The Constituent Assembly and the Making of the Constitution
The Constituent Assembly, constituted under the Cabinet Mission Plan, met for the first time on Dec.9, 1946. The Muslim League, smelling the creation of Pakistan, boycotted the CA. Before the boycott Congress constituted 69% of the membership of the CA, but after the withdrawal of the League the Congress percentage rose to 82. It is a fact that the Congress dominated the CA and most of its decisions were initiated and finalized within the party circles outside the Assembly forum, but the membership of the Assembly was nothing but representative of the prevailing opinion. The Assembly consisted of leading figures like Nehru, Patel, Pant, Rajendra Prasad, C Rajagopalachari, K M Munshi, Sir Tej Bahadur Sapru, Abul Kalam Azad , M A Jinnah, Liaquat Ali Khan as also leading statesmen, journalists, professors; eminent lawyers like T T Krishnamachari, Alladi Krishnaswamy Iyer and N Gopalaswamy Ayangar; learned public men like H V Kamath, H N Kunzru, K T Shah, K Santhanam, B Shiva Rao, eminent educationist Dr. S Radhakrishnan and B R Ambedkar, who was described by Beverley Nicholas in 1945 as “ one of the six best brains of India.” The CA also included Thakur Das Bhargav, Naziruddin Ahmad, Frank Anthony, Maharaja Of Darbhanga Kameshwar Singh and Jaipal Singh. Among women members mention may be made of Hansa Mehata, Sarojini Naidu & Mrs Durga Bai. Sir Benegal Narhari Rau was the constitutional advisor to the CA.
Working of the Assembly
· 9th December 1946 – CA meets under the chairmanship of Sachchidanand Sinha.
· 11th December 1946 – Dr. Rajendra Prasad elected President of CA.
· 13th December 1946 – Jawaharlal Nehru introduces Objectives Resolution.
· 22nd January 1947 – CA accepts the Objectives Resolution.
The CA worked through a number of Committees. There were mainly two types of Committees: (a) Committees on Procedural Matters, (b) Committees on Substantive Matters. There were 10 Committees on procedural matters like Steering Committee, Rules of Procedure Committee, Training and Staff Committee, Credentials Committee, Hindi Translation Committee, etc. There were 12 Committees on substantive matters like States Committee for negotiating with princely states chaired by Nehru, Advisory Committee ( chaired by Sardar Patel ) , its sub-committees on different matters like Fundamental Rights(chairman JB Kripalani), Minorities(chaired by H C Mookerjee), Union Powers Committee, Union Constitution Committee, Provincial Constitution Committee, Committee on Linguistic Provinces, etc. Nehru, Patel, Prasad & Azad chaired many of these committees along with eminent lawyers like Gopalaswamy Ayangar, Alladi Krishnaswamy Iyer, Pattabhi Sitaramayya, K M Munshi, BR Ambedkar and Satya Narayan Sinha formed the inner circle of these Committees. They provided the connecting link between various Committees.
The members were given extracts from 60 constitutions known as ‘Constitutional Precedents’. After receiving reports of the Committees B N Rau was asked to prepare a draft of the constitution. On 15 August 1947 the CA became not only a Constitution – making body, but a law-making body as well. The two tasks were to be performed on separate days; thus the Assembly became the first Parliament of India. Sri H C Mookerjee and V T Krishnamachari became the Vice Presidents of the CA, where as G V Mavalankar became the Chairman and M A Ayangar the Deputy Chairman of CA(Legislative).
Status of the CA
When the Objectives Resolution was introduced in the CA, M R Jayakar objected to its introduction on the ground that it was “ wrong, illegal, premature, disastrous and dangerous”. Dr B R Ambedkar also supported Jayakar.
Jayakar’s arguments were countered by A K Iyer and N G Ayangar on the ground that there were two significant rules which proclaimed the sovereign nature of the C A. First, the President of the Assembly was named the guardian of the privileges of the Assembly, its spokesman, representative and its highest executive authority. Secondly, the Assembly could not be dissolved except by its own resolution passed at least by two thirds of all the members of the Assembly.
The Drafting Committee, constituted on August 29,1947, consisted of Dr B R Ambedkar, who was its Chairman, and A K Iyer, N G Ayangar, K M Munshi, Syed MD Sadullah, N Madhav Rau, B L Mitter, who soon after his appointment ceased to be a member of C A and D P Khaitan, who died in 1948. T T Krishnamachari replaced him in January 1949.
The Report of the DC was submitted on 21 February 1948. The Report was published to afford an opportunity to the Public, the Press and the Provincial Legislatures to give their opinions. A large number of comments, criticisms and suggestions for the amendment of the Draft Const. were received. The Drafting Committee considered all these. A Special Committee was constituted to go through them along with the recommendations of the Drafting Committee thereon. The suggestions made by the Special Committee were again considered by the Drafting Committee and certain amendments were picked up for incorporation. To facilitate reference to such amendments, the D C decided to issue a reprint of the Draft Constitution which was submitted to the President of the Assembly on 26 October 1948. The C A took it up for general discussion on 4 November 1948. The C A finally approved the Constitution on 26 Nov. 1949 as the President of the Assembly signed on that day and it was declared as passed. On 24 January 1950 Dr. Rajendra Prasad was elected President of the Republic. Some provisions of the Constitution immediately came into operation, but the full Constitution came into force on 26 January 1950, the date that was celebrated as First Independence Day in 1930.
The C A took 2 years 11 months and 18 days to frame the Constitution. (The US Constitutional Convention took 4 months, that of Australia 9 years and Canada 2 years and 5 months). The C A held altogether 11 Sessions which covered a period of 165 days. Of these 114 days were spent on the consideration of the Draft Constitution. B N Rau’s text consisted of 243 Articles and 13 Schedules, the Draft Const. prepared by the Drafting Committee consisted of 315 Articles and 8 Schedules. At the end of the consideration stage, the number of Articles grew to 386. In its final form the Const. consisted of 395 Articles and 8 Schedules. To the Draft Const. 7,635 amendments were tabled, of which 2, 473 were actually moved, discussed and disposed of. The Assembly cost the Exchequer Rs. 6.4 million.
Problems and Tasks of the CA
1. Boycott by the Muslim League
2. Partition of the Country
3. Accession of Princely States
Points on Which There Was Not Much Debate in the CA
1. India should have a written const.;
2. India should be a Republic;
3. It should be Secular;
4. It should have a Federal set up;
5. There should be Parliamentary democracy;
6. It should be a Welfare state;
7. There should be Adult Suffrage; and
8. India should continue its membership of the Commonwealth.
Critique of the CA
2. Not Sovereign;
3. Congress dominated;
4. Lawyers dominated;
5. Not Indigenous – A Purloined Constitution, Govt. of India Act,1935 – 321 Articles/ Sections;
6. Very Lengthy Const. – Lawyers’ Paradise ( Sir Ivor Jennings );
7. Irreconcilable Systems and Provisions.
Philosophical Postulates of the Indian Const.
Based on the Objectives Resolution, Preamble and Discourse of National Movement
1. Popular Sovereignty – Article 326 entitles citizens above the age of 18 years (61st Amendment brought down the age from 21 to 18) to be registered as a voter; Art. 243C(2),243R(1);
2. Democracy – Democracy involves two questions: i) Decision taken by whom (collective choice) and ii) for whom (social choice)? Democracy is a system of collective decision-making in which there is: i. Public control over collective decisions and ii. Equality of rights in implementing those decisions;
3. Republicanism – Latin Res Publicae, the public thing, i.e. state & govt. Two uses: Narrow and Broad. In narrow meaning any state that is not Monarchy; In broader terms a system that doesn’t allow majority tyranny and favours popular sovereignty. The Americans prefer Republic over Democracy;
4. Liberalism – dignity of individual, limited government, rights of men/women, man/woman centric;
5. Secularism – A state which has no state religion; does not discriminate on the basis of religion; allows freedom of religion to all. The secularist view holds that while politics is a public affair, religion is a private affair. The two should not be mixed up. Indian view of secularism emphasizes Sarva Dharma Sambhava , equal respect for all religions;
6. Egalitarianism – a belief that people are or ought to be equal in at least some, possibly every, activity relevant to political decision-making;
7. Socialism, Justice & Welfare State – Preamble, Fundamental Rights, Directive Principles, Part X – Scheduled & Tribal Areas – Schedules V & V1, Minorities, Backward Classes;
8. Nationalism – in the Indian context nationalism + patriotism;
9. Gandhism; and
Our Founding Fathers made a constitution on the basis of Indian genius of Consensus and Accommodation. As was observed by Dr. Rajendra Prasad: “ The Constitution has provisions in it which appear to be objectionable from one point or other. We must admit that the defects are inherent in the situation in the country and in the people at large.” He very pertinently pointed out: “ We have prepared a democratic constitution. But successful working of democratic institutions requires in those who have to work them, willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions I lobbies strengthen that hope.” CA Debates, Vol. 10, p.192
The Objectives Resolution moved by Jawaharlal Nehru on 13 December 1946 expressed the objectives of the Constitution-makers. The main principles outlined in the OR were as follows:
1. India was to be an Independent Sovereign Republic;
2. It was to be a democratic Union with equal level of self-government in all the constituent parts; (the constituent units “ shall possess and retain the status of autonomous powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union.”;
3. All power and authority of the Govt. was derived from the people;
4. It would strive to obtain and guarantee to the people social, economic and political justice, equality of status, of opportunity and before the law;
5. There would be freedom of thought, expression, belief, faith, worship, vocation, association and action;
6. The Const. would provide just rights for minorities, backward classes, tribal areas, and depressed and other backward classes so that they could be equal participants of social, economic and political justice;
7. The maintenance of territorial integrity and sovereign rights according to justice and the law of civilized nations; and
8. To secure for India a due place in the comity of nations.( This ancient land attain its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.)
While introducing the OR Nehru described it as “a declaration, a firm resolve, a pledge, an undertaking, a contract with millions of Indians and, therefore, in the nature of an oath which we mean to keep.”
Gandhi’s Vision for India’s Constitution
While standing on the deck of a ship en route to London in 1931 Mahatma Gandhi, in reply to a journalist’s question about the type of constitution he would like for India, said:
I shall strive for a constitution which will release India from all tharldom and patronage, and give her, if need be, the right to sin. I shall work for an India in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women shall enjoy the same rights as men. Since we shall be at peace with all the rest of the world, neither exploiting nor being exploited, we should have the smallest army imaginable. All interests not in conflict with the interests of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign or indigenous. This is the India of my dreams.
Austen, Granville: Indian Constitution: Cornerstone of a Nation, OUP, 1966
Palmer, Norman D: Indian Political System
Jones, Morris: The Indian Politics and Govt.
Pylee, MV: Constitutional Govt. in India
Kashyap, Subhash: India’s Constitution, NBT
Jha, Raj Kumar, Rashtreeya Andolan aur Bharteeya Shasan, Motial Banarasidas, 1987