2] Making of the Indian Constitution

1. About Constitution

Constitution of a country lays down the basic structure of the political system which in turn determines how the people will be governed. The constitution establishes main organs of state like judiciary, executive and legislature and also defines their powers and responsibilities, and regulates their relationship with each other.

We need constitution because: 1) It provides basic set of rules for coordination in society. 2) It specifies who has the power to make decisions, and how that power can be acquired and exercised. 3) Constitution also sets the limits on the exercise of such power on citizens, through provisions like Fundamental rights. 4) Finally, constitution enables the government to fulfill aspirations of a society in a collective manner.

While there can be no one-size-fit-for-all constitution that all countries can adhere to, we can have certain basic features a constitution should have, so that it serves its people well.

1. Constitution should ensure that no single institution acquires monopoly of power. Through proper checks and balances, it checks misuse of power over people.
2. While in laying down the basic organs of government, and in certain values and procedures constitution needs to be authoritative, it should also be flexible enough to adapt to changing circumstances.
3. Constitution needs to the address the aspirations of the people it serves. This will ensure the continued allegiance of the people.

1.1 A Note on Constitutionalism

Constitutionalism is a political philosophy or approach to governance that emphasizes the importance of adhering to a constitution as the supreme law of the land. It involves the belief in limited government, the rule of law, the protection of individual rights, and the separation of powers. The key elements of constitutionalism include rule of law, limited government, separation of powers, protection of individual rights and checks and balances in government organs.  

Note that constitutionalism can be applied to both written and unwritten constitutions. A written constitution is a formal document that explicitly lays out the fundamental principles, structures, and processes of government. It is typically codified in a single document, like the United States Constitution or the Indiaa Constitution.

An unwritten constitution, on the other hand, does not exist as a single, codified document but instead consists of a combination of statutes, conventions, judicial decisions, and historical documents. In countries with unwritten constitutions like the United Kingdom, constitutionalism operates through a combination of legal precedent, parliamentary statutes, and constitutional conventions.

2. Making of the Indian Constitution

2.1 Before formation of Constituent Assembly

Prior to the formation of Constituent assembly on eve of Indian independence, there were many attempts to give shape to the Indian state in form of multiple laws and demands for such laws. Since India was under the British rule, most of these efforts centered around demand by the Indians to British for such reforms. However, there were also certain independent efforts, which sought to frame laws for an independent India.

Through various British acts i.e. 1861, 1892, 1909, 1919, 1935, British ruled the Indian colony. The earliest acts i.e. 1861 and 1892, involved Indians in legislative councils, but in a limited manner. The proportion and powers of Indian went on increasing till 1935 act. These acts governed the pre-independence India, and many of the provisions (particularly of 1935 Act) were borrowed in the constitution of free India.

Mridula Mukherjee, in her book India Since Independence, rejects the idea that the process of a modern, responsible and constitutional government in India was initiated solely by the British rulers. She rejects the idea that Indian Constitution of 1950 is simply the culmination of British laws, initiated in 1861. To substantive this argument, we can discuss various efforts by Indians to frame the constitution for free India.

The Constitution of India Bill of 1895

The Constitution of India Bill of 1895, also known as the Swaraj Bill was a significant historical document that reflected the early aspirations of Indians for self-governance and constitutional reforms. Proposed by Bal Gangadhar Tilak (as suggested by Annie Besant), a prominent Indian nationalist leader, the bill aimed to address the growing demands for Indian representation and participation in legislative matters.

The Bill attempted to outline a constitutional vision for India. The document was written in a legal style and contained 110 articles. It covered a number of individual rights and also touched upon structures of government and separation of powers.

S.P. Sathe considers the document as the first non-official attempt at drafting a Constitution for India. Rohit De, in The Oxford Handbook of The Indian Constitution views the document as the first articulation of a constitutional imagination by Indians.

Commonwealth of India Bill 1925

Developed by the joint efforts of Annie Besant, Tej Bahadur Sapru, and V.S.  Srinivasa Shastri. The key features of the Bill included Federal structure, representation to Indians, fundamental rights, judicial reforms, financial autonomy etc. The Bill was presented in the British Parliament by the Labour Party, in December 1925. However, it did not go beyond the first reading stage as the Labour Party had been defeated in the elections.

Nehru Report 1928

The Nehru Report was prepared by a committee chaired by Motilal Nehru, with Jawaharlal Nehru acting as the secretary. The report was a memorandum by All Parties Conference to appeal for a new dominion status and a federal set-up of government of India. The report contained a bill of rights, constitutional supremacy, secular state, federal government, state organization on linguistic basis etc.

Granville Austin remarks that the fundamental rights section of the Nehru Report was “a close precursor of the Fundamental Rights of the Constitution… and certain clauses of the bill re-appear, materially unchanged in Indian Constitution of 1950.

2.2 Constituent Assembly

Following negotiations between Indian leaders and members of the 1946 Cabinet Mission to India, it was felt that the election based on adult franchise would cause ‘a wholly unacceptable delay’. Thus, it was decided to conduct indirect elections with recently elected provincial legislatures as electors. This was called the ‘fairest and most practicable plan’ in the circumstances.

The strength of the constituent assembly was decided to be 389. Of the total 389 seats, 296 were to be elected from erstwhile British provinces, while 93 were to be nominated by the Indian princely states.

The elections for 296 seats were completed by August 1946, with congress winning 208 and Muslim League winning 73 seats. Apart from Congress and Muslim League, there were also members from smaller parties, and independents (total 15).

The Constituent Assembly met for its first meeting on 9^th December 1946 and Pt. Nehru moved the historic Objectives Resolution on 13^th December. These meetings were boycotted by Muslim League, and later formed a separate constituent assembly for Pakistan. Post independence, the strength of the Indian constituent assembly was 299. Of the total 389 members, 90 members became part of Pakistan’s constituent assembly.

The princely states also did not participate in these meetings initially (through their nominated members, as mentioned above), however, by August 1947, almost all states had sent their representatives.

While the transfer of power was in progress, constituent assembly also functioned as interim Government of India.

2.3 Timeline of Formation of The Constitution of India

1. 9 December 1946: First meeting of the Constituent Assembly (demanding a separate state, the Muslim League boycotted the meeting)
2. 13 December 1946: An ‘Objective Resolution’ was presented by Jawaharlal Nehru, laying down the underlying principles of the constitution. The resolution, later became the Preamble of the constitution.
3. 22 January 1947: Objective resolution unanimously adopted.
4. 22 July 1947: National flag adopted.
5. 15 August 1947: Achieved independence. India split into Dominion of India and Dominion of Pakistan.
6. 29 August 1947: Drafting Committee appointed, with Dr. B. R. Ambedkar as the chairman.
7. 26 November 1949: ‘Constitution of India’ passed and adopted by the assembly.
8. 24 January 1950: Last meeting of the Constituent Assembly. ‘The Constitution of India’ (with 395 articles, 8 schedules, 22 parts) was signed and accepted by all.
9. 26 January 1950: The ‘Constitution of India’ came into force after 2 years, 11 months, and 18 Days, at a total expenditure of ₹6.4 million.

2.4 Criticism of Constituent Assembly

It has been argued that Indian constitution is neither the product of the will of the people, nor it represents the views of all sections of the society. It has been argued that Indian constitution is ‘Congress Constitution’. Constituent assembly was a one-party assembly and to quote Churchill, it was ‘the assembly of Brahmins’.

1. No direct elections: The members of the assembly were majorly indirectly elected, and others were nominated by princely states. No direct elections were held.
2. Dominance of the Congress Party: Out of 299 members of Indian constituent assembly, 245 were alone from congress, a whopping 82%.
3. Dominance of the British Educated Lawyers: Most of the members of the Constituent Assembly belonged to an extremely small class which was the outcome of the British education system in India. Besides, most of the members of the Constituent Assembly were lawyers who endeavored to make the constitution more legalistic. Therefore, it has been rightly said that our constitution suffers from an overdose of legalism.
4. Upper Caste Dominance: In terms of social representativeness, 80% of the members were from upper caste, 25% were Brahmins.
5. Only 15 women members were part of constituent assembly, meager 5% of total members (299).

In around 75 years of its existence, constitution has been amended for more than 100 times whereas US constitution, which emerged in 18th Century has seen only 27 amendments so far. In case of India, the very first amendment took place in the very first year of the republic.

Hence there has been a question mark on the legitimacy of the constitution and whether the present constitution is able to meet the aspirations of Indians in the 21st century. There has also been a lot of ambiguity and internal contradictions among the different provisions of the constitution, resulting into legal battles and political conflicts. There has been a conflict between Right to Equality and Freedom to practice religion in case of uniform civil code. Similarly, the rights of the individual often come in conflict with the rights of the community as seen in Sabarimala case.

The presence of these ambiguities in the constitution have increased the space for judicial interpretation, resulting in ultimately judiciary undermining the parliamentary supremacy, with the invention of basic structure doctrine.

Rajeev Dhavan, in “The Constitution of India: Miracle, Surrender, Hope,” contends that the Indian people had limited input into the constitution-making process, as they had no alternative but to accept it.

2.5 Arguments for New Constitution

1. Modernization and Relevance: It is suggested that the current Constitution, largely based on the Government of India Act 1935, no longer reflect the needs, values, and aspirations of contemporary Indian society. Additionally, it also represents a colonial legacy. A new constitution could ensure that India’s governance framework is more closely aligned with present-day realities and challenges.
2. Cultural and Spiritual Identity: India’s rich cultural and spiritual heritage is not fully reflected in the current constitution, which was heavily influenced by colonial legal frameworks. A new constitution could incorporate these cultural dimensions, fostering a stronger sense of national identity and pride.
3. Global Standing and Leadership: As India asserts itself on the global stage, a new constitution could signal the country’s commitment to democratic principles, human rights, and good governance. It could enhance India’s reputation as a progressive and forward-thinking nation.
4. Judicial Reform: There have been debates about the need for judicial reform in India, including concerns for greater accountability and transparency. Through the invention basic structure, Indian judiciary have asserted its supremacy and safeguarded against any intervention by other organs of government, undermining the check and balances. A new constitution could address these issues by reforming the structure and functioning of the judiciary.

2.6 National Commission to Review the Working of the Constitution (NCRWC)

Also known as JMNR Venkatachaliah Commission, was set up by a resolution of the Government of India led by Atal Bihari Vajpayee’s National Democratic Alliance in February 2000 for suggesting possible amendments to the Constitution of India. It submitted its report in 2002.

Consisting of two volumes and several chapters, the report suggests constitutional amendments to almost all sections of Indian constitution. Major recommendations are as follows:

1. Changes to the provision of preventive detention, making the maximum period of such detention to be six months. (Art 22)
2. Treatment of Sikhism, Buddhism and Jainism as separate religions. (Art 25)
3. There shall be no arbitrary deprivation or acquisition of property. The deprivation or acquisition of property shall be by authority of law and only for a public purpose. (Art 300A)
4. The privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and state legislatures.
5. The MP local area development scheme should be discontinued.
6. A motion of no-confidence against a prime minister must be accompanied by a proposal of alternative leader to be voted simultaneously. This is called as the ‘system of constructive vote of no confidence’.
7. Lateral entry into government jobs above joint secretary level should be allowed.
8. Article 356 should not be deleted, but it must be used sparingly and only as a remedy of the last resort.
9. The question whether the ministry in a state has lost the confidence of the assembly or not should be tested only on the floor of the House. The Governor should not be allowed to dismiss the ministry, so long as it enjoys the confidence of the House.
10. A National Judicial Commission under the Constitution should be established to recommend the appointment of judges of the Supreme Court.
11. No court other than the Supreme Court and the High Courts should have the power to punish for contempt of itself.
12. Greater financial autonomy to local governance bodies.
13. Any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as or for being a member of Parliament or Legislature of a State.
14. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing Special Courts.
15. The election code of conduct should be given the sanctity of law and its violation should attract penal action.
16. A comprehensive law regulating the registration and functioning of political parties or alliances of parties should be made.
17. All persons defecting (whether individually or in groups) from the party or the alliance of parties, on whose ticket they had been elected, must resign from their parliamentary or assembly seats and must contest fresh elections.
18. The power to decide questions regarding disqualification on ground of defection should vest in the Election Commission instead of in the Speaker / Chairman of the House concerned.

2.7 Counter Arguments Against New Constitution

1. While it may be factually correct that the constituent assembly was elected through indirect elections, the time was not conducive to hold elections. Any such efforts would have delayed the Indian independence.
2. Supreme Court in Keshavanand Bharati case has settled the matter with respect to the will of the people. According to the Supreme Court, there is no point examining the factual correctness of the phrase ‘we the people’. We have to accept it as correct.
3. Though dominated by Congress, but as suggested by ‘Granville Austin’ who is treated as the best authority on Indian constitution – ‘At the time of independence, Congress was India and India was Congress’. Parties like Hindu Mahasabha or Ambedkar’s Republican Party of India didn’t get even single seat.
4. Further, Congress also co-opted the members of other parties so that constitution becomes a consensus document.
5. Apart from the constituent assembly members, the process was also made participatory by asking submissions from public at large.
6. It is also to be noted that majority of the provisions were adopted by consensus rather than by majority. There used to be extended debates on almost all features of the constitution. Unlike the constitution of Nepal, which is a majority constitution, Indian constitution is consensus document.
7. If we look at the results of the first General elections, we can see that the composition of members had not changed. This shows that even if election would have taken place for constituent assembly, composition would not have been different.
8. As seen above, NCRWC [National Commission for the Review of the Working of Constitution] which was set up by non-congress government did not recommend any far-reaching changes or the need to call for the new constituent assembly.

Thus, there cannot be a question mark on the representativeness and legitimacy of the constitution. According to Granville Austen, Indian constitution itself is ‘cornerstone’ of a nation. The nation is existing because of the constitution.

According to Pratap Bhanu Mehta, Indian constitution is a unique experiment in the field of constitutionalism. Indian constitution is not an ordinary document unlike other constitutions. It is sacrosanct. Unlike other countries, where revolutions led to the formation of the constitution, Indian constitution is itself revolutionary. In India revolution started after independence. India is an example of social revolution through the constitution. We have put the entire faith on the constitution to transform a highly traditional society into a modern society.

Pratap Bhanu Mehta further suggests that Indian constitution is cosmopolitan constitution. It is based on universalist values like liberty, equality and fraternity. It also means that it is drawn from multiple sources. It is situated at major cross currents of the global constitutional law. Indian judiciary while interpreting the constitution takes precedence from different constitutions and judicial traditions. Like Indian culture, it is syncretic and eclectic.

3. Legacies of the British Rule

‘I am sure that British will leave this country one day however I am sure that before leaving, British will leave so much dirt and filth that generations of Indians will not be able to clean it.’  – Rabindranath Tagore

It is suggested that every civilization emerges from the womb of previous civilizations. India remained under the British rule for two hundred years. During this period, the British tried to shape Indian politics and society to suit their needs. Coupled with the response of the Indians, it led to evolution of a unique political system in British India.

Post-independence, with almost all princely states now decimated, and no major regional power, India naturally chose to be a democracy and adopted a parliamentary system on British lines. While the Indian subcontinent is indeed the ‘mother of democracy’, it would be farfetched to say that these traditions had large impact on formation on independent India’s political system.

Thus, we find many aspects of Indian political system, the roots of which can be traced to the British rule and thus can be termed as British legacy. W.H. Morris Jones divides these legacies of Indian political system into four categories namely: Government, Movement, Mediating Institutions, and Problems and Process. These legacies can be discussed as follows:

3.1 Government

It was the British rule which strengthened the notion of Government in India. Through the offices of Village Headman, Patwari and the institution of Police, the rule of government reached every nook and corner of the country. The increase in the government activity increased the role of the government in the day-to-day life of the people. This sense of having a government is surely the legacy of the British.

However, it is also to be noted that the British government was not much extensive, legitimate and having people’s support as of today. It was narrow, alien and less extensive, and at the village level, government was synonymous with tax collector.

In new constitution, this psychological fact of Indian political life is evident in the insertion of emergency provisions, and qualifications attached to the Fundamental Rights. The Indian political system also inherited certain features of government like dyarchy, centralized bureaucracy and federal system of government.

The nature of Indian federation, the institution of governor, ordinance making powers, emergency provisions are drawn from colonial constitution which has been framed with the objective to maintain the hold of the raj.

3.2 Dyarchy

The constitution of India is of federal in character with a number of unitary features. The Government of India Act of 1935, although a failed attempt to establish a federal structure and provincial autonomy, paved the way for the future emergence of the federalism. The constitution of the Independent India extensively borrowed the federal features from the Government of India Act, 1935. There are also various provisions in Indian constitution that give the Central Government more powers such as emergency provisions under Articles 352, 356 and 360, and inclusion of any subject in the State list on the recommendations of the Rajya Sabha.

3.3 Centralized Bureaucracy

The British government created a large bureaucracy to run the government with districts as the units of administration. To tackle with situations of disobedience to governments, the bureaucracy was given vast powers. The British government depended upon these bureaucrats to run the administration, and the administration was hierarchical.

The system, in more or less similar manner have continued in the past. The bureaucracy still forms the backbone of the government, it still enjoys vast powers, and the administration is still hierarchical. The biggest pain point has been, that this bureaucracy is still centrally controlled and the Indian constitution makers did decide not to trust the state governments in this regard.

Further, Indian constitution makers preferred the continuation of Draconian acts like preventive detention. It is unfortunate that the World’s largest democracy also maintains a law of arbitrary detention, that too constitutionally.

Even at present, the Indian bureaucracy continues to thrive under ‘cloak of secrecy’. The government has continued with Official Secrets Act 1923, which dilute the transparency and accountability. Only in 21st century govt. could institute ‘right to information’. The recent enactment of Bhartiya Nagarik Suraksha Sanhita 2023, Bhartiya Nyaya Sanhita 2023, and Bhartiya Sakshya Adhiniyam 2023, replacing their colonial counter-parts, is a welcome step in this regard.

3.4 Extra Constitutional Measures

Apart from the British legacy in Indian constitution, various extra-constitutional measures like, Bandhs, Hartals, Satyagrahas, Hunger strikes, fast-unto-death etc. can trace their roots to the anti-British struggle pre-independence. A large number of such movements appeared in the Indian Political System. Smock examples include the India Against corruption movement of 2012 led by Anna Hazare, demand of reservation by various castes etc.

Rajni Kothari says that the length and continuity of both the nationalist movement and the Hindu civilization contributed considerably to the unity of the new India and imparted to it the modernist design, depth, flexibility and maneuverability. Had the national movement been short in duration or shallow in its penetration, such a synthesis in depth, would not have been there when independence came.

3.5 British Legacy in Other Areas

According to Bipin Chandra, there is a legacy of British rule because unlike China, India did not start with a clean slate. If China has gone through the communist revolution, what happened in India was ‘transfer of power’. Indian elites, educated in the western liberal education system had preference for the liberal, democratic, political order.

To talk from Gramscian perspective, the legacy of the British rule shows the continuing hegemony of the British. If we apply the perspective of structural Marxist, Hamza Alvi, the elites in South Asia preferred to continue with ‘the overdeveloped state’ as it provides lot of privileges to the ruling class. Hence there are different ways of explaining the continuation of legacy. British legacy is evident in almost all spheres of life. From administration to art and architecture.

Indian Economy

Even after independence, continued to be the supplier of raw materials and the market for the goods of the western countries. In international economy, India continues to be categorized as the state in periphery or semi periphery. Further, the continuing regional imbalance inside India shows that we have not been able to overcome the impact of colonialism.

Indian society

During British rule, communal identities were emphasized to create division in society and suppress feeling of nationalism. In contemporary times, same strategies are applied with the purpose of electoral gains. Unfortunately, the Indian elites preferred continuity over change.

Political system

It is surprising that there have been extreme protests against Simon commission. Govt. of India Act 1935 is based on the recommendations of the Simon Commission. Govt. of India Act 1935 has become the foundation for India’s political system.

Foreign policy

The British legacy weighs heavily in India’s relations with its neighbors. The history of partition and unresolved border dispute have ensured that the South Asia remains the least integrated of all regions, only next to middle east.

According to C Rajamohan, Nehru’s policy towards neighbors was based on Curzon’s policy. Nehru’s ‘treaty diplomacy’ with South Asian neighbors like Nepal, Bhutan is nothing but superficial modification of the treaties entered by British with these Kingdoms. Indian neighbors continue to believe that India has colonial mindset.

3.6 Conclusion

Thus, while the Indian political system inherited various legacies from its predecessor, viz. the British Indian political system, the institutions in themselves are not the justification of the success of Indian democracy. While there was large speculation regarding the survival of Indian democracy, the ‘Indian experiment’ have been far more successful than anticipated by the erstwhile scholars.

4. Different Social and Economic Perspectives of Indian Constitution

“Making of the constitution was a coming together of ‘national’ and ‘social’ revolutions respectively. The national revolution focused on democracy and liberty, which the experience of colonial rule had denied to all Indians, whereas, the social revolution focused on emancipation and equality, which tradition and scripture had withheld from women and low castes.” – Granville Austin  

4.1 On Panchayati Raj and Village Councils

Ambedkar was against the idea of village republics. He held that it will result in ruination of India. In his own words, “What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism?”

Some of the assembly members were disappointed with the dominance of western elements and the legalistic language of the constitution. According to Mahavir Tyagi, there was ‘nothing Gandhian’ in the constitution. K Hamumanthaiya complained that while freedom fighters like himself had wanted ‘the music of Veena or Sitar’, what they got instead was ‘the music of an English band’.

On preventive detention without trial, a veteran freedom fighter called it ‘the darkest blot on the Indian constitution.’

4.2 Unitary Bias of Constitution

On unitary bias of Indian constitution in fiscal matters, K Santhanam of madras remarked that the fiscal provisions would make the provinces ‘beggars at the door of the Centre’.

In answer to these remarks, another member commented that ‘the strong centre was an absolute imperative in these times of stress and strain. Only a a strong centre would be in a position to think and plan for the well-being of the country as a whole’.

B.R. Ambedkar told the house that he wanted ‘a strong united centre, much strong than the centre we had created under the Govt. of India Act of 1935’.

K.M. Munshi argued for the construction of a ‘federation with a centre as strong as we can make it’.

4.3 Minority Rights

B Pocker Bahadur made a vigorous plea for the retention of separate electorates. ‘As matters stand at present in this country, it is very difficult for non-Muslims ‘to realise the needs and requirements of the Muslim community’. If separate electorates were abolished, then important groups would be left feeling ‘that they have not got an adequate voice in the governance of the country’.

Sardar Patel, on the other hand was against this idea of separate electorate. According to him, such a system in past had led to the division of the country. “Those who want that kind of thing have a place in Pakistan, not here. Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough.”

Apart from Patel, there were also some Muslim voices who were opposed to the idea of separate electorates. Begum Aizaz Rasul called the idea as ‘absolutely meaningless’, and a ‘self-destructive weapon which separates the minorities from the majority for all time’.

4.4 Women Reservation

On women reservation, Hansa Mehta of Bombay, rejecting reserved seats or separate electorates, remarked that, “We have never asked for privileges. What we have asked for is social justice, economic justice, and political justice. We have asked for that equality which alone can be the basis of mutual respect and understanding and without which real co-operation is not possible between man and woman.”

Similarly, Renuka Roy of Bengal commented that “Unlike the ‘narrow suffragist movement of ‘many so-called enlightened nations’, the women of India strove for ‘equality of status, for justice and for fair play and most of all to be able to take their part in responsible work in the service of their country’. For ‘ever since the start of the Women’s Movement in this country, women have been fundamentally opposed to special privileges and reservations’.