Prof. K.T. Shah: The Unsung Architect of India’s Constitution

Nitin Kishore*

In an era where opposition is perceived as an exercise in floccinaucinihilipilification characterised by empty noise or blind protest, Prof. K.T. Shah epitomises the importance of dissent in democratic institutions. However, if one were to hear his name in a discussion centred on the architects behind the Indian Constitution, it would be considered an anomaly rather than a norm.  

The assembly was the final product of constitution making – a vehicle that would drive the nation forward, a nation as diverse as a botanical garden. It had to traverse a multitude of differences to produce a common output that reflected the interests of all her people. In such a body premised on diversity, not merely in terms of various backgrounds, but importantly, also on skill sets, consisting of legal luminaries such as Ambedkar, diligent civil servants such as B.N. Rau, and charismatic politicians such as Nehru, Prof K.T. Shah was an unsung architect.  

Born on 10th February 1888, Shah was drawn to a rather unconventional career in economics, coupled with a pervasive interest in law. He graduated from the illustrious London School of Economics and Gray’s Inn. His role in crafting India’s future constitutional trajectory began when he attended the Round Table Conference in 1930. There, he largely weighed in on the interests of princely states, signalling his ability to identify crucial socio-political issues ahead of their time. Due to his economic prudence and political acumen, he was appointed the General Secretary of the National Planning Committee, in 1938 to engage with issues of paramount importance for a young nation-state like unemployment, poverty, economic development and industrialization. Anchored by Shah, the committee highlighted the importance of simultaneous realisation of political and economic freedoms, emphasising education, developmental research, labour legislation and population control.[1] The idea of a five-year plan through which a concrete economic framework is laid out every half a decade was the brainchild of the same committee. 

The role of Shah cannot be overstated. He was a man who donned all possible hats – a lawyer by qualification, an economist by profession and a staunch politician by service, he brought unparalleled perspectives and nuanced insights on a myriad of matters. This is evidenced by his membership in the Congress Experts Committee formed in 1946 [2], which laid out the road that would lead India to her present constitution. 

Amidst an assembly that was dominated by the Oligarchy, the opposition was largely ineffective due to a lack of a common consensus. Shah’s socialist values meant he often found himself at the opposite end of the spectrum, antithetical to the ideologies of both the Oligarchy and Ambedkar. However, the leadership heard him out in an effort to understand his criticisms and even accommodate them in certain instances, leading to constructive discourse. Despite the majority of Shah’s suggestions not materialising in the final document, the assembly debates served as important groundwork for future governments that brought his vision into reality. 

K.T. Shah was a strong advocate for ‘secularism’ to be imbibed into the constitution. He made three attempts – the first was to include the words ‘secular’, ‘federal’, and ‘socialist’ under Article 1(e). However, Ambedkar rejected such a proposition.[3] Ambedkar’s two-fold response partially falls prey to the strawman fallacy as they were based against socialism, whilst disregarding the secularist aspect of the proposed amendment. Shah ultimately found his vindication with the Indira Gandhi government passing the 42nd Constitutional Amendment, which included the words ‘secular’ and ‘socialist’ as part of the preamble, which continues to have a significant jurisprudential impact. The second attempt involved an amendment expressly stating that the state shall remain detached with respect to all matters of religion, by virtue of it being a ‘worldly organisation’. The third involved the suggestion that no educational institution should have the liberty to preach religion. However, both subsequent attempts also failed without much deliberation, but in present times, act as a testament to the importance of a secular state. 

Shah, an integral member of the fundamental rights sub-committee, weighed in on the issue of freedom of the press. The press is particularly important to the discourse of the fundamental right to speech and expression by virtue of its historical significance of acting as a crusading agent for independence from colonial tyranny. This is evidenced by newspapers such as ‘Kesari’ by Tilak and ‘Young India’ by Gandhi, which acted as political symbols against state censorship. Freedom of the press, however, didn’t find an explicit mention in the draft constitution, and K.T. Shah was a proponent for making it so. Shah, in support of his argument, referenced constitutional struggles across the world and the principles in international treatises such as the UN Charter, to highlight its significance. He was of the strong view that any act which was to fetter on such a right would be a ‘black act’. Ambedkar argued that the press did not have any special privileges - the editor of the press is a citizen who can exercise free speech effectively, therefore not warranting a ‘special mention’. However, the debates don’t acknowledge the differentiation between an institutional press and an individual’s right to press, which forms the premise for the argument towards the explicit mention of this right as a fundamental right. Shah placed immense trust in the judiciary stating, “[The Judiciary is] the only authority that we are going to set up in the Constitution, to give effect to whatever hopes and aspirations, ambitions and desires, we may have in making these laws and in laying down this Constitution”. The judiciary has stayed true to this and repaid his faith, by recognizing the freedom of press and the rights emanating from the same in a series of judgements such as Indian Express Newspaper (Bombay) Pvt Ltd v. Union of India and Sakal Newspapers v. Union of India.

The rights sub-committee was the one that gave birth to the Directive Principles of State Policy as well, and there was much debate as to their justiciability. In Granville Austin’s phraseology, Shah, perhaps the most doctrinaire socialist, supported Ambedkar’s bid to make it justiciable after a certain period of time had elapsed. Shah also borrows from Roosevelt’s “true individual freedom cannot exist without economic security and independence. Necessitous men are not free men” to strengthen his position and underscore the prominence of economic rights. Shah states that the presence of DPSPs in the constitution in a non-justiciable form is similar to “a cheque on bank payable at the convenience of the bank.” In hindsight, the decision to make them non-justiciable appears to be the correct choice upon a comparative constitutional analysis with countries such as South Africa that are struggling to give enforceability to economic rights that have been given justiciability, corroborated by the cases of Grootboom and Soobramoney. Upon tracing the Indian judicial trajectory, we understand how the courts have balanced both fundamental rights and DPSPs by undertaking a ‘complementary and supplementary approach’ in Chandra Bhavan Lodging House, preventing Shah’s nightmare from turning into a reality. 

As an extension of his views on DPSPs, Shah, true to his economic ideals, advocated for a fundamental right to employment, that bore fruit years later in the Supreme Court’s decision of Olga Tellis v. Bombay Municipal Corporation, which recognised the right to livelihood as an integral component of the right to life under article 21. More interestingly, Shah, despite being a hardcore old-school socialist, was a man way ahead of his time, evidenced by his suggesting a fundamental right to remuneration for housework to the sub-committee, a suggestion which even in the modern day would be perceived as ‘left-wing’ or ‘libertarian’. 

During the assembly debates on the right to property, Shah's socialist views were also energized. He proposed an article barring private property in regions he described as ‘natural wealth’ – land, forests, mines, water bodies, etc. This was incorporated in an implicit form in the original constitution under the non-obstante clause under article 19(5), which allowed for reasonable restriction of the right to property in lieu of public interest. However, Shah’s proposition undertook a more concrete form through the application of the ‘public trust doctrine’ in M.C. Mehta v. Kamal Nath, where there was a cancellation of a lease deed due to an encroachment of forest land on the bank of a ‘young and dynamic river’ in the words of the apex court. 

Apart from fundamental rights, Shah contributed significantly to the discourse on the separation of powers and the executive on numerous counts. He structurally preferred a presidential form of government over a parliamentarian one. He argued that the latter ensures a complete and absolute separation of powers drawing inspiration from the American model while the former still maintains a link between the three organs of the state, posing a possibility of their sanctity being tampered with. The most fundamental discrepancy with Shah’s proposal was that it was not in sync with the constitutional structure itself; it challenged the entire basis of the governmental design. Santhanam further refutes the argument by drawing attention towards the executive manipulating the judiciary to echo its views through the judge’s appointment process, the American system being an example.  

Shah acknowledged the very pertinent issue of judges taking positions in executive offices upon retirement. He moved for a proposal to prevent the same, to ensure judicial independence, recognizing the ability of the executive to disturb the judiciary’s integrity through the offer of lucrative posts, striking the core of dissemination of justice. The proposal was dropped again upon Ambedkar’s intervention, where he offered a two-part rebuttal contending that the scope for executive overreach was limited and such a provision would place a burden on judges since they retire relatively early at sixty. The 1973 Emergency, a time when the constitution was at stake, proved Shah’s apprehension to be correct. We observe that there still exists a major asterisk over such events, evidenced by the public outcry after former Chief Justice Ranjan Gogoi’s nomination to the Rajya Sabha in 2020. The most recent development is a pending bill in the Rajya Sabha barring such appointments. 

Similarly, he recognised the pertinent issue of members of the executive engaging in corrupt and illicit practices to boost their financial position. He mandated that ministers should possess an obligation to declare interests, rights, and properties before assuming office. Ambedkar avowed that mere disclosure is insufficient, and better sanction in the form of public opinion mobilised in the legislatures exists. This accentuates that Ambedkar’s judgement was sometimes clouded by virtue of putting the executive on a higher pedestal, as observed previously with regard to judges’ appointments as well. However, Shah’s submission once again made it into jurisprudence with the Supreme Court in Association for Democratic Reforms v. Union of India which mandated the declaration of financial backgrounds. 

K.T. Shah’s staunch socialist ideologies in a few instances got in the way of a more holistic vision for India, especially in terms of governance structures and development, evidenced by the wide failure of government-run institutions leading to the need to disinvest and privatise in the 1980s and 90s. However, the same is notwithstanding his unwavering contribution to Indian constitutional jurisprudence. His dissent isn’t mere words, rather, it is akin to scriptures on an ancient rock that need to be treasured as their discovery paves the path for decades to come. 

Ambedkar, in his concluding remarks at the assembly, echoes the same, while expressing his gratitude towards K.T. Shah. If not for voices like his, Ambedkar would not have had the opportunity to expound the underlying principles of the Constitution. His values meant that he was perpetually in the opposition, which was a blessing in disguise for a rich discourse in constitutional law, making him an indispensable part of the assembly. 

* Nitin Kishore is a 1st-year student at the National Law University, Jodhpur. This article was selected for publication as the winner in the second intra-university essay competition organised by CCAL.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.

[1] Udit Bhatia, The Indian Constituent Assembly: Deliberation on Democracy, at 186.

[2] Granville Austin, The Indian Constitution: Cornerstone of a Nation, at 20.

[3] Sanjay Kaushik, A.B. Vajpayee: An Eloquent Speaker and a Visionary Parliamentarian, at 44.