Making of the Constitution

1
Introduction

On 26 January 1950, the Indian constitution came into effect. By this act, the Dominion
of India transformed itself into the Republic of India. The constitution had been drafted,
discussed, and finalized by the Constituent assembly between December 1946 and
December 1949. Comprising 395 articles and 8 schedules, this lengthy document set out
the architecture of the new state. The deliberations of the Constituent assembly were
comparably long and painstaking. They provide a fascinating window into the range of
ideas and institutions that the makers of the constitution envisioned for the new India. But
these debates, and the resultant constitution, also reflected the wider context in which the
Constituent assembly met and functioned.

The Constituent assembly of India was formed following the Cabinet Mission of 1946. The
Mission’s Plan rejected the idea of direct elections as too slow, and provided for indirect
elections by the provincial legislatures. (The provincial legislatures, we will recall, were
themselves elected on a very restricted franchise.) The princely states were given a fixed
number of seats in the Constituent assembly. Elections to the Assembly were held in July
1946. But, owing to the fall-out between the Congress and the Muslim League over the
terms of grouping in the Cabinet Mission Plan, the Muslim League boycotted the Assembly.
Some members of the League would join it after Partition had been announced, and then
only because they were staying behind in India. Representatives of the princely states,
too, took their time to join the Assembly.

Thus when the Constituent assembly met for the first time on 9 December 1946, it was a
remarkably small (numbering about 300) and unrepresentative body, dominated by the
Congress Party. This trend, however, was kept in check by two factors. The Congress itself
housed a variety of ideologies and viewpoints, and included a substantial ‘opposition’
within itself.

These, as one scholar has observed, ‘ranged from a rabid Hindi-supporter to a secular
socialist, from a strong advocate of the presidential system to a convinced parliamentarian,
from a protagonist of a highly centralized state to a protagonist of loose federalism’
(Chaube 2000, 99). Second, the Constituent assembly sought submissions on various
issues from the public at large. A draft of the constitution was also published in February
1948. The voluminous representations from practically every segment of Indian society
might have slowed down its proceedings, but the process broadened its outlook and
strengthened its legitimacy.

Much of the Constituent assembly’s work was done in its numerous committees, sub-
committees, and ad hoc committees. The drafting of the text was left to the seven-member
Drafting Committee consisting mainly of lawyers and not politicians. The Committee was
chaired by B.R. Ambedkar, the brilliant lawyer and leader of the low-castes, who was also
minister for law in the Union cabinet. The work of the Constituent assembly was largely
facilitated by four Congress leaders: Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad,
and Abul Kalam Azad. The foremost historian of the Indian Constitution, Granville Austin,
calls them an ‘oligarchy’, but one that was responsive to the various currents of opinion
within the Assembly (Austin 1999, 21-25).

The nature of political institutions

The Constituent assembly set itself a lofty goal: the creation of conditions for a major
social and economic transformation of India. ‘The first task of this assembly’, Nehru told
his colleagues, ‘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’ (Constituent Assembly Debates, vol. 2, p. 316). Hence,
2
the major question confronting the Assembly was what form of political institutions would
enable and encourage such far-reaching change. This led first to the consideration of the
basic constitutional pattern of the new state.

The experience of limited self-governance under colonial rule predisposed many members
to look towards European-American constitutional tradition. Others, however, favoured
drawing on India’s own indigenous traditions. Advocates of a ‘Gandhian’ constitution called
for the revival of the panchayati raj system of village councils. In this scheme, the village
would function as the basic unit of politics and governance.

In the event, the Constituent assembly settled for a parliamentary, federal constitution in
the Euro-American model. In contrast to the ‘Gandhian’ model, this political system would
be much more centralized. In deference to the Gandhian view, the constitution would
promote administrative (as opposed to political) decentralization below the level of the
provinces. The state’s duty to promote the development of panchayats was written into
the Directive Principles of State Policy (of which more below). In a more dramatic break
with the past, the Assembly also settled for a direct election by adult suffrage. This was
regarded as an essential prerequisite for socio-economic transformation. Many members
of the Constituent assembly believed that universal suffrage would shift the balance of
governmental power towards the poor, and encourage policies that would be really
beneficial to them.

The decision in favour of a parliamentary, federal constitution was also prompted by

several immediate considerations. First, in the aftermath of the Second World War, there
was a severe food shortage in the country. The rise in food prices, the low grain reserve,
and the differences between provinces with surpluses and with shortages, all pointed to
the need for national government control of this crucial sector. More broadly, the Assembly
believed that economic progress required a centralized authority and centralized planning.

Second, The massive blood-bath preceding and accompanying Partition underlined both
the weaknesses of the provincial law and order machinery, and the need for central power
to uphold order and stability. Third, the Pakistan-abetted tribal invasion of Kashmir and
the outbreak of the Communist rebellion in Telengana highlighted the importance of a
strong central government capable of managing external defence and internal security.

Structure of political institutions

The structure of political institutions, too, drew on European and American models. The
American presidential system and the Swiss Executive model were debated and discarded.
The Assembly chose a slightly modified version of the British cabinet system. A President,
indirectly elected for a term of five years, would be constitutional head of state. The
President would be commander-in-chief of the armed forces and could refer bills back to
Parliament. The position, as Nehru noted, had no ‘real power’ but ‘great authority and
dignity’ (Constituent Assembly Debates, vol. 4, p. 734). As in Britain, there would be a
council of ministers responsible collectively to the Parliament, to assist and advice the
head of state. The Parliament would be elected by the British ‘first-past-the-post’ system.
Given the diversity of interests and groupings in India, it was felt that this would make for
strong government.

The Assembly provided for an independent election commission, and an independent

comptroller general of accounts. To ensure the independence of the judiciary, judges of
the Supreme Court and the High Courts would be appointed by the President in
consultation with the chief justices. Their salaries would not be decided by Parliament but
would be charged directly to the Treasury.
The Supreme Court would have original jurisdiction in all ‘federal’ disputes between the
units and the Union government. It would also have broad appellate jurisdiction. Any
3
civil and criminal case could be appealed to it if an interpretation of the constitution was
involved. The Supreme Court was thus seen as a guardian of the rights enshrined in the
constitution.

The federal structure adopted by the Assembly was undoubtedly biased in favour of the
centre as against the constituent units. The constitution provided for three areas of
responsibility: Union, States, and Concurrent. Subjects in the first list were under the
control of the central government, while those in the second fell under the remit of the
provinces. The third list was the joint responsibility of the centre and the provinces. The
Union list, however, was much larger than those in other countries. The centre’s share in
concurrent list, too, was more expansive. Further, Article 356 gave it power to take over
a state’s administration on the recommendation of the governor. Most significantly, the
centre was empowered with Emergency Provisions. The President might proclaim a state
of emergency if he was satisfied that national security was threatened by external
aggression or internal unrest. During an emergency, the Union government and Parliament
could practically dictate terms to the states.

Historians have differed on the extent of resistance put up by the representatives of the
provinces. Granville Austin suggests that ‘states rights’ issues never assumed much
importance in the deliberations of the Constituent assembly. This was because provinces
had never worked in a truly federal system like the United States or Australia (Austin
1999, 188-89). Ramachandra Guha argues, however, that not only did provincial
politicians fight “hard for the rights of states … they mounted on the principle [of
centralization] itself.” (Guha 2007, 111)

This set of decisions taken by the Assembly was influenced by wider concerns as well:
communal violence during Partition and the need to resettle the massive flow of refugees;
need to improve agricultural and industrial productivity. Three other factors contributed to
this outcome. During the period when the constitution was being framed, the provinces of
India were already functioning as part of a federal structure under the Government of
India Act of 1935. Hence, their bargaining power was inherently limited. Furthermore, the
creation of Pakistan convinced the Assembly that no new divisive forces should be
encouraged. Finally, the Congress Party dominated the political landscape. The absence of
strong regional or provincially-based parties eased the path to a strong federal centre.

The model of fiscal federalism adopted by the constitution drew on the Government of
India Act of 1935. In the case of some taxes, such as customs duties and company taxes,
the centre would keep all the revenue. In other cases, such as income taxes and excise
duties, the revenue would be shared with the states. Yet other sources, for instance estate
duties, were assigned wholly to the states. The states, for their part, could levy their own
taxes, including sales tax, land and property taxes. On the whole, though, the financial
provisions favoured the Union government. This trend towards fiscal centralization was
strengthened by the unstable financial situation prevailing when the constitution was
drawn up. Moreover, members of the Constituent assembly believed that the ‘needs’ of
the provinces should determine how revenue was distributed. This was seen as a key to
achieving socio-economic transformation. But it naturally required a greater role to be
played by the Union government.

Fundamental rights and directive principles

The core of the constitution’s commitment to furthering socio-economic transformation lay

in the Fundamental rights and Directive Principles of State Policy. Following the Bill of
Rights of the American Constitution (and in contrast to the British model), the Constituent
assembly outlined the rights of citizens that could not be abridged by the state. These
Fundamental rights include: the Right of Equality, the Right of Freedom, the Right against
Exploitation, the Right to Freedom of Religion, Cultural and Educational Rights, the Right
4
to Property, and the Right to Constitutional Remedies. The Directive Principles went further
and sought to ensure that the Indian people would be free in the positive sense—free from
societal coercion and wretched physical conditions that prevented them from achieving all
that they desired. These principles would not be justiciable, that is the courts could not
enforce them. But they would be ‘fundamental in the governance of the country’.

Much of the existing scholarship views these provisions as the culmination of a long
process dating back to the late 19th century. In this reading, liberal democracy struck
roots in India in the form of nationalism. The Indian National Congress’ commitment to
civil liberties and its vision of social justice and equality could be seen in a series of
documents and declarations: the Motilal Nehru report of 1928, the Karachi Resolution of
1931, Nehru’s address to the Faizpur Congress of 1936, and the Sapru report of 1946.
(See Austin 1999, 52-57; Bhargava 2000).

By contrast, Sunil Khilnani argues that the traditional account is steeped in both imperial
and nationalist views of India’s political development. The national movement certainly
had ‘a pragmatic attachment to forms of consensual decision-making’. But these practices
‘do not exhaust even a narrow definition of democracy, or of liberalism’. The constitution
of 1950, he contends, was actually a radical break with the past.

The Fundamental rights, however, were not considered to be absolute. The Constituent
assembly considered in what ways and to what extent these rights should be limited.
Broadly, two considerations impacted on the question of limiting these rights: social reform
and national unity. Some of the concerns raised by the former could be tackled in the
drafting of the provisions. For instance, some members opposed allowing ‘free practice’ of
religion since this could include retrograde practices like sati, purdah, and the devadasi.
In consequence, the constitution provided that the right to freedom of religion did not
prevent the state from making laws for social welfare and reform. Other issues proved
more difficult to deal with. The most protracted debates surrounded the right to property.
Land-reform laws were being contemplated by many provinces, and the government
wanted to prevent dispossessed landlords from approaching the courts. Eventually, the
right of due process was not allowed in property legislation.

Considerations of national unity and public security also led to the curtailment of individual
liberty. A majority in the Constituent assembly believed that public peace was essential to
achieving social and economic progress. This stance was understandable against the
backdrop of the communal violence that engulfed the country in 1947. But this led the
Assembly to approve of provisions that went against liberal values. These included the
powers given to the government during a national emergency and the provision of
‘preventive detention’ without trial. The latter was seen as the only way to prevent or
contain communal violence. But it also attracted the most public criticism of any provision
in the draft constitution. Preventive detention, after all, had been a favoured legal
mechanism of the British Raj.

The Assembly paid considerable attention to the rights of the minorities. Initially, some
Muslim members sought to retain separate electorates. The Congress leadership was
staunchly opposed to this, believing that it had been instrumental in leading to Partition.
However, there were other Muslim members who believed that it was in the best interests
of Muslims to align their identity with that of other citizens. Eventually, Muslim members
came round to the view that instead of seeking separate electorates, they should organize
themselves as voting blocs, and so acquire political importance. Female members of the
Assembly, too, rejected the idea of reservation for women.
They argued that ensuring equality, rather than special privileges, was the best way to
protect women’s rights. Reservations were, however, extended for the Untouchables. This
5
was in recognition for the historic injustices they had suffered. Seats were set aside in
legislatures and jobs in government agencies. Similar provisions were also extended to
the tribals.

Language

The question of a ‘national’ language provoked some of the most heated and contentious
debates in the Constituent assembly. It assumed such importance because it mattered,
like fundamental rights, to everyone. Almost from the outset, proponents of Hindi made it
clear that they would press their case to the utmost. They demanded initially that the
official version of the constitution be in Hindi rather than English. The Drafting Committee
refused to accept this, arguing that the English language was more suitable for the
technical and legal nature of the document. The advocates of Hindi then demanded that
each clause of the draft constitution be discussed in Hindi.

The case for Hindi was given additional vigour by partition. Hitherto, Hindustani rather
than Hindi had been the lingua franca of much of Northern India. Hindustani was a mixture
of Hindi (written in Devanagari script and drawing heavily on Sanskrit) and Urdu (written
in modified Arabic script and drawing on Persian and Arabic). It could be written using
either Hindi or Urdu script. Both Gandhi and Nehru had supported Hindustani as a bridge
between north and south India, the Hindus and the Muslims. But partition more or less
laid to rest. Hindi, on the other hand, began to turn increasingly Sanskritized.

The extreme advocates of Hindi not only wanted it to be the national language but also
that it should replace English for official purposes in the central government. They also
held that Hindi should soon replace English in the provincial governments. The militancy
of the proponents of Hindi roused the ire of South Indian representatives. The latter bitterly
opposed making Hindi the national language. Besides, there was a group of moderate
Hindi speakers who believed that Hindi might be declared the ‘official’ language, but that
it should only be the first among equals. Other regional languages should also have
national status. English, they held, should be replaced very slowly and cautiously.

After months of heated debate, the moderates, led by Nehru, managed to get a majority
to adopt most of their suggestions. Hindi in the Devanagari script would be the ‘official
language’. However, for an initial period of 15 years English would continue to serve as
the official language. After this period Hindu would replace English, unless the Parliament
legislated otherwise. The provincial governments could conduct their affairs either in one
of their own languages or in English. Further, the major regional languages were listed in
a schedule to the constitution. This compromise enabled the Assembly to avoid a deadlock
on the emotive issue of language.

The Constituent assembly completed its task in two years, eleven months and seventeen
days. Given the size of the constitution and the gravity of the issues under consideration,
this was celerity itself. Historical judgments on this unprecedented exercise have mostly
been favourable. Granville Austin, for instance, sees the constitution as a ‘seamless web’,
which smoothly brought together the strands of democracy, social reform, and unity. Other
scholars have questioned this assessment. Sunil Khilnani, for instance, argues that the
makers of the constitution were oblivious of the ways in which character of representation,
rights and equality might change with time; and in the process change the character of
Indian democracy itself.

The makers of the constitution themselves seem to have regarded their task as just the
beginning of a long journey. As Ambedkar observed in his brilliant closing address, the
principles embodied in the constitution were the views of his generation, open to
modification in the light of the experience of succeeding generations. This was the reason
why relatively simple procedures had been introduced for amending the constitution.
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Working the constitution was the task of the Indian people.

“On the 26th of January 1950,” Ambedkar said in peroration, “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 or else those who suffer from inequality will blow up the structure
of political democracy which this Assembly has laboriously built up.”

Summary

 The making of the Indian constitution was a massive exercise undertaken by the
constituent assembly between December 1946 and December 1949. It has
justifiably been termed a democratic revolution.The work of the Constituent
assembly was largely facilitated by an ‘oligarchy’ of four Congress leaders:
Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad, and Abul Kalam Azad. The
actual drafting was done by a committee led by B. R. Ambedkar.After much
deliberation, the Assembly decided on a parliamentary, federal constitution in the
Euro-American model. This centralized model was preferred to the more
decentralized ‘Gandhian’ model. The background of Partition played an important
role in shaping this choice.The core of the constitution’s commitment to furthering
socio-economic transformation lay in the Fundamental rights and Directive
Principles of State Policy. However, these rights were limited by two considerations:
social reform and national unity.The issue of a ‘national’ language provoked some
of the most heated and contentious debates in the Constituent assembly.
Eventually a compromise was struckThe integration of the princely states—
numbering over 600 in 1947—was a key challenge for the new Indian state.

 The Congress party held that the states had to join either of two dominions. The
Muslim League claimed they could also opt to stay independent. Encouraged by the
latter, Travancore and Hyderabad actually announced their decision to stay
independent.

 The Indian government managed to convince most states to join India by offering
accession only in respect of defence, foreign affairs, and communications.

 Three important states held out. Junagadh initially acceded to Pakistan, but
subsequently under pressure from India the ruler capitulated. Hyderabad held out
for independence. The failure of negotiations coupled with the worsening communal
situation led India to attack and occupy the state. Kashmir acceded to India when
faced with a Pakistan abetted tribal invasion. The issue however got bogged down
in the United Nations and a de facto partition persists to date.
The Constituent Assembly of India
7
Introduction

The Constitution of India, writes Ananya Vajpayi, is an orienting mechanism, a talisman,

a symbol, an ever realisable ideal and a permanent mirror held up to a nation.

The Constitution of India came into force on 26 th January 1950, with this, India became
the largest democracy and its Constitution became the lengthiest constitution in the
world. Organised under the Cabinet Mission Plan of May 16, 1946, the Constituent
Assembly took almost three years to draft a constitution for this newly independent nation.
Coming from several spheres of national life and representing most of the regions,
interests and social groups of India, the Constituent Assembly had many distinguished
statesmen, freedom fighters, intellectuals and patriots in it. Elucidating on the idea of the
Constituent Assembly, Pandit Jawaharlal Nehru said:

‘It did not mean a body of people or gathering of able lawyers’ intent on drawing the
Constitution. It meant a nation on the move, throwing away the shells of its past political
and possibly the social structure and fashioning for itself a new garment of its own making.
It meant the masses of the country in action through their elected representatives and
had, therefore, a revolutionary significance.’ (Foreword by Pandit Jawaharlal Nehru in
Krishnamurti Y.G., Bombay)

A product of complex sets of factors and forces partially rooted in colonial rule and partially
emerged from the national movement, the Constitution of India became a living document.
For more than six decades, the basic structure of the Constitution has remained intact. It
is to be emphasise here, that the Constitution of the Indian republic was not a product of
a political revolution but of the research and deliberations of a body of eminent
representatives of the people who sought to improve the existing system of
administration. (Basu, 1946: 3)

Before analysing how the Constituent Assembly of India was formed and how it functioned,
it is necessary to give a working definition of constitution and also a need to tell what
purpose a constitution serves.

WHAT IS CONSTITUTION?

The constitution represents the legal fundamentals of a country. It outlines the rules and
principles that are fundamental in the governance of the country. According to Carl J
Friedrich:

“Constitution may be said to be a collection of principles, according to which the powers

of the government, the rights of the governed and the relations between the two are
adjusted.” (Friedrich, 1964: 11) On the other hand K.C. Wheare argued that the term
constitution commonly has two connotations: first it describes the whole system of a
government of a country; secondly it enumerates a bunch of rules that establish and
regulate the government. (Wheare, 1956: 1)C.H. McIlwain, constitutional historian of
America, has also defined constitution in two ways: firstly, a constitution is a nation’s
actual institutions and their development; secondly “A constitution is a document, a code
of fundamental law, struck off at a particular historic movement.” (quoted in S.C. Hart,
The Indian Constitution: Political Development and Decay, Asian Survey, April 1980: 429)

In short, a constitution is a rulebook of a nation, codifying rule of law. In the minimal

sense, a constitution consists of rules or norms which enumerate the structure, powers
and limitations on the governments. In the eighteenth century, constitutions were seen
as an instrument of governance and as a system of limited government. But in twentieth
8
century the idea of constitution evolved from a mere restraining instrument to a positive
instrument of human welfare. The socio-economic goals that a nation has to pursue also
find a place in the constitutions. The path which a polity has to pursue is also spelt out in
this fundamental document.

FUNCTION OF THE CONSTITUTION

The very idea of the constitution entails that the government should be limited in its
powers and its authority and legitimacy should depend on the observation of these
limitations. There is no denying the fact, that modern states are very powerful and possess
monopoly over means of force and coercion. A history of nations provides ample examples
that the state can misuse its powers and can become tyrannical in exercise of its powers.
A need therefore arises to put a limitation on the states’ power. Constitution plays such a
role.

According to Rajiv Bhargava, besides restrain on the exercise of power, constitutions are
needed to protect minorities from the tyranny of the majority in the democracies. It is
commonly assumed, that in democracy power resides in the demos i.e. the people. But in
actual practice this is not the case. Instead of all people, the power is largely exercised by
the majority and the majorities can act in the manner that may prove harmful to interest
of the minorities. Constitutions therefore are needed to provide protection to minority
groups.

Thirdly, constitutions are needed to control the destabilising swings generated by the
popular passions. It saves the society from the ups and downs of every day politics. Human
beings, undoubtedly are fallible. Their passions and emotions can have an upper hand over
their reason. People acting as a mob can take decisions which may have deleterious effects
on society and polity. Anticipating such a volatile nature of politics, constitutions try to put
some dimension of the political process beyond the vagaries of every day politics.
(Bhargava: 2008, p. 14-15)

As an instrument of social transformation, constitutions play a very important role. They

provide means to change the society in a peaceful and democratic manner without
resorting to violence.

Like every other constitution, the Indian constitution also seeks to establish the
fundamental organs of government and administration lay down their structure,
composition, powers and functions. It defines the inter-relationship of one organ with
another and regulates the relationship between the citizen and the state. In addition, it
also spelt out the vision and the path which this new nation had to follow.

CONSTITUENT ASSEMBLY OF INDIA

The Constituent Assembly drafted a constitution for India in the years from December
1946 to December 1949. During this period, it had eleven sessions and one sixty five days
of actual working. In between the sessions the work of revising and refining the draft was
carried out by various committees and subcommittees. After deliberations and debates
spread over three years, the Constitution of India was adopted on 26 th November 1949
and finally came into force on 26 th January 1950. The final Constitution had 395 articles
and 8 schedules.
Demand for the Constituent Assembly
9
The idea of a Constituent Assembly for India was in gestation for a long time both in the
national quarters and the British ruling circles. The formation of the constituent assembly
was the final culmination of aspirations of the people and the demand of the national
movement that the constitution of India should be framed not by British Parliament but
by the chosen representative of Indian people. As early as in 1922, writing in Young India
Gandhiji said that swaraj of his conception would not be a free gift of British Parliament
but a declaration of India’s self-expression, the will of the people of India express through
her freely chosen representative. Further, on May 27 th 1927, Motilal Nehru at the Bombay
session of the Congress moved a resolution calling upon the Congress Working Committee
to frame a constitution for India in consultations with the members of central and provincial
legislative assemblies. In pursuance of this proposal a committee was set up under the
chairmanship of Motilal Nehru, which prepared a report in 1928 known as Nehru Report.
This report was the first attempt by Indians to frame a constitution for themselves.

In March 1933, the British government put forth before Indians the White Paper which
contains proposals for the constitutional reforms for India. The nationalist opinion in India
found this proposal highly objectionable and therefore unacceptable. In June 1934, the
Congress adopted a resolution stated that the only satisfactory alternative to the white
paper is a constitution drawn by the constituent assembly elected on the basis of adult
suffrage. Congress kept on repeating the demand for a constituent assembly in subsequent
sessions also. This demand was however, resisted by British government until the
outbreak of World War II, when external circumstances forced them to realise the urgency
of solving the Indian constitutional problem. In 1940, the British government gave
recognition to the principle that Indians themselves should frame the constitution for free
India. In March 1942, the British government sent Sir Stanford Cripps with a draft
declaration on the proposals. These proposals were to be adopted at the end of the war,
provided the two major political parties Congress and Muslim League could come to an
agreement to accept them. But the two parties failed to come to an agreement to accept
the proposals. Thus an idea of the constitution making body failed to materialise. (Basu,
2011, p. 14-15)

In April 1942, the Cripps Mission failed and within months the mass struggle of the Indian
people, the Quit India Movement started. The growing popular upsurge against the British
rule and the spread of discontent in the armed forces made it clear to British rulers that
their days are numbered in India. The British Government announced in 1946 its intention
to end its rule in India and as such it sent a Cabinet Mission in March 1946 to hold
negotiations with Indian leaders on the transfer of power. The Mission proposed the
formation of an interim government and the convening of a Constituent Assembly

COMPOSITION AND CHARACTER OF THE ASSEMBLY

Under the Cabinet Mission plan, the Constituent Assembly was to be indirectly elected by
the system of proportional representation from the provincial legislature which themselves
had been elected on a restricted franchise consisting of about 20 to 24 percent of the adult
population. Originally, the assembly was intended to be a constitution making body for the
whole sub-continent. But the Indian Independence Act of 1947 partitioned India and set
up two independent states of India and Pakistan. After the partition, the Assembly was
also divided in to two. It is to be noted, that even before the partition Muslim League
boycotted the Assembly. Members representing the areas, not included in Pakistan formed
the Constituent Assembly of India. This Assembly become a statutory sovereign body with
plenary powers to draw a constitution as it thought fit, proper and suitable to the genius
of people of India
As stated earlier, the formation of the India Constituent Assembly lay with the Cabinet
Mission plan. As soon as the plan was made public on May 16 1946, a fierce controversy
10
ensued between the Indian National Congress and Muslim League over the real nature of
the proposals. While the Congress regarded the Constituent Assembly to be a sovereign
body, the Muslim did not agree to the idea. After a lot of tussle and negotiations both
Congress and Muslim League gave approval to the proposals resulting in the elections of
the Constituent Assembly. The Constituent Assembly was to be indirectly elected by a
system of proportional representation from the provincial legislatures. The provinces were
to be represented in the Assembly in the approximate ratio of one to one million of their
population. Allocation of the seats within the provinces was to be divided between the
main communities in proportion to their population. The princely states were to have 93
representatives but the method of selecting these representatives was left to the
consultation between assembly and the sates rulers.

The Congress got overwhelming majority in provincial assembly elections of early 1946 as
such it captured 85 percent of the general seats in the Constituent Assembly. It also won
4 seats from the Muslim category and 1 from the Sikh category. The Muslim League won
all but 7 of the seats reserved for the Muslims. Upset with the Congress victory and
popularity, the Muslim League decided to boycott the Assembly. Hence, out of the 296
members, only 211 attended the first meeting on 9 th December 1946. After the partition,
members representing areas not included in Pakistan formed Constituent Assembly of
India. In addition to partition, the varying process of merger and integration of princely
states kept changing the total strength of the Assembly. As of November 1948, the
Assembly had total of 324 members of which 232 were from British provinces. The
distribution of these 232 elected representatives was as follows: General: 197, Sikh: 4,
Muslims: 31. The party wise strength was as follows: Congress: 197, Muslim 25, Akali: 1,
Schedule Caste Federation: 1, Communists: 1, and Independent: 7. Though there were
few Marxists in the Assembly, the Left, in general was conspicuous by its absence as there
was no official representative of the Communist Party and the Socialist party. One
Communist was originally elected but he lost the seat as a result of the partition. With
regard to the Socialists, they were in the Congress Party as Congress-Socialist group, but
this group decided not to join the Assembly. In 1948, this group left the Congress and
formed its own party known as Socialist Party. This party demanded the dissolution of the
Assembly and its re-election on the basis of adult franchise.

On the basis of the caste, out of the 83 percent of the Hindu members 45 percent were
Brahmins. They were either landlords or rich peasants. 13 percent were Kayastha, of
whom the majority were self-employed professional like doctors and lawyers. 10 percent
were Marwaris with business interests. And 6 percent were Rajputs belonging to the land
owning classes. In all 74 percent of members belong to upper castes. 18 percent of the
membership of the Assembly was constituted by the lower middle castes such as Marathas
from Maharashtra, the pattidars from Gujrat and non-Brahmins from Southern Indian
states. Schedule castes and tribes membership in the assembly was merely at 6 percent.

The core of the Assembly membership constituted by an extremely small westernized

professional middle class trained in the English education system. They all were university
graduates. Out of the 20 members of the drafting committee, 12 were lawyers, 4 had
taken university degrees, one was medical official, one was in civil government job and
one was a businessman. Out of the 20 members 2 were Muslims, 1 was Christians, and
remainder were the Hindu. In addition to this 20, B N Rau who was constitutional adviser
and influential member in the inner council of the Assembly was also a legal expert. The
Assembly also included eminent women leaders such as Sarojni Naidu and Hansa Mehta.
N G Ayyanger, Dr. B R Ambedkar, Alladi Krishnasawami Iyer, B Shiva Rao, H N Kunjru and
K M Munshi though were not the members of Congress but were included in the Assembly
being the learned person. It could be safely said that the members of the Assembly were
not selected on the party basis but were drawn from all walks of the life including some of
them leading personality and the best minds.
11

WORKING OF THE CONSTITUENT ASSEMBLY

Austin characterised the motivation and the task of the Constituent Assembly in these
evocative words:

“In the Assembly, Indians, for the first time in a century and a half, were responsible for
their own governance. They were at last free to shape their own destiny and to pursue
their long proclaimed aims and aspiration by creating the national institutions that would
facilitate the fulfilment of these aims. The members approached this task with remarkable
idealism and a strength of purpose, born out of the struggle for independence.” (Austin,
1976: XVI)

This is apt to describe the circumstances prevailing at the time of framing the Constitution
because they seemed to have affected the Constituent Assembly debates. The years
preceding and following Independence had been exceptionally tumultuous. India got
independence on 15 August 1947. It was a time of great hope, joy and celebration but at
the same time, of utter disappointment. The Partition and communal violence that followed
in its wake created a tragic and violent situation. Within a few months, half a million people
were killed and millions became homeless. Such a large scale killing of innocent people
had never occurred in the history of India before. Millions of refugees were on the move,
on the both sides of the border. Political unification of the country posed another problem
for this new nation. Soon after Independence, raiders from Pakistan invaded Kashmir. The
father of the nation, Mahatma Gandhi was shot dead on 30 January 1948 due to the
communal frenzy. This was the background in which the Constituent Assembly met. How
could the debates within the Assembly remain insulated from what was happening outside?

The Constituent Assembly began its first session on 9 December 1946. During its first four
sittings from 9-12 December, the Assembly was involved with matters like the
presentation of credentials, signing the register, electing the permanent Chairman and
constituting a committee for rules of procedure. On 13 December 1946, the fifth day of
the first session, Nehru moved the historic Objectives Resolution. The Resolution said:

“This Constituent Assembly declares its firm and solemn resolve to proclaim India as an
independent sovereign republic and to draw for her future governance a Constitution.”

The Objectives resolution gave to the Assembly its guiding principles and the philosophy
that was to permeate in her task of constitution making. In its second session, held on 20
January 1947, the Assembly adopted the Objectives Resolution. In its third session, held
on 28 April 1947, the Assembly discussed the reports submitted by the Union Power
Committee and the Advisory Committee on Fundamental Rights. On 29 August the
Assembly adopted a resolution setting up a Drafting Committee to draft a Constitution. Dr
B.R. Ambedkar was appointed as the Chairman of the Drafting Committee. After
deliberating for nearly three years, the Assembly adopted the Constitution on 26
November 1949.

Committees of the Constituent Assembly

The Constituent Assembly had a total of more than fifteen committees. Seven of them,
such as House and Staff Committee performed minor functions. The brick and the mortar
12
of the structure was provided by the reports of the Union Power Committee, the Union
Constitution Committee, the Advisory Committee on Minorities and Fundamental Rights,
the Committee on Chief Commissioner Provinces, the Committee on the Financial
provisions of the Union Constitution and the Advisory Committee on Tribal Areas. The
Assembly appointed a Drafting Committee on 29 August 1947 to consider the Draft
Constitution with Dr B.R. Ambedkar as its Chairman along with six other members.

Framers of the Constitution

The members of the Constituent Assembly were drawn from all walks of life and
represented almost every section of the Indian populace. The Assembly included some of
the most leading personalities of the Indian public life. The moving spirit of the Committee
was Pandit Jawaharlal Nehru. Dr Rajendra Prasad was the President of the Assembly.
Vallabbhai Patel was one of the most important among the leading lights of the
Assembly. While these leaders have contributed more than all others for the formulation
of the basic principles of the Constitution, it was the Drafting Committee headed by Dr
B.R. Ambedkar, which was in-charge of the drafting. He steered the document through
nearly a year of debate over its various provisions. Ambedkar was assisted in the task of
constitution making by the other members of the Committee among whom A.K. Aiyar,
N.G. Ayengar, K.M. Munshi and T.T. Krishnamachari were the most prominent. Vital
assistance was rendered by B.N. Rau, an important legal expert and constitutional advisor
who prepared a series of background papers based on a close study of the political system
prevailing in other countries.

The Constituent Assembly, for all practical purposes was under the control of the Congress
party. The Congress, however, was not a party with one voice. Members had different
opinions on critical issues. Some members were inspired by socialism while others
defended landlordism. Some were assertively secular while others were close to communal
parties. Austin opined that the Constituent Assembly was a one party body in an essentially
one party country. Within the Congress, four leaders- Nehru, Patel, Prasad and Azad,
through their commanding grip on the Congress (Party and the eight committees of the
Assembly) constituted virtual oligarchy within the Assembly. Though the issues were
openly debated but the influence of the Congress leaders was nearly irresistible. The result
was that the entire Constitution came to be shaped on the ideology of the Congress party.
Not that the views of others were not heard but decision making rested with the Congress.
(Austin, 1976: 22) From the very outset, it was Nehru who laid down general outlines and
continued to influence the working of the Assembly. Nehru was the Assembly philosopher
and its prime constitutional thinker. Prasad, the President of the Assembly, also gave credit
to Nehru for the fundamentals of the Constitution.

In the words of Subash Kashyap:

“While others fashioned its structure and shape, most significantly Nehru gave to the
Constitution its spirit, its soul, its philosophy and its vision.” (Kashyap, 1982: 92)

In the opinion of Austin, the Assembly was the product of the inter relation of the
government, more so of the Union Government, with the Assembly and of both with the
Congress Party.

DECISION MAKING IN THE CONSTITUENT ASSEMBLY

The decision making process of the Assembly was democratic and pragmatic. Lively and
interesting debates took place in the Assembly. The members of the Constituent Assembly
were eloquent in expressing their sometimes very divergent viewpoints. In these debates,
one can discern many conflicting ideas of India- of what language Indians should speak;
of what political and economic system the nation should follow; of what moral values its
13
citizens should uphold; how to protect the minorities etc. Despite this divergence, there
was virtual unanimity on the fundamentals of the Constitution. Shibani Kinkar Chaube
pointed out that “on fundamentals there was little concession”. (Chaube, 1973: 277) The
leadership of the Constituent Assembly followed the process of decision making by the
consensus, by the policy of accommodation and by the art of selection and modification.
(Austin, 1976: 4)

The success of the Constitution, argued Austin, lies principally in its having been framed
by the Indians and in the excellence of the framing process itself. The members of the
Assembly drafted a Constitution that expressed the aspirations of the people of this nation.
On the basis of the advice given up by the ministries of the Union and Provincial
governments and the expertise available within the Assembly, the framers successfully
selected and modified the provisions which they had borrowed from other constitutions.
Consensus and accommodation were two principles which the Assembly applied to its task
of drafting with great effectiveness. Consensus was used while arriving at decisions in the
Assembly and the principle of accommodation was used while incorporating other
provisions in the Constitution.

Decision Making by Consensus

Consensus, simply means making decisions with near unanimity. It is a recognition of the
fact that decision by majority is not the best way of deciding political conflicts. The framers
of the Constitution knew fully well that constitutional provisions which would be agreed
upon by consensus of the members will prove effective and long lasting. Consensus, opined
Austin, thus had a general appeal in the Assembly as an ethical means of reaching lasting
agreements and to the rank and file as an indigenous institution that suited the framing
of an Indian Constitution. (Austin, 1976: 316)

The method of consensus found its way in the Assembly in a number of ways. Firstly, the
Congress party used the principle in its meeting. Each and every provision of the
Constitution was subjected to frank and searching debates. From party stalwarts to non-
Congressmen like Aiyar, Ambedkar and Ayengar all were free to attend the Congress
meetings. In addition to the Congress, this process of consensus was followed in the
Committee system of the Assembly as well. The dialogue was carried with both the
Provincial and the Union government leaders in the Assembly. Not only this, off the record
discussions also held between Assembly leaders and the dissident groups. Provisions
regarding federal structure and the issue of language perhaps proved as the best testing
ground of this principle. The issue of language strained the Assembly decision making
machinery to the utmost. A generally acceptable solution to the problem of language
eluded the Assembly members for three years. The Munshi-Ayengar formula was drafted
almost in desperation. At the time of final debate on language, Prasad, the Chairman of
the Assembly, refused to put the issue to vote. He argued, that in the absence of
agreement, it would be difficult to implement it.

Policy of Accommodation

The policy of accommodation was the other important principle which was followed during
the debates. To Austin, it was India’s second original contribution to the process of
constitution making. In the Assembly, the members had divergent views on a number of
key issues and there was an urgent need to reconcile the incompatible and conflicting
views. A good deal of behind the scenes discussions and negotiations were required to
accommodate these divergent views. The constitutional structure is a good example of the
principle of accommodation on the matters of substance. The Constitution has combined
federal with the unitary provisions, republican status of India with the membership of the
Commonwealth and a strong Central government with decentralisation in the form of
14
Panchayati Raj. (Austin, 1976: 16)

The Art of Selection and Modification

The Constituent Assembly discovered a new principle- the art of selection and modification.
It means, whatever has been borrowed from the other constitutions was not blindly
followed. The Assembly earnestly chose and modified the provisions so as to make them
suitable for Indian needs and circumstances. One such example of selection and
modification is the method of Constitutional amendment. The three procedures of
amendment made the Constitution flexible and also helped in protecting the rights of the
states. The amendment procedure prescribed by the Indian Constitution proved better
than any other amending procedure found in the constitutions of states which combined
parliamentary system with federalism. The federal system was another proof of the system
of modification. While retaining the provisions of the 1935 Act, suitable modifications were
made in the federal scheme.

The Assembly, unlike the American and the Canadian Assembly, adopted the policy of
publicity rather than secrecy. Following the democratic traditions of debates and
discussion, the Assembly published its high level debates which had an educative and
enabling effect on the people.

Upendra Baxi in his long essay, “The Little Done, The Vast Undone” criticised Austin’s
understanding of the decision making process and argued that such an analysis took a
very simplistic view of politics. The notion that decisions in the Constituent Assembly were
taken by consensus actually masks the differences that prevailed in the Assembly. The
consensus approach did not tell the true story of what differences and conflicts of opinion
were there in the assembly. (Upendra Baxi, “The Little Done, The Vast Undone: The Indian
Constitution”, Journal of the Indian Law Institute, 1967; 322)

PERCEPTIONS FOR THE FUTURE INDIAN POLITY

What kind of India the Constitution makers were envisioning? In other words, what were
their perceptions for the future Indian polity? The vision and the philosophy of the
Assembly will be discussed in detail in the next chapter.

Here it is sufficient to say that the Objectives Resolution which was moved by Pandit
Jawaharlal Nehru reflected the perceptions of the framers of the Constitution. The
objectives laid down in the Resolution though general in nature provided the basic
framework of reference for the new Constitution as well as the path the country would
take for social transformation. The main thrust for the Objectives Resolution was that India
was to be proclaimed as an independent, sovereign, republic. The Constitution was to be
drawn for a Union consisting of British India and Princely States. It had to guarantee liberal
rights to the citizens such as freedom of thought and expression; belief and faith and
choosing vocation etc. It had to provide adequate safeguards for minorities, backward
classes and the scheduled castes and the scheduled tribes and create conditions conducive
for socio-economic and political justice for all.

EVALUATION

The Constitution of India was framed by the best and the brilliant minds of the nation. The
success of the Constitution is clearly evident from the fact, that after more than six
decades the single Constitution is serving this country, though with more than hundred
amendments and numbers of judicial interpretations. Although the Constituent Assembly
15
toiled for nearly three years to make the Constitution, its composition and working could
not escape criticism. It has been alleged that the Assembly was not a true representative
body of the Indian masses. Important people and groups were absent in the Assembly,
the Muslim League boycotted the Assembly, Gandhi was absent in the Assembly and so
were communists and socialists from its benches. Charges have also been levelled against
the Assembly for its class character and dominance by one party i.e. Congress. As stated
earlier, Austin has praised the working of the Assembly but some scholars are of the view
that important voices and demands in the Assembly were silenced in the name of the
nation and by raising the fear of separatism.

The Constituent Assembly was elected on the basis of limited franchise. Only 28.5% of the
adult population and 14% of the total population had voting rights in 1946. This shows
that the members of the Assembly did not represent the whole of India. Secondly, the
Assembly was not directly elected by the people but indirectly elected by the Provincial
Legislative Assemblies which themselves were elected on the basis of restricted franchise.
A large number of members in the Assembly were nominated by the Princely States. Not
only were the members indirectly elected or nominated but the Constitution that they
prepared was also not put before the people for their final approval in a referendum. The
Constituent Assembly of India elected as such was criticised both by the Indians and the
Britishers as being unrepresentative of the people. Jayaprakash Narayan referred to it as
a restricted and curbed Constituent Assembly, a creation of British imperialism and thus
unable to bring freedom to India. To Churchill, the Assembly represented only one major
community of India. For Viscount Simon it was ‘a body of Hindus.’ (B. Shiva Rao, 1968;
130)

In fact, the Constituent Assembly of India was born with inherent handicaps. It was created
by an alien government but it had to prepare a constitution which could give glimmer of
hope, justice, freedom and rights to the teeming millions of Indians. The very composition
of the Assembly too had several limitations. It would be apt to quote Shibani Kinkar
Chaube here:

“Born with a particular stigma, the Assembly was confronted not only with the task of
drafting a constitution for India but also with the odd jobs of making the most important
political decision for the country namely the state structure. No other constitutional body
in the world has had to make such an important decision as each of them has merely
recorded the achievements of the revolution through which the major political decisions
had already been reached.” (Chaube, 1973: 270)

The Constituent Assembly also came under scathing criticism for its class character. It is
argued that the Assembly was run by the few and it prepared the Constitution only for the
few. The Assembly was in full control of the Congress party and its leading four- Nehru,
Patel, Prasad and Azad constituted an oligarchy within the Assembly. Because of its
organisational peculiarities and ideological vagueness the Congress party was at a loss in
formulating precise ideas and principles of democracy. The real dilemma before the
Assembly was economic in nature. Largely fed by the financial assistance of the propertied
class, the Congress had to meet the demands of private property though at the same time
it had to pay attention to, workers, peasants and the poor masses of this country. The
interests of the propertied class (industrialists and the landlords) were taken care of in the
form of rights such as ‘the Right to Property’ whereas interests of workers and peasants
were put in the section of Directive Principles, the non-enforceable part of the Constitution.
(Harichand, “Class Character of Indian Constitution”, Social Scientist, March 1975; 54-72)

Another charge that has been levelled against the Constituent Assembly is that the framers
of the Constitution have shown undue haste in framing the Constitution. Many important
provisions of the Constitution had not been discussed threadbare in the Assembly. Article
360 of the Constitution, concerning financial emergency, was an afterthought and passed
16
on the same day of presentation without much discussion. Secondly, the entire
Constitution was not taken up for discussion in one go. Articles were discussed in
piecemeal fashion, causing great confusion for the members. This has happened because
several important Articles were referred to sub-committees; hence no discussion could
take place on them before the arrival of Committee reports. The entire Draft Constitution
was treated as a government bill, subjected to three readings. The adoption of the
erstwhile Legislative Assembly rules for the Constituent Assembly had a baneful effect on
its working. According to a scholar:
“In the Assembly discussions were curtailed and even gagged, amendments were
disallowed on technical grounds and closure rule was frequently taken recourse to in order
to terminate the debates prematurely and inconclusively.” (Vinita Shekhawat and Vibhuti
Shekhawat, “Indian Constitution Model- Designing and Submmation the Indian Journal of
Political Science, Vol 57, and No.1:71)

CONCLUDING REMARKS

In the recent years there has been a growing interest among scholars in the history of
constitution making and in the debates of the Constituent Assembly. These scholars have
explored the multifaceted aspects of constitution making and have offered a critical
perspective. It was hoped that the rethinking on the making of the Constitution would help
in understanding the functioning of the Constitution in post-colonial India. The general
impression is that whatever has gone wrong or right with the polity, society and economy
of India lies at the doorstep of the politics that has been followed in the post-independence
period. No one puts the blame at the Constitution for that. Scholars like Aditya Nigam,
Bhanupratap Mehta, Uday Mehta, and Arvind Elangovan critiqued the earlier writings on
constitution making specifically of Austin and offered a new perspective. They argued that
the history of constitution making in India should be decoupled and delinked from the
history of Indian nationalism. It is to be mentioned here that the making of the Indian
Constitution was seen as a triumph of Indian nationalism. Put differently, constitution
making represents in some sense redemption and fulfilment of the aspirations of the
people that were articulated during the Indian National Movement. With the inauguration
of the Constitution, India became a nation state in 1947. Rather the assumption was that
a nation had existed even prior to 1947. Within the Assembly, though the members spoke
in different voices but they had a consensus among themselves on the basics of the
Constitution. The ideology and the structure of the Constitution owed much to the forms
of British rule and the Congress demands made during the anti-colonial struggle. Scholars
such as Aditya Nigam, Bhanupratap Mehta, Arvind Elangovan and Uday Mehta viewed the
making of the Constitution from a non-nationalistic perspective. Bhanupratap Mehta
argued that:

“Despite the centrality to our social and political life the Constitution has been ill served
by our historical imagination. In a very mundane sense, there is no serious or deep
historiography associated with our Constitution – one that can put it in proper historical
and philosophical perspective.” (Bhanupratap Mehta, “What is Constitutional Morality?”
Seminar, Nov 2010)

Mehta made a compelling case for questioning the process of constitution making. He
opined that exploration into the making of the Constitution needs deeper inquiries rather
than simple generalisations. Aditya Nigam in his article “A Text Without Author: Locating
Constituent Assembly as an Event” argued that there was no particular ‘sets of values’
that guided the makers of the Constitution, no single authorial voice in the Assembly and
no preconceived notion of a nation. For Nigam, the hegemonic notion of the nation glossed
over the differences that prevailed in the Assembly. (Aditya Nigam, “A Text without
Author: Locating Constituent Assembly as an Event”, Economic and Political Weekly, May
22, 2004: 2107) Elangovan in his article has emphasised that the Constitution as a
17
document was a product of a series of conflicts – some resolved, some unresolved. He
strikingly asked, had the Constitution been a document arrived at with consensus then
why did Ambedkar, the architect of the Constitution, distance himself from the
Constitution, just three years after the adoption of the Constitution? And why were so
many amendments made in the Constitution just within a decade or two of its
enforcement? (Arvind Elangowan, “The Making of the Indian Constitution: A Case for Non
Nationalist Approach”, History Compass, 12/1: 1-10)

Whatever may be the criticism or alternative perspective, the Constitution of India was a
great text prepared by its framers, given the contingency of the circumstances.