CONSTITUENT ASSEMBLY

A Constituent Assembly is a body extraordinaire – it is constituted with a specific purpose of drawing up

a Constitution and dissolves on the completion of its task. The formation of a Constituent Assembly is an
acknowledgement of sovereignty as well as the right to self-determination of a people. Across the world,
major democratic upheavals like the French Revolution, Russian Revolution and the American Revolution
were followed by framing of a Constitution by the citizens’ representatives in an elected Constituent
Assembly. Sir Ivor Jennings has noted three situations in which a Constituent Assembly comes into being:
 When there is a “great social revolution” or
 “when a nation throws off its foreign yoke” or
 When “a nation is created by the fusion of smaller political units.”

In this scheme of Sir Jennings, the Indian Constituent Assembly falls into the second
category

FORMATION

Notwithstanding the demand by Indians to formulate their own Constitution, the colonial government
appointed the Indian Statutory Commission or the Simon Commission on 8 November 1927 to ascertain
if India was prepared for further constitutional changes. The Commission caused great furor in the
country due to its exclusive White composition .In response to the challenge posed by Lord Birkenhead’s
provocation and the appointment of the Simon Commission , Motilal Nehru Committee was constituted
by the All Party Conference in May 1928 ‘to determine the principles of the Constitution of India.’

The Nehru Report which submitted a draft Constitution for India on 10 August 1928. However, the
proposed dominion status for India which was unacceptable to the radical younger group led by
Jawaharlal Nehru, Subhash Chandra Bose and Satyamurthi, who demanded ‘Complete Independence’.
Moreover, the Muslim League was also unhappy with the Nehru report because “it rejected the principle
of separate communal electorates on which previous constitutional reforms had been based. Seats would
be reserved for Muslims at the centre and in provinces in which they were in a minority, but not in those
where they had a numerical majority.”

While it was becoming clear that nothing short of self determination would be accepted in India, the idea
of a Constituent Assembly was first mooted by Jawaharlal Nehru in 1933 and after 1943 it became the
official stand of the Congress to accept nothing short of a Constituent Assembly to chart out the future
of the country.

At the Congress sessions of Wardha (1936), Faizpur (1937), Haripura (1938) and Tripuri (1939) this
position was re-asserted. Even in the Central Legislative Assembly, a resolution was introduced on 17
September 1937 by S. Satyamurthi who recommended that the Government of India Act 1935 be
replaced with a constitution framed by a Constituent Assembly. There was a growing consensus in Britain
as well that India as an independent nation should be let free to frame its own Constitution. “In a
meeting with Nehru in 1938 in London, Sir Stafford Cripps and Clement Attlee had agreed on the idea of
an Indian Constituent Assembly elected on the basis of universal adult franchise, drafting its own
constitution.”

However, as the war approached “British policy towards India was caught between two polarities:
Churchillian negativism and Crippsian constructiveness.”

On the eve of the World War II, when the strategic location of India in the face of the Nazi advance struck
fear in to the hearts of the colonial rulers, an offer was extended by Viceroy Linlithgow in 1940 which
came to be called as the ‘August Offer’. It accepted that the framing of a new Constitution for India
should primarily be, and therefore not solely, the responsibility of the Indians. Moreover, it did not spell
out the ways in which the proposed body was to be formed. Having failed to earn the good will of the
Congress as well as the Muslim league, the August Offer was turned down and the phase of individual
Civil Disobedience began.

Meanwhile, the Japanese progress in Southeast Asia demanded Indian cooperation toward the colonial
government. Keeping in mind their vested interest, Churchill dispatched the Cripps Mission in March
1942 to negotiate with the Indian Political Parties. While Cripps made it clear that Indians would have
the sole responsibility of writing their own Constitution, it failed to provide any assurance on immediate
self government and was therefore rejected by Congress leaders. Gandhi even criticized the Mission by
saying that its offer of Dominion Status within the Commonwealth was a ‘post dated cheque drawn on
a crashing bank.’ The mission was also rejected by the Muslim League because it did not recognize the
Muslims’ right to self-determination and therefore, rejected the idea of partition. With the failure of the
Cripps Mission, the struggle for independence led by the Congress entered the next phase where the
demand to ‘Quit India’ was accompanied with the resolution that a Constituent Assembly would be
evolved from the Provisional Government of Free India which would lay down the constitutional
provisions for the country.

In July 1945, the Labour party came to power in Britain and fresh attempts were initiated to resolve the
Indian issue. The Governor General, Lord Wavell convened a conference at Shimla which tried to resolve
the differences among the Congress and the League and promised to convene a constitution making
body as soon as possible. However, the conference failed and the British cabinet decided to send three of
its own members to resolve the Indian problem.

On 24 March 1946, the Cabinet Mission arrived in India aiming to discuss two issues-
 “the principles and procedures for the framing of a new constitution for granting independence
 Formation of an interim government based on widest possible agreement among Indian political
parties.”

The Cabinet Mission which comprised of Lord Pethick-Lawrence, Sir Stafford Cripps and Lord A.V.
Alexander failed in making the two parties concur. The Cabinet Mission had already clarified that its aim
was not lay out the future constitution of India but to put in place machinery through which Indians
could write a constitution for themselves. While both the Congress and the League had problems with
the Plan, the Congress decided to move ahead with the Constituent Assembly.

The Constituent Assembly was convened for its first session from 9th December to 21st December 1946
. On 11th December, the Constituent Assembly elected Dr. Rajendra Prasad as its Chairman. The
‘Objectives Resolution’ was introduced by Jawaharlal Nehru on 13 December 1946.

According to D.D. Basu, the Objectives Resolution provides the backdrop to the philosophy of the Indian
Constitution and it has inspired the shaping of the Constitution through all its subsequent stages. For
Nehru, it was “something more than a resolution. It is a declaration, a firm resolve, a pledge, an
undertaking and for all of us a dedication.” Through the Objectives Resolution, the Constituent Assembly
declared “its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to
draw up for her future governance a Constitution.”

The Drafting Committee was appointed on 29 August 1947 with seven members: Alladi Krishnaswami
Ayyar, N. Gopalaswamy Ayyangar, B.R. Ambedkar, K.M. Munshi, Saiyad Mohammad Saadulla, B.L.
Mitter (resigned and replaced by N. Madhava Rau) and D.P. Khaitan (expired and replaced by T.T.
Krishnamachari) and elected B.R. Ambedkar as its chairman.

During the entire exercise, the modus operandi of Constituent Assembly

according to Granville Austin was to follow any of the three principles:
 Decision-making by Consensus
 The Principle of Accommodation
 The Art of selection and Modification.

In Austin’s opinion, the first two principles are India’s original contribution to
the process of Constitution making. Consensus is a manner of making
decisions by unanimity or near unanimity .The principle of consensus on areas
such as the federal and language provisions.

Accommodation refers to the ability to reconcile seemingly incompatible concepts and this principle has
been successfully used in combining the federal and unitary system, membership of commonwealth and
republican status of government, panchayati raj provisions with strong central government.
Finally, the art of selection and modification was used to create a ‘beautiful patchwork’ drawing from
different constitutions of the world but adapting them to suit the specificities of the Indian context.
Constitutional amendment is an example of this principle.

SOCIO-ECONOMIC COMPOSITION

The composition of the Constituent Assembly was largely determined by the Electoral College laid down
in the Government of India Act, 1935. The Sixth Schedule of the Act allowed limited franchise on the basis
of property ownership, tax payments, education etc. According the Austin, a mere 28 per cent could vote
in the provincial assembly elections of early 1946. “Economically and socially depressed portions of the
populations were virtually disenfranchised by the terms of the 1935 Act.”

It is, however, noteworthy that this body of constitution makers though drawn from the propertied, tax-
paying and educated sections of the country were not blind to situations of the
marginalized and it goes to the credit of the members of the Assembly that
they formulated a Constitution that established Universal Adult Franchise, laid
down Civil Liberties, showed a commitment to Group Rights, provided for
caste-based Affirmative Action, introduced asymmetrical federalism and
importantly, emphasized a spirit of compromise and accommodation.

For Chaube, the membership of the Assembly fell into four groups:
 The representatives of the Congress.
 A few independent members elected with Congress tickets
 Independents representing non-Congress provincial legislators
 The Muslim League who had chosen to stay in India.

The non-Congress opposition (the Akali and the Muslim League) mainly
demanded greater provincial autonomy within the new constitutional structure but it was not conceded.
Infact, S.K. Chaube says that though the opposition was vocal it remained ineffective due to the lack of a
common perspective.
The Congress with its overwhelming majority exercised a gargantuan influence over the Constituent
Assembly. In the words of Granville Austin, “The Constituent Assembly was a one-party body in an
essentially one-party country. The Assembly was the Congress and the Congress was India.” He further
says, “The Congress Assembly Party was the unofficial, private forum the debated every provision of the
Constitution and in most cases decided its fate before it reached the floor of the House.”

Advocates constituted a clear cut majority over any other occupational group and steered the process of
constitution making
VISION

The Constituent Assembly despite being a product of the circumstances of that time had a futuristic
mission and envisaged an institutional structure that was expected to withstand the test of time. For
Granville Austin, the Constituent Assembly aimed at creating a ‘seamless web’ constituting unity, social
revolution and democracy through the Constitution. The goal of a social revolution was to be driven by
the provisions of the Directive Principles of State Policy, present in Part IV of the Constitution. These
provisions, even though non-justiciable, lay down the ways in which the Indian State was to become a
Welfare State by bringing about economic and social democracy. Finally, the democratic aspect of the
seamless web is buttressed by representative government under adult suffrage; Fundamental Rights
under Part III which allows inter alia equality under law and personal liberty; and an independent
Judiciary. Additionally, safeguards to minorities, assistance to under privileged groups and eradication of
oppression of Scheduled Castes and Tribes were also reinforced to strengthen democracy.

While trying to understand the vision laid down by the Constituent Assembly for the future polity, one is
confronted according to Rajeev Bhargava to three discernible ways in which the Constitution is studied:
 The Constitution as politico-legal document, best exemplified in the works of Ivor Jennings and
C.H. Alexandrowicz
 The Constitution as political history, exemplified by Granville Austin, and
 The Constitution as an epiphenomenon of social relations, exemplified in the works of
Shibanikinkar Chaubey and Shobhan Lal Dutta Gupta.

For Rajeev Bhargava, “it is important to see the Constitution as a moral document, as
embodying an ethical vision.” A political-theoretical reading of the Indian Constitution is
advocated by Bhargava because the existing works are deficient on the following three
grounds:
 insufficient elaboration of the conceptual structure of the Constitution;
 structure of the ideals embedded in the Constitution are inadequately grasped and;
 Disconnect in the reading of the Constitution and the Constituent Assembly
Debates.

IDEOLOGICAL MOORINGS

The Indian Constitution mirrors the ideological divergences witnessed and one could attribute this
variation due to ‘the principle of accommodation’ adopted by the Assembly. According to Rajeev
Bhargava, there are at least five competing ideological positions in the Constituent Assembly:
1. non-modernist, quasi communitarian vision of Gandhi;
2. liberal-democratic vision of Ambedkar;
3. social-democratic vision of Nehru;
 4. radical egalitarian vision of K.T. Shah;
5. Hindutva ideology.

For V.R. Mehta, “Gandhi is a very complex figure in the history of modern thought…Gandhi was not only
a man of action but also a prophet of modern India who truly attempted to transcend the class conflicts
of society by devising a method which, for the first time, brought about the national aggregation of an
all-India character.” His mass appeal and thinking, however, does not find any reflection in the
Constitution of independent India. Gandhi’s commitment to democracy was closer to the grassroots and
he envisaged that the panchayat would work as the base for erecting a superstructure of indirect and
decentralized government.

At the root of Gandhi’s conceptualization of a decentralized village based polity was the understanding
that the village as a traditional institution could work as the cradle of democracy. The village is to be a
self-contained, self-reliant unit which has the ability to defend itself against the whole world. This
republican version of democracy, with its emphasis on direct participation of the citizens, has
communitarian leanings and runs contrary to ‘modern’ representative democratic models. Within the
Constituent Assembly, the broad consensus on the desirability and feasibility of a Parliamentary form of
government placed the Gandhian model on the peripheries. Though Article 40 laid down Panchayati Raj
to be established by the State, it remained within the non-justiciable part of the Constitution. In contrast
to the Gandhian vision, it is the liberal democratic Ambedkar vision and social democratic vision of Nehru
which laid down the ideological contours of the Indian Constitution.

For Ambedkar, representative parliamentary democracy based on Universal Adult Franchise was the
desirable structure to organize the future polity of independent India. Unlike Gandhi, Ambedkar was
skeptical of the idea that villages can be rid of its evils. These remain “a sink of
localism, a den of ignorance, narrow-mindedness and communalism” and
therefore should be discarded. Ambedkar’s locus of rights and freedom is the
individual, over which there could be no overriding unit. While truth and ahimsa
were the foundational values for a village-centric polity advocated by Gandhi, for
Ambedkar it was law which would regulate the ‘good society’. Within the
Ambedkar paradigm, rights based approach –both for protection as well as
development of the individual- is advocated and therefore calls for the
establishment of a interventionist state. Provisions of Part III and the
governmental structure imbibed in the Constitution mirrors the liberal outlook of Ambedkar. The
developmental model of the state as well as the emphasis on constitutionalism is not peculiar to
Ambedkar alone. Nehru’s similarity to Ambedkar in these aspects cannot be overlooked.

According to Bhikhu Parekh, What distinguishes Nehru from Ambedkar, is his emphasis on socialism.
Socialism along with democracy, national unity, industrialization, scientific temper, secularism and non-
alignment constituted for Nehru, the ‘national philosophy of India”. His position in the Congress ensured
that his ideas would influence not just the party but also the Constituent Assembly. Nehru’s version of
socialism entailed an attack not just on capitalists but also landlords as he held them jointly responsible
for poverty in India. As a social democrat he called for control and nationalization of industries, land
reforms and co-operative farming, heavy industry and distributive justice within the parameters of a
planned economy.

In the words of V.R. Mehta, “Nehru was conscious of the limitations of both capitalism and
communism… In a country where there is so much of mass poverty, squalor and inequality he could not
think of any other solution than socialism combined with representative institutions.” While the influence
of Nehru’s core socialistic ideas is strongly visible in Part IV of the Constitution, secularism finds its place
in Part III. Nehru’s strong commitment to democracy came from the understanding of a plural society,
which could not be held together without a democratic form of government in place. Nehru’s
understanding of democracy is contrary to the Gandhian ideal of a decentralized polity. For Nehru, India
was to be a federal state with a strong centre where the Parliament had a decisive role to play. Even a
cursory glance at the organs of government, as framed in the Indian Constitution, would reflect the
impact that Nehru’s ideological predisposition had on the Constituent Assembly. The Objectives
Resolution, adopted by the Constituent Assembly and framed by Nehru, is a reminder of the emphasis
that he had laid towards the goals of democracy, national unity and secularism.

If Nehru’s socialism was moderated in the Constituent Assembly by capitalists’ interests, K.T. Shah’s
radical egalitarian vision provided the most doctrinaire socialist position within the same. He favored not
only state ownership and control of all natural resources, important large scale industries and all other
aspects of the economy but also advocated a programme of progressive nationalization of existing
industries. Within the ideological framework laid down by Shah, the state had an extremely
interventionist role to play in re-structuring the economy and society. Critical, as he was of vested class
interest subverting the project of equality, Shah demanded that within a specified time period all the
Directive Principles of State Policy be made justiciable. Additionally, his demands also included a scheme
of an economic council which was to be provided for within the Constitution. Though Shah’s demands
were not formally incorporated in Constitution, its significance is derived from the fact that it
represented a radical departure from the liberal language in which the Constituent Assembly Debates
are couched- emphasizing again of the plurality of ideological positions available with the Assembly.

The final ideological strand visible within the Constituent Assembly is Hindutva ideology. Though the
Hindu Mahasabha and the Rashtriya Swayamsevak Sangh did not have any representatives in the
Constituent Assembly, the conservative Hindu viewpoint was voiced through individuals like P. D.
Tandon, M.R. Jayakar and S.P. Mookerjee. For those who advocated a Hindu majoritarian position, the
unity of the subcontinent on a federal basis was necessary but also insisted on a strong centralization to
reduce the bargaining powers of the Muslims. Centralised power was equated with solidarity and
therefore, exemptions provided to Jammu and Kashmir (Article 370), under the Constitution was
vehemently opposed. Moreover, these individuals worked as a pressure group to ensure that the
Constitution provides for cow protection (Article 48), established pre-eminent status for Hindi in the
Devanagari script (Article 343) and also bargained for special importance for Sanskrit (Article 351).
CONCLUSION

The resilience of the Indian Constitution stands testimony to the collective wisdom of the members of the
Constituent Assembly. Though criticisms have been leveled against the unrepresentative composition of
the Constituent Assembly, one cannot deny the fact that the members did give a voice to the concerns of
the under-represented sections of the society. A dispassionate appraisal of the Constituent Assembly
would involve not just a stock taking of its limitations but also an appreciation of the foresight of the
Assembly.

For Granville Austin, the Constituent Assembly did not foresee with a few eventualities which arose after
the Constitution was adopted.
 Firstly, the possibility of conflict between Fundamental Rights (Part III) and Directive Principles of
State Policy (Part IV) was not anticipated and therefore, a long drawn tussle between the
legislature and judiciary ensued which finally ended with the First Amendment Act.
 Secondly, the possibility of abuse of the powers bestowed under the President’s Rule was not
considered.
 Thirdly, though Adult Franchise was a revolutionary and egalitarian step at the founding
moment of the country, the framers could not comprehend the ways in which a changed pattern
of hierarchical relations may emerge with oppression still operating.
 Fourthly, the founding members could not envisage the possibility of Congress decline in the
years to come.
 Finally, the Assembly left the space of Constitutional Conventions unwritten which in the years to
follow lead to manipulations through amendments.

However, even Austin considers these lacunas as ‘small oversights’; the gargantuan task of drafting a
Constitution for a nation that was divided on lines of caste, class, language and religion was
accomplished with élan. The nation had taken steps into democratic structure within the framework laid
down by the Assembly.

That the Constitution is amenable to amendment with the exigencies of times has made
it a dynamic document; or in the words of Zoya Hasan, a ‘Living Constitution’.

To conclude with Austin’s words, “It has taken time for the Constitution to become secure. In the
future, governments or citizens may slight or ignore it, yet it is accepted as the nation’s foundation
document, some say the new dharmasastra”.