Republic Day Special: Four Constituent Assembly Debates worth remembering

Sixty-six years ago, on this very date, the Constitution of India replaced the Government of India Act, 1935 as the legislation governing the country. For the past three years, the Constituent Assembly had been engaged in discussions on an array topics, tasked with the role of preparing a draft Constitution..These debates may have taken place close to seven decades ago, but some of these topics hold relevance even in present times. In this article, we look at four Constituent Assembly debates which continue to hold significance today..1. Independence of the Judiciary.Before the recent NJAC judgment, and before the First and Second Judges cases that created the concept of the collegium, the Assembly took up the issue of appointment of the higher judiciary in May 1949. The initial move to create a system in which two-thirds majority of Parliament was required to appoint a judge came under heavy criticism..Shibban Lal Saksena was one of the first to argue that the appointment of judges should be free from Executive interference; a motion that was supported by B Pocker Sahib..“Of course, if a Judge owes his appointment to a political party, certainly in the course of his career as a Judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him.”.MA Ayyangar, the first Deputy Speaker of the Lok Sabha and a lawyer, also agreed. He believed that judges should not be elevated solely from the Bar. Citing the example of Frankfurter J. of the United States Supreme Court, he said,.“He might be a member of a Law College or be a Dean of the Faculty of Law in a University. There are many eminent persons, there are many writers, there are jurists of great eminence. Why should it not be made possible for the President to appoint a jurist of distinction?”.Another topic discussed during these sessions was retirement age of judges..RK Chaudhuri from Assam suggested that the age-limit for judges be entirely done away with, as long as a judge can conduct his duties properly. Protesting a move to reduce the retirement age of judges from 65 to 60, RK Sidhva said,.“…but to say that a man is insane after sixty is nonsense. I know two Judges who lost their eyesight, sat on the bench and used typewriters and they were two of the very best Judges this country has ever had. After all the Judges have got to be able and impartial, and age does not count in this matter.”.This is a sentiment that the recently retired Vikramajit Sen J. has echoed. The topic assumes significance in the background of a PIL filed in the Supreme Court just this month to do away with the retirement age of sixty-five..2. A Uniform Civil Code.As the Modi government contemplates its best course of action to implement the Uniform Civil Code in the country, the reasons why the Code wasn’t incorporated in the draft Constitution are worth looking into..Back in the 1950’s the move to introduce the Code was met with stern opposition, particularly by members of the Muslim community. However, there were far from opposed to introducing it in the future..Naziruddin Ahmed was quoted as saying,.“It will be difficult at this stage of our society to ask the people to give up their ideas of marriage, which are associated with religious institutions…I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform.”.Hussain Imam seconded the notion that the country wasn’t prepared for a uniform code..“You have to deal not with a uniformly developed country. Parts of the country are very backward. Look at the Assam tribes; what is their condition? Can you have the same kind of law for them as you have for the advanced people of Bombay?”.Renowned lawyer KM Munshi claimed that these reservations were not restricted to the Muslim community alone. He also argued that continuing to follow personal laws would be contrary to the right against discrimination, which was a fundamental right..“Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men.”.Dr. BR Ambedkar, Chairman of the Drafting Committee concluded the debate with a few wise words..“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to…prevent the legislature from encroaching upon that field…We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.”.It is a sentiment that has been met with approval in recent times. Towards the end of last year, lawyers sharing a similar viewpoint had approached the Supreme Court to issue directions to the Centre to introduce the Code. However, the Court refused to step into the Executive’s realm in that case, and the petition was dismissed..3. The Right to Religion.While on the topic of religion, the Assembly Debates on whether the right to religion should be granted the status of a fundamental right threw up some questions that are relevant even today..Lokanath Misra, who would go on to become Governor of Assam and Nagaland was staunchly against the concept. He stated, rather poetically,.“Hinduism is just an integrated vision and a philosophy of life and cosmos…But politics has over run Hindu culture. Today religion in Indian serves no higher purpose than collecting ignorance, poverty and ambition under a banner that flies for fanaticism. The aim is political, for in the modern world all is power-politics and the inner man is lost in the dust.”.The fact that the majority was in favour of introducing a right to religion in Part III of the Constitution would mean that the Supreme Court would be its custodian. In fact, the apex court has recently been called upon to decide on cases involving religious practices and customs, be it the appointment of priests in Tamil Nadu, or the entry of women into the Sabarimala temple..“Today religion in Indian serves no higher purpose than collecting ignorance, poverty and ambition under a banner that flies for fanaticism.” – Lokanath Misra.With emphasis on the latter case, which is pending before the Supreme Court, attempts were made to “throw open the doors” of religious institutions during the debates. In fact, it was Durgabai Deshmukh, one of India’s foremost women’s rights activists, who suggested this very addition to the draft provision. This amendment is now a part of Article 25 of the Constitution, and is likely to be the provision which will be relied on during the course of the arguments in court..4. Beef Ban.Last year, the beef bans in Maharashtra, and Jammu & Kashmir created quite the furore. Nearly seventy years later, in November 1948, the Assembly debated on the ban of cow slaughter, albeit for entirely different reasons..The debate was centred around the promotion of animal husbandry and agriculture, and the prohibition of milch and draught cattle slaughter. Back then, milk-producing cattle were in short supply, as pointed out by Pandit TD Bhargava..“In the present conditions in our country, cow-breeding is necessary, not for milk supply alone, but also for the purposes of draught and transport…but I do not appeal to you in the name of religion; I ask you to consider it in the light of economic requirements of the country.”.Shibban Lal Saksena seconded this view, citing a study which showed that out of the 22 crores of national income per annum, about eleven crores were derived from “cattle wealth”. While the members of the Muslim community accepted the prohibition of cow slaughter, they did raise questions about bovines that were not fit to be milch or draught cattle..Syed Muhammad Sa’adulla also turned the Assembly’s attention to the meat-eating, low income sections of society..“Therefore it is wrong to say that the Muslims kill the cows either to offend my Hindu friends…fortunately or unfortunately the Muslims are a meat-eating people. The price of mutton is so high that many poor people cannot buy it. Therefore on rare occasions they have to use the flesh of the cow. From my own knowledge, it is only the barren cows that go to the butcher.”.In fact, it was this very ground that found its way in the challenge to the beef ban before the Bombay High Court..With all these issues coming up again in recent times, it is a case of history repeating itself. However, the scenario today is quite different; we can nary call ourselves a ‘nascent republic’ anymore. Perhaps the courts and the government, as the case may be, can look to the past, to our founding fathers, while deciding on these important matters.