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

Ayushman Rai*

The Indian Constitution, was an upshot of intense deliberation and holistic discussions, credit to the diversity that the Congress’ inevitable dominance brought to the Constituent Assembly (“CA”). The umpteen number of legal visionaries and their penchant to respective ideologies paved the way for drafting a panoramic constitution for the posterity. Sadly, credit is due to those who were buried down under the limelight of the likes of Ambedkar, Nehru and Patel, one amongst them was K.T Shah.

Elected from the Bihar Constituency, Shah was a staunch socialist-economist, graduating from the London School of Economics. He came in as the advisor of princely states on the negotiating table in the Round Table Conference of 1930. He was a part of the Sub-committee on Fundamental Rights, formed under the CA. His amendments, though majorly socialist-inclined and negatived by the assembly, were in retrospect tacitly envisioned.

Championing Equality

Shah’s humongous contributions have helped craft equality in the contemporary form. He proposed the abolition of hereditary titles, barring academic and professional ones, in committee discussions, found today in Article 18 of the Constitution. His outlook was anything but restricted to formalistic equality. He vouched for equality before law, and the ‘no detention without due process clause’. But his prime consideration was economic equality. Based on his socialist tendencies, he argued for contribution as per abilities and distribution as per need. He was strictly against the monopolization of industries. He also advocated vehemently for the right to employment as a fundamental right. He stated in a letter to Rajendra Prasad in 1947—“true individual freedom cannot exist without economic security and independence. Necessitous men are not free men.” [1]

Shah proposed an amendment to add after the right to freedom of speech and expression, ‘thought and worship, press and publication’. Though not passed then, the amendment finds effect in the contemporary interpretation given by the Supreme Court (“SC”) which is inclusive of the right to press. He believes “that equality is not merely equality of treatment before the established system of Law and Order but also of opportunity for self-expression or self-realization that may be inherent in every human being.”[2] Shah’s foresight is a vivid testimony to his unwavering commitment to notions of equality which have been deeply entrenched by his socialist roots. 

The commitment to the ideals of equality made him oppose the demands of minorities to secure their language and culture. He saw it as only perpetuating the differences between the communities. But rather than escalating the tension, he accepted the demands but cautioned to use the word ‘develop’, along with ‘conserve’ to prevent the separatist tendencies from fanning out. 

He even suggested to remove the words ‘the prime minister as the head’, expressing his desire to have equality among all the ministers, and not his opposition to the institution of the prime minister. But the amendment failed on its face.

The allegiance of Shah to socialism made him amongst the few, like K.M. Munshi, K. Santhanam and H.V. Kamath who were perpetually attempting to press socialism into the constitutional principles. Shah attempted to pass an amendment to Article 1(1) to read it as “India is a Secular, Federal and Socialist Union of States.” His intent was to make explicit for future reference, India’s commitment to socialism. But it was met with Ambedkar’s rebuttal, that it is “purely superfluous since the socialist principles have already been imbibed in directives.”

However, Shah’s encounter with Directive Principles of State Policy (“DPSP”) was anything but amiable. He had already shown his discontent over the non-justiciability of DPSPs, calling them mere ‘pious wishes.’  He quoted it to be “a cheque drawn on a bank payable, when able, i.e., only when the resources of the bank permit.” His primary concern was that such non-enforceability would encourage neither the judiciary nor the executive to care about them, and leave it to the executive’s convenience to either enforce or keep dormant. Moreover, he was concerned about DPSP’s being vulnerable to manipulated interpretations — “The ‘Directives’ are, in my opinion, the vaguest, loosest, thickest smoke-screen that could be drawn against the eyes of the people, and may be used to make them believe what the draftsmen never intended or meant perhaps.” Ultimately, after a few decades the words ‘socialist and secular’ found a mention in the preamble, at the behest of another socialist, Indira Gandhi.

Asserting the need for Accountability

Shah’s vociferous demands also emphasized on the need for accountability, manifesting in a catena of amendments proposed by him. Shah wanted the ministers to be obliged to declare their interests, rights and properties prior to taking up the office. This, in his opinion, would help in curbing corruption. However, Ambedkar rebutted this by proposing that a better sanction can be found in the form of  public opinion on the Assembly, i.e., elections. Shah’s demand was eventually acknowledged and given the force of law by the SC in the Association for Democratic Rights vs. Union of India, as a measure of ministerial accountability.

He vehemently opposed the notion of keeping any form of expenditure by executive beyond the scrutiny of the parliament, touting it as a British legacy—“For that regime, no doubt it can be understood that there were many items of expenditure which it did not care, would not dare, to bring before the representatives of the Indian people.” But ultimately, in order to maintain secrecy and sanctity, a few exceptions were carved out—such as defence expenditure, salaries of the President and SC judges. He thus vouched for financial accountability of the cabinet.

Shah’s observation on gubernatorial discretion emerges as an accurate estimate of the predicament surrounding the discourse in contemporary times. He moved an amendment to substitute the word ‘may’ with ‘shall’, and hence read the clause as ‘..shall be exercised in accordance with the constitution and the law.’ He contended that the governor’s power should be bound by ministerial responsibility, in order to prevent a parallel arbitrary authority and arbitrary use of power. Thus, Shah also contested for gubernatorial accountability.

He took his concern to the extent of judicial accountability. He wished to make ‘consultation of the Council of States’ a prerequisite for the appointment of judges by the President. He wished the state’s representatives to have a say in the judicial appointments but at the same time  ensure that it is free from the party-politics, which might creep in through the requirement of the Prime Ministerial advice. He meticulously drew the distinction between ‘elected’ and ‘consulted’. The amendment, however, never saw the daylight and to a certain extent contradicted his own opinion on separation of powers.

Securing Judicial Independence 

The ideas of K.T. Shah were largely based on ensuring smooth governance through division of power and minimal interference in each other’s domain by the organs of the government. In his note to Rajendra Prasad, where he discussed the directives formulated by him at the behest of Nehru in 1942, he mentioned the trinity of ‘legislature-executive-judiciary’ inspired from French, American and British Constitution. In 1948, in the CA, he discussed the same again, while pitching in his amendment to make an explicit clause for ‘complete separation of powers’ among the three organs. He wanted to secure the isolation of all the three, particularly the judiciary from party-politics and the whims and fancies of the cabinet—“...I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case.” 

He wanted the judges to be working in a pressure-free environment, uninfluenced by threat or coercion of the other two organs. Hence, he moved the amendment to remove the age-limit for retirement and allow a judge to hold office during his good behaviour or until he resigns but not with less than 10 years of service, reasoning to prevent them “in any way from being exposed to any apprehension of being thrown out of their work by official or executive displeasure.” 

The sheer brilliance of Shah’s ingenuity came to the fore yet again when he proposed an amendment to restrain retired judges from taking up positions to any executive office under the Union or the state. With the intent to ensure that judicial actions are not allured by “a temptation to attain greater emoluments or greater prestige,” Shah aggressively pressed for its inclusion in the Constitution. From the contemporary lens, the stir over the former Chief Justice of India, Ranjan Gogoi taking up the Rajya Sabha seat post-retirement after having presided on judgements where executive had high stakes, including the Rafale Deal Case, the Ram Janmabhoomi case etc., would have been settled amicably, had the foresight of Shah gained due recognition of the CA.  

President’s Election

Shah was highly cautious of the political muddle which might entrap the workings of the institutions central to the administrative and judicial functioning. Apart from the judiciary, one such institution was that of the President. He was adamant on his stance, to keep the presidential election out of the ambit of party politics. Rather, he wanted the President to be a people’s representative. He passed an amendment to make the President a directly elected position. His concern was not a greater role for the President, instead he desired him to have the backing of the people — “Accordingly this sort of argument would seem to be puerile, namely, that you want the President to be a sort of mere gramophone of the Prime Minister.”

He strongly opposed any rebuttal that a conflict may arise between the Cabinet and the President. He didn’t think that it would be a parallel authority that would obstruct the administration. Rather, he thought that both will supplement each other — “he will be outside the turmoil of party passion, will be outside the momentary ups and downs–the vicissitudes of parliamentary fortunes; and will be much more likely to maintain balance, and to give a degree of stability to our government.” It never garnered the strength of the assembly though, as the constitutional principles and the freedom struggle tilted in the favour of a parliamentary system.

Shah also took a stern stance on giving the power of promulgation of ordinance to the president. He called it “a negation of rule of law.” For him, it was in stark violation of his principles of separation of powers which he so deeply cherished — as the executive could have the power to infringe on the legislative power of the Parliament through such ordinances. Since, the election of the president was ultimately left vulnerable to party politics, such a power was even more susceptible to misuse. 

Conclusion

The amendments proposed by Shah were as much a portrayal of his ingenuity and foresight as his socialism. He was the only one to raise an issue of the Constitution being solely rights-oriented, he demanded a list of fundamental duties, based on his socialist outlook of contributions of a man to the society. Though rejected then, fundamental duties were enshrined later in time through the 42th Constitutional Amendment.

Nearing the end of the drafting of the Constitution, K.T Shah expressed his discontent of his failure to convince the CA to accept the amendments which in his opinion, would have furthered the democratic ideal that the makers have wished to imbibe in the constitution. He himself recounted a few such as the issue on DPSPs, Fundamental duties, Separation of Powers, and party- politics corrupting administration. He concluded his speech by saying— “Many more I can give you which would show that the actual doctrine of a working democracy is anything but fulfilled in this Constitution that we are now passing.”

Only if he had lived long enough to see the Constitution of the present day and its contemporary interpretation, he would have realised that the National Herald was right in calling it ‘Shah Nama’.

* Ayushman Rai is a 2nd-year student at the National Law University, Jodhpur. This article was selected for publication as the runner-up 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] Dated 15th Feb 1947, extracted from Granville Austin, The Indian Constitution - Cornerstone of a Nation (Oxford University Press, 1999).

[2] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India, 2019).