A BRIEF CONSTITUTIONAL HISTORY

The Constitution of any country is a political document that defines the relationship its citizens and other people have with the State (or, government) by specifying rights, duties and goals. The Constitution of India is the world’s longest constitution, with 395 Articles arranged in 22 Parts, and an additional 12 Schedules. When the Constitution was first adopted, it contained 395 Articles and 8 Schedules. Till date, the Constitution has been amended over 100 times by Parliament. India’s founders understood that society would not remain stagnant and thus included a process to amend the Constitution in order to bring it on par with the realities of the present day.[1] The Constituent Assembly (CA), the body of individuals who were authorized to draft the Constitution took 2 years 11 months and 17 days to complete the Constitution of India.

The members of the Constituent Assembly were not selected through direct elections. The Cabinet Mission Plan, which set up the Constituent Assembly of India, instead suggested members of the CA be chosen through indirect elections by members of the recently elected Provincial Legislative Assemblies.[2] In addition to the members elected by the Provincial Legislative Assembly (292), the Princely States and the Chief Commissioner’s Provinces contributed 93 and 4 members of the Constituent Assembly, respectively, taking the total membership to 389. After Partition, the total number of seats came down to 299 as some Provinces and Princely States became part of Pakistan.

The first session of the Constituent Assembly was convened on 9th December 1946, and Dr. Rajendra Prasad elected as the Chairman of the Constituent Assembly soon after. The Constituent Assembly was not initially a sovereign body, meaning it could be abolished at any time and had to function under the umbrella of the Cabinet Mission Plan of 1946.[3]However, the Indian Independence Act of 1947 (which created the two dominions of India and Pakistan) conferred full power on the CA to frame and adopt a Constitution and made it a sovereign body. It functioned as a temporary Parliament from 26th January 1950 until the first Parliament was constituted by direct elections in 1952.

The Constituent Assembly appointed a total of 19 research committees. Some important committees included: the Drafting Committee (chaired by Dr. BR Ambedkar), the Advisory Committee on Fundamental Rights and Minority Rights (chaired by Vallabhbhai Patel), the Union Powers Committee (chaired by Jawaharlal Nehru), the Union Constitution Committee (chaired by Jawaharlal Nehru), the Provincial Constitution Committee (chaired by Vallabhbhai Patel) and the Language Committee (chaired by Moturi Satyanarayana). The reports of the various committees were submitted to B.R. Rau, who served as the Constitutional Advisor and was responsible for preparing a draft constitution. The draft constitution was then scrutinized and various amendments made, after which the final draft constitution was submitted to Chairman Rajendra Prasad on 21st February 1948. The draft was then circulated amongst the public, and suggestions and amendments were considered by members of the CA. It was finally placed before the CA for debate on 4th November 1948.

The Constitution was adopted on 26th November 1949, popularly celebrated today as ‘Constitution Day’. On this day, only a few provisions of the Constitution came into effect, including those related to citizenship, oaths and affirmations by the President, elections, definitions, interpretation, powers of the President to remove difficulties and the short title of the Constitution. The rest of the Constitution came into effect on 26th January 1950, the date set by the Congress in 1929 to attain Purna Swaraj (complete independence).

The Constitution echoes ideas propagated during the Russian, French and American revolutions (such as equality, fraternity, liberty and socialism, to name a few). It was also influenced by several documents[4] that inspired India’s independence movement, such as the Nehru Report 1928 (which introduced the topic of fundamental rights, the right to free and elementary education and a parliamentary system based on adult suffrage) and the Karachi Resolution of 1931 (which further delved on the question of fundamental rights and helped shape many provisions of the Directive Principles of State Policy (DPSPs)). The Constitution was also influenced by many imperial legislations that had governed the Indian subcontinent. The most prominent imperial legislations that inspired the Constitution were the Government of India (GOI) Act 1919 and the Government of India Act 1935. Most notably, some of the core features of our Constitution, such as federalism, emergency powers of the President and Governor and the separation of legislative duties between the provincial and central governments all borrowed from provisions of the GOI Act 1935.

As a result of borrowing many provisions from imperial legislations, the Constitution has been criticised by many scholars to signify ‘continuity with the colonial regime’ that changed little but the skin colour of the ruling class.[5] The sweeping executive powers in the form of emergency provisions, the restrictions on fundamental rights, especially the saving of laws that authorize preventive detention (which the Congress party had abhorred and vehemently protested against), and the limited franchise granted to the citizens are some constitutional provisions that bolster the argument that the Constitution was indeed an imperial one. Some criticized the legislature as an all-powerful, overriding organ of the government, capable of undermining the Constitution.[6] However, there is a school of thought that argues against this notion and states that the Constitution both incorporated the aspirations of the Constitution makers and had to account for the socio-political reality of pre -and post-partition India. Thus, the Constitution had to create and shape conditions for its survival.[7] The task was thus to use the Constitution to transform the existing social and political landscape into a viable and stable constitutional democracy[8], and this necessarily meant the borrowing of certain features from imperial legislations.

There were many fierce and heated debates while drafting the Constitution, including, but not limited to matters of citizenship, the language of the Union and fundamental rights. Ultimately, what culminated was a document that was to provide the moral and administrative foundations of the newly formed Indian state for years to come. The Constitution is undoubtedly a ‘living document’, for it has managed to expand jurisprudence in accordance with India’s changing socio-political landscape, especially with regards to the protection of fundamental rights. The Constitution can best be expressed in the words of Dr. Ambedkar: “I feel that the Constitution is workable, it is flexible and is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

[1] The Constitution of India by Gopal Sankaranarayanan

[2] https://www.constitutionofindia.net/constitution_making_process/constituent_assembly

[3] Id at 1

[4] More information can be found at https://www.constitutionofindia.net/historical_constitutions

[5] Sandipto Dasgupta, “ “A Language Which Is Foreign to Us” Continuties and Anxities in the Making of the Indian Constitution“, Comparative Studies of South Asia, Africa and the Middle East Vol. 34. No. 2 2014, Duke University Press pp 228 – 242.

[6] Mithi Mukherjee, “An imperial Constitution? Justice as Equity and the Making of the Indian Constitution”, India in the Shadows of Empire: A Legal and Political History, Oxford University Press 2009, pp 1774 – 1950.  

[7] Id. At 5

[8] Supra, also refer to A Transformative Constitution: A Radical Biography in Nine Acts by Gautam Bhatia (Harper Collins) as well as A People’s Constitution by Rohit De (Princeton University Press)