A.5 India [1950]

India became independent in 1947 after two hundred years of colonial rule. It had been ruled not as a single entity but as separate princely states with a form of indirect rule, or as the directly ruled “British India” provinces (and a few colonies of France and Portugal, which did not participate in the 1947 independence). The 1935 Government of India Act, which applied to the colonies but not to the princely states, was a sort of federal constitution. Agitation not only for independence but for a constituent assembly had been going on for many years. The constituent assembly came into existence in late 1946.

Parallel with the closing stage of colonial rule and the setting up of the constituent assembly was the issue of Pakistan. When the constituent assembly was planned it was assumed that India would be one country, though with a loose federal structure, and that various entities would be treated in different ways. Even by the time the constituent assembly was sworn in, unity was fading, and most of the Muslim members never attended. By the time August 1947 came, the decision had been made that Pakistan would be a separate country, and the various princely states, except Kashmir, had agreed to come into the Indian federation on the same basis as the colonies.

The constituent assembly was mainly indirectly elected, mostly by the recently elected provincial assemblies. The initial number was 389, but only 207 were present at the inaugural session (without most Muslim members or the princely state representatives); as Partition loomed, the number was revised to 318, and mergers of princely states with provinces led to further changes. By the end of the process there were 303 actual members (and one state never sent its 16 members). The process was rather slow getting under way because of the whole Partition issue.

Preparations had begun in advance, with the dominant Congress Party preparing schemes for the administration of the constituent assembly, and various proposals for a constitutional structure being drafted.

Soon after its first meeting, the constituent assembly adopted an “Objectives Resolution” setting out basic principles, such as authority derived from the people, a system of autonomous units (“union,” not “federation,” was the preferred word), equality, freedom of speech and conscience, and safeguards for minorities and backward groups.

In March 1947 the lawyer appointed as constitutional adviser to the constituent assembly circulated a questionnaire (incorporating examples of other constitutional provisions) to all legislators, asking for views on the structure of the national government. Few responses having been received, the adviser prepared his own memorandum, essentially an early draft constitution, for the committee on the union constitution, and did a similar document for the committee on the provincial constitution. In giving examples in his various memoranda, the constitutional adviser drew on the constitutions of the Australia, Austria, Canada, Ireland, South Africa, Switzerland, the United Kingdom, the United States and the USSR, and on the Government of India Act itself.

The constituent assembly had various administrative committees, including finance and staff; credentials (of the members); house (on accommodations for members); press gallery; and steering (the last to set the agenda and ensure the smooth progress of debate).

It had a complex arrangement of substantive committees: on the union constitution; on provincial constitutions; and on union powers. It also had an advisory committee on fundamental rights, minorities, and tribal and excluded areas. (The idea was that this should not consist necessarily entirely of members of the assembly.) The advisory committee had two subcommittees. A small expert committee on financial matters comprised nonmembers of the assembly. A states committee of the assembly met with the negotiating committee of the princes to address the entry of the princely states into the union and the constitution; a small ad hoc committee on citizenship met for a few weeks. The drafting committee scrutinized the draft constitution prepared by the constitutional adviser on the basis of the various committee reports.

An authority on the process has said that the Congress Party assembly unofficially debated every provision and tended to decide on it before it could be considered by the House.

The constitutional adviser’s draft was prepared in October 1947, and it was presented in revised form to the constituent assembly by the drafting committee in February 1948. The draft was widely circulated, though not among the public; rather, it went to legislatures, courts, and ministries. Comments were made by a wide range of bodies and individuals. A special committee of the members of the first three committees listed here met for two days in April to consider the draft.

What was submitted to the full constituent assembly for formal debate was the February 1948 draft, with amendments proposed by the drafting committee based on comments received and the views of the special committee. A general debate on principles took five days, and then clause-by-clause debate took from mid-November 1948 to mid-October 1949.

Political discussions were still taking place, and decisions on the future position of the former princely states were finalized; these necessitated changes while the draft was being debated in the full assembly. Decisions on special arrangements for lower castes and tribal groups, and on various issues of center-state relations, were reached outside the assembly plenary, and led to fresh amendments.

The drafting committee then revised the entire document to integrate the amendments, but some further amendments were needed. The act of adoption of the constitution was that of the constituent assembly. A few articles came into force right away, and the bulk of the constitution did so on January 26—since celebrated as Republic Day.