Making of the Constitution: The Constituent Assembly, 1946 to 1950

Phases of the Making of the Constitution, 1934 to 1950

Five Phases and Key Dates

The making of the Constitution falls into five phases.

1. The demand and the British offers, from 1934 to 1946.
2. The setting up and election of the Assembly under the Cabinet Mission Plan in 1946.
3. The early work of 1946 and 1947, led by the Objectives Resolution.
4. The sovereign Assembly after Partition, with its committees and the Drafting Committee.
5. The three readings, the adoption on 26 November 1949 and the commencement on 26 January 1950.

The Demand for a Constituent Assembly Before 1946

From M. N. Roy and the Swaraj Party to the Congress Demand of 1938

The idea of a Constituent Assembly for India was put forward in 1934 by M. N. Roy, a pioneer of the communist movement in India and an advocate of radical democracy. In May 1934 the Swaraj Party, formed afresh at Ranchi in Bihar, passed a resolution claiming for India the right of self-determination and calling for a Constituent Assembly, representative of all sections of the Indian people, to frame an acceptable constitution. A few days later the All-India Congress Committee, meeting at Patna, approved that policy, and the scheme became the official position of the Congress. Many textbooks date the official Congress demand to 1935; the Assembly's own record of its first sitting places the adoption in May 1934.

In 1938 Jawaharlal Nehru, on behalf of the Congress, declared that the Constitution of free India must be framed without outside interference by a Constituent Assembly elected on the basis of adult franchise. On 15 November 1939 C. Rajagopalachari again voiced the demand, on the basis of adult franchise. Three features of the demand stayed constant through these years: The Assembly was to be Indian, it was to be free of outside interference, and it was to rest on adult franchise.

The August Offer of 1940 and the Cripps Proposals of 1942

The August Offer of 8 August 1940 was made by the Viceroy, Lord Linlithgow. It promised an expanded Executive Council with more Indians, an advisory war council, full weight to minority opinion and recognition of the right of Indians to frame their own constitution after the end of the war. The Congress rejected the offer, but the principle that a representative Indian body would draft a constitution was now accepted by the British Government.

In 1942 Sir Stafford Cripps, a member of the British cabinet, came to India with a draft proposal on framing an independent constitution after the Second World War. The Muslim League rejected the Cripps Proposals because it wanted India divided into two autonomous states with two separate Constituent Assemblies. The question of one Assembly or two therefore remained open until the Cabinet Mission arrived in 1946.

The Cabinet Mission Plan and the Election of the Assembly

What the Cabinet Mission Plan of 1946 Proposed

A mission of three British cabinet members reached India on 24 March 1946: Lord Pethick-Lawrence, Sir Stafford Cripps and A. V. Alexander. The Cabinet Mission Plan, announced on 16 May 1946, proposed a united Union of India, a central government confined to defence, foreign affairs and communications, with related finances, and provinces that kept all other powers. Provinces could form three groups: Group A for the Hindu-majority provinces such as Madras, Bombay, Bihar and the United Provinces; Group B for Punjab, Sind, the North-West Frontier Province and Baluchistan; and Group C for Bengal and Assam.

The plan also provided for a Constituent Assembly to frame the constitution and for an interim government until the new constitution was completed. The mission rejected the idea of two Constituent Assemblies, but its scheme for one Assembly more or less satisfied the Muslim League. The Assembly itself was built on the composition set out in the plan.

Seat Allocation Under the Cabinet Mission Plan: 389 Seats

The total strength was to be 389. Of these, 296 seats went to British India and 93 to the Princely States. The 296 British Indian seats were split between 292 members from the eleven governors' provinces and four from the four chief commissioners' provinces, one from each: Delhi, Ajmer-Merwara, Coorg and British Baluchistan.

Seats were allotted in proportion to population, roughly one seat for every million people, to each province and each princely state or group of small states. Within each province the seats were divided among the three principal communities, Muslims, Sikhs and general (everyone except Muslims and Sikhs), in proportion to their population. The members of each community in the provincial legislative assembly elected their own representatives by proportional representation with the single transferable vote. For the Princely States, the method of selection was to be settled by consultation.

The Elections of July and August 1946

The elections for the 296 British Indian seats were held in July and August 1946. The Indian National Congress won 208 seats, the Muslim League 73, and small groups and independents the remaining 15. The 93 seats of the Princely States were not filled at first, because the states decided to stay away from the Assembly.

The members were indirectly elected by the provincial assemblies, which were themselves elected on a limited franchise. The Assembly was therefore not chosen by universal adult suffrage. Even so, it comprised representatives of all sections of Indian society: Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians, Scheduled Castes and Scheduled Tribes, including women of all these sections. Mahatma Gandhi and M. A. Jinnah were the two major figures who were not members.

The Assembly Begins Its Work in 1946 and 1947

First Sitting on 9 December 1946 and the Officers of the Assembly

The Assembly held its first meeting on 9 December 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. Sachchidananda Sinha, the oldest member, was elected temporary President, following the French practice of letting the eldest member preside until a permanent President is chosen.

On 11 December 1946 Rajendra Prasad was elected President and H. C. Mukherjee (Harendra Coomar Mookerjee) Vice-President. A second Vice-President, V. T. Krishnamachari, was elected on 16 July 1948. Sir B. N. Rau was appointed Constitutional Adviser to the Assembly.

The Objectives Resolution of 13 December 1946

On 13 December 1946 Jawaharlal Nehru moved the Objectives Resolution, which laid down the fundamentals and philosophy of the constitutional structure. The Assembly adopted it unanimously on 22 January 1947, and its modified version forms the Preamble of the present Constitution. Its main points were:

• Independent sovereign republic: The Assembly resolved to proclaim India an Independent Sovereign Republic and to draw up a constitution for its future governance.
• A Union of territories: British India, the Indian States and other willing territories were to form a Union, with the units keeping the status of autonomous units and residuary powers.
• Power from the people: All power and authority of sovereign independent India were to be derived from the people.
• Justice, equality and freedom: Social, economic and political justice, equality of status and opportunity, equality before law, and freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality, were to be guaranteed to all the people.
• Safeguards: Adequate safeguards were to be provided for minorities, backward and tribal areas, and depressed and other backward classes.
• Integrity and world peace: The territory of the Republic and its sovereign rights on land, sea and air were to be maintained, and India was to make a full and willing contribution to world peace and the welfare of mankind.

Women Members and the Social Range of the Assembly

At the start the Assembly had 15 women members: Begum Aizaz Rasul, Begum Jahanara Shahnawaz, Begum Shaista Suhrawardy Ikramullah, Ammu Swaminathan, Dakshayani Velayaudhan, G. Durgabai, Sucheta Kripalani, Vijayalakshmi Pandit, Purnima Banerji, Kamala Chaudhri, Sarojini Naidu, Hansa Mehta, Rajkumari Amrit Kaur, Leela Roy and Malati Choudhury. Renuka Ray and Annie Mascarene were elected later, and by 1948 the Assembly had 17 women members.

Representation was also a matter of community. The Assembly had 28 members from the Scheduled Castes, and after Partition the Congress held 82 per cent of the seats. The Congress itself was a party that accommodated almost all shades of opinion within it. Granville Austin described the Assembly as "India in microcosm".

Partition and the Sovereign Assembly of 1947

The Mountbatten Plan and the Indian Independence Act 1947

After the elections of 1946 the Muslim League refused to cooperate with the Congress and the political situation deteriorated. On 3 June 1947 Lord Mountbatten, the last British Governor-General of India, announced his intention to scrap the Cabinet Mission Plan, and the Mountbatten Plan for the partition of the country followed. The Indian Independence Act 1947 gave effect to it. It received Royal Assent on 18 July 1947, and the dominions of India and Pakistan came into being on 15 August 1947. The Assembly, which had first met on 9 December 1946, reassembled on 14 August 1947 as a sovereign body for divided India.

Until a new constitution was made, the Act provided that each dominion would be governed under the Government of India Act 1935. The existing legislative set-up was allowed to continue as a constitution-making body and as a legislature. This is why the Assembly worked inside the framework of the 1935 Act on one side while it was writing its replacement on the other.

Sovereign Body, Legislature and the Fall to 299 Members

The Indian Independence Act made three changes in the position of the Assembly.

1. Sovereignty: The Assembly became a fully sovereign body, which could frame any constitution it pleased and could abrogate or alter any law made by the British Parliament in relation to India.
2. A second function: The Assembly also became a legislative body, the first Parliament of free India, so it had two separate functions, making a constitution and enacting ordinary laws, performed on separate days. When it met as the constituent body it was chaired by Rajendra Prasad; when it met as the legislature it was chaired by G. V. Mavalankar. It kept both roles until the Constitution was adopted on 26 November 1949, and after that it went on as a legislature.
3. Withdrawal of members: Members from the areas that went to Pakistan withdrew from the Assembly for India. Its total strength came down to 299, as against 389 fixed in 1946. The strength of the Indian provinces fell from 296 to 229 and that of the Princely States from 93 to 70.

The representatives of the Princely States, who had stayed away at first, gradually joined. On 28 April 1947 representatives of six states were part of the Assembly, and after the Mountbatten Plan of 3 June 1947 the representatives of most of the other states took their seats. Members of the Muslim League from the Indian Dominion also entered the Assembly.

Committees of the Constituent Assembly and Their Chairs

The Eight Major Committees

The Assembly appointed a number of committees for different tasks of constitution-making. Eight were major committees. Nehru, Rajendra Prasad, Sardar Patel or B. R. Ambedkar usually chaired them; they disagreed on many things but worked together. Each committee drafted particular provisions, which the whole Assembly then debated, usually trying to reach a consensus.

Sub-Committees and Minor Committees

The Advisory Committee had four sub-committees. The Fundamental Rights Sub-Committee was chaired by J. B. Kripalani and the Minorities Sub-Committee by H. C. Mukherjee. Gopinath Bardoloi chaired the sub-committee for the North-East Frontier Tribal Areas and the excluded and partially excluded areas of Assam, and A. V. Thakkar the sub-committee for the excluded and partially excluded areas other than those in Assam.

The minor committees handled the working of the Assembly itself.

Other committees handled Hindi and Urdu translation, the press gallery and the effect of the Indian Independence Act 1947.

The Drafting Committee and the Draft Constitution

The Drafting Committee of 29 August 1947 and Its Seven Members

The Drafting Committee was the most important committee of the Assembly. It was set up on 29 August 1947 and was entrusted with preparing a draft of the new Constitution. It had seven members: B. R. Ambedkar (Chairman), N. Gopalaswamy Ayyangar, Alladi Krishnaswamy Ayyar, K. M. Munshi, Syed Mohammad Saadullah, N. Madhava Rau and T. T. Krishnamachari. N. Madhava Rau replaced B. L. Mitter, who resigned because of ill health, and T. T. Krishnamachari replaced D. P. Khaitan, who died in 1948.

The resolution that created the committee asked it to scrutinise the draft of the text of the Constitution prepared by the Constitutional Adviser, to give effect to the decisions already taken in the Assembly, and to submit the revised text for consideration. The Drafting Committee took less than six months to prepare its draft and sat for 141 days in all.

The Role of B. N. Rau and the Stages of Drafting

Sir Benegal Narsing Rau, a civil servant and jurist, was the Constitutional Adviser. He had worked on the drafting of the Government of India Act 1935, and in 1946 he travelled to the United States, Canada, Ireland and the United Kingdom to consult judges, scholars and constitutional authorities. He prepared an initial draft of the Constitution, with 243 articles and 13 schedules, which he submitted in October 1947. Rau was not a member of the Drafting Committee. The committee scrutinised his draft, along with the proposals of the other committees.

The Drafting Committee then prepared the first draft of the Constitution, 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 public comments, criticisms and suggestions, the committee prepared a second draft, published in October 1948.

The work ran in a fixed order. Committee reports came first, then the Adviser's initial draft, the Drafting Committee's detailed draft and public discussion, and last the debate in the Assembly. Ambedkar, the then Law Minister, piloted the Draft Constitution in the Assembly and is recognised as the Father of the Constitution of India. Rajendra Prasad, speaking on 26 November 1949, said the Assembly could never have made a better decision than putting Ambedkar on the Drafting Committee and making him its Chairman.

Borrowed Sources and the Government of India Act 1935

The Assembly could finish the Constitution in under three years partly because it did not start from nothing. The structural part of the Constitution is to a large extent derived from the Government of India Act 1935, a lengthy law of 321 sections and 10 schedules, whose provisions the framers had known at first hand. Its federal scheme with a Federal List, Provincial List and Concurrent List, the provincial autonomy that came into effect in 1937, the office of governor, the Federal Court set up in 1937 and the Public Service Commissions gave the Assembly a ready administrative frame.

To that base the framers added features from other constitutions, adapting each to Indian conditions and avoiding the faults of the original. The framers had gone through the constitutions of about 60 countries, and Ambedkar said the Constitution had been framed after ransacking all the known constitutions of the world.

The break with the 1935 Act was equally clear. That Act extended the vote to about 10 per cent of the population and gave separate electorates to the depressed classes, women and labour. The Assembly replaced it with universal adult suffrage.

Three Readings and the Amendments Debated

The Assembly passed the Constitution in three readings, from the introduction of the final draft on 4 November 1948 to the passing of the motion on 26 November 1949.

Adoption of the Constitution on 26 November 1949

What the Assembly Adopted and Who Signed

The Constitution as adopted on 26 November 1949 contained a Preamble, 395 Articles and 8 Schedules, in 22 Parts. The date appears in the Preamble itself, where the people of India in their Constituent Assembly adopt, enact and give to themselves the Constitution on "this twenty-sixth day of November, 1949". The Preamble was enacted after the entire Constitution had been enacted.

Of the 299 members, 284 were present on 24 January 1950, the last day of the Assembly, and appended their signatures to the Constitution as finally passed. Some accounts date the signing to 26 November 1949; NCERT dates it to the last sitting on 24 January 1950. Each member signed two copies, one in Hindi and one in English. The original is handwritten, with every page decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose, and its calligrapher was Prem Behari Narain Raizada.

Articles That Came into Force on 26 November 1949

Not the whole Constitution waited for 26 January 1950. Article 394 brought itself and Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 into force at once. They covered citizenship, elections, the provisional parliament, temporary and transitional provisions, and the short title:

• Citizenship: Articles 5 to 9 dealt with citizenship at the commencement of the Constitution, the rights of persons who migrated to India from Pakistan or to Pakistan, persons of Indian origin living outside India, and persons voluntarily acquiring foreign citizenship.
• Elections and the oath: Article 60 provided the oath or affirmation of the President, and Article 324 vested superintendence, direction and control of elections in an Election Commission.
• Definitions and the short title: Articles 366 and 367 gave definitions and rules of interpretation, and Article 393 gave the short title, "the Constitution of India".
• Transition: Articles 379, 380, 388 and 391 dealt with the provisional parliament and temporary and transitional provisions, and Article 392 gave the President power to remove difficulties.

Provisions on citizenship, elections and a provisional parliament were therefore in force from the day of adoption, while the rest of the machinery waited for 26 January 1950.

Other Functions of the Assembly and Its Final Sitting

Besides making the Constitution and enacting ordinary laws, the Assembly performed other functions. It adopted the national flag on 22 July 1947, ratified India's membership of the Commonwealth in May 1949, and adopted the national anthem and the national song on 24 January 1950. On that same day, 24 January 1950, it elected Rajendra Prasad the first President of India.

In all the Assembly held 11 sessions while it made the Constitution. The Draft Constitution itself was considered for 114 days, and the total expenditure incurred on making the Constitution amounted to ₹64 lakh.

Commencement on 26 January 1950

Republic Day, the Repeal of the 1935 Act and the Provisional Parliament

The remaining provisions, which are the major part of the Constitution, came into force on 26 January 1950. The Constitution calls this day the date of its commencement, and it is celebrated as Republic Day. The date was chosen for its historical importance. On 26 January 1930 Purna Swaraj day was celebrated, following the resolution of the Lahore Session of the Indian National Congress in December 1929. The Congress had regularly observed 26 January as Independence Day, and the new republic took the same date for its Constitution.

With the commencement of the Constitution, the Indian Independence Act 1947 and the Government of India Act 1935, with all enactments amending or supplementing the latter, were repealed by Article 395. Article 395 kept the Abolition of Privy Council Jurisdiction Act 1949 in force, so appeals to the Privy Council stayed abolished. The two Acts under which India had been governed until then thus ended on a single day.

The Assembly did not vanish with the commencement. Its members became members of the provisional parliament, which sat until the first general elections under the Constitution in 1951‑52.

Criticism of the Constituent Assembly and the Replies

Six Criticisms of the Constituent Assembly

Critics faulted the Assembly on six grounds: Its representation, its sovereignty, its slowness, and domination by the Congress, by lawyer-politicians and by Hindus. Each has some basis in fact, and each has a reply.

The criticisms about representation have the most force, because the members were not elected by adult franchise. The replies rest on how widely the Assembly drew its members and how openly it debated.

Deliberation and Public Reason

The authority of the Assembly came less from perfect representation than from the way it worked. Members deliberated with the interests of the whole nation in mind, and few disagreements could be traced to members protecting their own interests. The differences of principle were real, and they included a centralised or decentralised system, the relations between the States and the Centre, the powers of the judiciary, and the protection of property rights.

Each argument, query or concern was answered in writing, and the sessions were open to the press and the public. The one provision passed with almost no debate was universal adult suffrage, which the members felt no need to discuss. The long debates, in which every clause was scrutinised, are regarded as one of the most significant chapters in the history of constitution-making. The Assembly also worked within a consensus inherited from the freedom struggle, which the Objectives Resolution summarised.

Constitution Day and the Legacy of the Constituent Assembly

Constitution Day and What the Making of the Constitution Shows

The Government of India declared 26 November as Constitution Day by a gazette notification on 19 November 2015, after Prime Minister Narendra Modi announced it on 11 October 2015 while laying the foundation stone of the B. R. Ambedkar memorial in Mumbai. The year 2015 was the 125th birth anniversary of Ambedkar. The day is also known as National Law Day, and it commemorates the adoption of the Constitution on 26 November 1949.

The way the Constitution was made explains much of what it contains. A body drawn from many communities, led by men of differing views, wrote a text meant to bind a divided country by consent. Ambedkar warned the Assembly on 25 November 1949 that political democracy could not last unless it rested on social democracy, a way of life which recognises liberty, equality and fraternity as the principles of life. The framers worked at the time of Partition's violence, and the Constitution is committed to a new conception of citizenship, in which minorities are secure and religious identity has no bearing on citizenship rights.

Sources

• NCERT: Class 11 Political Science: Indian Constitution at Work, Chapter 1
• Parliament Digital Library: Constituent Assembly Debates, 9 December 1946
• Press Information Bureau: 26th November to be observed as Constitution Day (23 November 2015)
• Legislative Department: The Constitution of India
• Wikipedia: Constituent Assembly of India
• Wikipedia: Cabinet Mission
• Wikipedia: August Offer
• Wikipedia: Cripps Mission
• Wikipedia: Indian Independence Act 1947
• Wikipedia: Benegal Narsing Rau
• Wikipedia: B. R. Ambedkar
• Wikipedia: Constitution of India
• Wikipedia: Constitution Day (India)
• Wikipedia: Purna Swaraj
• Wikipedia: Sachchidananda Sinha
• Wikipedia: M. N. Roy
• UPSC: Civil Services Examination question papers