Know The Constitution[PART-II] The Constituent Assembly- The Origin Story

Sohini Chowdhury

18 Dec 2021 7:06 AM GMT

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  • Know The Constitution[PART-II] The Constituent Assembly- The Origin Story

    We Are Introducing A New Series In LiveLaw -'Know The Constitution'If the Constitution has to be of the people, by the people and for the people, it must first capture the imagination of the masses.The 'Know the Constitution' series is a humble attempt by the team of LiveLaw to unravel the Indian Constitution in all its majesty. The aim is to demystify the Indian Constitution one Article,...

    We Are Introducing A New Series In LiveLaw -'Know The Constitution'
    If the Constitution has to be of the people, by the people and for the people, it must first capture the imagination of the masses.
    The 'Know the Constitution' series is a humble attempt by the team of LiveLaw to unravel the Indian Constitution in all its majesty. The aim is to demystify the Indian Constitution one Article, one amendment, one doctrine, one schedule, one theme at a time.
    With this series we hope to make one small effort towards demystifying this foundational document and put it back where it belongs- WE THE PEOPLE.
    Only a constitutionally conscious citizenry can save the Constitution in the face of dwindling human rights, shrinking freedoms and rising authoritarianism.

    Read PART-1 of the Series Here - Know The Constitution: The Preamble

    The Prelude

    The demand for an Indian Constitution, formulated by its own people through freely chosen representation, dates back to the days of World War I. Once the War ended, the claim made by Indian nationalists for such a Constitution was repudiated by the British Parliament. However, this refusal did not dampen the spirit of the leaders who emphatically demanded self-determination. With the advent of the Government of India Act, 1919, the Indians witnessed another epoch of British Parliament taking over the 'welfare and advancement of the Indian people'. The 1919 Act, which was the product of Montagu-Chelmsford Report is considered as the first comprehensive constitutional document of India.[1]

    With the aspirations of Poorna Swaraj, and determination to see Indians shape their own destiny, Mahatma Gandhi in an article in his weekly, Young India, published in January 1922 wrote -

    "Let us see clearly what Swaraj, together with the British connection, means. It undoubtedly means India's ability to declare her independence if she wishes. Swaraj, therefore, will not be a free gift of the British Parliament. It will be a declaration of India's full self-expression."

    The public discontent and non-cooperation in the working of the Government of India Act, 1919 led to the appointment of a Reforms Enquiry Committee in 1924 under the Chairmanship of Sir Alexander Muddiman. On a thorough consideration of the statute, the minority of the Committee felt there were ample loopholes and suggested setting up a Royal Commission that would recommend constitutional reforms.

    Hesitant, the British Conservative Government, on 8th November, 1927, appointed a Royal Commission under Sir John Simon to review the operation of the constitutional system in India. Non-inclusion of Indians in the Commission set in motion a nationwide boycott. As a befitting response, Motilal Nehru, the then President of the Indian National Congress, floated an idea for a joint Hindu-Muslin constitutional scheme. After negotiations, the Nehru Report, which proposed dominion status[2] for India, took final shape in the Lucknow Conference in December, 1928. Young leaders like Jawaharlal Nehru and Subhash Chandra Bose opposed the Report claiming complete independence.[3] Jinnah and Aga Khan also repudiated it. Mahatma Gandhi proposed a compromise resolution and asked the British to accept it by 31st December, 1930 or else it would witness a non-cooperation movement seeking complete independence. In an effort to reconcile, the then Viceroy Irwin with the support of the Labour government proposed a Round Table Conference. The negotiations broke down as the Congress leaders were not happy with the 'vague promise' of dominion status without any concrete timelines[4] On 19th December, 1929 at the Lahore Session presided by Jawaharlal Nehru, Congress passed the 'Poorna Swaraj' resolution seeking complete independence from British rule. On 31st January, 1930, Mahatma Gandhi announced an eleven point ultimatum for Irwin. Irwin's denial to compromise led to the Dandi March followed by the civil disobedience movement, which came to a halt on 5th March, 1931 by the Gandhi-Irwin Pact.

    On 23rd March, 1931, the British Government executed Bhagat Singh, Rajguru and Sukhdev in connection with the Kakori Conspiracy case. One week after that a resolution was passed by the Indian National Congress in its Karachi session presided over by Sardar Vallabhbhai Patel. On his way to the Karachi session, Gandhi met with resistance from the Punjab Naujawan Bharat Sabha, which was resentful that Gandhi did not negotiate for Bhagat Singh's life in his parleys with Irwin.

    The Karachi resolution, in consonance with the ideals of Poorna Swaraj, introduced the principles of fundamental rights including right to speech, free association, peaceful assembly, right to propagate religion, right to education. Interestingly, it also laid down the socio-economic principles to be adhered to by the State.

    Separate Electorate for Minorities: The Gandhi-Ambedkar Tussle

    Ambedkar was invited by Irwin to be a delegate to the First Round Table Conference and be a part of the constitutional process which culminated into the Government of India, Act, 1935. He was a part of the Minorities Sub-Committee, set up to resolve certain claims of the minorities. One of the many proposals of the committee was a separate electorate for minority communities -

    "Claims were therefore advanced by various communities that arrangements should be made for communal representation and for fixed proportions of seats was also urged that the number of seats reserved for a minority community should in no case be less than its proportion in the population. The methods by which this could be secured were mainly three: (1) nomination, (2) joint electorates with reservation of seats, and (3) separate electorates."

    The British agreed to consider the case for separate electorate -

    "It was therefore plain that, failing an agree-ment, separate electorates with all their drawbacks and difficulties, would have to be retained as the basis of the electoral arrangements under the new constitution. From this the question of proportions would arise. Under these circumstances, the claims of the Depressed Classes will have to be considered adequately."

    It is analyzed that the communal electorate was not the dream that B.R. Ambedkar had, when he propagated communal representation before the Franchise (Southborough Committee)[5] in 1918-1919. He voraciously argued for adult franchise and the reservation for the Depressed Class. At the Round Table Conference as the Muslim League along with the princely states rejected and the British Government was reluctant to consider the plea for universal adult suffrage in India, Ambedkar though it fit to support communal electorate as the next best alternative.

    Upon signing the Irwin Pact, the Congress agreed to join the Second Round Table Conference to discuss the constitutional future of the country. At the conference Mahatma Gandhi had fervently opposed the idea of a separate electorate for the Depressed Classes, as he believed they were an integral part of the Hindu society.[6]

    The constitutional history of India witnessed a dramatic overhaul on 4th August, 1932, when Ramsay MacDonald announced the Communal Award. Apart from apportioning representation amongst the communities, it also extended a separate electorate for the Depressed Classes. Displeased with the Award and on the apprehension that a separate electorate would block all the roads for the integration of the Depressed Classes into the Hindu society, Gandhi called for a fast unto death in the Yerwada Central Jail, to pressurise the British Government to reverse its decision. As Gandhi's health deteriorated, a compromise was reached between Gandhi and Ambedkar vide the Poona Pact on 24th September, 1932. Reserved seats were provided for the Depressed Class in the Provincial Legislatures to the tune of -

    "Madras 30 ; Bombay with Sind 15 ; Punjab 8 ; Bihar and Orissa 18; Central Provinces 20; Assam 7 ; Bengal 30; United Provinces 20; Total 148."

    And in the Central Legislature -

    "In the Central Legislature, eighteen percent of the seats allotted to the general electorate for British India in the said legislature shall be reserved for the Depressed Classes."

    The Third Round Table Conference in November - December, 1932 was of not much consequence. On 3rd May, 1934, when the 1933 White Paper (which ultimately took the shape of the Government of India Act, 1935) was put before the Congress Working Committee for its opinion at the Swaraj Party Conference, exerting the principles of self-realisation it refused a Constitution drawn up by a foreign Parliament. It stated that the only 'satisfactory alternative' to this would be 'a constitution drawn up by a Constituent Assembly elected on the basis of adult franchise'.[7] Thus, the demand for a Constituent Assembly was formally adopted by the Indian National Congress in 1934.

    The Government of India Act, 1935: The Provincial Government

    The 1935 Act provided for an All-India Federation comprising the British Indian provinces and the Indian States. The power was divided between the Centre and the provinces and princely states in terms of three lists - federal, provision and concurrent list. India could have become a federation if 50% of the Indian states decided to join it. Unfortunately, this provision was never implemented as the princely states decided against joining it. Dyarchy was abolished at the provincial level, but was introduced at the Centre.

    The Act granted autonomy to the provinces, which were allowed to act as independent units of administration. It also acknowledged responsible Governments in provinces, whereby the Governor was to act on the advice of ministers responsible to the provincial legislature. However, to see to it that the authority rested in British hands, Governors were bestowed with overriding powers.

    Provincial Executive

    The executive largely consisted of the Governor and his Council of Ministers. For some subject matter he was to act on the advice of the Ministers, whereas ample subjects needed no such advice. He could legislate through ordinance and exercise various other legislative and financial powers at his discretion. In case of constitutional breakdown in the Province, the Governor could by proclamation assume all powers vested into any provincial body, except the High Court.

    Provincial Legislature

    Out of 11 Provinces, there were bicameral legislatures in six [Bengal, Bombay, Madras, Bihar, Assam and the United Provinces] and unicameral in the rest [the Punjab, the Central Provinces, the North-Western Frontier Province, Sind and Orissa]. The Upper Chamber was called the Legislative Council and the Lower Chamber, the Legislative Assembly. The members of the Assembly were directly elected by the people on the communal basis or through various bodies and associations. Members of the Council were elected by the general constituencies and assemblies and some were nominated by the Governor.

    As per the Poona Pact a substantial portion of the General Seats in the Legislative Assemblies were reserved for the Depressed Classes. Seats were also provided for Muslims, Sikhs in the Punjab and North-West Frontier Provinces, Europeans, Anglo-Indians, Indian Christians, representatives of commerce, industry, mining and planting, landholders and labour. Women were assigned General Seats in all but one province (North-West Province). The size of the Assemblies varied in the provinces - 250 for Bengal, 228 for United Provinces, 215 for Madras, 175 for Bombay and Punjab, 152 for Bihar, 112 for Central Provinces and Berar, 108 for Assam, 60 for Sind and Orissa and 50 for the North-West Frontier Province.[8]

    The right to vote was restricted to economic and educational qualifications and only about 14% of the total population of the country enjoyed 'the privilege' to vote.[9]

    The Act never came into operation for the Central Government, but with respect to the Provinces it came into force in April, 1937. The same year provincial elections were held. Congress emerged victorious and agreed to form Ministries in 8 out of 11 provinces on the assurance that the Governor would not interfere with its working. Congress Ministries worked until they resigned in 1939, when at the wake of World War II, the British Government without consulting the Indian leaders declared that India was at war with Nazi Germany.

    In The Backdrop Of Word War II: August Offer And Cripps Mission

    As Britain was struggling to hold ground in World War II, there was a growing need to gain India's support in its war efforts. To secure sustained cooperation, it was compelled to initiate discussions on the constitutional future of India. On 8th August, 1940, Lord Linlithgow, the Viceroy of India made the 'August Offer', wherein for the first time the British had recognised the demand for a Constituent Assembly. The proposal for setting up a Constituent Assembly was accompanied with the expansion of the Viceroy's council to include Indian political representatives. The Indian National Congress, with a demand for complete independence was not ready to settle for dominion status; the Muslim League was critical of the decision to expand the Viceroy's council without consulting the Indian leaders. However, Hindu Mahasabha accepted the offer and nominated representatives to the Viceroy's council.

    In 1942, Stafford Cripps, a member of the British War Cabinet, arrived in India on his mission to discuss the Draft Declaration on the Constitution of India. It proposed that the members of the lower houses of the provincial legislatures together with the representatives of the states were to function as the Electoral College to elect a 'constitution-making body'. The Draft Declaration further proposed that the strength of this body would be about one-tenth of the total number of the Electoral College, and its members would be elected according to the system of proportional representation. Any state not willing to accept the Constitution so drafted had the liberty to enact its own, which would have the same full status as that of the Indian Union. With the Indian National Congress firm on its demand for complete independence; the Muslim League for a separate nation; and the gradual withdrawal of support of the War Cabinet, which felt the negotiated Draft was too liberal, the Mission's failure became inevitable.

    "Quit India" Resolution: Formulation of a Plan for a Constituent Assembly

    On August 8, 1942, at its Bombay Session, the All-India Congress Committee of the Indian National Congress, passed the "Quit India" resolution demanding, inter alia, declaration of Independence and formation of a provisional government of 'free India', which would set up a Constituent Assembly for its citizens. Reprimanding the movement, the British had put all the prominent leaders including Mahatma Gandhi, behind bars.

    Sapru Committee Report: An Attempt At Constitution MakingAfter Gandhi was released from prison, in the Gandhi-Jinnah talks of 1944, no compromise was reached and the atmosphere reeked of communal tension. In this backdrop, the Non-Party Conference set up a Committee with Tej Bahadur Sapru as its Chairperson, and the mandate to examine -

    "...the whole communal and minorities question from a constitutional and political point of view, put itself in touch with the different parties and their leaders, including the minorities interested in the question and present a solution…"

    The Report was published in 1945, wherein the Committee had made 21 recommendations. The Report rejected Jinnah's demand for Pakistan and proposed setting up a constitution-making body represented equally by Hindus and Muslims. It proposed joint electorates with reserved seats and a Minorities Commission to ensure that the minorities get opportunity to voice their demands. One of the chapters, titled 'Leading Principles of a New Constitution' provided a constitutional framework. The Report also contained provisions pertaining to fundamental rights; freedom of speech; freedom of press, religion; and principles of equality. Though the recommendations of the Committee were not considered by the political leaders of the day, it did have great influence in the Constitution making process, as is evident from the fact that seven of its members, namely M.R. Jayakar, Gopalaswami Ayyangar, John Mathai, Frank Anthony, S. Radhakrishnan, Homi Mody, Sachidananda Sinha of the Sapru Committee, were later elected to the Constituent Assembly.

    Should There Be A Constituent Assembly, Charged With The Function Of Making A Constitution?

    This is precisely the question that B.R. Ambedkar had posed to himself at a gathering of the All-Indian Scheduled Castes Federation on 6th May, 1945.

    Answering in negative, he asserted -

    "I must state that I am wholly opposed to the proposals of a Constituent Assembly. It is absolutely superfluous. I regard it as a most dangerous project, which may involve this country in a Civil War. In the first place, I do not see why a Constituent Assembly is at all necessary. Indians are not in the same position as the Fathers of the American Constitution were, when they framed the Constitution of the United States. They had to evolve ideas, suitable for the constitution for a free people. They had no constitutional patterns before them to draw upon. This cannot however be the case for Indians. Constitutional ideas and constitutional forms are ready at hand."

    Referring to the task of the framers of the American Constitution, who attempted to approach principles from the scratch, he believed India was in a position that it could pick one of the many constitutional models before it. India's constitutional features were undisputed and needed no great deliberation. The only function that could be left to the decision of the Assembly would be the 'communal problem', but he felt that the communal problem should not fall within the mandate of the Assembly. He was conscious of the fact that the election to the Assembly would only further the communal dissonance. In reality, what Ambedkar was really apprehensive of was that the constitution-making process would witness the rule of the majority.

    Later, when the Constituent Assembly was being elected, he joined it. Breaking free of his apprehension that the dominant groups would take over constitution-making, Ambedkar decided to be a part of the process to lend a voice to the minorities in the floor of the Assembly.

    Cabinet Mission Plan - Genesis Of The Constituent Assembly

    In September, 1945 the newly elected Labour Government in Britain announced its intention to create a 'constitution-making body' for India. Pursuant to this announcement, in January 1946, a Parliamentary Delegation was sent to India, which was followed by the Cabinet Mission [Frederick Pethick-Lawrence, Secretary of State and two cabinet ministers - Stafford Cripps and A.V. Alexander] in March. The first impediment in setting up the machinery for creation of the Constituent Assembly was the Congress and the League's opposing vision for India. While the League had in the 'Lahore Resolution' of 1940, made it clear that it wanted a separate sovereign state for Muslim majority provinces in India, the Congress was avowed to keep India united.[10] In its attempt to reach a compromise, the Cabinet Mission set out a Plan. It suggested a federal structure with provinces being grouped geographically into three regions - one predominantly Hindu, the other predominantly Muslim and the third, where the population of both would be nearly equal.

    Apprehensive about 'grouping', Congress conditionally accepted the proposal. Impressed with the potential of the 'provisional grouping' to ultimately lead to the formation of a separate nation, the Muslim League supported the plan.[11]

    Discounting direct election as a cumbersome process, the Cabinet Mission Plan utilised the newly elected Provincial Legislative Assemblies to elect members to the Constituent Assembly, through a single transferable vote. Elected by the provisional legislatures, the Constituent Assembly came into being. The long standing demand of the Congress to elect a Constituent Assembly by means of adult franchise did not materialise and Congress refrained from pushing it further, given the same would cause delay. The provinces were to be represented in the Assembly in approximately the ratio of one to one million of their population strength. The Muslims, Sikhs and General (Hindus including all other communities) members of the legislatures, would elect separately, according to their percentage of population of the province, their proportion to the provisional delegation. The Princely States were to have ninety-three representatives at the Assembly, whose mode of selection was left to be decided by the Assembly and the rulers of these States.

    On 10th July, 1946, at a Press conference in Bombay, Nehru made it clear that 'grouping' would not be viable. He said -

    "The big probability is from any approach to the question, there will be no grouping. Obviously, Section A will decide against grouping. Speaking in betting language there was a four to one chance of the North-West Frontier Province deciding against grouping. Then Group B collapses. It is highly likely that Assam will decide against grouping with Bengal although I would not like to say what the initial decision may be, since it is evenly balanced. But I can say with every assurance and conviction that there is going to be finally no grouping there, because Assam will not tolerate it under any circumstances whatever. Thus you see this grouping business approached from any point of view, does not get on at all."

    Before the elected Assembly could be in session, Jinnah taking note of Nehru's intention, decided to withdraw his acceptance and the League boycotted the Assembly. To give effect to the Mission's Plan of setting up an interim Government till the Constitution comes into existence, Viceroy Wavell made efforts to reconcile.Without losing focus, Congress went ahead and set up an Experts committee for the Assembly to draft fundamental rights. At the Viceroy's invitation the Congress formed the interim Government with Nehru as the de facto Prime Minister. Though initially the League refused, later it joined the Interim Government. However, it still continued boycotting the Constituent Assembly. Clement Attlee's government called in Nehru, Jinnah and Baldev Singh (representative of the Sikh) to reconcile, but in vain.

    On 9th December, the Constituent Assembly convened. The Assembly assumed the power to dissolve itself, so that the only way the Assembly could be dissolved by the British, would be by force.

    "The Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the whole number of members of the Assembly."

    Unfortunately in its first session, the representatives of the 100 million Indian Muslims were not present at the Assembly, as no efforts could change the decision of the League.[12] Though the Assembly and the committees continued functioning, only preliminary tasks were adopted in the anticipation that the League might change its mind. On 13th December, 1946, Nehru moved the Objective Resolution for the Constitution, which later took the shape of the Preamble to the Constitution. On 22nd December, 1946, the Assembly unanimously adopted the Resolution. By the second session in January 1947, it was certain that the League was not to return. In the third session, at the end of April, debates on federal provisions were postponed in an apprehension of partition.

    Manipur State Constitution Act, 1947: Constitution of a Princely State

    In December 1946, when there was growing apprehension that the British might withdraw from India, Manipur, then a princely state with Bodhchandra Singh as the Maharaj chose not to join the Indian Union. To stand the test of democratic governance, which was a growing aspiration of his subjects, he directed setting up a committee to draft a Constitution for Manipur. F.F. Pearson, the then Chief Minister of Manipur chaired the constitution making committee and the State Constitution Act was passed in May 1947. The duration of its operation was brief, since in 1949, the Maharaja was persuaded by the Indian political leaders to sign the instrument of accession.

    Constituent Assembly Of Independent India

    On 3rd June, 1947, the Viceroy Lord Mountbatten in his address to the nation, announced the British would recognise the independence of India on 15th August, 1947 and the existence of two independent states - India and Pakistan. Consequently, the British Parliament passed the Indian Independence Act[13] which came into effect on 15th August, 1947. Until the time the new Constitution was drafted, the Government of India Act, 1935 was to remain operative. The Independence Act gave the Constituent Assembly the status of a Dominion Parliament known as the 'Constituent Assembly (Legislative)'. Thus the Assembly assumed two distinct sets of functions, one as the constitution-making body and the other as the provisional parliament.

    Legitimacy Of The Constituent Assembly - Indirectly Elected, One-Party Body

    Both the Assembly and the government were run by one party i.e. the Congress. But, the Assembly did not witness the characteristics of the monolithic political system or the mass-party arrogance of quelling dissent. The Constituent Assembly Debates reflect how the members of the same party voiced diverse opinions. Granville Austin in his book 'The Indian Constitution Cornerstone of the Nation', has succinctly explained this phenomenon -

    "Although the outcome of the Assembly elections in July, 1946 had made the Congress master of the Assembly, party policy ensured that the Congress members there represented the country. This was a result of the unwritten and unquestioned belief that the Congress should be both socially and ideologically diverse and of a deliberate policy that representatives of various minority communities and viewpoints should be present in the Assembly."

    Austin further acknowledged that within the limited framework of the Government of India Act, 1935, the 28.5% of the adult population that could vote in the provincial elections, would not have been able to achieve a representative Assembly. He stated -

    "The electoral body itself could not have produced a representative body because it was based on the restricted franchise established by the Sixth Schedule of the 1935 Act, which excluded the mass of peasants, the majority of small shopkeepers and traders, and countless others from the rolls through tax, property, and educational qualifications. Only 28.5 per cent of the adult population of the provinces could vote in the provincial elections of early 1946. But because the Congress and its candidates covered a broad ideological spectrum, those elected to the assemblies did represent the diverse viewpoints of voters and non-voters alike."

    Diversity In Membership

    292 members were elected through the Provincial Legislative Assemblies, 93 members represented the Indian Princely States and 4 members the Chief Commissioner's Provinces. The total number stood as 389. However, after partition, the League left, leaving 299 members [229 members from provinces and 70 members nominated from princely states] in the Assembly.

    The candidates of the provincial legislature were selected by the Provincial Congress election committee and not the All India Congress Committee (AICC). The provincial legislature electing members to the Assembly faced minimal interference from AICC. The limited inference was to ensure persons with exceptional ability and from the minority communities found place in the Assembly. As commented by Austin, the Parsis, Anglo-Indians, Indian Christians, members of the Scheduled Castes and Tribes found a place in the Assembly under the 'General' category because of the initiatives taken by the Congress leaders. There were seven representatives of the Indian Christians, three of the Anglo-Indian community and three members representing the Parsi community. 37% of the provincial membership of the Assembly was held by minorities.

    The Assembly had 15 women members, including Dakshayani Velayudhan, who was the only Dalit woman.

    Experts in the field of law and constitution like A.K. Ayyar, H.N. Kunzu, N.G. Ayyangar, Dr. Ambedkar, K. Santhanam, M.R. Jayakar, Sachchidananda Sinha and K.M. Mushi also found their place in the Assembly.

    H.V. Kamath, member of Forward Bloc, and a devout socialist, K.T. Shah was elected to the Constituent Assembly. Somnath Lahiri was the sole communist party member in the Constituent Assembly. Hindu Mahasabha members, such as, Shyama Prasad Mukherjee and M.R. Jayakar, was also elected.

    Diversity In Participation

    Though the Assembly was reasonably representative, that is not determinative of the participation of the diverse groups in the deliberations that ultimately culminated into our Constitution.

    A textual study of the Constitution of India conducted by Shivkumar Jolad and Yugank Goyal shows-

    "Less than 6% of members spoke 50% of all the words uttered in the Assembly. Women members spoke less than 2%. (Rajkumari Amrit Kaur and Sucheta Kriplani, among others, didn't say anything). The most voluble speakers were Rajendra Prasad and Ambedkar (7.5% and 7.2% respectively). Prominent national leaders like Nehru and Patel contributed to merely 2.18% and 1.47% of the debate by word-count. The Gini coefficient of the number of words spoken in the Constituent Assembly debates is 0.756, a very high figure, indicating high lopsidedness. This is worse than the Gini index of income in South Africa, the world's most unequal country in terms of what people earn."

    Amongst the 15 women members, G. Durgabai recorded the highest participation. She majorly participated in the discourse on judiciary. Ammu Swaminathan, Begum Aizaz Rasul, and Dakshyani Velayudhan participated in debates on Fundamental Rights, whereas Hansa Mehta and Renuka Ray participated in debates on justice for women in India.

    The members elected from provinces contributed to 85% of discussions in the Assembly, whereas those from princely states contributed to 6% of the discussions.

    Arguably the only time when 'we the people' got the opportunity to participate in the constitution-making process was when in Feb, 1948 the draft Constitution was circulated for feedback and suggestions. In four sittings, the Assembly deliberated upon the comments received in this regard.

    As depicted by Granville Austin, the constitution-making process [Oct, 1948 - Nov, 1949] was dominated by the Congress Assembly Party, which was an unofficial, private forum that debated every provision of the Constitution prior to it being taken up by the Constituent Assembly. All members of the Assembly elected on Congress party ticket, whether from the party or not, were free to attend these sessions. At the Constituent Assembly, the influence of the party whip was evident, as noted by Austin. However, individual members did express their views opposing the whip.

    Demand For An Elected Constituent Assembly - Representing the Will of the People

    In 1948, when B.R. Ambedkar had placed the draft Constitution before the Assembly, Damodaran Swarup Seth, a member moved an amendment for convening a new Constituent Assembly elected on the basis of adult franchise, representing the will of the people.

    "Whereas the present Constituent Assembly was not elected on the basis of adult franchise and whereas the final constitution of free India should be based on the will of the entire people of India, this Constituent Assembly resolves that while it should continue to function as Parliament of the Indian Union, necessary arrangements should be made for convening a new Constituent Assembly to be elected on the basis of adult franchise and that the Draft Constitution prepared by the Drafting Committee be placed before it for its consideration and adoption with such amendments as it may deem necessary."

    Acknowledging the concern of Seth, Ambedkar refused to accept what he indicated - that the elected constitution-making body would possess greater political knowledge or wisdom.

    "Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage, I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate."

    Working Of The Constituent Assembly - Constitution-Making

    In July, 1946, BN Rau was appointed, by Viceroy Wavell, as the Constitutional Advisor to head the Constituent Assembly Secretariat. In the second session of the Assembly in January, 1947, the Chairman constituted four major committees: Advisory Committee on Fundamental Rights, Minorities and Tribal Areas and Excluded Areas, Provincial Constitution Committee, Union Constitution Committee and Union Powers Committee. In the meanwhile, BN Rau engaged in the preparation of the blueprint of the Constitution. The committees so constituted were further divided into sub-committees for focussed discussion on particular topics. The committee completed most of their task by August, 1947. The reports were submitted to the President, who placed it before the Assembly for extensive discussion. Various sectoral committees were also set up which performed specific tasks assigned by the Chairman. Based on the inputs from the reports adopted by the assembly and from his notes, the Constitutional Advisor prepared the first draft of the Constitution by October, 1947.

    The Drafting Committee was elected by the Assembly on 29th August, 1947. It was a seven member committee (Alladi Krishnaswami Ayyar, B.R. Ambedkar, B.L. Mitter, D.P. Khaitan, K.M Munshi, Mohammad Saadulla and N. Gopalaswami) chaired by B.R. Ambedkar. Its primary objective was to fine tune the draft prepared by the Constitutional Advisor containing 240 Articles, and 13 Schedules. The mandate for the Drafting Committee as set out by the resolution was -

    "to scrutinise the draft of the text of the Constitution of India prepared by Constitutional Adviser, giving effect to the decisions already taken in the Assembly and including all matters which are ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration the text of the draft constitution as revised by the committee…"

    On 21st Feb, 1948 the draft Constitution with 315 articles and 8 schedules was produced and later published and circulated for suggestions and comments. After obtaining responses, the Drafting Committee sat down to consider them.

    The Chairman of the Assembly decided that the response on the draft Constitution and recommendation of the Drafting Committee would be looked into by a Special Committee which would include members of Committees on Union Powers, Union Constitution and Provincial Constitution under the chairmanship of Nehru. After its first session on 10th - 11th April, 1948, the Special Committee did not reconvene and on 18th October, 1948, the Drafting Committee started reworking the draft Constitution.

    With the view that the Constituent Assembly had failed to acknowledge economic and equalitarian ideas in its draft, the Socialist Party prepared its own 'Draft Constitution of the Indian Republic' in 1948. However, it failed to hold sway over the deliberations at the Assembly.

    On 4th Nov, 1948, the draft Constitution was formally introduced and thereafter debates took place on the floor of the Assembly for about a year during the first reading (4th Nov, 1948 - 17th October, 1949) of the Constitution Bill. The matters once discussed and voted on were often revisited and accordingly, changes were made by the Drafting Committee. During the second reading (14th Nov, 1949 - 16th Nov, 1949) of the Constitution Bill, 170 amendments were moved, out of which 88 were accepted, 30 were withdrawn and 52 were invalidated. At the third-reading (17th Nov, 1949 - 26th Nov, 1949), the members primarily addressed the deficiencies in the draft Constitution.

    Upon the last round of voting, the Constituent Assembly adopted the Constitution. 16 out of the 395 Articles, namely Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393 and 394 came into force on 26th Nov, 1949.

    On 24 January, 1950, the President of the Assembly was declared to have been elected as the President of India. All the members signed the Constitution, three copies to be precise - the English print version, English calligraphed version and the Hindi version. Nehru was the first to sign the Constitution, and Feroze Gandhi, the last. As the President of the Assembly, Rajendra Prasad's signature was assigned a place at the top.

    According to Article 394, all the remaining provisions of the Constitution were to come into force on the 26th day of January[14], 1950, which day is referred to in this Constitution as the commencement of the Constitution.

    And, thus, the Constitution of India formally commenced on 26th January, 1950.

    Suggested Reading:

    1. The Framing of India's Constitution: Selected Documents by B. Shiva Rao
    2. Making of India's Constitution by H.R. Khanna
    3. The Indian Constitution Cornerstone of a Nation by Granville Austin


    [1] V.K. Shukla, Constitution of India, pg A-6, 13th Edition, EBC.

    Later in 1923, B.R. Ambedkar had referred to it as the 'British Constitution of India'.

    [2] Simply put, independence within the British Commonwealth.

    [3]Sekhar Bandhyopadhyay, From Plassey to Partition, A History of Modern India, pg. 316, Orient Longman Private Limited.

    [4] Id.

    [5]It was one of the three committees proposed in the Montagu-Chelmsford Report to conduct in-depth study of the problems and recommend concrete proposals for reforms. This particular committee was tasked with finding suitable parameters for the creation of an electorate in India and fix territorial units and constituencies that will serve as the ground for future Indian legislature and elections. The committee invited representatives from various communities to present their cases and evidence before it. They also invited B.R. Ambedkar.

    [6]supra note 3 at 323.

    [7]Granville Austin, The Indian Constitution Cornerstone of a Nation, Page 1, 26th Impression, 2015, Oxford University Press.

    [8]Arthur Berriedale Keith, A Constitutional History of India 1600-1935, pg 353, available at

    [9]supra note 1 at A-13.

    [10]supra note 7 at 4.

    [11]supra note 7 at 6.

    [12]supra note 7 at 8.

    [13]The Act was passed by the British Parliament within less than a fortnight and it got the Royal assent on 18th July, 1947.

    [14] It appears that 26th January was chosen to commemorate the resolution of Poorna Swaraj adopted in the Lahore Session of Congress in 1929.

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