2 The Constituent Assembly of India: Functioning

Vikas Tripathi

epgp books

 

INTRODUCTION

The idea of a Constituent Assembly germinated in the social contract tradition. That the Constitution of a sovereign democratic nation would be framed by the citizens themselves is a powerful democratic assertion. A Constituent Assembly is a body extraordinaire – it is constituted with a specific purpose of drawing up a Constitution and dissolves on the completion of its task. Also known as a constitutional convention or a constitutional assembly, it frames a constitution through “internally imposed” actions.

The formation of a Constituent Assembly is an acknowledgement of sovereignty as well as the right to self-determination of a people. Across the world, major democratic upheavals like the French Revolution, Russian Revolution and the American Revolution were followed by framing of a Constitution written by the citizens’ representatives of respective countries in an elected Constituent Assembly. Sir Ivor Jennings has noted three situations in which a Constituent Assembly comes into being:

• When there is a “great social revolution” or

• “when a nation throws off its foreign yoke” or

• When “a nation is created by the fusion of smaller political units.”

In this scheme of Sir Jennings, the Indian Constituent Assembly falls into the second category.1

 

FORMATION

When the Constituent Assembly met for the first time on 9 December, 1946 it was fulfilling an aspiration of a nation that had demanded the formation of such an assembly since 1924. On 8 February 1924, Motilal Nehru had introduced the ‘National Demand’ in the Central Legislative Assembly insisting that a representative Round table conference be summoned to facilitate a scheme of constitution for India. Though this resolution was passed with a large majority in the Central Legislative Assembly, it received a contemptuous reaction from the Secretary of State, Lord Birkenhead who dared the Indians if they could produce such a constitution at all. Notwithstanding the demand by Indians to formulate their own Constitution, the colonial government appointed the Indian Statutory Commission or the Simon Commision on 8 November 1927 to ascertain if India was prepared for further constitutional changes. The Commission caused great furore in the country due to its exclusive White composition and met with boycotts wherever it went on its arrival in India. It was in response to this twin challenge posed by Lord Birkenhead’s provocation and the appointment of the Simon Commission that the famous Motilal Nehru Committee was constituted by the All Party Conference in May 1928 ‘to determine the principles of the Constitution of India.’2 The Nehru Report which submitted a draft Constitution for India on 10 August 1928 laid down several provisions which were later incorporated into the Constitution. The bone of contention in the Report was, however, the proposed dominion status for India which was unacceptable to the radical younger group led by Jawaharlal Nehru, Subhash Chandra Bose and Satyamurthi, who demanded ‘Complete Independence’. Moreover, the Muslim League was also unhappy with the Nehru report because “it rejected the principle of separate communal electorates on which previous constitutional reforms had been based. Seats would be reserved for Muslims at the centre and in provinces in which they were in a minority, but not in those where they had a numerical majority.”3 While the Muslim League withdrew support to the report, the objections put forth by the younger radicals forced Gandhi to propose a compromise solution in the Calcutta Session of the Congress in December 1928, adopting the Nehru Report on the conditionality that if the government did not accept it by 1929 the Congress would launch a non- cooperation movement demanding complete independence. As the government failed to make any progress on the demands being made, the Congress in the Lahore session of 1929 declared ‘Purna Swaraj’ as its goal and launched the Civil Disobedience Movement in April 1930. While it was becoming clear that nothing short of self determination would be accepted in India, the idea of a Constituent Assembly was first mooted by Jawaharlal Nehru in 1933 and after 1943 it became the official stand of the Congress to accept nothing short of a Constituent Assembly to chart out the future of the country. The Congress Working Committee, while refusing to accept the Proposals for Indian Constitutional Reform of 1933, stated in 1934 that, “The only satisfactory alternative to the White paper is a Constitution drawn up by a Constituent Assembly elected on the basis of adult franchise or as near it as possible…” 4

At the Congess sessions of Wardha (1936), Faizpur (1937), Haripura (1938) and Tripuri (1939) this position was re-asserted. Even in the Central Legislative Assembly, a resolution was introduced on 17 September 1937 by S. Satyamurthi who recommended that the Government of India Act 1935 be replaced with a constitution framed by a Constituent Assembly. Increasingly, there was a growing consensus in Britain as well that India as an independent nation should be let free to frame its own Constitution. “In a meeting with Nehru in 1938 in London, Sir Stafford Cripps and Clement Attlee had agreed on the idea of an Indian Constituent Assembly elected on the basis of universal adult franchise, drafting its own constitution.”5 However, as the war approached “British policy towards India was caught between two polarities: Churchillian negativism and Crippsian constructiveness.”6 The elections of May 1940 had brought a coalition government to power in Britain which was to be steered by Winston Churchill as the Prime Minister. On the eve of the World War II, when the strategic location of India in the face of the Nazi advance struck fear in to the hearts of the colonial rulers, an offer was extended by Viceroy Linlithgow in 1940 which came to be called as the ‘August Offer’. It accepted that the framing of a new Constitution for India should primarily be, and therefore not solely, the responsibility of the Indians. Moreover, it did not spell out the ways in which the proposed body was to be formed. Having failed to earn the good will of the Congress as well as the Muslim league, the August Offer was turned down and the phase of individual Civil Disobedience began. Meanwhile, the Japanese progress in Southeast Asia demanded Indian cooperation toward the colonial government. Keeping in mind their vested interest, Churchill dispatched the Cripps Mission in March 1942 to negotiate with the Indian Political Parties. While Cripps made it clear that Indians would have the sole responsibility of writing their own Constitution, it failed to provide any assurance on immediate self government and was therefore rejected by Congress leaders. Gandhi even criticized the Mission by saying that its offer of Dominion Status within the Commonwealth was a ‘post dated cheque drawn on a crashing bank.’ The mission was also rejected by the Muslim League because it did not recognize the Muslims’ right to self-determination and therefore, rejected the idea of partition. With the failure of the Cripps Mission, the struggle for independence led by the Congress entered the next phase where the demand to ‘Quit India’ was accompanied with the resolution that a Constituent Assembly would be evolved from the Provisional Government of Free India which would lay down the constitutional provisions for the country.

As the war came to an end, there was a growing recognition that the day for grant of independence to India was not far away. In July 1945, the Labour party came to power in Britain and fresh attempts were initiated to resolve the Indian issue. The Governor General, Lord Wavell convened a conference at Shimla which tried to resolve the differences among the Congress and the League and promised to convene a constitution making body as soon as possible. However, the conference failed and the British cabinet decided to send three of its own members to resolve the Indian problem. On 24 March 1946, the Cabinet Mission arrived in India aiming to discuss two issues- “the principles and procedures for the framing of a new constitution for granting independence, and the formation of an interim government based on widest possible agreement among Indian political parties.”7 The Cabinet Mission which comprised of Lord Pethick-Lawrence, Sir Stafford Cripps and Lord A.V. Alexander failed in making the two parties concur and reach an agreement, and therefore announced their own proposals on 16 May 1946. The Cabinet Mission had already clarified that its aim was not lay out the future constitution of India but to put in place machinery through which Indians could write a constitution for themselves. The mission realised that though Universal Adult Franchise would be the most appropriate formulation to such an end it would deal to inordinate delay and, therefore, recommended that the newly elected legislative assemblies of the provinces should elect the members of the Constituent Assembly. While one representative would be elected for a million populations, the Sikh and Muslim legislators were to elect their quota on the basis of their population. The Cabinet Mission proposed a confederation, a three tier structure, where the Union government would be responsible for affairs such as defence, revenue, and foreign affairs and communications. At each level of the confederation a separate constitution could be adopted, which by implication provided the space for autonomy demanded by the League. The three-tiered Constituent Assembly structure proposed by the Mission comprised of sections of states drawn from British India:

 

• Section A would consist of Hindu majority states such as Madras, United Province, Orissa, Bombay, Bihar and Central Provinces.

• Section B which would comprise of Muslim majority provinces of the north-west such as, Punjab, Sindh and N.W.F.P.

• Section C would include Assam and Bengal.

 

Overall, from these three sections of British India a maximum of 292 members were to be elected through single transferable vote. Indian States were to be represented through 93 members and Chief Commisioner’s Provinces through 4 members. Thus, the number of the proposed structure stood at 389 members.
The Cabinet Mission scheme further proposed that the Constituent Assembly after electing the chairman and other officials, complete the formalities and split into the three groups and work out separate constitutions. Only after the separate constitutions were formulated the Constituent Assembly was to meet as an entity to deliberate and formulate a constitution for the Union of India.

While both the Congress and the League had problems with the Plan, the Congress decided to move ahead with the Constituent Assembly. Though the League continued its opposition to the Plan, it decided to contest the elections. Since Constituent Assembly was constituted through indirect election, the results and composition of the state legislative assemblies of 1945 were reflected in the Constituent Assembly as well. The Congress captured 208 seats, while the Muslim League could garner 73 seats and the remaining 15 seats went to other parties and interest groups like those representing landlord and Commerce, the Panthik Akali Party, the Unionist Party, the Krishok Praja Party, the Scheduled Castes Federation, the Communist Party and the Sahid Jirga.

The League continued to oppose the Constituent Assembly and decided not to participate in the proceedings. So, when the Constituent Assembly was convened for its first session from 9th December to 21st December 1946 it was marked by the conspicuous absence of the League. The total strength of the House for its first session was 207. The name of Dr. Sachidananda Sinha was proposed for the temporary chairmanship of the assembly. During its first session, the Constituent Assembly had four sittings and discussed matters like presentation of credentials and signing of the register, electing the permanent Chairman, constituting a committee for rules of procedure, moving the Objectives Resolution etc. On 11th December, the Constituent Assembly elected Dr. Rajendra Prasad as its Chairman. The ‘Objectives Resolution’ was introduced by Jawaharlal Nehru on 13 December 1946 (though it was adopted in the Second Session). According to D.D. Basu, the Objectives Resolution provides the backdrop to the philosophy of the Indian Constitution and it has inspired the shaping of the Constitution through all its subsequent stages. For Nehru, it was “something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication.”8 Through the Objectives Resolution, the Constituent Assembly declared “its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution.”9 Unequivocally, therefore the Objectives Resolution proclaimed that though the Constituent Assembly may have been drawn as per the Plan of the Cabinet Mission but the sovereignty of the Constitution is not derived from any other source but from the people of India. The second session of the Constituent Assembly which was convened from 20 January 1947 elected V.T Krishnamachari and H.C. Mookherjee as Vice-Chairmen of the Constituent Assembly. It adopted the Objectives Resolution on 22 January 1947. The Muslim League still showed no signs of co-operation. Though it did not partake in the session, it objected to the passage of the Objectives Resolution, especially the sections where it mentioned the word “Union”. Moreover, the Second session had carried out routine work like establishment of committees and the League had problems with this as well, especially the appointment of the Union Powers Committee. To add to the troubles of the Congress the League decried that “the continuation of the Constituent Assembly and its proceedings and decisions are ultra vires, invalid and illegal and it should be forthwith dissolved”10 arguing that the Cabinet Mission Plan’s proposals were conditional its acceptance by both parties and since the two parties did not see eye to eye, the proposal of summoning the Constituent Assembly was itself invalid. Increasingly, the volatile situation indicated that partition was inevitable. All prospects of reconciliation within the framework of the Plan ended with the Vallabhbhai Patel- Liaqat Ali controversy.

The third session was held from 28 April to 2 May 1947. Lord Mountbatten, who succeeded Lord Wavell, sent by the Attlee government tasked with winding up the British Rule from India by 30 June 1948, announced on 15 April 1947 that if no solution was found to the intransient problem, partition would happen. Even in this backdrop, when the Constituent Assembly was working it did not foreclose the possibility of participation of the League. Infact, N. Gopalaswami Ayyangar requested a postponement of consideration on the first report of the committee on Union Powers.

However, when the June Plan, which partitioned the country, was announced it brought about significant changes in the composition of the Constituent Assembly. Prior to partition, “the Congress had a built-in majority of 69 percent, in the Assembly, and, after Partition, when the number of Muslim League representatives fell to twenty-eight, the Congress majority jumped to 82 percent.”11 The Congress which earlier had 206 elected members out of the total strength of 296 of British India, now had 192 members out of the sanctioned strength of 229. With partition, the limitations attached to the Constituent Assembly (that the Congress and the league will have to work together) were also over. The Constituent Assembly was also to function as the Union legislature by August 1947 till a legislature under the new constitution came into being. However, the business of the Assembly as a constitution-making body was to be unambiguously differentiated from its business as Union legislature.

In all, the Constituent Assembly sat for a total of 12 sessions spanning nearly three years, of which the first six sessions “were devoted to preparatory functions. The seventh to eleventh sessions covering 110 days were devoted to the discussion of the Draft and other necessary business.” 12 The Constituent Assembly had 23 committees to work on substantive and procedural issues. Sub- Committees and ad-hoc committees were also set up on the direction of the Committees of the House. The following committees find mention in Granville Austin’s ‘The Indian Constitution: Cornerstone of a Nation’ as the most important Assembly Committees.

Source: Author’s own compilation from : Granville Austin, (1999) ‘The Indian Constitution: Cornerstone of A Nation’, Delhi: Oxford University Press

The Drafting Committee was appointed on 29 August 1947 with seven members: Alladi Krishnaswami Ayyar, N. Gopalaswamy Ayyangar, B.R. Ambedkar, K.M. Munshi, Saiyad Mohammad Saadulla, B.L. Mitter (resigned and replaced by N. Madhava Rau) and D.P. Khaitan (expired and replaced by T.T. Krishnamachari). The first task of the Committee was to consider the draft prepared by the Constitutional Advisor, B.N. Rau. When the committee met for the first time on 30 August 1947, it elected B.R. Ambedkar as its chairman. Under the stewardship of Ambedkar, the Committee worked for over 40 days and published the first Draft Constitution of India in February 1948, which was made open for public discussion. The Committee met again from 18 to 20 October 1948 to consider the comments, criticisms and recommendations that were made from across the country. Incorporating the necessary amendments a reprint of the Draft was published in late 1948. The Draft was moved in the Constituent Assembly on 4 November 1948 and from the seventh to the tenth sessions was almost devoted to the first two readings of the Draft. On 17 November 1949, the third reading of the Draft Constitution began and after nine days of intense discussion was passed by the Assembly. The Draft Constitution of India comprised of 395 articles and 8 schedules. When the Assembly met again for its twelfth session on 24 January 1950, all the members signed the historic document.

During the entire exercise, the modus operandi of Constituent Assembly according to Granville Austin was to follow any of the three principles:

 

• Decision-making by Consensus

• The Principle of Accommodation

• The Art of selection and Modification.

 

In Austin’s opinion, the first two principles are India’s original contribution to the process of Constitution making. Consensus is a manner of making decisions by unanimity or near unanimity and it is informed by the belief that the principle of simple majority voting is not always desirable in deciding political conflicts. The Constituent Assembly adopted the principle of consensus on areas such as the federal and language provisions. Accommodation refers to the ability to reconcile seemingly incompatible concepts and this principle has been successfully used in combining the federal and unitary system, membership of commonwealth and republican status of government, panchayati raj provisions with strong central government. Finally, the art of selection and modification was used to create a ‘beautiful patchwork’ drawing from different constitutions of the world but adapting them to suit the specificities of the Indian context. Constitutional amendment is an example of this principle.

 

SOCIO-ECONOMIC COMPOSITION

The composition of the Constituent Assembly was largely determined by the Electoral College laid down in the Government of India Act, 1935. The Sixth Schedule of the Act allowed limited franchise on the basis of property ownership, tax payments, education etc. Though it had expanded the number of electorates substantially- from seven million to thirty-five million- majority of Indians were still placed outside the electoral roll. Because the members of the Legislative Assemblies of 1946 elected the members of the Constituent Assembly, one cannot loose sight of the fact that socio-economic composition of the members of the Assembly would be largely determined by the framework laid down by the Government of India Act, 1935. Infact, it can be stated that possession of property, payment of income tax and educational criteria clearly laid down a bias against the common Indian and lend a kind of class homogeneity to the Constituent Assembly of India. According the Austin’s calculations a mere 28 per cent could vote in the provincial assembly elections of early 1946. “Economically and socially depressed portions of the populations were virtually disenfranchised by the terms of the 1935 Act.”13

The socio-economic positionality of the members, however, can only be deductively arrived at, as Shibanikinkar Chaube notes that an attempt to draw a Who’s Who of the Constituent Assembly members was unsuccessful.14 It is, however, noteworthy that this body of constitution makers though drawn from the propertied, tax-paying and educated sections of the country were not blind to situations of the marginalized and it goes to the credit of the members of the Assembly that they formulated a Constitution that established Universal Adult Franchise, laid down Civil Liberties, showed a commitment to Group Rights, provided for caste-based Affirmative Action, introduced asymmetrical federalism and importantly, emphasized a spirit of compromise and accommodation.

As stated in the foregoing section, after the partition the strength of the Assembly (British India) came down from 296 to 229. For Chaube, the membership of the Assembly fell into four groups:

1. The representatives of the Congress.

2. A few independent members elected with Congress tickets

3. Independents representing non-Congress provincial legislators

4. The Muslim League who had chosen to stay in India.15

 

In all, the Congress had 192 members. It had returned its senior most leaders to the Assembly including its past Presidents, Provincial Congress Committee Presidents, members of the Working Committee. People like Shanmukham Chetty, John Matthai, Syama Prasad Mookherjee, B.R. Ambedkar, A. K. Ayyar, N.G. Ayyangar and M.R. Jayakar were amongst the outsiders who were offered Congress tickets. This enabled a broader representation of interests within the Constituent Assembly as well as the benefit of legal expertise that most of them possessed. Though there was no separate seats reserved for women, 15 were returned to the Constituent Assembly prominent amongst them were G.Durgabai , Hansa Mehta, Sarojini Naidu, Sucheta Kripalan, Vijayalakshmi Pandit, Rajkumari Amrit Kaur, Renuka Ray, Kamala Chaudhri, Purnima Banerjee, Begum Aizaz Rasul, Amma Swaminathan, Dakshayani Velayudhan and Annie Mascarene. In the post-partition India, the Muslim League had 29 members. Saiyid Mohammed Saadulla was made a member of the Steering Committee as well as the Drafting Committee. The lone member from the Akali was Ujjal Singh who was retuned from East Punjab. The non-Congress opposition (the Akali and the Muslim League) mainly demanded greater provincial autonomy within the new constitutional structure but it was not conceded. Infact, S.K. Chaube says that though the opposition was vocal it remained ineffective due to the lack of a common perspective.16

The Congress with its overwhelming majority exercised a gargantuan influence over the Constituent Assembly. In the words of Granville Austin, “The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India.”17 The pre-eminent position of the Congress party in the Constituent Assembly was the result of two important factors: the 1945 provincial legislature elections where it had secured 925 seats out of 1585 and the Partition. The position of the Congress was not just determined by its numerical strength but also because of the stature enjoyed by its senior members-the ilk of Jawaharlal Nehru, Vallabhbhai Patel, Maulana Azad, Rajendra Prasad, C. Rajagopalachari, G. B. Pant- who were also made part of the Constituent Assembly. Infact, the role of the Congress Party in ensuring a sense of discipline and order in the Constituent Assembly as well as its role in enabling a smooth sail of the Draft Constitution was also attributed by Dr. B. R. Ambedkar. The Congress Party also played another crucial role: on 4 July 1946 it had formed a Committee of Experts to prepare material and proposals for the Constitution. In effect, each proposal that was raised in the Constituent Assembly was already scrutinized by the Committee of Experts and this process continued till the Constitution was adopted. While members like Dr. Ambedkar was appreciative of such a committee, severe criticisms came from others like Shibban Lal Saxena. Again to quote Granville Austin, “The Congress Assembly Party was the unofficial, private forum the debated every provision of the Constitution, and in most cases decided its fate before it reached the floor of the House.”18

Leadership in the assembly and the socio-economic composition of the leadership has generated a lot of interest amongst Political Scientists. In Granville Austin’s account, the mantle of leadership was assumed by a group of twenty influential members who enriched the constitution making process by bringing their diverse backgrounds and qualifications with them. The following table provides a bird’s eye view of Austin’s account:

Source: Author’s own compilation from : Granville Austin, (1999) ‘The Indian Constitution: Cornerstone of A Nation’, Delhi: Oxford University Press

For Austin, this group of twenty individuals can again be divided into three groups: the first eleven members representing ‘an inner circle’; the next nine names representing ‘secondary Congress personalities’ and Nehru-Patel-Prasad-Azad constituting the triumvirate within the Assembly that took initiatives and, at times, decisions. As is evident from the table, advocates constituted a clear cut majority over any other occupational group and steered the process of constitution making.

The triumvirate proposed by Austin is modified in Chaube’s study. Chaube divides the leadership present in the Constituent Assembly into three segments:

 

(a) Those within the Congress Party: Here Nehru-Patel-Prasad-Azad leadership assumes the first rung closely followed by the cabinet ministers like K. M. Munshi, Pattabhi Sitaramayya, J.B. Kripalani, C. Rajagopalachari. On the fringes were another group of leadership provided by Thakurdas Bhargava, A.V. Thakkar, Sri Prakasa, B.M Gupte and Brajeshwar Prasad.

(b) Those outside the Congress Party: Here lawyers of exceptional ability like Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar and B.R. Ambedkar stood at the top with people like K.M. Panikkar, S.P. Mookerjee and B.L. Mitter following closely.

(c) The ‘mid-way’ group: This included people like K. Santhanam and T.T. Krishnamachari who were not associated with the Congress Party for long but whose voices were carefully heard because of their intellectual brilliance.

 

It is noteworthy that even in Chaube’s account; it is lawyers who hold almost a sweeping presence. Other than Pattabhi Sitaramayya who was a doctor, A.V. Thakkar who was a social reformer and T.T. Krishnamachari who was a businessman, the rest have law as their educational background. It can be easily established from such deductions that the socio-economic composition of the Constituent Assembly was largely constrained (or facilitated) by the provisions regarding franchise in the Government of India Act, 1935. “The electoral process 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.”19 However, the lack of socio-economic heterogeneity from the Constituent Assembly did not mean that ideologically homogenous. As is shown in the section below, the Constituent Assembly represented diverse view points of voters and non-voters. Such diversity was made possible only because the Congress was a catch-all party with a mass base. This created spaces for dissent within the Congress Party itself.

 

VISION

When the Constituent Assembly met for the first time on 9 December 1946 it was acutely conscious of the expectations that the people of India held. The Constituent Assembly stood on the shoulders of nationalist struggle that had constantly harped on the principle of self determination and it had to formulate a constitutional design which could bring about equality in a highly unequal society. Steered by individuals of impeccable integrity, the Constitution held out a vision for the future, which was couched in a liberal world view tweaked to suit the peculiar conditionality of the country. The Constituent Assembly despite being a product of the circumstances of that time had a futuristic mission and envisaged an institutional structure that was expected to withstand the test of time.

For Granville Austin, the Constituent Assembly aimed at creating a ‘seamless web’ constituting unity, social revolution and democracy through the Constitution. It is this ‘seamless web’ which lays down the horizons of the Constituent Assembly’s vision for independent India. It is noteworthy that none of the three goals could be achieved in isolation from each other. The Constitution makers laid down that unity as a goal could be achieved and sustained only through a highly centralized federalism. The structure of federalism envisaged included a central government distribution of revenue, national development planning, central civil services, governors as presidential appointees, emergency provisions and several centre-state coordinating mechanisms. The goal of a social revolution was to be driven by the provisions of the Directive Principles of State Policy, present in Part IV of the Constitution. These provisions, even though non-justiciable, lay down the ways in which the Indian State was to become a Welfare State by bringing about economic and social democracy. Finally, the democratic aspect of the seamless web is buttressed by representative government under adult suffrage; Fundamental Rights under Part III which allows inter alia equality under law and personal liberty; and an independent Judiciary. Additionally, safeguards to minorities, assistance to under privileged groups and eradication of oppression of Scheduled Castes and Tribes were also reinforced to strengthen democracy.

While Austin tries to comprehend the revolutionary potential of the Constituent Assembly through the analogy of a ‘seamless web’, for Shibanikinkar Chaube, a parliamentary government, a politically centralized but culturally diversified federal state and a dynamic social order are markers of the vision that the Congress along with many other sections of the Indian opinion had about the future Constitution.

While trying to understand the vision laid down by the Constituent Assembly for the future polity, one is confronted according to Rajeev Bhargava to three discernible ways in which the Constitution is studied:

• The Constitution as politico-legal document, best exemplified in the works of Ivor Jennings and C.H. Alexandrowicz

• The Constitution as political history, exemplified by Granville Austin, and

• The Constitution as an epiphenomenon of social relations, exemplified in the works of Shibanikinkar Chaubey and Shobhan Lal Dutta Gupta.

 

The vision of the Constituent Assembly is restricted by the approach one adopts in studying the Constitution. Though the aforementioned approaches are valuable, these are insufficient and therefore a political-theoretical approach towards the reading of the Indian Constitution should be adopted. For him, “it is important to see the Constitution as a moral document, as embodying an ethical vision.”20 A political-theoretical reading of the Indian Constitution is advocated by Bhargava because the existing works are deficient on the following three grounds: firstly, insufficient elaboration of the conceptual structure of the Constitution; secondly, the structure of the ideals embedded in the Constitution are inadequately grasped and; thirdly, there is a disconnect in the reading of the Constitution and the Constituent Assembly Debates.

Through a political-theoretical approach, it is apparent that the vision laid down by the Constituent Assembly for the future polity is undergirded by both substantive and procedural measures. The procedural measures that define the vision of the Constituent Assembly for the country are dealt below:

First, the Constituent Assembly established Universal Adult Franchise under Article 326, without any qualification of sex, property or taxation. The concept of popular sovereignty had been gaining ground with the surge of nationalism. But the half-hearted colonial Acts never legitimized this popular sentiment. Infact, the Government of India Act, 1935 was opposed by Nehru for restricting franchise on grounds of property, taxation and education qualifications. By entrenching Universal Adult Franchise the Constitution makers were fulfilling a long standing demand of equal participation in the decision making process. The grant of equal franchise rights to all entrenches ideas of equality and individualism. And in a society marked by significant caste and class hierarchies, the vision of one man-one vote-one value was revolutionary.

Secondly, the Constituent Assembly laid down a set of civil liberties which are treated as sacrosanct and inviolable for all citizens. Part III of the Constitution lays down a Bill of Rights that “were to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state or by society privately; liberty was no longer to be the privilege of the few.”21 The demand for a set of legally enforceable civil rights was made as early as in 1895 and was a recurrent demand of Indians but was never granted. By inserting the Fundamental Rights in the Constitution itself, the members of the Constituent Assembly foreclosed the option of discretionary curtailment of civil rights of citizens, either by the legislature or the executive. The Constituent Assembly laid down a vision of a free and fearless society through such an institutional mechanism.

Thirdly, despite the incompatibility of individual rights vis-à-vis culture-specific rights, the members of the Constituent Assembly showed extreme sensitivity to cultural particularities. The protection of group rights through the insertion of Cultural and Educational Rights in Part III (Articles 25-30) was the result of several request petitions that came from several minority groups who wanted that there interests be protected. Though the Constitution abolished the practice of separate electorate for minorities, the ‘preferential provisions for religious minorities’ was based on an understanding that even minorities had a ‘way of life’ which needs acknowledgement and protection. While the debate on necessity and desirability of multicultural rights emerged within the American academia in the 1970s, the Indian Constitution makers had already laid down a vision that saw no contradiction between participation in the political realm and one’s cultural positionality. In other words, the Constituent Assembly laid down a delicate balance between the notions of universal and differentiated citizenship

Fourthly, the Constitution makers provided a statutory commitment to caste-based affirmative action. The Constituent Assembly was aware of the limitations procedural equality produced in an unequal social set up and therefore laid down Article 334 and 335 which provides reservations for seats in legislatures and public services to Scheduled Castes and Scheduled Tribes. The members of the Constituent Assembly realised that a policy of radical redistribution leading to equality of outcome had to be conceptualized because of the structural inequalities that work to the disadvantage of Scheduled Castes and Scheduled Tribes. While defending the scheme of reservations in India, Ashok Acharya says that, “a justification of affirmative action on an equal outcome approach involves not only egalitarian considerations per se, but also the added normative requirement of compensating for past wrongs. When making a case for compensation for disadvantaged groups we bridge the important divide that separates equality of opportunity from equality of results.”22 Other than articles 334 and 335, certain other measures embodied in Articles 15 (4), 16 (4), 46, 330 and 332 are attempts to secure inclusion of under-represented and disadvantaged groups into full citizenship rights. Through the constitutional provisions for affirmative action, Bhargava iterates that a concern for liberal justice becomes evident.

Fifth, the Constituent Assembly introduced asymmetrical federalism as a unique concept to accommodate differences that exists between groups of citizens. Such ‘differentiated citizenship’ is institutionalized, according to Rodrigues, through provisions for autonomy secured in Article 370, 371, Schedule V and VI of the Constitution. These federal arrangements are an acknowledgement that the relations between the Indian Union and the states are not uniform and such a differentiated treatment is aimed at the preservation of the distinct identity and culture of the natives of such regions.

While the above mentioned five measures are the substantive visions laid down by the Constituent Assembly, the procedural measures are equally important and are as follows.

Firstly, the Constituent Assembly Debates demonstrate that outcomes can be justified with reference to reason and not necessarily self-interest. Here Austin’s assertion that the Constituent Assembly worked through the principle of compromise and accommodation can be recalled. More than the outcome, here the emphasis is laid on the procedure that ultimately leads to acceptable outcomes. The deliberative vision laid down by the Constituent Assembly as the viable way of reaching outcomes is as important as the outcome itself.

Secondly, extending the principle of compromise and accommodation, Bhargava argues that trade-offs done in the course of the Assembly Debates need not be decried in to. That the trade-offs were done “in an open process of free deliberation among equals”23 remains important and therefore should not invoke disapproval and degradation.

Finally, the emphasis laid down by the Constituent Assembly on consensus generation rather than majority opinion is also a morally commendable position. Though this position has to be carefully supported, for Bhargava the merit of the Constituent Assembly lies in its ability to provide a platform for different voices to engage in a deliberation. Thus the spirit of deliberation, derived from an innate rational capability of each human being irrespective of their positionality, fostered by the Constituent Assembly is praised by Bhargava as a procedural good.

 

IDEOLOGICAL MOORINGS

The incredible feat achieved by the Constituent Assembly, in laying down a Constitution that has acted as a guideline of successful democratic functioning of the country, is the product of diverse voices speaking in the Constituent Assembly Debates. It is noteworthy that the debates disclose a wide spectrum of ideological variations, even when the presence of the Congress was overwhelming in the Assembly. The Indian Constitution mirrors the ideological divergences witnessed and one could attribute this variation due to ‘the principle of accommodation’ adopted by the Assembly. According to Rajeev Bhargava, there are at least five competing ideological positions in the Constituent Assembly: the non-modernist, quasi communitarian vision of Gandhi; the liberal-democratic vision of Ambedkar; the social-democratic vision of Nehru; the radical egalitarian vision of K.T. Shah; and the Hindutva ideology.

 

For V.R. Mehta, “Gandhi is a very complex figure in the history of modern thought…Gandhi was not only a man of action but also a prophet of modern India who truly attempted to transcend the class conflicts of society by devising a method which, for the first time, brought about the national aggregation of an all-India character.”24 His mass appeal and thinking, however, does not find any reflection in the Constitution of independent India. Gandhi’s commitment to democracy was closer to the grassroots and he envisaged that the panchyats would work as the base for erecting a superstructure of indirect and decentralized government. “Each village panchayat, in Gandhi’s plan, would form a unit; two such panchayats would constitute a working party with an elected leader. Fifty leaders would elect a second-grade leader, who would co-ordinate, their efforts and who would also be available for national service. Second-grade leaders could elect a national chief to ‘regulate and command all the groups’.”25 At the root of Gandhi’s conceptualization of a decentralized village based polity was the understanding that the village as a traditional institution could work as the cradle of democracy. within the Gandhian ideological framework, the village is romanticized as a space built on foundations of truth and ahimsa. The village is to be a self-contained, self-reliant unit which has the ability to defend itself against the whole world. This republican version of democracy, with its emphasis on direct participation of the citizens, has communitarian leanings and runs contrary to ‘modern’ representative democratic models. Within the Constituent Assembly, the broad consensus on the desirability and feasibility of a Parliamentary form of government placed the Gandhian model on the peripheries. Though Article 40 laid down Panchayati Raj to be established by the State, it remained within the non- justiciable part of the Constitution. In contrast to the Gandhian vision, it is the liberal democratic Ambedkarite vision and social democratic vision of Nehru which laid down the ideological contours of the Indian Constitution.

 

For Ambedkar, representative parliamentary democracy based on Universal Adult Franchise was the desirable structure to organize the future polity of independent India. Unlike Gandhi, Ambedkar was skeptical of the idea that villages can be rid of its evils. These remain “a sink of localism, a den of ignorance, narrow-mindedness and communalism”26 and therefore should be discarded. Ambedkar’s locus of rights and freedom is the individual, over which there could be no overriding unit. While truth and ahimsa were the foundational values for a village-centric polity advocated by Gandhi, for Ambedkar it was law which would regulate the ‘good society’. Within the Ambedkarite paradigm, a rights based approach –both for protection as well as development of the individual- is advocated and therefore calls for the establishment of a interventionist state. Provisions of Part III and the governmental structure imbibed in the Constitution mirrors the liberal outlook of Ambedkar. The developmental model of the state as well as the emphasis on constitutionalism is not peculiar to Ambedkar alone. Nehru’s similarity to Ambedkar in these aspects cannot be overlooked.

 

What distinguishes Nehru from Ambedkar, however, is his emphasis on socialism. Socialism along with democracy, national unity, industrialisation, scientific temper, secularism and non- alignment constituted for Nehru, according to Bhikhu Parekh, the ‘national philosophy of India. His position in the Congress ensured that his ideas would influence not just the party but also the Constituent Assembly. Nehru’s version of socialism entailed an attack not just on capitalists but also landlords as he held them jointly responsible for poverty in India. As a social democrat he called for control and nationalization of industries, land reforms and co-operative farming, heavy industry and distributive justice within the parameters of a planned economy. In the words of V.R. Mehta, “Nehru was conscious of the limitations of both capitalism and communism… In a country where there is so much of mass poverty, squalor and inequality he could not think of any other solution than socialism combined with representative institutions.”27 While the influence of Nehru’s core socialistic ideas is strongly visible in Part IV of the Constitution, secularism finds its place in Part III. Nehru’s strong commitment to democracy came from the understanding of a plural society, which could not be held together without a democratic form of government in place. Nehru’s understanding of democracy is contrary to the Gandhian ideal of a decentralized polity. For Nehru, India was to be a federal state with a strong centre where the Parliament had a decisive role to play. Even a cursory glace at the organs of government, as framed in the Indian Constitution, would reflect the impact that Nehru’s ideological predisposition had on the Constituent Assembly. The Objectives Resolution, adopted by the Constituent Assembly and framed by Nehru, is a reminder of the emphasis that he had laid towards the goals of democracy, national unity and secularism.

 

If Nehru’s socialism was moderated in the Constituent Assembly by capitalists interests, K.T. Shah’s radical egalitarian vision provided the most doctrinaire socialist position within the same. He favoured not only state ownership and control of all natural resources, important large scale industries and all other aspects of the economy but also advocated a programme of progressive nationalization of existing industries. Within the ideological framework laid down by Shah, the state had an extremely interventionist role to play in re-structuring the economy and society. Critical, as he was of vested class interest subverting the project of equality, Shah demanded that within a specified time period all the Directive Principles of State Policy be made justiciable. Additionally, his demands also included a scheme of an economic council which was to be provided for within the Constitution. Though Shah’s demands were not formally incorporated in Constitution, its significance is derived from the fact that it represented a radical departure from the liberal language in which the Constituent Assembly Debates are couched- emphasizing again of the plurality of ideological positions available with the Assembly.

 

The final ideological strand visible within the Constituent Assembly is Hindutva ideology. Though the Hindu Mahasabha and the Rashtriya Swayamsevak Sangh did not have any representatives in the Constituent Assembly, the conservative Hindu viewpoint was voiced through individuals like P. D. Tandon, M.R. Jayakar and S.P. Mookerjee. For those who advocated a Hindu majoritarian position, the unity of the subcontinent on a federal basis was necessary but also insisted on a strong centralization to reduce the bargaining powers of the Muslims. Centralised power was equated with solidarity and therefore, exemptions provided to Jammu and Kashmir (Article 370), under the Constitution was vehemently opposed. Moreover, these individuals worked as a pressure group to ensure that the Constitution provides for cow protection (Article 48), established pre-eminent status for Hindi in the Devanagari script (Article 343) and also bargained for special importance for Sanskrit (Article 351).

 

CONCLUSION

The resilience of the Indian Constitution stands testimony to the collective wisdom of the members of the Constituent Assembly. Though criticisms have been leveled against the unrepresentative composition of the Constituent Assembly, one cannot deny the fact that the members did give a voice to the concerns of the under-represented sections of the society. A dispassionate appraisal of the Constituent Assembly would involve not just a stock taking of its limitations but also an appreciation of the foresight of the Assembly.
For Granville Austin, the Constituent Assembly did not foresee with a few eventualities which arose after the Constitution was adopted. Firstly, the possibility of conflict between Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) was not anticipated and therefore, a long drawn tussle between the legislature and judiciary ensued which finally ended with the First Amendment Act. Secondly, the possibility of abuse of the powers bestowed under the President’s Rule was not considered. Thirdly, though Adult Franchise was a revolutionary and egalitarian step at the founding moment of the country, the framers could not comprehend the ways in which a changed pattern of hierarchical relations may emerge with oppression still operating. Fourthly, the founding members could not envisage the possibility of Congress decline in the years to come. Finally, the Assembly left the space of Constitutional Conventions unwritten which in the years to follow lead to manipulations through amendments.

However, even Austin considers these lacunas as ‘small oversights’; the gargantuan task of drafting a Constitution for a nation that was divided on lines of caste, class, language and religion was accomplished with élan. The nation had taken steps into democratic structure within the framework laid down by the Assembly. That the Constitution is amenable to amendment with the exigencies of times has made it a dynamic document; or in the words of Zoya Hasan etal. a ‘Living Constitution’.

To conclude, one could again use Austin’s sagacious words, that, “It has taken time for the Constitution to become secure. In the future, governments or citizens may slight or ignore it, yet it is accepted as the nation’s foundation document, some say the new dharmasastra.”28

 

 

you can view video on The Constituent Assembly of India: Functioning

 

REFERENCES

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