even put their heads together in sub-committees and caucuses which met at certain members’ houses and even at the Hotel Imperial. Members had introduced as many as 7635 amendments to the Draft Constitution of which 2473 were actually pressed and voted on.

So, at the concluding session on 26 November, 1949, when the Chairman of the Drafting Committee struck a note of caution instead of patting them on the back for a job well done, surely they were entitled to raise their eye brows. Dr BR Ambedkar warned the Assembly, and through them, the future custodians of India’s Basic Law, in the following ominous words:

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

India's Moment of Glory in Drafting Constitution 

There was a great enthusiasm and national interest in this project to stitch together India’s grand law. In fact, the Assembly’s logbook had recorded 53000 visitors having attended the Visitor’s Gallery during the years our founders painstakingly deliberated clause by clause the various provision of the constitutional document.

While Ambedkar’s words quoted above are recalled more frequently. Babu Rajendra Prasad, too, addressed the Assembly on that solemn occasion. He said:

“Mahatma Gandhi laid stress on the purity of the methods which had to be pursued for attaining our ends. Let us not forget that this teaching has eternal value and was not intended only for the period of stress and struggle but has as much authority and value today as it ever had before. We have a tendency to blame others for everything that goes wrong and not to introspect and try to see it we have any share in it or not. It is very much easier to scan one's own actions and motives if one is inclined to do so than to appraise correctly the actions and motives of others. I shall only hope that all those whose good fortune it may be to work this Constitution in future will remember that it was a unique victory which we achieved by the unique method taught to us by the Father of the Nation, and it is up to us to preserve and protect the independence that we have won and to make it really bear fruit for the man in the street. Let us launch on this new enterprise of running our Independent Republic with confidence, with truth and non-violence and above all with heart within and God over head.”

Mandates For India's Governance: Truth, Non-Violence, and Compassion

Thus, the Republic’s first President prescribed three mandates for India’s future governance: truth, non-violence, and compassion. While they may sound vague and abstruse, the three words, in fact, most beautifully sum up our constitutional vision. It is a Basic Law which is based on the concepts of Truth, Non-Violence, and Compassion—sacred Gandhian ideals.

One can see this reflected specially in Part III and IV which deal with Fundamental Rights and Directive Principles of State Policy. Despite still bleeding from a thousand cuts inflicted by a cruel, bloody, and unprecedented partition, the founders of India's constitution accepted the Gandhian understanding of Truth: God has created all men equally.

India gave itself radical equality which America took more than a Century and a Civil War to give herself. She chose universal suffrage without her women having to be beaten and imprisoned like the Suffragettes of the British Isles. Caste and untouchability were constitutionally abolished as were titles and privileges which distinguished man from man.

Faulty Interpretation of Constitution

If one studies the Constitution carefully what emerges is that our framers dreamt of founding a compassionate “maternal” state with the citizen at the centre. So what we need to ask ourselves is whether we have indeed lived up to the founders’ dream of an India of the future? Have the three organs of the state—especially the executive and the judiciary—managed to be the compassionate and maternal citizen-centric organs they were meant to be?

The answer is obvious and stares us in the face. The pace at which India undertook her administrative reforms did not match with the breathtaking strides she made in her Constitution-making. Resultantly, the task of interpreting and administering the Constitution fell in the hands of a colonial judiciary, bureaucracy, and police force.

These institutions had been crafted as hand maidens of an Imperial Ruler to subjugate, exploit and keep the King’s Peace. Even after independence and the Constitution coming into effect on the 'Effective Date' 26 January, 1950, these organs of State continued as if revolutionary rights and social justice regime had not been inaugurated by the Constitution.

India's Struggle With Shadow of Colonialism

In selection, training and orientation—the bureaucrats, judges and the police—continued with the colonial apparatus. The rules of the game remained the same-for instance-the same nineteen century laws which gave vast and sweeping powers to the Collector without any accountability. Forget being compassionate and citizen centric these organs continued with the same “Mai-baap” culture of the colonial mindset leading to many to lament that the gora sahibs were perhaps a tad nicer and way fairer than the Brown Sahibs who took over from them.

The sad truth is that vested interests have ensured that true administrative reform—reform that would place our organs of governance in sync with our revolutionary constitution—would always remain a pipe dream.

If we really are sincere in actually bringing to fruition the dreams of our founders as articulated by the President of the Assembly on that fateful day—which we celebrate today as Constitution Day—we have to move beyond lip service and indeed walk the talk.

(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)