Indian Polity Making of the Constitution

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Indian Polity Making of the Constitution

Constitutional Framework

  • 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. 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 ofadult 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 of an independent Constitution to be adopted after the World War II. The Cripps Proposals were rejected by the Muslim League which wanted India to be divided into two autonomous states with two separate Constituent Assemblies. Finally, a Cabi-net Mission1 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.

COMPOSITION OF THE CONSTITUENT ASSEMBLY

  • The Constituent Assembly was constituted in November 1946 under the scheme formulated by the
    Cabinet Mission Plan. The features ofthe scheme were:
  • 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 2 and four
    from the four chiefcommissioners’ provinces3, one from each.
  • Each province and princely state (or group 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.
  • 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 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 ofsingle 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 franchise4.
  • 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, STs including women of all these
    sections. The Assembly included all important personalities of India at that time, with the exception
    ofMahatma Gandhi and M A 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 Sachchidan-and 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.

Objectives Resolution

  • On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the
    Assembly. It laid down the fundamentals and philosophy ofthe 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:
  • 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 ofthem all; and
  • 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
  • wherein all power and authority of the Sovereign Independent India, its constituent parts and
    organs ofGovernment are derived from the people; and
  • 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
  • wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and
    depressed and other backward classes; and
  • 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 ofcivilized nations; and
  • This ancient land attains its rightful and honoured place in the world and makes its full and
    willing contribution to the promotion ofworld peace and the welfare ofmankind.”
    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 ofthe present Constitution.

Changes by the Independence 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 5 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:
  • 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.
  • The Assembly also became a legislative body. In other words, two separate functions were
    assigned to the Assembly, that is, 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 (Dominion Legislature). Whenever the
    Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met
    as the legislative body6, it was chaired by G V Mavlankar. These two functions continued till
    November 26, 1949, when the task ofmaking the Constitution was over.
  • The Muslim League members (hailing from the areas7 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. The state-wise membership of the
    Assembly as on December 31, 1947, is shown in Table 2.1 at the end ofthis chapter.

Other Functions Performed

  • In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly
    also performed the following functions:
  • It ratified the India’s membership ofthe Commonwealth in May 1949.
  • It adopted the national flag on July 22, 1947.
  • It adopted the national anthem on January 24, 1950.
  • It adopted the national song on January 24, 1950.
  • It elected Dr Rajendra Prasad as the first President ofIndia 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 ` 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
    Parliament8 after the first general elections in 1951–52.

COMMITTEES OF THE CONSTITUENT ASSEMBLY

  • The Constituent Assembly appointed a number of committees to deal with different tasks of
    constitution-making. Out of these, eight were major committees and the others were minor
    committees. The names ofthese committees and their chairmen are given below :

Major Committees

  • Union Powers Committee – Jawaharlal Nehru
  • Union Constitution Committee – Jawaharlal Nehru
  • Provincial Constitution Committee – Sardar Patel
  • Drafting Committee – Dr. B.R. Ambedkar
  • Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas –
    Sardar Patel. This committee had the following sub-committes:

(a) Fundamental Rights Sub-Committee – J.B. Kripalani

(b) Minorities Sub-Committee – H.C. Mukherjee

(c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas SubCommittee – Gopinath         Bardoloi

(d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee –
A.V. Thakkar

  • Rules ofProcedure Committee – Dr. Rajendra Prasad
  • States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
  • Steering Committee – Dr. Rajendra Prasad

Minor Committees

  • Committee on the Functions ofthe Constituent Assembly – G.V. Mavalankar
  • Order ofBusiness Committee – Dr. K.M. Munshi
  • House Committee – B. Pattabhi Sitaramayya
  • Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad
  • Special Committee to Examine the Draft Constitution – Alladi Krishnaswamy Ayyar
  • Credentials Committee – Alladi Krishnaswamy Ayyar
  • Finance and StaffCommittee – Dr. Rajendra Prasad.
  • Hindi Translation Committee
  • Urdu Translation Committee
  • Press Gallery Committee
  • Committee to Examine the Effect ofIndian Independence Act of1947
  • Committee on ChiefCommissioners’ Provinces – B. Pattabhi Sitaramayya.
  • Commission on Linguistic Provinces
  • Expert Committee on Financial Provisions
  • Ad-hoc Committee on the Supreme Court – S. Varadachariar.

Drafting Committee

  • 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
    ofpreparing a draft ofthe new Constitution. It consisted ofseven members. They were:
  • Dr B R Ambedkar (Chairman)
  • N Gopalaswamy Ayyangar
  • Alladi Krishnaswamy Ayyar
  • Dr K M Munshi
  • Syed Mohammad Saadullah
  • N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
  • 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.

ENACTMENT OF THE CONSTITUTION

  • Dr B R Ambedkar introduced the final draft ofthe 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 consid-eration) started on November 15, 1948 and end-ed 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 as 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 ofthe Assembly. He is recognised as the ‘Father ofthe Constitution
    ofIndia’. This brilliant writer, constitutional expert, undisputed leader ofthe scheduled castes and the
    ‘chiefarchitect ofthe Constitution ofIndia’ is also known as a ‘Modern Manu’.

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 ofthe Lahore Session (December 1929) ofthe INC.
  • With the commencement ofthe Constitution, the Indian Independence Act of1947 and the Government
    of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed.
    The Abolition ofPrivy Council Jurisdiction Act (1949) was however continued.

CRITICISM OF THE CONSTITUENT ASSEMBLY

  • The critics have criticised the Constituent Assembly on various grounds. These are as follows:
  • 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 ofuniversal adult franchise.
  • 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 ofthe British Government.
  • Time Consuming: According to the critics, the Constituent Assembly took unduly long time to
    make the Constitution. They stated that the framers ofthe American Constitution took only four
    months to complete their work.
  • Dominated by Congress: The critics charged that the Constituent Assembly was dominated by
    the Congress party. Granville Austin, a British Constitutional expert, remarked: ‘The
    Constituent Assembly was a one-party body in an essentially one-party country. The
    Assembly was the Congress and the Congress was India’ 9.
  • 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 ofthe Constitution.
  • 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’.

Table 2.1 Statewise Membership ofthe Constituent Assembly ofIndia as on December 31, 1947

Name No. ofMembers

A. Provinces (Indian Provinces) – 229

 
Madras 49
Bombay 21
West Bengal 19
United Provinces 55
East Punjab 12
Bihar 36
C.P. and Berar 17
Assam 8
Orissa 9
Delhi 1
Ajmer-Merwara 1
Coorg 1

B. Indian States (Princely States)—70

Alwar 1
Baroda 3
Bhopal 1
Bikaner 1
Cochin 1
Gwalior 4
Indore 1
Jaipur 3
Jodhpur 2
Kolhapur 1
Kotah 1
Mayurbhanj 1
Mysore 7
Patiala 2
Rewa 2
Travancore 6
Udaip 2
Sikkim and Cooch Behar Group 1
Tripura, Manipur and Khasi States Group 1
U.P. States Group 1
Eastern Rajputana States Group 3
Central India States Group (including Bundelkhand and Malwa) 3
Western India States Group 4
Gujarat States Group 2
Deccan and Madras States Group 2
Punjab States Group 3
Eastern States Group I 4
Eastern States Group II 3
Residuary States Group 4
  Total 299

Table 2.2 Sessions ofthe Constituent Assembly at a Glance

Sessions Period
First Session 9–23 December, 1946
Second Session 20–25 January, 1947
Third Session 28 April–2 May, 1947
Fourth Session 14–31 July, 1947
Fifth Session 14–30 August, 1947
Sixth Session 27 January, 1948
Seventh Session 4 November, 1948–8 January, 1949
Eighth Session 16 May–16 June, 1949
Ninth Session 30 July–18 September, 1949
Tenth Session 6–17 October, 1949
Eleventh Session 14–26 November, 1949

 

  • The Cabinet Mission consisting of three members (Lord Pethick Lawrence, Sir Stafford
    Cripps and A V Alexander) arrived in India on March 24, 1946. The Cabinet Mission
    published its plan on May 16, 1946.
  • These include Madras, Bombay, U P , Bihar, Central Provinces, Orissa, Punjab, NWFP,
    Sindh, Bengal and Assam.
  • These include Delhi, Ajmer–Merwara, Coorg and British Baluchistan.
  • The Government of India Act of 1935 granted limited franchise on the basis of tax, property
    and education.
  • These include Baroda, Bikaner, Jaipur, Patiala, Rewa and Udaipur.
  • For the first time, the Constituent Assembly met as Dominion Legislature on November 17,
    1947 and elected G V Mavlankar as its speaker.
  • These are West Punjab, East Bengal, NWFP, Sindh, Baluchistan and Sylhet District ofAssam.
    A separate Constituent Assembly was set up for Pakistan.
  • The Provisional Parliament ceased to exist on April 17, 1952. The first elected Parliament
    with the two Houses came into being in May 1952.
  • Granville Austin, The Indian Constitution—Cornerstone ofa Nation, Oxford, 1966, P. 8
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