Editors Note: As India readies to celebrate its 69th Republic Day on 26 January, this five-part series will examine how India's Constitution came to be, how it has been contested over the years and what potential challenges lie ahead.
The Constitution of India is the longest written Constitution of any nation in the world and it is the document based on which the current Indian state is established, constituted and governed. But, what is the meaning of having a constitution and why was it the task of most urgent concern for India's leaders after its independence to draft and adopt one?
On 15 August 1947, India became free from over two centuries of British Rule. Lord Louis Mountbatten, the Earl of Burma ceased being Viceroy of India and took office as India's first Governor General. He was independent India's first head of state, a representative of Independent India's King, His Majesty George VI, the King of India.
(Note: After 15 August 1947, George VI was an Indian King, even though he was also the King of the United Kingdom, India was a separate entity and had her own King, just like Queen Elizabeth II is also the Queen of Australia, Canada and New Zealand today)
It was not as though India needed a constitutional document at that point of time, India did have a governing document, it was known as the Government of India Act, 1935. The Act had been suitably modified by Orders in Council passed by virtue of the Indian Independence Act, 1947 to work as a temporary constitution of India.
Absolute power though, was vested in her legislature, the Constituent Assembly of India. A national assembly, tasked with not just the task of drafting India's constitution but also acting as her first Parliament. It met at the Central Hall of Parliament and it was here that power was transferred from the British Crown to an independent India. One that was free to determine her down destiny, make her own laws and if she liked, over throw her own King. Something she would do three years later on 26 January 1950 when she became a Republic with the commencement of the Constitution of India.
The idea of a Constituent Assembly for India was first proposed by Indian philosopher MN Roy. He was a Communist at the time, though in later life he would call himself a Radical Humanist. Roy had his disagreements with Mohandas Karamchand Gandhi, but was someone who was amenable to Jawaharlal Nehru. Roy believed in human freedom. He, unlike the entire Congress leadership at the time and Subhash Chandra Bose, believed that India should capture power by the means of using a Constituent Assembly. For this to happen, she had to support the British in her war against the Axis powers of Germany and Japan — something that the Congress was unwilling to do and Bose was actively fighting against.
Accordingly, to Roy, the fascists posed a threat to democracy everywhere and only if their threat was sufficiently countered could there be a space for a free and democratic India. Towards the end of World War II, he even drafted a Constitution of Free India in 1944 and published it in his weekly Independent India.
The rationale for a Constituent Assembly was one that was unique among other stories of independence worldwide. In fact, many countries that would gain independence around the time and after, would avoid that route. Malaysia's independence constitution was drafted by a Commission as was the first constitution of Ceylon (now Sri Lanka). The modern constitutions of Australia and Canada, too, were drafted in a manner that did not involve an assembly. The logic for an assembly would seem quite odd at that time, given that independence could have come with a constitution. The British Parliament could have enacted a Constitution for India along with the Indian Independence Act and things could have functioned from day one. Should India have wished to declare a republic later one, it could have done so via an amendment. After all, this is exactly what Ireland and South Africa did.
But the curious case of India and her Constituent Assembly had a lot more to do with poorna swaraj (complete independence) than just swaraj (self-rule). While the solution described above may have been fine for the latter, the former though would require a more complex enacting formula. When the Cabinet Mission arrived in 1946, one of the things on its mind was how to go about creating this formula.
The unfortunate bickering between the All-India Muslim League and the Indian National Congress, led to neither side making enough concessions. This made Partition inevitable. But one of the outcomes of the Cabinet Mission Plan, was the formation of the Constituent Assembly of India, one that was to be formed at the earliest to take control of India's constitutional affairs.
It's members, like the delegates to the US Continental Congress, will go down in history as India's founding fathers. Not because they wrote our Constitution, but because they declared our Independence. On 13 December 1946, Nehru moved a resolution in the Assembly, he called this the "Objectives Resolution" and this resolution was adopted on 22 January 1947. Clause one of the resolution read:
"This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution"
This declared India and the Assembly a sovereign body, a body which was not an instrument of or under the control of the British Parliament, but a body that claimed sovereignty in its own right. On 15 August 1947, when the British relinquished power over India, the Assembly took over as being the only other sovereign body in India. In fact, the wording of the Indian Independence Act, 1947 does not create the assembly, but only recognises it as India's first Legislature.
So it happened, this Assembly that first met on 9 December 1946 at the Central Hall of Sansad Bhavan in Delhi, would be the body that would lead India on her road to Republic.
Published Date: Jan 22, 2018 16:09 PM | Updated Date: Jan 26, 2018 14:48 PM