The Constitution of India: A Historical Retrospect

Introduction:-
“To live by the rule of the constitution ought to be considered not slavery, but
salvation”. This observation of Aristotle has always motivated human beings,
particularly the dependent people, to work for securing a self made constitution.
Indians naturally demanded the right to have a Constituent Assembly of their
own, having the responsibility to make a constitution for them.

History of framing of Constitution:

All constitutions are the heirs of past as well as the testators of future. The very
fact that constitution of India is a republic is the product of not only a political
revolution but of the research and deliberations of a body of eminent
representatives of the people who sought to improve upon the existing systems of
administration, makes a retrospect of constitutional development indispensible
for a proper understanding of the constitution. The origin of the constitution of
the Indian republic to a great extent is rooted in the history of India Under British
rule. That history began with the incorporation in England of the East India
Company in 1600, although the British had not become a ruling power in India
until the 2nd half of 18th century. The essentially commercial character of the
company in the beginning gradually underwent a complete change in the course
of one and a half century; they secured a charter from Queen Elizabeth
authorizing the company to organize and send trading expeditions to the East
Indies. The charter was initially granted for a period of 15 years and could be
terminated earlier on 2- years notice. If the interests of the crown and people
were not affected, prejudicially, the charter could be renewed. After obtaining the
charter the company established factories or trading centers at several places after
obtaining land and other concessions from the local rulers. For the governance of
the company it was given power to make laws, constitutions, orders and
ordinances the company obtained extensions of lease through the charters of
1609 and 1661. Till the second half of 18th century the company continued
primarily to be a trading enterprise. The downfall of Mughal Empire resulted
in chaotic condition, by the end of 18th century the consequent disintegration of
a centralized administration and the rise of innumerable local rulers who rivaled
among themselves provided an opportunity and a fertile ground and the company
took full advantage and established itself as the master of subcontinent. The
victory of the company in the Battle of Plessey in 1757 put the British rule in
India on firm grounds. It acquired the Diwani of Bengal, Bihar and Orissa from
Shah Alam 1765 and gained the right to collect the revenue and administer civil
justice. This marked the beginning of territorial sovereignty of the country. In the
meantime the British, government passed a number of the some notable charters
and acts to regulate the conduct of the company. Some of the notable enactments
made by the crown include, the regulating Act of 1773, the amendment Act of
1781, Pitts India Act of 1784, the act of 1786, and the charter acts of 1793, 1833,
and 1853. After the revolt of 1857, the constitutional system underwent great
transformation in so far as the company was obliged to transfer its powers to the
British crown which assumed direct control over the administration under
government of India act, 1858.
After 1858 the British Government enacted several Acts for the Governance of
India, but most of these failed to satisfy the aspirations of the Indian s and they
continued to agitate for greater serge in the administration. Some of the important
enactments made by the British Government include the Indian counsels Act,
1892 and 1909. Various concessions were made through these enactments but the
Indian people remained dissatisfied the Indian leadership insisted that India`s
political destiny should be determined by the Indians themselves.
By 1856 the British Dominion in India had reached its natural limits over the
vast territories the British imperial genius build up a system of government
which served a dual purpose. On one hand it ended the anarchy in the country
which prevailed in the country in the 18th century, established peace and security
of life & property and created conditions for political unifications of the Indian
peoples. On the other hand the British secured for themselves an empire
unequalled in extent wealth and resources which gave to their small island-
Kingdom of Britain the hegemony of the world. There were three phases of this
extraordinary phenomenon in the first the east India Company confined itself to
trade, in the second it entered into armed conflict with its European rivals,
established its trade monopoly and acquired political influence in India. Third it
combined commerce with the conquest and in both achieved success beyond its
dreams. Subsequently when the company lost its mercantile character and was
thrown open to all the Englishmen, it compensated itself by expanding its
Dominion. The policy of the English was to increase the revenue of dominions
by increasing the dominions itself. Expansion of Dominions became an
expensive affair consequently the company adopted stringent measures of
economy on every front social, political, military without caring for the
consequences which resulted in universal discontent in India which threatened to
break out in an ugly shape. The dangerous situation which was developing in
India was inherent in the nature of the empire. Instead of exploiting India for
England’s good, the British should have shown some consideration for the
economic and political needs of her people. But unfortunately these
considerations were disregarded and the baleful harvest of hatred and hostility
had to be gathered in 1857.
The outbreak of 1857 called by Dr. P. Sitaramayya as the first war of
independence was a shock to the British government and its bureaucracy. The
revolution was much more than a mere product of sepoy discontent. It was in
reality a product of character and policies of the colonial rule, of the
accumulation of the grievances of the people against the company’s
administration and of their dislike for the foreign rule. For over a century the
British had been conquering the country bit by bit popular discontent and hatred
against the foreign rule had been gaining strength among the different sections in
the society. it was this discontent that burst forth into a mighty revolt. The revolt
was suppressed. British captured Delhi, Emperor Bahadur Shah was taken
prisoner and exiled to Rangoon where he did in 1862 thus the great regime of
Mughal was finally and completely extinguished. However revolt of 1857 gave a
severe jolt to the British administration in India and made its reorganization
inevitable. The government of India’s structure and policies underwent
significant changes in the decades following the Revolt. The revolution
established beyond doubt that Indians wanted a new political system in which
they should have their own share. They proved that they were politically
conscious and thus could not be manhandled by their rulers. In 1858 Lord
Palmerstone introduced a Bill for the abolition of East India Company. This was
ably opposed by J.S. Mill who supported the cause of the company. The Bill was
then introduced by Derby and Disraeli in a modified form was passed by the
parliament in 1858.

Transfer of Company’s Rule:

Government of India Act 1858 ending the company’s rule transferred the
governance of the country directly to British government. Companies rule was
thus terminated and the administration was taken over to be carried on in the
name of the crown through the secretary of the state who assumed the powers of
the board of Directors. The secretary of the state was required to lay before the
British parliament an annual statement regarding the moral and the material
progress of India as well as account of annual produce of the revenues of India.
Commenting on the importance of the government of India Act 1858 Professor
G. N. Singh observed that, it closed one great period of Indian history and
ushered in another great era---the direct rule of the crown. Thus in 1858 the
government in British India was transferred from company to the British crown.
This indeed was a land mark in the political evolution of India. On first
November the Queen issued a proclamation. The proclamation assured the Indian
Princes that all treaties and the engagements made by the company would be
scrupulously observed by the crown. It disclaimed the desire for further territorial
possessions: promised to respect the rights, dignity and honor of princes asserted
its determination to faithfully fulfill it wards the Indian people’s obligations and
to consider them at par with other British subjects promised certain positive steps
for the betterment of Indian people. The proclamation is often described as the
Magna Carta and continued to be the basis of government’s policy till 1917.
According to Professor G. N. Singh the proclamation was couched in a beautiful
and dignified language and breathed a spirit of magnanimity, clemency,
friendliness and justice and assured to the princes their rights, honor, dignity and
privileges and to the people freedom of religion, and equal protection of law,
admission to offices irrespective of their race or creed, on the basis of education,
ability and integrity.
The Indians were associated with the law making power through the Indian
councils Act 1861. Indian Councils Act, 1861 is very important in the
constitutional history of India firstly: it enabled the governor-general to be
associate the people of India with the legislation, secondly it vested legislative
powers in the governments of Bombay and Madras and thus laid down the policy
of devolution, which ultimately culminated in the grant of complete internal
autonomy to the provinces in 1937. This Act in-fact set the stage for
representative Government in India. Indian Councils Act 1892 introduced for
the first time the principle of election to elect non-official members to the
council. The Indian Councils Act 1909 or Minto-Morley Reforms was to do
away with the defects of Act of 1892 adopted separate communal electorates for
the Muslims. The British people could not meet the aspiration and just demands
of Indians hence anti-British campaign was started for local government. The
passing of government of India Act 1919 giving representation to Indians in
every branch of the Government
The Nehru report of 1928 favoring Dominion status with the responsible
government at the centre and the government of India Act, 1935, the last
elaborate constitution with federal structure which never came in operation
constitution the rapid constitutional developments paved the way for local self
Government in India. The Government of India Act, 1935 provided a sound
basis for framing a new constitution in India.
Passing of Indian Independence Act 1947:
In pursuance of recommendation of Cabinet Mission in 1946 elections to the
constituent Assembly were held and it met for the first time on 9th of December
1946 Lord Mount Batten plan was accepted. At last Britishers agreed to declare
independence. The British parliament passed the Indian Independence Act on
18th July 1947 and which came into force on 15th August 1947. It paved way to
constitute Constituent Assembly headed by Rajendra Prasad as its president. A
drafting committee headed by Dr. B.R. Ambedkar as chairman and 8 other
members was constituted. The Constituent Assembly after thoroughly examining
the constitutions of other countries, including America, England, Australia
prepared the constitution of India.
So the Indian Constitution was drafted by her own Constituent Assembly.”
Under the Cabinet Mission Plan the right of Indian to organize a Constituent
Assembly for framing the constitution for India was accepted. Elections for the
Constituent Assembly where held in 1946, and it began its first session on 9th
December, 1946. However, behind the establishment of the Constituent
Assembly, there was a long history of struggle as elaborated. It was only after a
long drawn struggle that the foreign rulers conceded the demand for establishing
the Constituent Assembly.
The dawn of the 20th century came with a new hope for India, and this was the
hope for Swaraj. As the representative of Indian public opinion, the Congress
passed the Swaraj Resolution in 1905, and from this time onwards, the people of
India march ahead in the national mainstream for securing self rule through the
right to make a constitution for them. However, till August, 1917, the British
rulers always denied them the right to have a responsible government. It was
only in the Montague Declaration of August, 1917 that the establishment of a
responsible government was accepted as the final goal of British policy in India.
It was conceded because of the pressure resulting from the First World War and
the environment generated by unity between the congress and Muslim League
(Lucknow Pact) and between the moderates and extremists of 1916.
However, even after accepting the objective of responsible government for India
as a goal, the Britishers continued to ignore and reject the demand for
establishment of a Constituent Assembly for framing a constitution incorporating
this goal.
In 1922, Gandhi asserted the right to self-determination of the Indians and that it
means undoubtedly India`s ability to declare her Independence as she wishes. In
1922, the moderate members of Central legislature advocated the need to call a
national convention for securing Swaraj in respect of internal administration of
India. In 1924, the Swarajists demanded the need for calling Round Table
Conference for preparing a plan for the constitution of India. They repeated this
demand in 1925. The Britishers, however, ignored this demand.
In 1928, M.N. Roy raised the demand for the organization of a Constituent
Assembly of India. The All Party Conference, 1928, through its Nehru Report,
presented a draft for the constitution of India. When the British government
published a White Paper on the discussions held at the Three Round Table
Conferences, the Congress working committee, while rejecting the White Paper
declared: “the only satisfactory alternative to the White Paper is a constitution
drawn up by a Constituent Assembly elected on the basis of adult franchise”. The
demand for a Constituent Assembly gathered momentum after the Congress
passed the complete Independence Resolution in 1930.
In its Faizpur Session (1936), the Congress declared that it stood for a genuine
democratic state in India where political power would be transferred to the
people as a whole and the government would be under their effective control.
Such a state could only come into existence through a Constituent Assembly
elected by adult suffrage and having the power to determine finally the
constitution of the country.
The provincial governments constituted under the Act of 1935, passed a
resolution supporting the demand for a Constituent Assembly in India. In 1938,
Pt. Jawaharlal Nehru declared: “The Indian National Congress stands for
independence and the democratic state. It has proposed that the constitution of
free India must be framed without outside interference by a Constituent
Assembly elected on the basis of universal adult franchise.”
In 1939, when the British Government demanded cooperation from the Indians
during the Second World War, the Congress Working Committee firmly declared
through a resolution, that the recognition of India's Independence and the right of
her people to frame their constitution through a Constituent assembly is essential
in order to remove the tint of imperialism from Britain's policy and enable the
Congress to consider further Corporation. They hold that the Constituent
Assembly is the only democratic method of determining the constitution of a free
country, and no one who believes in democracy, the freedom can possibly take
exception to it. The working committees believe that the Constituent Assembly is
the only adequate instrument for solving the communal and other difficulties.”
On 8th August, 1940, Viceroy Lord Linlithgo declared (August offer) among
other things that “after the war, a Constituent Assembly shall be established in
India”. The offer was rejected as an unrealistic futuristic announcement at a time
when the future of Britain herself was uncertain. The Cripps Mission 1942
repeated this offer along with other proposals but it was rejected “as a post-dated
cheque on failing Bank”.
Organization and Powers Cabinet Mission Plan:
It was after the end of Second World War that the British Government through
its Cabinet Mission accepted the demand for the establishment of a Constituent
Assembly for India. Regarding the organization and powers of the Constituent
Assembly, the Cabinet Mission Plan laid down the following principles:
1. There will be 389 members in the Constituent Assembly, 292 from the British
India, 93 from the Indian states and 4 from Chief Commissioner Provinces.
2. There will be 3 categories of Electorate.
a. General Electorate: 210 seats.
b. Muslim Electorate: 78 seats.
c. Sikh Electorate: 4 seats.
3. British India would be divided into 3 groups:
a. Group A States: It included Madras, Bombay, UP, Bihar, MP and Orissa. It
was to have 187 seats, 167 general and 20 Muslim seats.
b. Group B States: It included Punjab, NWFP, and Sindh. It was to have 35 seats-
9 General, 22 Muslim and 4 Sikh seats.
c. Group C States: It included Bengal and Assam. It was given 70 seats- 34
General and 26 Muslim seats.
The representatives from British India were to be indirectly elected by the
provincial legislature by a system of proportional representation Single
Transferable Vote system. The mode of appointment/election/selection of the
representatives of Indian States was to be decided by a committee. The
acceptance of Cabinet Mission Plan paved the way for the holding of elections
for the Constituent Assembly of India. Till the Constitution was ready a
provisional Government consisting the representatives of the main political
parties was to be setup at the centre.
The elections for the Constituent Assembly held in July, 1946. Out of 210
General seats, the Congress captured 199, and out of 78 Muslim seats, the
Muslim League got 73. Many other seats were captured by the Congress-backed
candidates and as such it enjoyed the support of 211 members a thumping
majority indeed.
The Constituent Assembly held its first meeting on 9th December, 1946 under the
temporary chairmanship of the member Dr. Sachidanand Sinha On 11th
December, it elected Dr Rajendra Prasad as its permanent president. Its members
included all eminent Indian leaders. The strength of the assembly was reduced to
299 (229 representing the provinces and 70 representing the states) following
withdrawal of the Muslim league members after the partition of the country. The
election results, particularly the big majority secured by the Congress, unnerved
the Muslim League. It passed two resolutions, by the first it withdrew support
from the cabinet Mission Plan and by the second it resolved to resort direct
action for achieving Pakistan. It decided to boycott and Constituent Assembly. It
celebrated 16th of August, 1946, as the direct action day. At the time of its
establishment, the Constituent Assembly was not a sovereign body. It stood
organized on the basis of the Cabinet Mission Plan. Its powers were derived from
the sovereign authority of British Parliament. Some Indian leaders held the view
that the Constituent Assembly was not a sovereign body. However, Patel and
Nehru believed that it was a sovereign body. The Assembly resolved this issue
by adopting: that the Assembly should not be dissolved except by a resolution
assented to lay at least 2/3rd of the whole number of members of the Assembly.
Once constituted it could not be dissolved even by Britain.” It started acting as a
sovereign constitution making body.
When on 15 August, 1947, India became independent; the Constituent Assembly
became a fully sovereign body and remained so till the inauguration of the
Constitution of India. During this period, it acted in a dual capacity. First, as the
Constituent Assembly engaged in the making of Indian Constitution, and
secondly, as the Parliament of India, it started undertaking the legislative work.
The making of Indian Constitution
The major task before the Constituent Assembly was indeed the making of
Constitution of India and just after 4 days of its inaugural meeting, the first step
was taken towards this goal when Pt. Nehru introduced the Objectives Resolution
in it and described it as a solemn pledge of the people. The objectives Resolution
made specific the objectives which were to guide the framing of the constitution.
It affirmed commitment to the principles of popular sovereignty, justice, Liberty,
equality, Special Protection to the minorities, Unity and integrity of the country
and world peace. The resolution was adopted by the Constituent Assembly on
22nd January, 1947. It provided the ideological Framework within which the
Constituent Assembly was to formulate the constitution of India.
On 15th August, 1947, India became independent. A day before, on 14th August,
Pakistan was partitioned out of India. The Constituent Assembly of India then
got a sovereign status and started undertaking the task of formulation of the
constitution of many Indian States, made this August body more representative.
It started working as a fully representative, all powerful and as they truly
National Assembly.
For conducting its work in a systematic and efficient manner, the Constituent
Assembly constituted several committees which where to report on the subject
assigned to them. Some of these committee were committees on procedural
matters, while others where committees of substantive matters. In the first
category came, Rules of Procedure Committee, Finance and Staff Committee,
Credential, Committee, Steering Committee, Hindi Translation Committee,
Orders of Business Committee, Urdu Translation Committee, Press Gallery
Committee, House Committee and Committee on Independence Act. The
substantive matters committees included: Union Power Committee, Union
Constitution Committee, Provincial constitution Committee, Advisory
Committee on Minorities and Fundamental Rights, and Committee on Financial
Rights between the union and States. The reports of these Committees provided
the bricks and mortar for the formulation of the constitution of India. In the
making of Indian Constitution, a very valuable role was played by the Drafting
Committee. This committee was constituted on 29th August, 1947 with Dr. B.
R. Ambedkar as its chairman. The members of this committee included versatile
chairman Dr. Ambedkar; and such legal luminaries as B.L. Mitter, N.
Gopalaswami Ayyangar, Alladi Krishnaswami Ayyar, K.M. Munshi, Saiyad
Mohd. Saadulla, N. Madhav Roa and D.P. Khaitan. After the death of Mr. D.P.
Khaitan, T.T. Krishnamachari was made its member. Dr. B. N. Rao worked as
the Chief Constitutional Advisor attached to this committee. On the midnight of
14-15 the August 1947, a special session of the constituent assembly was held to
effect formal transfer of power. After the transfer of power to Indian hands, the
constituent assembly assumed two functions, viz, that of formulation of
constitution and that of a law making body. Thus, the constituent Assembly
became the first parliament of India and continued to work in that capacity till
general elections to parliament, which were held in 1952.
Adoption of Constitution: The Drafting Committee Submitted its report (draft)
to the Constituent Assembly on 21st February, 1948 and the Constituent
Assembly had debates on it. On the basis of these discussions, a new draft was
prepared by the Drafting Committee and submitted to the Assembly on 4th
November, 1948. The first debate on this draft was held from 4th to 9th
November, 1948. Thereafter, from 15th November, 1948 to 17th October, 1949,
each clause of the draft was thoroughly debated upon and passed. In all 7, 635
amendments were proposed, out of which 2473 amendments were discussed.
From 14th November to 26th November, 1949 final debate was held on the draft.
On 26th November, 1949 Constitution was finally adopted and enacted by the
president of the Constituent Assembly. Though the major part of the constitution
came into force on January 26, 1950, the provisions relating to citizenship,
elections, provincial Parliament, and temporary and transitional provisions came
into force with immediate effect i.e. from 26th November 1949.
The adoption of the Constitution was indeed a historic event and an occasion of
great constitutional significance. G. Austin observes that, “the adoption of the
constitution of India was the greatest political venture since the Philadelphia
Convention”. Some of the provisions came into operation directly while as a
whole the constitution was inaugurated on 26th, January, 1950. Thus it fulfilled
the pledge for Puran Swaraj that the people of India had taken on 26th of
January, 1950. The final session of the Constituent Assembly was held on 24th of
January, 1950. It unanimously elected Dr. Rajendra Prasad as the first president
of the republic of India, under the constitution of India which was inaugurated
two days after.
Conclusion:
This is in brief, an account of the making of Indian Constitution by the
Constituent Assembly. It took the Constituent Assembly 2 years, 11 months and
18 days to accomplish the task of making the constitution. In all, it held 11
plenary session and discussions were held for 114 days. Rs: - 63, 96, 2734 were
spend on this exercise. Constitution of India is indeed the highest and most
valuable contribution of the Constituent Assembly to the Indian political system.
Speaking immediately after the Adoption of constitution, Dr. Rajendra Prasad
observed, “I desire to congratulate the Assembly on accomplishing task of such
tremendous magnitude. It is not my purpose to appraise the value of the work
that the Assembly has done on the merits or demerits of the Constitution which it
has framed, I am content to leave that to others and to posterity”. The posterity
indeed owes a great debt of gratitude all the foundation fathers of the constitution
for making a constitution more suited to the needs of Independent India and
which fully reflects the aims and aspirations of the all peoples of India. Its
successful working since 1950 compels us to salute to the maturity, wisdom and
political sagacity of the founding fathers of the constitution.