Historical Context in the Making of the Indian Constituent Assembly

The Indian Constituent Assembly met between December 1946 and December 1949 in New Delhi to draft a constitution that was finally adopted on 26 January 1950. The Constitution that was drafted came to be the longest Constitution in the world and also one of the most amended.

When the Constituent Assembly first convened, India was not yet independ­ent from British colonial rule. It is significant that at the time of the framing of the Constitution, India was still a dominion of the British Commonwealth with allegiance to the British Crown.^[1270] Indeed, even after independence, in May 1949, the Indian Constituent Assembly ratified a declaration that Nehru had unilaterally signed at the Conference of Commonwealth Prime Ministers in London, making India a member of the British Commonwealth under the Crown.^[1271]

Between 1946 and 1950, the Constituent Assembly would meet to discuss the future of the free state of India, even as the country was enveloped in the most horrific intercommunity violence (largely between Muslims and Hindus, but also between Muslims and Sikhs) that it had witnessed in the last 100 years. Erupting in the context of the event of the Partition of India into the two new states of India and Pakistan, this violence would leave a million dead and many more millions displaced and homeless.

Coming in the wake of a mass anti-colonial movement for independence, the Constituent Assembly presented itself as embodying the sovereignty of the people of India with the goal of laying out the future governance of the country. However, at the time of its framing, more urgent than the need to ensure the rights of the people in a permanent document was the concern of the Indian political leader­ship to enable a speedy and smooth ‘transfer of power' from the British colonial regime to their hands.^[1272] Thus, at the time of its framing, the Constituent Assembly members did not see the Constitution as a permanent sovereign text that would endure through the ages, but rather as a set of provisions and rules of governance that could be changed in the future by the Parliament.

Given that India was not independent at the time it began framing the Constitution, its essential structure was based on the British Parliament’s Cabinet Mission Plan of 1946, which in turn derived its most essential features from the Government of India Act of 1935.^[1274] It is important to note that these Acts were not just legal documents but embodied imperial constructions about India as an essentially divided and conflictual society that needed an imperial structure of governance. Independence did not lead to a discarding of these Acts, or a ques­tioning of the deeper discursive framework that undergirded them.

Thus, not surprisingly, a majority of the 389 members of the Constituent Assembly were not elected by adult suffrage but rather indirectly by their respective religious communities. They were elected by members of provincial legislatures who were themselves elected in 1945 as representatives of their respective religious communities - Hindu or General, Muslim, and Sikh - on the basis of a restricted franchise set up by the sixth schedule of the 1935 Act. Members of the Constituent Assembly, therefore, represented their respective communities and spoke on their behalf, not the national population as a whole. In so far as this process excluded the large body of peasants, small shopkeepers and traders, and many others on the basis of tax, property, and educational qualifications, large sections of the Indian population, particularly the poor, played no role in the election of the members of the Constituent Assembly, and, therefore, in the making of the Constitution.^[1275]

The number of seats in the provincial legislature granted to the three major religious communities was fixed in proportion to their percentage in the total population of a province.^[1276] When elections to the Constituent Assembly took place in July of 1946, Congress candidates filled 203 of the 210 General seats, the Muslim League members won 72 of the 78 seats reserved for Muslims, and 16 seats went to the Sikhs, the Scheduled Castes, and other smaller groups.^[1277] The Princely States had 93 representatives and the Chief Commissioners’ Provinces had four repre­sentatives. The Muslim League, however, boycotted the Constituent Assembly soon after the elections.

The Government of India Act of 1935 played a key role in determining the provisions of the Indian Constitution. Indeed, in a conversation with Alan Campbell-Johnson, the press attache of Lord Mountbatten, Dr Bhimrao Ramji Ambedkar, the principal drafter of the Constitution, acknowledged that some 250 clauses of the Government of India Act had been directly incorporated into the new Constitution.^[1278] Indeed, Ambedkar had serious doubts about the very need for a Constituent Assembly:

I cannot see why the Constituent Assembly is necessary to incubate a Constitution. So much of the Constitution of India has already been written out in the Government of India Act of 1935 that it seems to be an act of supererogation to appoint a Constituent Assembly to do the thing all over again. All that is necessary is to delete those sections of the Government of India Act 1935, which are inconsistent with Dominion status.^[1279]

Also, as Ambedkar pointed out in the discussion on the draft constitution in the Constituent Assembly, the Directive Principles of State Policy, a critical part of the Constitution, were in fact the Instruments of Instructions which were issued to the Governor General and to the Government of the Colonies by the British Government under the 1935 Act.^[1280] In addition to incorporating existing British colonial acts, the Constitution-framers also borrowed different features from existing constitutions in different nations, such as the idea of a written constitution from the United States, Parliamentary Government from the United Kingdom, the Directive Principles of State Policy from the Irish Constitution and Federalism from Canada.

One of the other distinguishing features of the Indian Constitution, as Mahavir Tyagi, a member of the Constituent Assembly put it succinctly in 1949, was that it was a ‘one party constitution’.^[1281] In the words of the constitutional scholar JL Austin, ‘the Constituent Assembly was a one-party body in an essentially one- party country. The Assembly was the Congress’.^[1282] The Indian National Congress founded in 1885 was the principal anti-colonial representational body in India at the time of the British departure. At the time of independence, the Congress was the overwhelmingly dominant presence in the Indian Parliament and provincial legislatures, and thus national and state governments. The four leaders of the Indian Constituent Assembly - Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad, and Abul Kalam Azad - were also the leaders of the Congress and members of its highest council, the Working Committee. Even as the Constitution was still being written, Jawaharlal Nehru became the Prime Minister of the Union Government in 1947, Patel the Deputy Prime Minister, and a number of important figures in the Constituent Assembly were prominent ministers in the Congress Government. To quote Austin again, ‘the Assembly, the Congress and the government were like the points of a triangle, separate entities, but linked by over-lapping membership’^[1283] In so far as the Constituent Assembly was indistinguishable from the Congress, the vision that the Assembly had for the future of India cannot be understood in isola­tion from that of the Congress and its history.

II.