[acc_item title=”TOPIC – I CONSTITUTION: WHY & HOW“]Outline of chapter
1) What is constitution?
2) Why do we need a Constitution?
3) History of constitutions in world
4) Demand for Constitution in India
5) How was the Indian Constitution made?
6) Composition of the Constituent Assembly
7) Principle of deliberation, procedures & working
8) Objectives Resolution
9) Indian Independence Act of 1947
10) Committees of the Constituent Assembly
11) Enactment & enforcement of the Constitution
12) Criticism& defence of the Constituent Assembly
WHAT IS A CONSTITUTION?
The constitution of a nation is the Basic Law. It embodies the customs, values, precedents, culture and so on. It is the sacred law that is the basis for the governance of the country. It establishes the political system; the institutions that make it: legislature, executive and judiciary. All other institutions have to be compatible with the Constitution, & the laws made and implemented should be in line with the Constitution.
The Constitution also lays down what powers are available to the above mentioned institutions. It sets limits to the powers as well. The pattern of separation of powers among the three organs of the state is also clearly demarcated in the Constitution. In a parliamentary form, the separation of powers is provided in a limited way as is the case in India. In the US Constitution, on the other hand, the separation of powers is stricter and more elaborate.
Generally, in most countries, the constitution is a written document. India, the US, Australia, Canada and China and almost every other nation has a single written document. A body of elected or nominated members meets for a prolonged period to deliberate upon as to what should be the rules of governance.
If a country has a Constitution evolving out of conventions, laws, judicial verdicts and so on, it is known as ‘unwritten’.For example, the UK, New Zealand and Israel have unwritten Constitution. The only reason for naming these constitutions as ‘unwritten’ is that a single body of experts was not set up to draft the Constitution like the Constituent Assembly of India which metfrom December 1946 to December 1949 to formulate the Constitution.
In a democracy the purpose of a constitution is to prevent the government from abusing its power over the people of a nation. Therefore, judiciary is sanctioned by the Constitution to ensure rule of law and individual and collective rights.
Constitution also empowers the citizens and others with a variety of rights embedded in it. There are many more rights outside the Constitution but their validity is judged by conformity to the Constitution. For example, the Criminal Law (Amendment) Act, 2013 protects women on a preferential basis but it does not violate right to equality as special treatment of women is legitimate under Art.15 of the Constitution.
Some Constitutions also imposed duties on the citizens- as in the erstwhile USSR and India since 1976, called Fundamental Duties. The objective is to build responsible citizenship.
THE STATE AND THE GOVERNMENT: ARE THEY SAME?
The most commonly used definition of State is Max Weber’s: it describes the State as a political organization with a centralized government that maintains a monopoly of the legitimate use of force withina certain territory. Generalcategories ofstate institutions include administrative bureaucracies, legal systems, and military organizations. A State is a sovereign that is not dependent on, or subject to any other power or state.
The concept of the state can be distinguished from the concept of government. That is, governments are the means through which state power is exercised. The state is served by a continuous succession of different governments. State uses the instrument of Government to enforce its powers in the discharge of its duties.
WHY DO WE NEED A CONSTITUTION?
1) The Constitution allows coordination and assurance: In a country like India, the heterogeneity of the members of a community runs along many axes of religion, region, caste, class & so on. The members are likely to have disputes over various aspects of life, but at the same time they are dependent upon each other in various ways. They require the cooperation of each other. Members of the group can live together only if they can agree on some basic rules but at the same time these rules must be legally enforceable. Thus it can be said that the first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society.
2) Specification of decision making powers:A constitution is a body of fundamental principles according to which a state is constituted & governed. It specifies the basic allocation of power in a society. It decides who gets to decide what the laws will be. As a matter of principle, in democratic constitutions, the people get to decide. But before identifying what the law in any given society is, you have to identify who has the authority to enact it. If Parliament has the authority to enact laws, there must be a law that bestows this authority on Parliament in the first place.The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
3) Limitations on the power of government: The third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them. Constitutions limit-the power of government in many ways. The most common way is to specify certain fundamental rights that no government can ever be allowed to violate. In practice, these rights canbe limited during times of national emergency and the constitution specifies the circumstances under which these rights may be withdrawn.
4) Aspirations and goals of a society: Most of the older constitutions limited themselves largely to allocating decision-making power and setting some limits to government power. But many twentieth century constitutions also provide an enabling framework for the government to do certain positive things, to express the aspirations and goals of society.The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.
5) Fundamental identity of a people: A constitution expresses the fundamental identity of a people. This means the people as a collective entity come into being only through the basic constitution.One has many sets of identities that exist prior to a constitution. But by agreeing to certain basic norms and principles one constitutes one’s basic political identity. It defines the fundamental values that we may not trespass. So the constitution also gives one a moral identity.
ORIGIN OF DEMAND FOR CONSTITUTION IN INDIA
The national movement, with the notion that Britain must grant responsible government to India, had been espousing the doctrine of self-determination or the right of Indians to frame their own Constitution. In 1918, the Indian National Congress session at Delhi resolved that: ‘In view of the pronouncement of President Woodrow Wilson, Mr. Lloyd George, and other statesmen, that to ensure the future peace of the world, the principle of self-determination should be applied to all progressive nations, …this Congress claims recognition of India…as one of the progressive nations to whom the principle of self-determination should be applied.’
But the new instalment of reforms in 1919 was introduced with the assertion that the timing and pace of Constitutional reform would be decided by the British alone. This left the national movement angered & frustrated. A very important role at this juncture was played by Motilal Nehru who introduced a resolution on 8 February 1924 in the Central Legislative Assembly which asked the government to summon a representative Round Table Conference to recommend the scheme of Constitution for India. This resolution came to be known as the ‘National Demand’ resolution.
The British showing their contempt for the ‘National Demand’ appointed the all-white Simon Commission in November 1927 to recommend further constitutional changes. This move was condemned by all political parties in India. Lord Birkenhead, the Secretary of state while appointing the announcement of Commission in the House of Lords repeated his challenge to Indians, first delivered on 7 July 1925: Let them produce a Constitution which carries behind it a fair measure of general agreement among the great peoples of India.’ The challenge was accepted and an All Parties Conference was called in May 1928 which appointed a committee chaired by Motilal Nehru ‘to determine the principles of the Constitution of India’. The Nehru Report submitted on 10 August 1928 was in effect an outline of a draft Constitution for India.
It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time, by M.N. Roy, a pioneer of communist movement in India and an advocate of radical democratism. In 1935, the Indian National Congress (INC), for the first time, officially demanded a Constituent Assembly to frame the Constitution of India. On 17 September 1937, a resolution recommending replacement of Government of India Act 1935 by a Constitution framed by a Constituent Assembly was introduced in the Central Legislative Assembly by the INC leader S. Satyamurti. In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise’.
The demand was finally accepted in principle by the British Government in what is known as the ‘August Offer’of 1940. In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a draft proposal of the British Government on the framing ofan independent Constitution to be adopted after the World War II. The Cripps Proposals for the first time clearly spelt out the procedure for the setting up of the Constituent Assembly, and it was clearly accepted that the Constitution would be the sole responsibility of the Indians alone. They were rejected by the Muslim League which wanted India to be divided into two autonomous states with two separate Constituent Assemblies. Finally, a Cabinet Mission was sent to India. While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.
ELECTION OF CONSTITUENT ASSEMBLY
The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote.
The representatives of princely states were to be nominated by the heads of the princely states.
It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.
COMPOSITION OF THE CONSTITUENT ASSEMBLY
The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan. The features of the scheme were:
1. The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats, to the Princely States. Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces and four from the four chief commissioners’ provinces, one from each.
2. Each province and princely state (or groups of states in case of small states) were to be allotted seats in proportion to their respective population;roughly, one seat was to be allotted for every million population.
3. Seats allocated to each British province were to be decided among the three principal communities-Muslims, Sikhs and general (all except Muslims and Sikhs), in proportion to their population.
The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces)were held in July-August 1946. The Indian National Congress won 208 seats, the Muslim League 73 seats, and the small groups and independents got the remaining 15 seats. However, the 93 seats allotted to the princely states were not filled as they decided to stay away from the Constituent Assembly.
Although the Constituent Assembly was not directly elected by the people of India on the basis of adult franchise, the Assembly comprised representatives of all sections of Indian Society: Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians, SCs, and STs including women of all these sections. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi and MA Jinnah.
WORKING OF THE CONSTITUENT ASSEMBLY
The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. The meeting was thus attended by only 211 members. Dr. Sachchidanand Sinha, the oldest member, was elected as the temporary President of the Assembly, following the French practice.
Later, on December 11, 1946, Dr. Rajendra Prasad and H C Mukherjee were elected as the President and Vice-President of the Assembly respectively. Sir B N Rau was appointed as the Constitutional advisor to the Assembly.
The background consensus on the main principles the Constitution should enshrinewas forged during the long struggle for freedom. Perhaps the best summary of the principles that the Nationalist movement brought to the Constituent Assembly is the Objectives Resolution. This resolution encapsulated the aspirations & values behind the Constitution.
On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure. It read,“this Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution:
1. Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside India and the States as well as other territories as are willing to be constituted into the independent sovereign India, shall be a Union of them all; and
2. wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units together with residuary powers and exercise all powers and functions of Government and administration save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom; and
3. wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of Government are derived from the people; and
4. wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
5. wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
6. whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and
7. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.”
This Resolution was unanimously adopted by the Assembly on January 22, 1947. It influenced the eventual shaping of the constitution through all its subsequent stages. Its modified version forms the Preamble of the present Constitution.
Changes in Constituent Assembly due to Independence of India Act
The representatives of the princely states, who had stayed away from the Constituent Assembly, gradually joined it. On April 28, 1947, representatives of the six states were part of the Assembly. After the acceptance of the Mountbatten Plan of June 3, 1947 for a partition of the country, the representatives of most of the other princely states took their seats in the Assembly. The members of the Muslim League from the Indian Dominion also entered the Assembly.
The Indian Independence Act of 1947 made the following three changes in the position of the Assembly:
1. The Assembly was made a fully sovereign body, which could frame any Constitution it pleased. The act empowered the Assembly to abrogate or alter any law made by the British Parliament in relation to India.
2. The Assembly also became a legislative body. In other words, two separate functions were assigned to the Assembly: making of a constitution for free India and enacting of ordinary laws for the country. These two tasks were to be performed on separate days. Thus, the Assembly became the first Parliament of free India (i.e. Dominion Legislature) (the Provisional Parliament ceased to exist on April 17, 1952. The first elected Parliament with the two Houses came into being in May 1952.).
Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body, it was chaired by G. V. Mavlankar. These two functions continued till November 26, 1949, when the task of making the Constitution was over. (For the first time, the Constituent Assembly met as Dominion Legislature on November 17, 1947 and elected G. V. Mavlankar as its Speaker.)
3. The Muslim League members (hailing from the areas included in the Pakistan) withdrew from the Constituent Assembly for India. Consequently, the total strength of the Assembly came down to 299 as against 389 originally fixed in 1946 under the Cabinet Mission Plan. The strength of the Indian provinces (formerly British Provinces) was reduced from 296 to 229 and those of the princely states from 93 to 70.
Other functions performed by Constituent Assembly:
In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly also performed the following functions:
1. It ratified the India’s membership of the Commonwealth in May 1949.
2. It adopted the national flag on July 22, 1947.
3. It adopted the nationalanthem on January 24, 1950.
4. It adopted the national song on January 24, 1950.
5. It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.
In all, the Constituent Assembly had 11 sessions over two years, 11 months and 18 days. The Constitution makers had gone through the constitutions of about 60 countries, and the Draft Constitution was considered for 114 days. The total expenditure incurred on making the Constitution amounted to Rs. 64 lakh.
On January 24, 1950, the Constituent Assembly held its final session. It, however, did not end, and continued as the provisional parliament of India from January 26, 1950 till the formation of new Parliament after the first general elections in 1951-52.
VARIOUS COMMITTEES OF THE CONSTITUENT ASSEMBLY
The Constituent Assembly appointed a number of committees to deal with different tasks of constitution making. Out of these, 8 were major committees and the others were minor committees. The names of these committees and their chairmen are given below:
Sr. No. Major Committee Chairman
1) Union Powers Committee Jawaharlal Nehru
2) Union Constitution Committee Jawaharlal Nehru
3) States Committee (Committee for Negotiating
with States) Jawaharlal Nehru
4) Provincial Constitution Committee Sardar Patel
5) Advisory Committee on Fundamental Rights and Minorities
(this Committee had two sub-committees) Sardar Patel
5A) Fundamental Rights Sub-Committee J.B. Kriplani
5B) Minorities Sub-Committee H.C. Mukherjee
6) Drafting Committee Dr. B.R. Ambedkar
7) Steering Committee Dr. Rajendra Prasad
8) Rules of Procedure Committee Dr. Rajendra Prasad
Sr. No. Minor Committee Chairman
1) Committee on the Functions of the Constituent Assembly G.V. Mavalankar
2) Committee on Chief Commissioners’ Provinces B. Pattabhi Sitaramayya
3) House Committee B. Pattabhi Sitaramayya
4) Ad-hoc Committee on the National Flag Dr. Rajendra Prasad
5) Finance and Staff Committee Dr. Rajendra Prasad
6) Order of Business Committee Dr. K.M. Munshi
7) Credentials Committee Alladi Krishnaswamy Ayyar
8) Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas
(this Committee had following sub-committees) Sardar Patel
8A) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee GopinathBardoloi
8B) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee A. V. Thakkar
9) Ad-hoc Committee on the Supreme Court S. Varadachariar
The other Minor Committees were as follows:
1) Hindi Translation Committee
2) Urdu Translation Committee
3) Press Gallery Committee
4) Committee to Examine the Effect of Indian Independence Act of 1947
5) Commission on Linguistic Provinces
6) Expert Committee on Financial Provisions
Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:
1. Dr. B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr. K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Raut (He replaced B L Mitten who resigned due to ill-health)
7. T.T. Krishnamachari (He replaced D.P. Khaitan who died in 1948)
The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February 1948. The people of India were given eight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October 1948.
The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141 days.
THE PRINCIPLE OF DELIBERATION
The authority of the Constituent Assembly does not come only from the fact that it was broadly, though not perfectly, representative. It comes from the procedures it adopted to frame the Constitution and the values its members brought to their deliberations.
Each member deliberated upon the Constitution with the interests of the whole nation in mind. While, there were legitimate differences of principle, almost every issue that lies at the foundation of a modern state was discussed with great sophistication. Only one provision of the Constitution was passed without virtually any debate: the introduction of universal suffrage. Every other matter was seriously discussed and debated. Nothing can be a better testament to the democratic commitment of this Assembly. The members of the Constituent Assembly engaged in what one might call public reason.
ENACTMENT OF THE CONSTITUTION
Dr. B R Ambedkar introduced the final draft of the Constitution in the Assembly on November 4, 1948 (first reading). The Assembly had a general discussion on it for five days (till November 9, 1948).
The second reading (clause by clause consideration) of the draft Constitution started on November 15, 1948 and ended on October 17, 1949. During this stage, as many as 7653 amendments were proposed and 2473 were actually discussed in the Assembly.
The third reading of the draft started on November 14, 1949. Dr. B R Ambedkar moved a motion-‘the Constitution as settled by the Assembly be passed’. The motion on Draft Constitution was declared as passed on November 26, 1949, and received the signatures of the members and the president. Out of a total 299 members of the Assembly, only 284 were actually present on that day and signed the Constitution. This is also the date mentioned in the Preamble as the date on which the people of India in the Constituent Assembly adopted, enacted and gave to themselves this Constitution.
The Constitution was adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules. The Preamble was enacted after the entire Constitution was already enacted.
Dr. B. R. Ambedkar, the then Law Minister, piloted the Draft Constitution in the Assembly. He took a very prominent part in the deliberations of the Assembly. He was known for his logical, forceful and persuasive arguments on the floor of the Assembly.
He is recognised as the ‘Father of the Constitution of India’. This brilliant writer, constitutional expert, undisputed leader of the scheduled castes is regarded as the ‘chief architect of the Constitution of India’.
The Indian Constitution is described as ‘a living’ document. By striking a balance between the possibility to change the provisions and the limits on such changes the Constitution has ensured that it will survive as a document respected by people.
ENFORCEMENT OF THE CONSTITUTION
Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and, 393 came into force on November 26, 1949 itself.
The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the Republic Day.
January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated, following the resolution of the Lahore Session (December 1929) of the INC.
With the commencement of the Constitution, the Indian Independence Act of 1947 and the Government of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed. The Abolition of Privy Council Jurisdiction Act (1949) was however continued.
CRITICISM & DEFENCE OF THE CONSTITUENT ASSEMBLY
The critics have criticized the Constituent Assembly on various grounds. These are as follows:
1. Not a Representative Body:The critics have argued that the Constituent Assembly was not a representative body as its members were not directly elected by the people of India on the basis of universal adult franchise.
DEFENCE: The Cabinet Mission had recognised that the best way of setting up a Constitution making body would be by the election based on adult franchise. But it also said that any attempt to introduce such a step would lead to a wholly unacceptable delay in the formulation of the new Constitution. Therefore it was decided that the newly elected legislative assemblies of the provinces were to elect the members of the Constituent Assembly on the basis of one representative for roughly one million of the population.
2. Not a Sovereign Body:The critics maintained that the Constituent Assembly was not a sovereign body as it was created by the proposals of the British Government. Further, they said that the Assembly held its sessions with the permission of the British Government.
DEFENCE: Jawaharlal Nehru firmly quashed the Viceroy Lord Wavell’s desire to appoint the provisional president of the Assembly and issue invitations to the members to attend the first session in his own name. At Nehru’s insistence, the oldest member of the Assembly, Dr. Sachchidanand Sinha became the provisional president and invitations were issued in the name of the secretary of the Constituent Assembly. In doing this Nehru was establishing the independence of the Assembly from British Control.
3. Time Consuming: According to the critics, the Constituent Assembly took unduly long time to draft the Constitution. They stated that the framers of the American Constitution took only four months to complete their work.
DEFENCE: Although the Constituent Assembly sessions span over the period of two years, 11 months and 18 days,the Constitution makers had to go through the constitutions of about 60 countries in view of the diversity & complexity of India.The Drafting Committee, the most important of all committees took less than 6 months to prepare its draft and the Draft Constitution was considered for 114 days.
4. Dominated by Congress:The critics charged that the Constituent Assembly was dominated by the Congress party. Granville Austin, a British Constitutional expert, remarked that ‘the Constituent Assembly was a one-party body in an essentially one party country. The Assembly was the Congress and the Congress was India’.
DEFENCE: The same Granville Austin further mentions that ‘One might assume, aware of the character of monolithic political systems in other countries, that a mass party in India would be rigid and narrow in outlook and that its powerful leadership would silence dissent and confine policy & decision-making to the hands of the select few. In India the reverse was the case. The membership of the Congress in the Constituent Assembly and outside held social, economic, & political views ranging from the reactionary to the revolutionary, and it did not hesitate to voice them.’
5. Lawyer-Politician Domination:It is also maintained by the critics that the Constituent Assembly was dominated by lawyers and politicians. They pointed out that other sections of the society were not sufficiently represented. This, to them, is the main reason for the bulkiness and complicated language of the Constitution.
DEFENCE: The nationalist movement was led mainly by lawyers, journalists, & educationists. Besides the Constitution being a politico-legal document, it is only natural that the Constituent Assembly was dominated by lawyers & politicians.
6. Dominated by Hindus:According to some critics, the Constituent Assembly was a Hindu dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston Churchill commented that the Constituent Assembly represented ‘only one major community in India’.
DEFENCE: Since only Muslims & Sikhs were recognised as ‘minorities’ deserving special representation, a special effort was made to see that the Assembly did indeed reflect the diversity of perspectives present in the country. The Congress Working Committee in early July 1946 specifically instructed the Provincial Congress Committees to include representatives of Scheduled Castes, Parsis, Indian Christians, Anglo-Indians, tribals and women in the Congress list for the general category.
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