Lecture 1 Notes: Historical background of the Making of the Indian Constitution

1858 GOI Act, 1861 Indian Councils Act, 1892 Indian Councils Act, Morley-
Minto Reforms and Indian Councils Act 1909, GOI Act 1915, Montagu-
Chelmsford REPORT and GOI Act 1919, Simon commission 1930 and dominion
status, communal award of Ramsay MacDonald in 1932 with separate
representatives for Muslims, Sikhs, Europeans, Indian Christians and Anglo-
Indians, GOI Act 1935.
Gandhi expressed the truth first—that Indians must shape their own destiny, that
only in the hands of Indians could India become herself— when in 1922 he said
that Swaraj would not be the gift of the British Parliament, but must spring from
‘the wishes of the people of India as expressed through their freely chosen
representatives’.
The Indian National Congress made the demand for a constituent assembly part
of its official policy in 1934. Thereafter, in many provincial legislative assemblies
and in the central legislative assembly in 1937, at the Congresses at Faizpur,
Haripura, and Tripuri, and at the Simla Conference in 1945, the Congress
reiterated that India could only accept a constitution drawn from the people and
framed ‘without any interference by a foreign authority.’
However, during the late 1920s and 1930s, disagreement had led to considerable
communal tension. Muslim dissatisfaction, hitherto unchannelled, found its
leader in Mohammed Ali Jinnah, who turned the infant Muslim League into his
vehicle for power by championing Muslim rights, both real and fictional, gave a
the theory that Muslims were culturally as well as religiously a group apart, that
they were neither Hindu nor Indian, and that they must seek their fulfilment in a
state of their own.
In the early thirties, few Muslims looked to the League as their means of political
expression. In the 1937 elections the League showed little strength, although 424
of 482 Muslim seats were won by non-Congress Muslims. By 1946, basing its
claim on the results of the 1945 elections, however, the League could justly say
that it spoke for Indian Muslims.
While the Congress called for a constituent assembly and Indian self-
determination, Jinnah’s League derided the idea, preferring British presence in
India as a deterrent to Congress power, which they said would be synonymous
with Hindu domination. Instead of supporting a constituent assembly, the League
in 1940 demanded that before independence Muslims must be assured the
sanctuary of autonomous areas. In 1945 Jinnah took this a step further: India must
have two constituent assemblies, he said, one for Hindustan and one for Pakistan.

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And the British must remain to see that justice (to the Muslims) was done;
independence should come when the constitutions had been completed, when the
two nations were established.
The Congress viewpoint was the reverse of the League’s. The people of India
were Indians; no matter what their religion, they were one nation. The British
must leave India—only then could independent Indians come together, settle their
differences, and begin to shape their future. India should be one nation under one
constitution, the Congress believed, and although the rights of all groups would
be protected by the constitution and as much autonomy as possible allowed,
government must be sufficiently strong to bring about the social revolution that
India must achieve if it was to survive.
These were the views that the three members of the Cabinet Mission hoped to
reconcile by a compromise plan, known as the Cabinet Mission Plan. According
to the Cabinet Mission plan, India was to remain one state, but the power of the
Central Government would be confined to only foreign affairs, communications,
and defence. The provinces would be grouped geographically into three regions,
one of which would be predominantly Muslim, one predominantly Hindu, and in
the third the population of the two communities would be nearly equal.
The provincial representatives to the All-India Constituent Assembly, after a
preliminary meeting of that body, would meet in three group assemblies to frame
constitutions for their component provinces and, if desired, for their group as
well. Among these constitutions, in a manner unspecified by the Cabinet Mission
Plan, would be distributed the functions of government other than the three
reserved for the centre. When all this was done, the representatives would return
from the group constituent assemblies to the All-India Assembly to draft the
national constitution.
Formally, the Constitution was made by the Constituent Assembly which had
been elected for undivided India. It held its first sitting on 9 December 1946 and
reassembled as Constituent Assembly for divided India on 14 August 1947. Its
members were chosen by indirect election by the members of the Provincial
Legislative Assemblies that had been established under the Government of India
Act, 1935.
The official demand for Constituent Assembly was raised and the Government of
India Act, 1935 was rejected as it imposed the Constitution which was against the
will of the Indians. C. Rajagopalachari voiced the demand for a Constituent
Assembly on 15 November 1939 based on adult franchise and was accepted by
the British in August 1940.

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The Constituent Assembly was composed roughly along the lines suggested by
the plan proposed by the committee of the British cabinet, known as the Cabinet
Mission Plan.
The Cabinet Mission plan was made public on 16 May 1946. By the end of June
1946, after infinitely detailed negotiations, both the League and the Congress had
accepted it, but both had publicly and privately recorded their reservations, Jinnah
accepted the Cabinet Mission Plan ‘because the foundation of Pakistan is inherent
in compulsory grouping and because it (the League) hopes it will ultimately result
in independent Pakistan.’ The Congress accepted the Plan subject to its own
interpretations of certain provisions being accepted by the British and the League.
This detente lasted through July, long enough to see the Constituent Assembly
elected in August 1946 under the terms of one portion of the Cabinet Mission
Plan. Rejecting adult suffrage as too cumbersome and slow, the Plan provided
that the provincial legislatures elect the Assembly—a decision with which the
Congress agreed, forsaking its long-held demand for a constituent assembly
created by adult suffrage.
According to this plan:
± Each Province and each Princely State or group of States were allotted seats
proportional to their respective population roughly in the ratio of 1:10,00,000 (10
Lakhs/1 million). As a result the Provinces (that were under direct British rule)
were to elect 292 members while the Princely States were allotted a minimum of
93 seats. With 4 members from the chief commissioner provinces, altogether, the
number was 389.
± The seats in each Province were distributed among the three main communities,
Muslims, Sikhs and general, in proportion to their respective populations.
± Members of each community in the Provincial Legislative Assembly elected
their own representatives by the method of proportional representation with
single transferable vote.
± The method of selection in the case of representatives of Princely States was to
be determined by consultation with the rulers of the princely states.
The Assembly, although elected, was far from being in session. The elections for
the 296 seats assigned to the British Indian provinces were completed by August
1946. Congress won 208 seats, and the Muslim League 73. After this election,
the Muslim League refused to cooperate with Congress and the political situation
deteriorated. Hindu-Muslim riots began, and the Muslim League demanded a
separate constituent assembly for Muslims in India. On 3 June 1947 Lord

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Mountbatten, the last British Governor-General of India, announced his intention
to scrap the Cabinet Mission Plan; this culminated in the Indian Independence
Act 1947 and the separate nations of India and Pakistan. The Indian Independence
Act was passed on 18 July 1947 and, although it was earlier declared that India
would become independent in June 1948, this event led to independence on 15
August 1947. The Constituent Assembly met for the first time on 9 December
1946, reassembling on 14 August 1947 as a sovereign body and successor to the
British parliament’s authority in India.
Jinnah liked the Mission Plan only a little and the Congress’s conditional
acceptance of it even less. Finding an excellent pretext in some unguarded and
tactless remarks Nehru made about ‘grouping’ and the Congress’s intentions in
the Assembly, he withdrew his acceptance and instructed League representatives
to boycott the Assembly. The League never lifted this boycott; the only League
representatives to enter the Assembly did so because they had remained in India
after Partition. The Cabinet Mission had failed. It failed because the Congress and
the League had almost certainly become too estranged for reconciliation, which
in any case was out of the question so long as the British were a third party to
whom each side could appeal against the other.
As a result of the partition, under the Mountbatten plan, a separate Constituent
Assembly of Pakistan was established on 3 June 1947. As a consequence of the
Partition under the plan, by 3rd June 1947, those members who were elected from
territories which fell under Pakistan ceased to be members of the Constituent
Assembly. The number of members in the Assembly was reduced to 299 (229
members from the provinces and 70 from princely states).
The Constitution was adopted on 26 November 1949. 284 members were actually
present on 24 January 1950 and appended their signature to the Constitution as
finally passed. The Constitution came into force on 26 January 1950.
9th December 1946: Formation of the Constituent Assembly (demanding a
separate state, the Muslim League boycotted the meeting.)
11th December 1946: President Appointed – Rajendra Prasad, vice-chairman
Harendra Coomar Mookerjee and constitutional legal adviser B. N. Rau (initially
389 members in total, which declined to 299 after partition. Out of 389, 292 were
from government provinces, 4 from chief commissioner provinces and 93 from
princely states)
13th December 1946: An 'Objective Resolution' was presented by Jawaharlal
Nehru, laying down the underlying principles of the constitution, which later
became the Preamble of the constitution.

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22nd January 1947: Objective resolution unanimously adopted.
22nd July 1947: National flag adopted.
15th August 1947: Achieved independence. India split into Dominion of India
and Dominion of Pakistan.
29th August 1947: Drafting Committee appointed, with Dr. B. R. Ambedkar as
the chairman. Other 6 members of the committee were: [Link],
Muhammed Saadulah, Alladi Krishnaswamy Iyer, Gopala Swami Ayyangar, N.
Madhava Rao (He replaced B.L. Mitter who resigned due to ill-health), T. T.
Krishnamachari (He replaced D.P. Khaitan who died in 1948).
16th July 1948: Along with Harendra Coomar Mookerjee, V. T. Krishnamachari
was also elected as the second vice-president of the Constituent Assembly.
26th November 1949: 'Constitution of India' passed and adopted by the
assembly.
24th January 1950: Last meeting of the Constituent Assembly. 'Constitution of
India' (with 395 articles, 8 schedules, 22 parts) was signed and accepted by all.
26th 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 to finish.
The Constitution was framed against the backdrop of the horrendous violence that
the Partition unleashed on the subcontinent. But it is a tribute to the fortitude of
the framers that they were not only able to draft a constitution under immense
pressure, but also learnt the right lessons from the unimaginable violence that
accompanied the Partition.
Dominance of the Congress Party in the Assembly
Although, the members of the Assembly were not elected by universal suffrage,
there was a serious attempt to make the Assembly a representative body.
Members of all religions were given representation under the scheme described
above; in addition, the Assembly had 28 from the Scheduled Castes. In terms of
political parties, the Congress dominated the Assembly occupying as many as
82% of the seats in the Assembly after the Partition. The Congress itself was such
a diverse party that it managed to accommodate almost all shades of opinion
within it.
The Congress’s overwhelming majority in the Constituent Assembly resulted
from the December 1945 provincial legislature elections and from Partition. The
election gave the League most of the Muslim seats in all the provinces. Of the

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total of 1,585 seats in the provincial assemblies, the Congress won 925 or 58%,
but it captured about 85%, of the non-Muslim seats.
Under the scheme of indirect election in the Cabinet Mission Plan, the Constituent
Assembly reflected the complexion of the provincial legislatures. Hence in the
July 1946 elections to the Assembly, League members won all but seven of the
seats from Muslim reserved constituencies. Congress candidates filled 203 of the
212 General places (representing every community except Sikhs and Muslims).
Additionally, the Congress parties in the provincial legislatures elected four
Muslims and one Sikh, giving the Congress 208 seats of the total of 296 allotted
to the provinces. The remaining sixteen places went to five small groups.
Thus the Congress had a built-in majority of 69%, in the Assembly, and, after
Partition, when the number of Muslim League representatives fell to 28, the
Congress majority jumped to 82%.
The assembly had several senior Congress members. In the Assembly were six
past or present Congress presidents, fourteen Provincial Congress Committee
presidents, and, in 1949, fourteen out of eighteen members of the Congress
Working Committee were also active in the Assembly. Among these and other
notables were the four chiefs of the Party: Jawaharlal Nehru, Vallabhbhai Patel,
Maulana Azad, and Rajendra Prasad.
Although the outcome of the Assembly elections in July 1946 had made the
Congress master of the Assembly, party policy ensured that Congress members
must represent the country. This was a result of the unwritten and unquestioned
belief that the Congress should be both socially and ideologically diverse and
deliberate policy that expresses the viewpoints of various minority communities
in the Assembly.
However, the electoral process itself could not have produced a representative
body because it was based on the restricted franchise established by the Sixth
Schedule of the 1935 Act, which excluded the mass of peasants, the majority of
small shopkeepers and traders, and countless others from the rolls through tax,
property, and educational qualifications.
Only 28.5% of the adult population of the provinces could vote in the provincial
assembly elections of early 1946. But because the Congress and its candidates
covered a broad ideological spectrum, those elected to the assemblies did
represent the diverse viewpoints of voters and non-voters alike.