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
4.
Constitution-making
5.
Law-making
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
1.
Unrepresentative;
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
10.
Internationalism.
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
Objectives Resolution:
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.
Bibliography
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
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