1 MAKING OF THE CONSTITUENT ASSEMBLY OF INDIA

Vikas Tripathi

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Objectives

• To discuss the necessity of having constitutions

• To elaborate the challenges that the Constituent Assembly of India faced and the concerns that the constitution makers had

• To give a brief sketch the features that the Indian model unique

• To provide a historical overview of the formation of Constituent Assembly of India

 

 

INTRODUCTION

 

The idea that states should be governed by a set of fundamental rules gained ground since the Glorious Revolution of 1688. As monarchies have come to be replaced by democratic governments, constitutions have become the bed-rock of how the country is to be governed. The constitution provides a guiding light to the government of the day by establishing the procedural rules through which institutions of that particular country are to be run. Constitutions may also lay down substantive rights to be enjoyed by the citizens of that country. Fundamentally, the constitution of a country as a political document is a reflection of the common ground that citizens share. A constitution is not only the product of a shared sense of nationhood but also promises to uphold and forge that common identity. It is, therefore, not surprising that the drafting of a constitution is a task of gargantuan responsibility. When the Constituent Assembly of India met for the first time on 9th December,  1946  the  members  present  were  cognizant  of  the  historic  role  that they  have  been entrusted to play. Even, Pt. Jawaharlal Nehru exclaimed, ‘I tremble a little and feel overwhelmed by the mighty task.’ But the task was carried out carefully and painstakingly, producing at the end a lengthy document that had 395 articles and eight schedules.

 

Traditionally, arguments about the necessity and desirability of a constitution hinge on the procedural design that constitutions create and therefore ensures the entrenchment of a democratic set up. As Bhargava also iterates that “it is widely agreed that one reason for having constitutions is the need to restrict the exercise of power…Constitutions provide these basic rules and therefore prevent states from turning tyrannical.” 1 The framers of the Indian constitution, being aware of the immense power that the colonial state wielded, sought to create a structure that was inspired by separation of powers and ensured that a system of checks and balances worked to keep tyranny at bay. In the words of Madhav Khosla, constitutions are concerned with the difficult question of institutional design, “the constitution matters because it structures the norms that govern our politics; it maps out, as it were the rules of the game.” 2

 

Moving ahead in the institutional design argument, Bhargava asserts that since democracies do run the chance of turning into majoritarian tyrannies, constitutions in such cases become the bedrock of protection not just for individuals but also for minority groups. By providing a set of rights which are to be enjoyed equally by all the citizens of the country, the constitution aimed to “break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality and justice.”3
Finally, as far as the benefits of the institutional design argument goes, constitutions by setting down the rules of the game, also ensure that ‘popular passions’ cannot sway ‘law culled over from years of collective experience and wisdom.’ It simmers down the “mentality of the mob” by stressing on the procedure established by law.4

 

Fundamentally different than the institutional design argument but equally important is the constitutive task that constitutions play. Khosla sums up that constitutions, “at once recognizes and creates an identity, articulating at once a vision of what it means to be an Indian.” 5

 

The Indian constitution is an apt example of this task that constitutions perform. The Indian freedom movement had been an exercise in demanding the right to self determination, in other words a claim to determine  the  set  of  rules  which  will  govern  the  country  by  the  countrymen  themselves.  For Bhargava, the Indian constitution is a breakthrough in constitutional theory as it shows that “constitutions exist not only to disenable people in power but also to empower those who have traditionally been deprived of it.” 6

 

Constitutions, which are a product of popular movements, are a symbol of the aspirations of the people and it binds them into a collective unit. Cognizant of such an important role that constitutions play in the political life of a nation, Nehru spoke about the Indian constitution thus, “it is a nation on the move, throwing away the shell of its past political and social structure, and fashioning itself a new garment of its own making.”7

 

CHALLENGES BEFORE THE INDIAN CONSTITUENT ASSEMBLY

 

As the Constituent Assembly drafted the Constitution, the members realized that the task ahead was made complicated due to the transition that the country was undergoing on account of transfer of power and partition. The issue of religion as a marker of diversity propounded forcefully through the two-nation theory had partitioned the country and this had an impact on the composition of the Constituent Assembly as well. In an assembly that already had a clear majority for the Congress with 208 members out of 389 members prior to the partition, post-partition the Congress presence plummeted to 192 out of 299. This raised questions regarding the representative nature of the Assembly. That the Constituent Assembly was dominated by the Congress was not only due to its numbers but also because of the political and intellectual stature of the leaders from Congress. The partition played an important role in the nature of deliberation that members of the Constituent Assembly had. Since, the colonial creation of separate electorate was seen as the seed from which claims of ‘difference’ emerged within the Indian territory; any reference to political safeguards on the basis of ascriptive identities was seen with suspicion. Emphasis on ‘unity in diversity’ was the overriding thread in the Constituent Assembly Debates. As Bipan Chandra sums up, “The emergence of a strong national identity and the preservation of India’s rich cultural diversity were seen as simultaneous processes. Regional cultural identities would develop not in conflict but as a part of the all-India identity.”8

 

Despite the nature of the debates being such, centrifugal forces emerged and challenged at different moments, different provisions of the draft constitution. Since the partition hovered around the minds of the members of the Constituent assembly, political safeguards for minorities were seen as a potential threat to national unity. According to Bajpai “in the assembly’s deliberations, the minorities question was regarded as encompassing the claims of three kinds of communities: religious minorities, backward castes and tribals, for all of whom safeguards in different forms had been instituted by the British and by princely states during the colonial period.”9 All minorities, especially religious minorities, were encouraged to see themselves as part of the wider nation and therefore “minority safeguards in such utterances were referred to variously as ‘privileges’, ‘concessions’ and ‘crutches.’”10 However, representatives like Rev Jerome D’Souza,and Sardar Ujjal Singh did argue how their distinct cultural identity did not stand in way of national unity and instead was a connecting thread to it. Other than religion, another factor that stood out as a debatable identity concern was that of language. Concerns were raised against linguistic imperialism of Hindi vis-à-vis tribal and regional languages by members such as Jaipal Singh, K.T. Shah, Z. H. Lari and Damodar Swarup Seth. Constituent Assembly Debates show a vivid debate between Hindi protagonists, Sanskrit enthusiasts, Hindustani advocates and English supporters. Though Hindi was instated as the Official Language and English was retained for a period of 15 years, subsequent language riots have proven the fact that the Constituent Assembly failed to understand “that monolingual solutions to multilingual societies would not work.”11

 

While religion and language as markers of difference remained a debatable issue among the members of the Constituent Assembly, another minority question- of the tribals – posed a challenge of equally formidable strength. The tribal population of the country had been integrated with the rest of the country by the colonial rulers through policies that allowed penetration into their relatively isolated territories. This radically changed the social structure of the tribal societies. On the aftermath of independence, the Constituent Assembly members had to design an institutional structure that allowed the tribal population of the country an enabling condition to develop themselves and they found that there were two options that seemed equally compelling as well contesting: isolation and assimilation. Consensus around the issue was built by favoring “the policy of integrating the tribal people in Indian society, even while maintaining their distinct cultural identity and culture.”12 In keeping with this approach special provisions, like special care towards educational and economic interests of the tribals, flexibility in application of central and state laws in tribal areas, reservation of seats in legislatures and administrative positions, setting up of Tribal advisory Councils, and Fifth and Sixth Schedule were made in the constitution which would ensure progress and welfare for the tribals. These were over and above the recognition of tribals as equal citizens of the country-having full political rights. Despite the cautious approach taken by members of the Constituent Assembly, the question of intra-tribal diversity was not adequately discussed and therefore, later day demands for secession from India arouse from the tribes of North-East India. The historical association between tribals of the North-East and tribals of the rest of India with the national movement had been different and this therefore affected the ways in which the tribals (of these areas) looked towards the post colonial state and the Constitution.

 

While territorially, the tribes of the North-East did not feel any affinity towards the newly independent country, political aspirations of hereditary rulers of princely states such as Junagarh, Hyderabad and Jammu and Kashmir stood in the way of India being a contiguous territorial entity. As these states had to be acceded to India, a policy of carrot and stick was applied by Sardar Patel and Junagarh and Hyderabad joined the Indian Union through a public plebiscite. The question of Kahmir was, however, complicated by the Pakistani led invasion which led the Maharaja of Kashmir to appeal to India for help. As per international conventions, Kashmir had to accede to India prior to receiving any military support. Therefore, a plebiscite in Kashmir was not done, unlike in the case of Hyderabad and Junagarh. For the Constituent Assembly, therefore, though national unity and integrity remained an over-emphasized concern, on the ground national unity was being challenged by several factors that had raised its head on the pretext of the departure of the British. In order to assert that India was indeed one entity the members of the Constituent Assembly had to constantly harp at the feelings of nationalism that had been aroused through the national movement.

 

The task of the Constituent Assembly was also complicated by the state to which the colonizers had reduced the economy of the country to. Years of neglect towards agricultural productivity and decline of indigenous handicraft industries ensured that the per capita income of the countrymen remained deplorable. While the income yielded by agriculture was low, 70-75 percent of the population remained occupationally tied to it. Thus, widespread poverty marked the Indian economy on the eve of independence. Coupled with poverty, other growth parameters such as life expectancy, literacy and unemployment rate provided a grim picture. Keeping in view, such an appalling image of the circumstance in which the Constituent Assembly was functioning, Pt. Jawaharlal Nehru remarked,

 

     “The first task of this Assembly is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.”13

 

While the economic condition of the country was pitiable, the social order that characterized India was the caste system. In Shah’s words, “the caste system is sui generis of the social structure of the Indian sub-continent in general and of Hindus, in particular. In this system, the group identity supersedes individual identity.”14 Not surprisingly, therefore, the caste system is antithetical to the dream of democratic structure and individual freedom that liberals like Nehru had been advocating. The social structure of caste finds a firm foundation to sustain and thrive in the village. Therefore, debates in the Constituent Assembly on caste and the undemocratic social order also encompassed the desirability of the “traditional” Indian village. Jodhka identifies three different positions on this debate: Gandhian, Nehruvian and the Ambedkarite.15 While the Gandian vision has an utopian and romantic picture of the village, “uncorrupted by the modern life of the city and Western technology”, the Ambedkarite vision dismisses villages as “the ruination of India…. a sink of localism, a den of ignorance, narrow-mindedness” and the Nehruvian vision looked to a newly re-constituted village through the aid of technology and shrugging off old agrarian relations. In brief, the vision of the promised new social order was not uncontested and therefore, taking a stock of the provisions of the constitution vis-a-vis the prevalent social order, Ambedkar stated that,

 

“On the 26th January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up.”16

 

DOMINANT CONCERNS OF THE CONSTITUTION MAKERS

 

While the challenges posed by the circumstances rocked the Constituent Assembly, none could overshadow the conscious efforts of the makers of modern India. The members carved a constitution that carefully listed out the institutions and political players that were to govern the country; the principles that would guide the newly independent nation and the outlook that would govern India’s relation with the world. The Preamble of the constitution encapsulates, in brevity, the concerns that weighed heavily on the minds of the members of the Constituent Assembly:

 

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to its citizens:

JUSTICE; social economic and political;

LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;

And to promote among them all

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

 

At the very outset of the preamble, the constitution makers made it very clear that independent India was to be a democratic country. Creating a democratic set-up by universal adult franchise, in a country which had an overwhelming number of illiterate population with no experience in electing their political representatives, was itself a risky proposition. Despite this, members of Constituent Assembly drafted a constitution that advocated a model of direct election to the popular house of Parliament and state Legislature. Following the Westminster model, they made the head of the government responsible to the Parliament which ensured that the executive cannot override the legislature. The Indian constitution is an example of detailed constitution which not only lists down the positions and powers of public institutions but also the way in which these are to be filled up. With such extensive details, it is therefore, not a wonder that the Indian constitution is one of the lengthiest constitutions of the world.

 

From the time the Objectives Resolution was passed on the 13th  of December, 1946 the makers of the Indian constitution were committed to the principles of justice, liberty and equality. Since, “it may well be claimed that the constitution is a solemn promise to the people of India that the legislature will do everything possible to renovate and rebuild society on new principles.” 17 Granville Austin calls the Indian Constitution as a ‘modernising force.’ It is a document that promises to usher in a social revolution by leading the country away from the shackles of hierarchies perpetuated on the grounds of religion, caste, class, and likewise. The members of the Constituent Assembly strove to bring the social revolution not only by emphasizing on equality of all individuals before the law and granting a set of fundamental rights, but also by proposing measures for establishing socio-economic equitableness. In doing so, the Constituent Assembly was trying to bridge the gap that existed on the basis of caste, class and religion.

 

While the Constituent Assembly emphasized on the unity of the country they understood that regional and linguistic variations abound India and therefore establishing a unitary structure would invite fissiparous tendencies. At the same time, creating a confederation would imply that the pull of centrifugal forces would be too huge for a newly independent country to resist. A unique resolution of the problem was reached by creating what Austin calls as a “highly centralized federalism, characterized among other elements, by central government distribution of much revenue, national development planning, continuation of the inherited central civil services, state governors who were presidential appointees, the well-known emergency provisions, and a wide variety of state-centre coordinating mechanisms.”18

 

The three dominant concerns or goals of the members of the Constituent Assembly discussed above: national unity, democracy and social revolution- has been termed by Granville Austin as the ‘the seamless web’. Austin argues that the constitution makers were aware that these goals are inter- dependent and have to be pursued simultaneously in order to reach a new society and therefore the constitution of India provided a model that is likened to a beautiful patch work- borrowing from other constitutions but bending it to suit its own complex situation.

 

THE INDIAN MODEL

 

With a constitution that had such a broad vision of catering to the needs of a diverse set of population, divided by language, ethnicity, religion and region- the Constituent Assembly deserves credit for being able to provide a fertile ground for sowing the seeds of a strong democracy in this country. The Constituent Assembly provided a unique model with features that guided India’s footsteps into its democratic experiment. Features in the Indian constitution such as federalism, separation of powers, amendment procedure, secularism and affirmative action, have been borrowed from other countries but have been adapted to suit the Indian context so well that the form of each of these features has undergone transformation. Over and above these, the process of amendment of the constitution has been conceived so ingeniously, that it counterbalances both centralizing as well as centrifugal forces.

 

1. Federalism

 

At the historic juncture when the British left India, concerns about consolidating India into a cohesive whole loomed so large on the minds of the constitution makers that during the drafting of the federal provision there “the relative absence of conflict between the ‘centralizers’ and the ‘provincialists’… Assembly members loudly demanded increased revenue for provincial governments, yet they agreed that the Union Government should collect the money and then distribute it among the units.”19 While discussing the consensus among the constitution makers to have a federal structure with a strong centre Austin lists out the factors that necessitated the same: the communal tension which led to partition of the country, the aspiration of improving the standard of living and increasing industrial and agricultural productivity of the people, past constitutional experience during the colonial concessions made between 1919 to 1935 and finally the existence of a powerful nation-wide party accompanied by the absence of any provincially based political party. According to Austin, the federal structure set up the Indian constitution can be labeled as ‘cooperative federalism’ where the presence of a strong centre does not imply weaker provincial governments. The scheme in which the division of legislative arenas have been divided between the Parliament and the state legislatures have been clearly demarcated in Seventh Schedule. While List I deals with the areas on which the Parliament will have jurisdiction, List II enumerates the jurisdiction of the states. The federal structure in India tilts in favor because if conflict arises with regard to legislation from items in List III, the union legislation will prevail. Additionally, the parliament can legislate on any other item not listed in the three lists. This power of Parliament to override the legislations by the state legislatures has raised questions regarding how ‘co-operative’ Indian federalism is. However, one realizes that members of the Constituent Assembly were drafting the constitution at a phase in Indian history where the unity of India had to be established, notwithstanding criticisms of over centralization of power.

 

While the legislative areas are clearly demarcated for the Union Parliament and the state legislatures, the Constitution devises a plan to deal with situations of threat with a sharp and swift action by the executive. Under part XVIII of the constitution, “the executive assumes great importance during emergencies, moments during which ordinary provisions are insufficient to meet extraordinary problems.” 20 During an emergency, the Union executive can exercise legislative as well as executive powers over a state, in other words, the constitution becomes unitary one. Members of the Constituent Assembly debated the implications of vesting so much power in the hands of the Parliament. While S.L Saksena, H.V. Kamath, P.S. Deshmukh, H.N. Kunzru opposed the provisions on the ground that it violated the principles of provincial autonomy under a federal structure; A.K. Ayyar, K. Santhanam and B.R. Ambedkar stood in support citing the prevalent difficult times which might recur in future too. The supporters were certain that the emergency provisions will  not translate into central government becoming all powerful, as all emergency proclamations have to be ratified by the Parliament within six months of such declaration. While this feature of the Indian constitution “to convert it into a unitary or quasi-federal system under specified exceptional circumstances”21 has been abused in the past, has also allowed a level of flexibility in times of need. One cannot ignore the circumstances in which the Constituent Assembly was operating and how it gets reflected in the provisions of the Indian constitution.
Similar to the division made on legislative subjects, even the fiscal federalism designed in the constitution to allow both the Union and the states to have their own share of resources as per the items listed in Seventh Schedule. Furthermore, since states would not be able to collect adequate revenues to meet its social responsibilities, there are several other forms of taxes- such as taxes which are levied and collected by the Union are distributed among the Union and the states, taxes levied and collected by the Union but assigned to the states within which they are leviable and duties levied by the Union but collected and appropriated by the States. The Union may also provide grant- in-aid and loans to states. This may be in lieu of the jute export duty (as in the case of Assam, West Bengal, Bihar and Orissa) or because of budgetary deficits that states may incur. Besides these, the Union government may also make conditional and unconditional grants available to the states. Thus, even a cursory examination of the fiscal provisions shows that the members of the Constituent Assembly envisioned the Union government as “the banker and collecting agent of state governments.”22 According to Austin, such a necessity arouse out of two factors: first, that the financial situation of the states was unstable at that time and; second, since the states had to usher in the social wellbeing of the people they had greater need of revenue. As the question of fiscal equalization among states arose, as a result of the Union government being assigned a collector and distributor role, the Constituent Assembly realized that a Finance Commission is to be drawn, “as an institution entrusted with recommending the distribution of central tax revenues. The Finance Commission is…an example of a constitutional institution that is independent and yet subordinate to the executive.”23 The intricate system of distribution of revenues among the Union and the states may have been made with the best interests of the states in mind but it increased the vulnerability of the states to Union interference as “the provinces are very largely dependent for their resources upon grants made to them by the Centre.”24

 

2. Separation of Powers

 

Driven by the idea that power concentrated in the hands of a single body is likely to encourage despotism and inefficiency, “the doctrine of separation of powers divides power horizontally, between institutions at the same tier. This division typically takes place between three bodies: the legislature, executive and judiciary.”25 The members of the Constituent Assembly, considering India’s familiarity with cabinet government devised a scheme inspired from the British Parliamentary model but deviated from it by having an indirectly elected President as the head of the State.

 

The Indian constitution establishes the President as the constitutional head of the country. As a titular head, the President was to be elected indirectly and is expected to be impartial in his behaviour during office. The Constituent Assembly members looked at the position of the President as one ‘of great responsibility and dignity’ but with no ‘real power’. In the true spirit of a parliamentary system, the President would have to succumb to the directions of the democratically elected council of ministers, headed by the prime minister.

 

Effectively, the Parliament of India is the locus of governmental power. The union legislature is divided into two houses: the Lok Sabha and the Rajya Sabha. While members of the Lok Sabha are directly elected by the people of the country; members of the Rajya Sabha are elected indirectly through the members of the legislative assemblies. The Constituent Assembly of India debated extensively on the composition of both the houses of legislature and how the executive would be drawn from amidst the parliament. The Lok Sabha has strength of 450 and the Rajya Sabha has 245 members. It is from the Lok Sabha that the council of ministers headed by the prime minister is drawn and being the popular chamber, motions of no-confidence can be raised only from this house. While laying down the foundations of India’s democracy, members of the Constituent Assembly believed that the Lok Sabha as the popular house, elected through universal adult franchise will symbolize the unity of the country. While the composition of the houses was debated furiously, Austin comments that “the Assembly did not consider in detail the authority and powers of the legislatures when framing the legislative provisions.”26 As mentioned in the section on federalism, the Seventh Schedule of the constitution provides for segregation of items on which the Union Parliament and state legislatures have jurisdiction. This gives the Parliament a very wide scope to legislate. But the categorization is made complicated by the way in which the Parliament can have its way as far as the Concurrent list and residuary powers are concerned. Moreover, in times of emergency the scope of Parliament’s function can extend to state legislation as well.

 

The wide gamut of powers that the Parliament enjoys also ensues from the fact that in a parliamentary system the executive is formed from within it. In a parliamentary form of government, “the real executive power vests under the Constitution in the council of ministers headed by the Prime Minister. The President appoints as prime minister the leader of the party that has the majority in the Lok Sabha or, if no party has a clear majority, a person who has the confidence of majority of the members of the Lok Sabha.”27 Since, the council of ministers was collectively responsible to the Parliament, the parliamentary system provides a safeguard against executive excesses. At the same time, the constitution makers also inserted certain measures like promulgation of ordinances and emergency provisions in order to enable the executive to work in a decisive manner, in extra- ordinary situations. Thus, a precarious balance between the legislature and executive was sought to be achieved.

 

In order to ensure that the legislature and the executive do not overstep their powers, “the exercise of both legislative and executive power is subject to review by the judiciary. Courts are authorized to strike down actions by the legislature and the executive which violate the constitution.”28 The judiciary of independent India was envisaged as the vanguard of the constitution and its final interpreter. K. M. Munshi, emphasizing on the need of the power of judicial review, argued that it was “necessary for the safeguarding of fundamental rights and for ensuring the observance of due process.”29 The members of the Constituent Assembly, having reposed such powers on the judiciary, therefore ensured that the courts remained independent from the clutches of political power and established strict procedures for the appointment, dismissal and salary regulations for the judges. The power of constitutional review that the judiciary is vested with ensures that checks and balances is adequately exercised on both the legislature and the executive. While the judiciary is to act against any over-stepping of the limits imposed by the constitution on the two organs, the Indian model also provides an equally ingenious solution to keep the threat of judicial authoritarianism at bay. Since the composition of the Supreme Court and High Court is determined co-jointly by the President in consultation with the Judges of the Supreme Court (and High Court in the states) it allows for a counter-balance to be exercised by the executive.

 

3. The Amendment Procedure

 

While allowing the judiciary to have the final say in the interpretation of the constitution, the Constituent Assembly also enlisted the way in which the constitution can be amended to suit the needs of the time by the Parliament. Ambedkar asserted in the Constituent Assembly itself that “the principles embodied in the constitution are the views of the present generation”30 and may be found unsuitable in the future. In such an eventuality, therefore, the future generation can make suitable adjustments to the constitution. However, the constitution makers did not provide for amendment through simple majority for the entire constitution. According to Ambedkar, deviating from the extremely flexible model of the Canadian constitution or the extremely rigid model of the American constitution, the Indian constitution has provided the most facile procedure for amending the Constitution. While certain parts of the constitution may be amended by a simple majority, some require a majority of the total membership of the house and two third of members sitting and voting and certain other section must be ratified by one half of the states in addition to the two-thirds majority. For changes such as formation of new states, alteration of state boundaries, changing the names of states, citizenship matters, delimitation of constituencies, quorum of Parliament, privileges and immunities of members of Parliament, salaries and perks of the MPs, rules of procedure in each House of parliament, continuance of English as official language, appointment of Judges and their salaries, allowances and jurisdiction of Supreme Court, creation and abolition of Upper Chamber, creation of legislature and Council of Ministers for Union Territories, Official languages and changes in Second, Fifth and Sixth Schedules only a simple majority is required. As far the requirement of two-thirds majority is concerned, almost all section can be amended with this strength. However, the sections that pertain to the federal structure of the country require ratification by one-half of the states and these are: manner of election of the President, extent of executive powers of the Union and the States, the Supreme Court and the High Courts, distinction of legislative powers between the Union and the States, any of the lists under seventh schedule, representation of the states in Parliament and provisions of Article 368.

 

In replying to criticisms from members of the Constituent Assembly like B. N. Rau, P. S. Deshmukh,, H. V. Kamath, Mahavir Tyagi among others who believed that insisting on two-thirds majority for amendment is too rigid within the federal scheme, Ambedkar in his concluding address to the Constituent Assembly pointed out that if those who are dissatisfied with the constitution “cannot obtain even a two-third majority in the Parliament elected on adult franchise in their favor, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public” 31 Ambedkar believed that the constitution that was drafted enabled it to face the “both the grievances of everyday life and the troubles of extraordinary times”32 and the prediction of Ambedkar has been proved to be true due to the resilient nature of the Indian constitution, which makes it a living document.

 

4.   Affirmative Action

 

The question of providing affirmative action for the minorities had been a prickly issue for the Constituent Assembly. As discussed earlier, in the Constituent Assembly debates, the term minorities encompassed religious minorities, backward castes and tribals. While moving the Objectives Resolution, Nehru had made it clear that special measures would have to be taken in favor of minorities, backward and tribal areas and depressed and other backward classes. The conscious usage of the word ‘class’ by Nehru and its subsequent addition in the constitutional provisions “reflected the leftist inspiration of Nehru and others, and a widespread idea that India had to move away from caste-like organization”33. However, the reality of a caste divided India was strongly emphasized by Ambedkar and therefore provisions for eradicating untouchability, reservations in legislative bodies and education and job quota for empowering the scheduled castes are found in the Indian constitution. While political reservation was provided to the backward castes and tribals, no such provisions were made for religious minorities. Since the system of separate electorate was seen as the seeds of communal tensions leading eventually to the partition of the country, the possibility of having reserved seats for separate communities was viewed with extreme suspicion. In fact, the sub-committee on minorities resisted the idea of having separate representation of the Scheduled castes based on the argument that they were a part of the Hindu community. It is noteworthy, therefore, that when the Constituent Assembly eventually established a system of reserved seats, it was for a duration of ten years.

 

The Indian constitution clearly lays down the principles of non-discrimination and equal opportunity for all citizens. While Article 14 lays down equality before law and equal protection of law; Article 15 prohibits discrimination of the grounds of religion, race, caste, sex or place of birth; Article 16 lays down equality of opportunity in matters of public employment. Taken together, articles 14-16 “enshrine the principle of equality and absence of discrimination.”34 Furthermore, Article 17 clearly lays down that untouchability is prohibited by law and punishable under law.

 

Ashok Acharya lays down that the Indian Constitution follows a threefold categorization while dealing with affirmative action (acronym used by Acharya as AA) for the backward classes:

“first are reservations- and in the sense used here they denote a broader category than AA- which cover (a) special representation rights of SCs and STs by way of reserved seats in legislatures, and (b) quotas in government jobs and educational institutions… Second, preferences target a few groups- SCs, STs, and women with regard to provision of certain expenditures, services and ameliorative schemes such as scholarships, grants, loans, land allotments, health care and legal aid…Third, certain preferences take the form of special protections that safeguard vulnerable groups from oppression and exploitation, like measures to prohibit forced labor and others.”35

 

The Indian model of affirmative action is unique as it is based not only on the liberal ideas of equality as non-discrimination and equal opportunity but also because it considers the ‘group disadvantage argument’ as equally valid. While recognizing that the state has to enable certain categories of people, members of the Constituent Assembly demonstrated their sensitivity to historic injustices done on the basis of ascriptive identities and attempted to rectify these. However, scholars like Jeffrelot have pointed out how the Constituent Assembly refrained from widening the ambit of depressed classes to include the lower caste and therefore, the mission to achieve social transformation remained incomplete.

 

5.  Secularism

 

As the Constituent Assembly stood witnessing the partition of the country on religious lines, the path that India choose was to establish itself as a secular country. According to Bipan Chandra, secularism in India is not a replica of the Western formulation but has evolved “as a part of the struggle of nationalist forces against communal forces that wanted to use religion for political purposes and divide the emerging nation on the basis of religion.”36 While secularism remained a uncontroversial issue for the members, what remained perplexing was the kind of secularism that the Indian constitution should advocate.

 

When the Constituent Assembly was inserting provisions to entrench secularism as a political principle for the newly independent country, it had two models to fall back upon: “one derived primarily from America and the other from the experiences of countries such as Britain, Germany and Sweden. The former combined disestablishment with the policy of separation, while the latter continued with the practice of an established religion even as it simultaneously extended the liberties granted to other non-recognized faiths.”37 Deviating from both these models, India established its own model of secularism that is driven by “endorsing the principle of non-establishment of religion but without advocating the separation of religion from politics.”38

 

Thus, while the Indian state does not give priority to any religion, it also allows religious denominations access to public resources and participation in public life. Articles 25-28 enumerating freedom of conscience and free profession, practice and propagation of religion forms the core of Indian secularism. While the state cannot discriminate amongst religions, it can exercise regulations on grounds of public order, morality and health. This, according to Mahajan, has given the Indian state fairly extensive powers to regulate religious activities and non-religious affairs of religious institutions.

 

The unique form of Indian secularism that was devised after prolonged debates in the Constituent Assembly was necessitated by three important consideration: first, of providing an assurance to the religious minorities in the aftermath of the partition that they were to be equal citizens in this country; second, an understanding of the self as constituted by several elements, one of which is religion, and therefore religion has a public presence and; finally, religion as a form of collective and associational life cannot be left aside from the purview of state action.39 The conception of secularism has undertaken drastic transformation through the intervention of the Constituent Assembly of India. While the West understood it as separation of state from matters of religion, the constitution makers of India understood that religion remains central to identity and therefore to attempt such a separation was bound to be fraught with failure in the Indian context. In effect, what the Constituent Assembly of India did was to re-conceptualize the idea of secularism itself and added a different dimension to it.

 

FORMATION OF THE CONSTITUENT ASSEMBLY OF INDIA

 

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 November1927 to ascertain if India was prepared for further constitutional changes. The Commission caused great furor 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.’40 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.”41 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…” 42

 

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.”43 However, as the war approached “British policy towards India was caught between two polarities: Churchillian negativism and Crippsian constructiveness.”44 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.”45 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 population, 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.

 

 

you can view video on General Introduction to the Course on MAKING OF THE CONSTITUENT ASSEMBLY OF INDIA

 

References:

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  • Agnihotri, Rama Kant (2015) Constituent Assembly Debates on Language. Economic & Political Weekly, February 21. Vol l no 8.pp. 47-56.
  • Austin, Granville (1999) ‘The Indian Constitution: Cornerstone of A Nation’, Delhi: Oxford University Press
  • Bajpai, Rochana (2000) Constituent Assembly Debates and Minority Rights. Economic and Political Weekly May 27, 2000. Pp. 1837-1845
  • Basu, Durga Das (2006) ‘Introduction to the Constitution of India’, New Delhi: Wadhwa’s Legal Classics.
  • Bhargava, Rajeev (2008) ‘Introduction: Outline of a Political theory of the Indian Constitution’ In Rajeev Bhargava (ed.) ‘Politics And Ethics Of The Indian Constitution’, Delhi: Oxford University Press. pp. 1-42.
  • Bhargava, Rajeev (2008) ‘Politics and Ethics of the Indian Constitution’, Delhi: Oxford University Press.
  • Chandra, Bipan (2000) ‘India After Independence: 1947-2000’, New Delhi: Penguin.
  • Jaffrelot, Christophe (2008) ‘Containing the Lower Castes: The Constituent Assembly and the Reservation Policy’ In Rajeev Bhargava (ed.) ‘Politics And Ethics Of The Indian Constitution’, Delhi: Oxford University Press. pp. 249-266.
  • Jodhka Surinder S, Democracy And Socio-Economic Transformation In India. Available at democracyasia. org/qa/india/Surinder%20Jhodka.pdf accessed on 12/08/2015
  • Khosla, Madhav (2012) ‘The Indian Constitution’. New Delhi: Oxford University Press.
  • Mahajan, Gurpreet (2008) ‘Religion and the Indian Constitution: Questions of Separation and Equality’ In Rajeev Bhargava (ed.) ‘Politics And Ethics Of The Indian Constitution’, Delhi: Oxford University Press. pp. 297-310
  • Shah, Ghanshyam. (2002) ‘Introduction: Caste and Democratic Politics’ in Ghanshyam Shah (Ed.) Caste and Democratic Politics in India. Delhi: Orient Longman. Pp. 1- 32.
  • Shah, Ghanshyam. (2002) ‘Social Backwardness and the Politics of Reservations’ in Ghanshyam Shah (Ed.) Caste and Democratic Politics in India. Delhi: Orient Longman