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Constitutional Democracy of India

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1. Constituent Assembly of India

POLITICAL SCIENCE 

PAPER: Constitutional Democracy of India

LESSON: Constituent Assembly of India

LESSON DEVELOPER: Jaya Kumari

College/Dept: Research Scholar University of Delhi


2. THE CONSTITUENT ASSEMBLY AND THE CONSTITUTION


On The fifteenth of August, 1947, a mixture of hope and disappointment marked the end of the 200 years old British rule in India. Finally, Indian Independence Act 1947 handed over the political authority to the Indian hands but the end of one struggle marked the beginning of another; which was to live in an independent nation by the establishment of a democracy based upon the ideals of liberty, equality, justice and fraternity. Therefore, one of the first tasks taken by the leaders of the Indian freedom struggle was the framing of a new constitution. The idea of a written constitution, achieved through a representative assembly, marked either by the collapse of an old power relation and admission of new social classes to power or structural changes in the body politic, is very much of a Western origin. The Indian Constituent Assembly was therefore the result of a deal unlike the Philadelphia Constitutional Convention (1787) and the French National Assembly (1789-91), that were convened at the height of two major national revolutions. On the setting up of the Indian Constituent Assembly, Jawaharlal Nehru said, Ordinarily, such sovereign assemblies come into existence after a successful revolution in a country. But it is certainly a possibility, if not a probability., that the shadow of the coming events and world changes might lead to an agreement that such an assembly should function as formulated. The demand for such an assembly is ultimately a declaration of what we want to do whenever we have the power to do so. That power may conceivably come to us by agreement without a conflict or it may come after a conflict. (cited in S.K. Chaube 2000:233) The Constituent Assembly was backed by the strength of a mass struggle and had come at a high cost. It had achieved its independence at the price of “the country‟s partition”.

3. Functions of a Constitution

According to Thomas Munro, a constitution is “a complex amalgam of institution, principles and practices, it is a composite of charters, statutes of judicial decisions, of common law, of precedents, usages and traditions”. Simply put, a constitution is a set of laws and rules setting up the machinery of the government of a State and which defines and determine the relations between the different institutions and areas of government, the executive, the legislature and the judiciary, the central, the regional and the local governments (M.V. Pylee 1962:3). The Constitution of India is therefore said to represent the economic, political and social ideals and aspiration of the majority of the Indian people. It holds the vision of independent India, the present India which is the result of a difficult struggle and whose past was riven by uncertainty, factionalism and Partition. “Nehru‟s famous inaugural THE CONSTITUENT ASSEMBLY AND THE CONSTITUTION Institute of Lifelong Learning, University of Delhi address on the night of 14 August 1947 made clear that the only temporal register in which the nation could be spoken of was the future, and the vision associated with it.” (Uday S. Mehta 2010:16)


The question arises that why did we, after all need a constitution? A constitution provides basic rules, to keep a check on the state power, to restrict the abuse of power and prevent it from turning tyrannical. Apart from this traditional viewpoint, constitutions are believed to be very important for India. If we believe the constitution makers, India was just developing its democratic traditions and had a population marked by diversity. Though believed that power resides in the people, in a democracy; in reality, power resides in the majority and the constitution give laws to prevent the tyranny of the majoritarian, democratic state and protect the minority groups. Rajeev Bhargava points out that “human beings are fallible, that they sometimes forget what is good for them in the long run, and that they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a framework of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies.” (Rajeev Bhargava, 2008:14-15). Our constitution makers realised these needs and decided to frame a constitution based on them.


The Constitution of India came into force on 26th January 1950, after a hard work of 2 years 11 months and 18 days. Granville Austin wrote: “With the adoption of the Constitution by the members of the Constituent Assembly on November 26, 1949, India became the largest democracy in the world. By this act of strength and will, Assembly members began what was perhaps the greatest political venture since that originated in Philadelphia in 1787” (Granville Austin, 1966:308). Constitution in the final form had 395 Articles and 8 Schedules.

4. CREATION AND COMPOSITION

The Constituent Assembly constituted of Pandit Jawaharlal Nehru, the first Prime Minister of free India, Dr. Rajendra Prasad was its President, Sardar Vallabh Bhai Patel was one of the leading lights. Dr. B. R. Ambedkar headed the Drafting Committee, assisted by people like Alladi Krishnaswamy Aiyar, N. Gopalaswami Ayyangar, K.M. Munshi and T.T. Krishnamachari among others. Gandhi, writing in Young India in 1922, expressed his desire of Indians shaping their own future and emphasised that “swaraj would not be the gift of the British Parliament, but must spring from „the wishes of the people of India as expressed through their freely chosen representatives‟ (Austin 1966:1). The Nehru Report (1928), prepared under the chairmanship of Motilal Nehru was the first attempt by the Indians to frame a constitution for themselves. In March 1933, the British government put forth before Indians the White Paper which contained proposals for the constitutional reforms for India but the nationalists found it highly objectionable and therefore unacceptable. Later in 1934, the demand for a constituent assembly became a part of the Congress‟ official policy.


Dr. B.R. Ambedkar: Chairman of the Drafting Committee (source: www.google.com/images  

After World War II, Britain was no longer in a position to continue to rule by repression; therefore, in March 1946, a Cabinet Mission consisting of Sir Stafford Cripps, Lord Pethick Lawrence and Mr. A.V. Alexander arrived in India to draw a scheme of transfer of power in consultation with the major political parties and interests. It drew up the scheme of a Constituent Assembly to constitute partly by elections from the provincial legislatures and partly by representation of princely states.


A.V. Alexander, Lord Pethick-Lawrence, Clement Atlee, Sir Stafford Cripps (L-R) (source: www.google.com)

The members of the Constituent Assembly were not selected on the party basis, but were drawn from all walks of life and represented almost every section of the Indian people. The Congress demanded for an assembly elected on the basis of adult suffrage but the Cabinet Mission Plan rejected it for being too cumbersome and slow. In order to provide proportionate equality of representation to the communities the Cabinet Mission had the plan:

a) To allot to each province a number of seats proportional to its population, roughly in the ratio of one to a million, as the nearest substitute for representation by adult suffrage; 

b) To divide this provincial allocation of seats between the main communities in each province in proportion to their population; 

c) To provide that the representatives allotted to each community in a province shall be elected by the members of the community in its legislative assembly.

The Congress had to agree to the decision. Nehru argued that the Constituent Assembly is not just a body of people or a gathering of able lawyers. Rather, it is a „nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment for its own making‟. (Bhargava, 2008:15) In 1945, the Congress and the Muslim League campaigned furiously, trying to establish claim for maximum seats in the Assembly and the elections in July 1946 allowed representation of every community in the Assembly. Though the League was against the elections, it participated since it was afraid of suppression of the minority interests in the Constituent Assembly due to the Congress majority. The cabinet mission recognised only three communities in India: “general”, Muslims and Sikhs, the “general” community including all who were not Muslims or Sikhs. “League members won all but seven of the seats reserved for Muslims. Congress candidates filled 203 of the 212 general places (representing every community except Sikhs and Muslims). Congress had a built-in majority of 69 percent in the assembly” but “after partition when the number of Muslim League representatives fell to 28, the Congress majority jumped to 82 percent” (Austin 1966:9). Therefore, the Constituent Assembly became a “one-party body in essentially a one-party country. The assembly was the Congress and the Congress was India. There was a third point that completed a tight triangle” (Austin, 1966). Granville Austin believed that “the assembly, the congress, and the government were, like the points of a triangle, separate entities, but, linked by over-lapping membership, they assumed a form infinitely meaningful for India” (Austin 1966:9). The Constituent Assembly was partly elected and partly represented by the Princely states. The provinces were to be represented in the assembly in the approximate ratio of one to one million of their population. The members of three communal categories in the legislatures, Muslim, Sikhs and general (Hindus and all other communities), would elect separately, according to their percentage of the province‟s population, their proportion of the provincial delegation. The princely states were to have 93 representatives but the Institute of Lifelong Learning, University of Delhi method of selecting these representatives was left to the consultation between assembly and the states‟ rulers The membership of the Constituent Assembly fell into four groups: 

1. The representatives of the Congress 

2. A few independent members elected with Congress tickets 

3. Independents representing non-Congress provincial legislators (including the representatives of the small parties); 

4. The Muslim League who had chosen to stay in India. (Chaube 2000:97)

The first meeting of Constituent Assembly was held on 9th December 1946, and reassembled on the 14th August 1947, as the sovereign Constituent Assembly for independent India (after the Partition). In its first meeting the Assembly adopted the “Objectives Resolution” which later became the Preamble of the Constitution. Pandit Jawaharlal Nehru categorically presented the objective of the Constitution in a lucid statement: “The first task of this Assembly (Constituent Assembly) is to free India through a new Constitution, to feed the starving people and clothe the naked masses and to give each Indian the fullest opportunity to develop himself according to his capability” (Constituent Assembly Debates, Volume II 1947:316).

The members brought diverse personalities, backgrounds and qualifications to constitutionmaking for example, they comprised of eminent lawyers, teachers, high ranking officials in civil government, businessmen, doctor etc. Austin called the leadership of Nehru, Patel, Azad, Prasad „the oligarchy‟. Nehru and Patel were the most influential persons of the Institute of Lifelong Learning, University of Delhi working committee. Nehru was assembly‟s idealist, humanist and had a wide reading in Political Theory. 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). Patel was an iron-fisted statesman, responsible for conciliatory and considerate negotiations with the princely states and dealings with the minorities. They brought a spirit of unity, a national awareness. They all had the practical experience, the personal popularity, the intellectual ability, and the political power to impress upon the Assembly their concept of the type of constitution best able to bring about the new India. They were dedicated to the cause and had put their minds‟ hard work to it. B.N. Rau, though not a member of the Assembly, played the role of a constitutional advisor and his advice was heard in the inner councils of the assembly.


The Oligarchy (Maulana Azad, Rajendra Prasad, Jawaharlal Nehru, Sardar Patel) (source: www.google.com/images)

The Constituent Assembly had a total of more than fifteen committees. Union Power Committee, the Union Constitution Committee, the Provincial Constitution Committee, the Advisory Committee on Minorities and Fundamental Rights, the Committee on Chief Commissioners‟ Provinces, the Committee on Financial Provisions of the Union Constitution and the Advisory Committee on Tribal Areas were the major constituent committees of the Institute of Lifelong Learning, University of Delhi Assembly (most of them headed by Nehru, Patel and Prasad) and provided the foundation on which Sir B.N Rau, the Constitutional Advisor, prepared a series of background papers, based on a close study of the political system prevailing in other countries. The revised draft was then prepared by the drafting committee under the chairmanship of Dr. B.R. Ambedkar.


5. Criticism

The sovereignty of the Constituent Assembly was questioned by many. Since, it was meeting with the permission of the British Government and was not elected on the basis of adult suffrage it was believed that it cannot be called a sovereign body and representative of whole India. Though Gandhi emphasised on the participation of all parties to make it work he believed that it was no use calling it a sovereign body. He expressed his strong views (writing to Patel 4 December 1946) about the Constituent Assembly under the Cabinet Mission Plan, in the following words:

Even if the Constituent Assembly meets in spite of the boycott but with the willing cooperation of the British Government, it will be under the visible or invisible protection of the British forces, whether Indian or European. In my opinion we shall never reach a satisfactory constitution under these circumstances. (cited in Chaube 2000:112)

The larger questions faced by it was whether such a body had any power or authority of its own and could it speak and act for India? On the other hand, Maulana Azad, Nehru and Rajendra Prasad believed that although the Cabinet Mission placed some limitations on its activities, the assembly was sovereign since it drew its authority from the people of India. Moreover it “arrogated itself the authority to control its own being: „the Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the whole number of members of the Assembly‟” (Chaube 2000). Nehru remarked: “the main point about the Constituent Assembly has been that it is as self-governing and self-determining body and any kind of imposition from outside will not be welcomed. It has been our purpose all along to make the Constituent Assembly as representative as possible of all groups in the country, but if some people unfortunately keep away, this cannot be allowed to stop the functioning of the Constituent Assembly as a whole”(cited in Chaube 2000:56).

Shibanikinkar Chaube argues that it was the greatest mistake of the Congress to believe that the assembly was sovereign instead it should have worked to make the Assembly sovereign. The British Government regarded it merely as a conference of the delegates of the major political parties in the country and this became a bargaining asset for Jinnah. On 27 July 1946, at a meeting of the League, Jinnah said: It is no use imagining things. The constituent assembly is not a sovereign body. Either we accept that view or not. If we accept the view that it is not a sovereign body, the only honourable course open to us is to treat it for what it is. It is an assembly summoned by the Viceroy who has been appointed by the British government. It is not going to be a sovereign body by a statement or show of bravado. (cited in Chaube 2000:49) Another challenge faced by the Assembly was that important people and groups were absent from the Assembly, the Muslim League had boycotted the Assembly, Gandhi was absent and also some state representatives. Charges were levelled against it for being partial to some minority communities since the cabinet mission plan guaranteed seats in the assembly only for Muslims and Sikhs and it contained no specific provisions for other minorities. Austin rejected this view and emphasized that Congress made all efforts to include Parsis, Anglo-Indians, Indian Christians, members of the Scheduled Castes and Scheduled Tribes, and even women under the „general‟ category and tried to make the Assembly representative of diverse viewpoints. K.Santhanam believed that „there was hardly any shade of public opinion not represented in the Assembly‟ (cited in Austin 1966:13). The class character of the Assembly also faced criticisms as it was believed to be favouring one majority community. It was believed to be a Hindu-majority body and moreover had about 74 percent of its members belonging 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. To Churchill, the Assembly represented only one major community of India and for Viscount Simon it was „a body of Hindus.‟ (B. Shiva Rao, 1968; 130)

6. Conclusion

The framers of the Constitution tried to provide the Indians the best suited constitution based on the philosophy of a welfare state. The Indian constitution seems to be inspired from different sources such as the constitutions of many countries, the Government of India Acts etc. and the framers have tried to gather the best features from each of them. Constitutions are also influenced by a nation‟s history and our constitution was also a reflection of the political developments taking place in the national arena. The makers of the constitution made sure that the constitution should have such features so that it can stand the test of time and can be modified according to the changing circumstances and moreover minimise the uncertainty, the independent Indian state started its journey with. The constitution makers believed that since India had yet to develop its democratic traditions, it would be too much of a risk to leave the Constitution in general terms therefore the flexibility of the constitution was ensured by them. Too much flexibility would also lead to subversion of the sacred legal document therefore rigidity was provided through some of the provisions. The Constitution of India therefore is a blend of idealism and realism and tries to address most of the problems that occurred in the past and problems that might occur in the present and future.

The Constituent Assembly though criticised extensively, its membership was a blend of expertise, practical experience, intellectual ability and political power to formulate a constitution best able to bring about the new India. Its members brought a spirit of unity and national awareness. It did a balancing act between the claims of stability and adaptability. No Constitution is perfect and our Constitution also follows this universal rule. However it has proved to be a workable Constitution and has stood the test of time. It not only tries to establish a political democracy but also social and economic democracy.

7. REFERENCES

A.S. Narang, (1987) Indian Government and Politics, New Delhi: Gitanjali Publishing House. 

D.D. Basu, (2012) Introduction to the Constitution of India, New Delhi: Lexis Nexis. 

G. Austin, (2010) The Indian Constitution: Cornerstone of a Nation, New Delhi: Oxford University Press. 

M.V. Pylee, (1967) India’s Constitution, Bombay: Asia Publishing House. 

R. Bhargava, (2008) „Introduction: Outline of a Political Theory of the Indian Constitution‟, in 

R. Bhargava (ed.) Politics and Ethics of the Indian Constitution, New Delhi: Oxford University Press. 

S.K. Chaube, (2009) The Making and Working of the Indian Constitution, Delhi: National Book Trust. 

Uday S.Mehta, (2010) Constitutionalism in The Oxford Companion to Politics in India, edited by Niraja Gopal Jayal and Pratap Bhanu Mehta, New Delhi, Oxford University Press. Kashyap, S (ed.) (1993) Perspective on the Constitution, New Delhi: Shipra Publication. Rao, 

B. Shiva, (1968) The Framing of India’s Constitution, Nasik: Government of India Press. Aditya 

Nigam, (2004) “A Text without Author: Locating Constituent Assembly as an Event”, Economic and Political Weekly, May 22, 2004: 2107-2114.