4 Constituent Assembly of India on Minority Rights

Dr. M. Mohibul Haque

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Abstract

This chapter aims to present a holistic picture of the debates on minority rights in the Constituent Assembly of India. It highlights the important stages of the incorporation of provisions relating to minorities in the Constitution of India. It also presents the pre-natal history of some important articles relating to the rights of minorities for a better understanding of the spirit behind and purpose of these articles.

The Constituent Assembly of India

The Working Committee of the Indian National Congress in 1934 put forward the demand for a Constituent Assembly elected on the basis of ‘adult franchise or as nearer to it as possible’. The Working Committee stated:

The only satisfactory alternative to the White Paper is constitution drawn up by a Constituent Assembly elected on the basis of adult franchise or as nearer to it as possible, with the power, if necessary, to the important minorities to have their representatives elected exclusively by the electors belonging to such minorities.

Since 1934 the Congress Party has consistently maintained this line. Accepting the demand the British Government issued a State paper by the Cabinet Mission on 16 May 1946 which became the basis of the Constituent Assembly. The elections to the Constituent Assembly of India were held in July 1946 in accordance with Cabinet Mission Plan of 16 May 1946. The Plan had stipulated that `the cession of sovereignty to the Indian people on the basis of a constitution framed by the Assembly would be conditional on adequate provisions being made for the protection of minorities.

Composition of the CA

As to its composition, members were chosen through indirect election by the members of the Provincial Legislative Assemblies, according to the scheme recommended by the Cabinet Mission. Members of three communities, Muslim, Sikh and General (Hindus and all others) elected their representatives separately, by the single transferable vote system of proportional representation. The Congress and the Muslim League won an overwhelming proportion of General and Muslim places respectively, reflecting the composition of provincial legislatures, with the Congress majority in the Assembly rising to 82 percent after the partition of the country. The representatives to the CA were elected under the following arrangement:

(i) 292 members were elected through the Provincial Legislative Assemblies;

(ii) 93 members represented the Indian Princely States; and

(iii) 4 members represented the Chief Commissioners’ Provinces.

The total membership of the Assembly thus was to be 389. However, as a result of the partition under the Mountbatten Plan of 3 June, 1947, a separate Constituent Assembly was set up for Pakistan and representatives of some Provinces ceased to be members of the Assembly. As a result, the membership of the Assembly was reduced to 299.

First Meeting of the CA

The Constituent Assembly met for the first time in New Delhi on 9 December, 1946 in the Constitution Hall which is now known as the Central Hall of Parliament House. Of the total 296 members (Hindus 163, Muslims 80, Scheduled Castes 31, Indian Christians 6, Backward Tribes 6, Sikhs 4, Anglo-Indians 3, Parsis 3) who were to take part in the preliminary session, only 210(Hindus 155, Muslims 4, Scheduled Castes 30, Indian Christians 5, Backward Tribes 6, Sikhs 4, Anglo Indians 3, Parsis 3) attended. The Muslim League boycotted the proceedings of the CA and was conspicuous by its absence which provoked Winston Churchill, the former Prime Minister of England to remark that it ‘was something like the absence of the bride in the Church when the marriage was going to take place.’

Constituent Assembly and the Making of the Constitution

The task of drafting a Constitution with the aim of promoting common good and also satisfying the aspirations and allaying the apprehensions of minorities in a communally charged environment was indeed a difficult assignment at the time of Independence that accompanied partition of the country along communal lines. However, the framers of the Constitution demonstrated perspicacity and vision in preparing a document that meets both the ends of achieving national unity while respecting diversities. The most striking features of the Constitution in this respect are the secularism along with democratic egalitarianism and fundamental rights with special and additional safeguards for weaker sections of society like Scheduled Castes, Scheduled Tribes, the Other Backward Classes and minorities. As India is a conglomeration of minorities, the Constitution has taken special care of them. The starting point of discussion on incorporation of minority rights in the Indian Constitution was the Objectives Resolution moved by Pandit Jawaharlal Nehru in the Constituent Assembly on 13 December 1946. While moving the Resolution Pandit Nahru asserted that “The Resolution that I am placing before you is in the nature of a pledge.” The Objectives Resolution read:

  1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;
  2. WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
  3. WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
  4. WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and
  5. WHEREIN shall be guaranteed and secured to all the people of India justice, social economic and political : equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
  6. WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
  7. WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations; and
  8. This ancient land attains its rightful and honoured placed in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

This Resolution was unanimously adopted by the Constituent Assembly on 22 January 1947. The Resolution guaranteed to all the people of India Justice— social, economic and political; equality of status, opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality. It also promised adequate safeguards for minorities, backward and tribal areas, and depressed and other backward classes.3 In this way, the Objectives Resolution which broadly outlined the basic framework and philosophy of the Constitution gave assurances to apprehensive minorities that their interests would be safeguarded by the Constitution. Thereafter, the Constituent Assembly created an Advisory Committee on Fundamental Rights and Minorities etc. under the Chairmanship of Sardar Vallabh Bhai Patel. The Advisory Committee met on February 27, 1947 and divided itself into four sub-committees:

(i) Sub-Committee on Fundamental Rights, (ii) Sub-Committee on Minorities, (iii) Sub-Committee on North-East Frontier Tribal Areas and Assam Exluded & Partially Excludedthe  resolution  for  the  setting  up  of  an  Advisory  Committee  on  Fundamental  Rights  and Minorities. He emphasized:

A satisfactory solution of the question pertaining to minorities will ensure the health, vitality and strength of the free State of India… . So far, the minorities have been incited and have been influenced in a manner which has hampered the growth of cohesion and unity. But now it is necessary that a new chapter should start and we should all realize our responsibility. Unless the minorities are fully satisfied, we cannot make progress; we cannot even make peace in an undisturbed manner.

The problems and safeguards for minorities were discussed, debated and settled mainly by two sub-committees—the Sub-Committee on Minorities with H.C. Mookherjee as its Chairman and the Sub-Committee on Fundamental Rights headed by J.B. Kripalani. The Sub-Committee on Minorities which was entrusted with the specific task of considering and suggesting about the rights and safeguards proposed to be incorporated in the Constitution began its work with a Questionnaire prepared and distributed by K.M. Munshi. The questionnaire included inter alia:

  1. What should be the nature and scope of the safeguards for a minority in the new Constitution?
  2. What should be the political safeguards of a minority: (a) in the Centre (b) in the Provinces?
  3. What should be the economic safeguards of a minority: (a) in the Centre (b) in the Provinces?
  4. What should be the religious, educational and cultural safeguards for a minority?
  5. What machinery should be set up to ensure that safeguards are effective?
  6. How is it proposed that the safeguards should be eliminated, in what time and under what circumstances?

Thus it is observed that the Sub-Committee on Minorities started discussion with a very open mind as is evident from the Questionnaire. It included questions relating to political, economic, religious, educational, and cultural safeguards for minorities and institutional mechanism to make these safeguards effective. The rights and safeguards for minorities were discussed and debated thoroughly first at the sub-committees stage, then at the Advisory Committee stage, and finally at the Constituent Assembly stage. It is observed:

The issue of safeguards for minorities remained an important and controversial issue, and continued to engage the attention of the members at all stages of the deliberations till the Assembly had completed the Draft of the entire Constitution in November 1949.

It cannot be denied that the mood of the Constituent Assembly was influenced by the unfolding of events like the partition of the country, large scale communal riots, and the attitude of the members representing diverse interests and claims.

The Draft Constitution and Minorities

On 29 August, 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India. While deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled. Considering the recommendations of the relevant committees and the decisions of the Constituent Assembly, the Drafting Committee which met on February 5 and 6 1948 formulated the various provisions relating to minorities into ten Articles(292-301) and placed them in Part XIV under the title “Special Provisions Relating to Minorities.” These provisions were as under:

  1. Articles 292, Reservation of seats in the House of the People for Muslims, Scheduled Castes, and Scheduled Tribes and in the States of Madras and Bombay for Indian Christians.
  2. Article 293, authorised the President to nominate to the House of the People, not more than two members of the Anglo-Indian community, if he is of the opinion that the community is not adequately represented in the House of the People.
  3. Article 294, Reservation of seats in the Legislative Assemblies of States (mentioned in Part I of the First Schedule) for Muslims Scheduled Castes, and Scheduled Tribes and in the States of Madras and Bombay for Indian Christians.
  4. Article 295, authorised the Governor of a State , if he is of the opinion that the Anglo- Indian community is not adequately in the Legislative Assembly of the State, nominate such number of members of the community to the Legislative Assembly as he considers appropriate.
  5. Article 296, the claims of all minorities shall be considered, consistently with the maintenance of efficiency of administration in the making of appointments to the public services.
  6. Article  297,  continuation  of  reservation  of  posts  for  Anglo-Indians  in  the  Railways, Customs, Posts and telegraphs Services on the same basis as before 15 August 1947. It was to be last for ten years.
  7. Article 298, made special provisions with respect to educational grants for the benefit of Anglo-Indian community.
  8. Article 299, made provisions for appointment of Special Officers for Minorities for the Union and the States.
  9. Article 300, empowered the President to appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in States in Part I of the First Schedule.
  10. Article 301, authorised the President to appoint a Commission to investigate the conditions of socially and educationally backward classes.

The Draft Constitution as is evident from the provisions mentioned above provided safeguards for adequate representation of minorities in Central and State Legislatures, and  in public services. For the effective implementation of these safeguards it also provided for institutional mechanism by the provision for appointment of Special Officers for Minorities in the Union and the States. This shows the deep commitment to the cause of minorities by the leaders representing in the Constituent Assembly. However, the successive unfolding of events in the wake of partition of the country changed the mood of the Constituent Assembly and the special provisions relating to minorities in the Draft Constitution underwent substantial changes. In fact, before finally assuming the present shape of minority rights in the Constitution of India, the deliberations on rights of minorities passed through three stages in the Constituent Assembly of India:

  • First Stage: Rejection of separate electorates and adoption of joint electorates with reservation of seats for the minorities and Scheduled Castes and Scheduled Tribes in legislative bodies and public services.
  • Second Stage: Rejection of joint electorates with reservation of seats for minorities in legislative bodies and general agreement on reservation of minorities in public services and for Scheduled Castes and Scheduled Tribes in Public Services and legislative bodies both.
  • Third  Stage:  Rejection  of  provisions  for  reservation  of  minorities  even  in  public services while reaffirming reservations for the Scheduled Castes and Scheduled Tribes in Public employment and legislative bodies and recognition of the religious, educational, cultural and linguistic rights of minorities.

It is observed that the Constituent Assembly in the beginning started discussion on minority rights with a very positive and generous approach. The members of the Assembly were deliberating upon providing special rights to minorities to ensure their meaningful political representation, social and economic security besides agreeing on preserving their religious, cultural and educational rights. Iqbal A. Ansari observes: “The framers of the Constitution deserve credit for having withstood their ground during the period March-April 1947 through Feb. 1948 till April 1949- a period which witnessed the history’s worst communal holocaust in this part of the world. But when the dust of partition had settled and communal temperature had been fairly normalized the issue of minority rights got reopened by Sardar Patel’s letter of 11 May 1949 to the President of the Assembly.” Interestingly, the letter of Sardar Patel mentioned ‘the changed circumstances’ for reviewing the original recommendations of the Advisory Committee relating to minorities. Sardar Patel found it inappropriate to have reservation of seats for religious minorities  which according to him led “to a certain degree of separatism and to that extent contrary to the conception of a secular democratic state.”19 Hence, at different stages in the Constituent Assembly the provisions for special rights of minorities were modified substantially and finally no special rights except cultural and educational were conceded to minorities but the reservations for the Scheduled Castes and Scheduled Tribes in legislative bodies and public employment were kept intact as originally proposed by the Advisory Committee. Perhaps the partition of the country on the notion of communal nationhood and the violence that was unleashed on the eve of partition had changed the attitude of the members of the Constituent Assembly. Furthermore, ‘the compulsions of the pursuit of undiluted pure nationalism’ were invoked to compromise with the special claims of religious minorities to ensure their adequate representation in legislative bodies and public services. A very narrow interpretation of the idea of Secularism was made by many representatives to do away with the proposed rights of minorities to ensure their adequate political and economic representation. Rochana Bajpai finds a shared legitimating vocabulary (despite diverse political and ideological positions) for restricting preferential provisions in legislatures and government employment to the Scheduled Castes and the ‘backward’ Tribes. The concepts of secularism, democracy, equality and justice, and national unity and development defined this legitimating vocabulary. Pritam Singh sees an inherent Hindu bias in Constitution-making. There are others who argue that the framers of the Constitution took into consideration the heterogeneous character of the people and resolved to establish a new social order based on secularism and to recognize cultural and linguistic differences within the framework of political and economic unity of the nation. Nevertheless, it cannot be contested that denial of reservations to the minorities in public employment and central and provincial legislature was nonetheless a devastating blow to their socio-economic and political interests.

The Constitution that was finally adopted by the Constituent Assembly of India on November 1949 and came into force on January 26, 1950 made provisions for reservations of seats for the Scheduled Castes and the Scheduled Tribes in the Legislative bodies and public services while deleting the similar provisions for religious minorities in the final stage of the completion of the Constitution. It is observed that after six decades of our independence the demand for preferential treatment for religious minorities in educational institutions, public services and legislative bodies. Interestingly the committees and commissions appointed by the Government of India to study the socio-economic and educational backwardness of minorities and suggest remedial measures have recommended reservation for minorities in public services and educational institutions. It may be recalled that the provisions for the same were rejected by the Constituent Assembly in the final stage. However, the framers of the Constitution while deliberating upon the preferential treatment for backward ‘classes’ of citizens made it unequivocally clear that it includes minorities as well and therefore, it can be inferred that State is constitutionally authorised to make special provisions for religious minorities on the ground of their backwardness.

The Constitution of India used the word ‘minority’ or its plural form in articles 29, 30, 350 A and 350 B but does not define it anywhere. Article 29 has the word ‘minorities’ in its marginal heading but speaks of “any section of citizens having a distinct language script and culture”. Article 30 speaks specifically of two categories of minorities – religious and linguistic. The remaining two articles – 350 A and 350 B relate to linguistic minorities only.

“In the Assembly’s deliberations, the minorities question was regarded as encompassing the claims of three kinds of communities: religious minorities, Scheduled Castes, and `backward’ tribes, for all of whom safeguards in different forms had been instituted by the British and by Princely States in the colonial period. The representatives of most groups claiming special provisions in some form emphasized that the group was a minority of some kind. So close was the identification of the term `minority’ with the notion of special treatment for a group that even those opposed to a continuation of the colonial system of minority safeguards employed the same language to justify their stand. For instance, it was argued that the `so-called minorities’ were not the `real minorities’. The latter were variously identified as `the agriculturists’, `the rural people’, `the backward provinces’, even `the masses’. The claim was that these were the groups that ought to receive special treatment, rather than the communities hitherto favored by the British.”

Debates on Cultural and Educational Rights of Minorities

The guarantee of certain cultural and educational rights provided under Articles 29 and 30 of the Constitution have special significance for minorities. In fact, these are supposed to be the only special rights conceded to minorities by the Constituent Assembly of India. The provisions under these articles were incorporated to preserve and promote the cultural identity of minorities through their right to establish and administer educational institutions of their choice. The provisions also aimed at protecting minorities from discrimination in admission to educational institution maintained by the State. However, the rights provided to minorities under Articles 29 and 30 have been proven not only inadequate but contradictory and inherently conflicting. The study of the drafting history of these Articles clearly reveals that the intention of the framers of the Constitution was to provide special guarantee to minorities for the protection and promotion of their cultural and educational interests. But the amendments made at the Sub-Committee stage and then at the stage of consideration by the Drafting Committee on 1st November 1947, rendered these guarantees very weak and shaky. The original proposals of the Advisory Committee in the Constituent Assembly recommended the following:

  1. Minorities in every unit shall be protected in respect of their language, script and culture and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect.
  2. No minority, whether based on religion, community or language shall be discriminated against in regard to admission into state educational institutions, nor shall any religious instruction be compulsorily imposed on them.
    • All minorities, whether based on religion, community or language, shall be free in any unit to establish and administer educational institutions of their choice.
    • The State shall not, while providing state aid to schools discriminate against schools under the management of minorities whether based on religion, community or language.

The Drafting Committee further modified the cultural and educational rights of minorities. Thus with modifications of fundamental nature these rights as appeared in Article 23 of the Draft Constitution read as following:

  1. Any section of the citizens residing in the territory of India or any part thereof having distinct language, script and culture of its own shall have the right to conserve the same.
  2. No minority whether based on religion, community or language, shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the state.
  3. (a) All minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice. (b) The State shall not, in granting aid to educational discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion, community or language.

After passing through many stages in the Constituent Assembly, these provisions relating to rights of minorities finally assumed the following shape under the title Cultural and Educational Rights:

Article 29: Protection of interests of minorities

  • Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
  • No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and administer educational institutions –

(1) All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The  State  shall  not  in  granting aid  to educational  institutions,  discriminate against any  educational  institution  on  the  ground  that  it  is  under  the  management  of  a minority, whether based on religion or language.

 

Thus,  we  find  that  many  changes  of  substantial  nature  were made by the Constituent Assembly in the original proposals of the Advisory Committee. The substitution of the word ‘Minorities’ by ‘any section of the citizens’ in Article 29 (1) and of ‘Minority’ by ‘citizen’ in Article 29 (2) led to far reaching  implications. Hence, the object  of protecting minorities from discrimination in regard to admission into educational institutions run by the State seems to have been lost and Article 29 (2) has become more a right of majority to get admission in the educational institutions run by the minorities. The framers of the Constitution wanted to protect minorities through Article 29 (2) but in reality it has acted as a restraint upon the content of the right under Article 30 (1) and it has severely damaged the content of Article 30 (1).

While the clause (4) of Article 15 is interpreted in the form of an exception to Article 15(1) as well as Article 29(2) there is no justification in denying reservation to minorities. Furthermore, Article 15 (5) of the Constitution has quite unequivocally declared that state can make special provision for the advancement of any “Socially and educationally backward classes of citizens” for their admission to educational institutions including private educational institutions (aided or unaided by the state) with the lone exception of minority educational institutions. So, any policy or order in consonance with Article 15 (4) and (5) cannot be invalidated on the ground that it violates Article 29 (2). Contrarily, in the case of minorities the judiciary in general has discouraged attempts of the executive to give preferential treatment to any religious minority leading thereby to denial of benefit of affirmative action to minorities.

The claim of minorities for reservation based on their backwardness should be seen and construed in the light of the Constituent Assembly debates on Fundamental Rights and pre-natal history of Article 16 (4) of the Constitution. The Chairman of the Committee on Fundamental Rights, Minorities etc. Sardar Patel himself supported the inclusion of word “classes” in place of “minorities” on the ground that “Minorities is included in the classes”. He argued that it is simple English that classes include minorities. K.M. Munshi also argued that classes include minorities. The father of the Indian Constitution Dr. Ambedkar was also of the view that classes include minorities.

Therefore, it is proposed to take into consideration the debates in the Constituent Assembly on the rights and safeguards for minorities for a better appreciation and understanding of the provisions relating to minorities in the Constitution of India.

Conclusion

The Constituent Assembly of India faced a daunting task of drafting a Constitution to the satisfaction of all stakeholders. It was very difficult to accommodate the diverse claims and aspirations of groups and people representing in the Constituent Assembly. Adjustment of the claims of minorities was even more difficult due to the unfolding of events during the period 1946-1949. It is noticed that the partition of the country and subsequent developments influenced the mood and attitude of the Constituent Assembly and it had an indelible imprint on the Constitution of India. The provisions relating to minorities as they passed through different stages of the process of constitution-making and the shape they finally assumed in the Constitution of India, the pre-natal history of these provisions, the debates and the deliberations of the members of the Constituent Assembly, all go together to give us a deep understanding of the spirit, philosophy and the purpose of the various provisions of the Constitution.

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Reference

  1. Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, Delhi, 1972.
  2. Rochana Bajpai, “Minority Rights in the Constituent Assembly Debates 1946-1949,” Working Paper no. 30, QEH, Working Paper Series-QEHWPS30, Available at: http://www3.qeh.ox.ac.uk/pdf/qehwp/qehwps30.pdf
  3. Some Facts of Constituent Assembly, Parliament of India, Available at: http://parliamentofindia.nic.in/ls/debates/facts.htm
  4. Manju Subhash, Rights of Religious Minorities in India, National Book Organization, New Delhi, 1988
  5. See RESOLUTION RE: AIMS AND OBJECTS, Constituent Assembly of India- Volume I, at http://parliamentofindia.nic.in/ls/debates/vol1p5.htm
  6. Retrieved from http://parliamentofindia.nic.in/ls/debates/facts.htm
  7. See Important Committees of the Constituent Assembly and their Chairmen at http://www.gktoday.in/important-committees-of-constituent_01
  8. Iqbal A. Ansari(ed.), Readings on Minorities, Perspectives and Documents, Vol. II, Institute of Objective Studies. New Delhi, p. 7.
  9. The Draft Constitution of India, Part XIV Special Provisions Relating to Minorities at http://www.southasiaarchive.com/Content/sarf.140962/202847/015
  10. Pritam Singh, “Hindu Bias in India’s Secular Constitution: probing flaws in the instruments of governance,” Third World Quarterly, 26:6,906-926, DOI: 10.1080/01436590500089281, at http://dx.doi.org/10.1080/01436590500089281.
  11. Chandra Pal Sheoram, “Minority Rights under the Constitution: Emerging Issues”, Kashmir University Law Review, Vol. I, 1994
  12. M.A. Jawaid, K. N. Jehangir, Shankar Bose (ed.), Minorities of India: Problems and Prospects, Manak Publications, New Delhi, 2007
  13. “Constitution does not define minorities, govt. tells RS,” The Times of India, August 13, 2014, at http://timesofindia.indiatimes.com/india/Constitution-does-not-define-minorities-govt-tells-RS/articleshow/21791884.cms
  14. Anwarul Yaqin, “Educational and Cultural Rights of Minorities under the Indian Constitution Drafting History of Articles 29 and 30”, in Iqbal A. Ansari (ed.), op. cit., Vol. III
  15. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. II, N.M. Tripathi, Bombay, 1968