Constitution of India, Is it Legal for Independent India?

I wanted to check the discussions that took place in Indian Parliament while passing the resolution on the Constitution of India. All of us are aware of the skeletal facts, That a Constituent Assembly was formed consisting of eminent members and it was Ambedkar who with great effort and scholarship formed the Constitution and he is called the Father of Indian Constitution.But facts seem to be a little different.

This article is a bit long. Please bear with me and read it in full. This contains mostly quotes from Discussion in The Constituent Assembly sourced from Parliamentary Records.You would find many surprises.

A character in Frederick Forsyth’s book Dogs Of War days’ Stealing a Republic is the Greatest prize of all ‘ Now I understand the import fully.

Questions and Answers.

  • Q.Was the Constituent Formed before or After India became Independent?
  • A.Before Independence,in 1946; Independence for India , August 15,1947.
  • Q.The Members of the Constituent Assembly,were they elected directly by the people of India?
  • A.No.The members of the Constituent Assembly were elected by the provincial assemblies by a single, transferable-vote system of proportional representation.
  • Q Was the Constituent Assembly truly representative of the People of India?
  • A.The Assembly was not elected on the basis of universal adult suffrage, and Muslims and Sikhs received special representation as minorities. The Muslim League boycotted the Assembly after failing to prevent its creation. Although a large part of the Constituent Assembly was drawn from the Congress Party in a one-party environment, the Congress Party included a wide diversity of opinions—from conservative industrialists to radical Marxists, to Hindu revivalists..Congress party , condescendingly , arbitrarily nominated members..
  • Q.Did India become Independent or British Power was transferred to Congress Party?
  • A.It was Tranfer of Power from the British.

The Constitution of India was drafted by Members of a Committee called Constituent Assembly Committe.

Constitution of India.

Shri Damodar Swarup Seth (United Provinces: General):*[Mr. President, with your permission I want to place this amendment before the House:

     “Whereas the present Constituent Assembly was not elected on the basis of adult franchise and whereas the final constitution of free India should be based on the will of the entire people of India, this Constituent Assembly resolves that while it should continue to function as Parliament of the Indian Union, necessary arrangements should be made for convening a new Constituent Assembly to be elected on the basis of adult franchise and that the Draft Constitution prepared by the Drafting Committee be placed before it for its consideration and adoption with such amendments as it may deem necessary.”

     Sir, before speaking on this amendment I deem it necessary to point out that I had given notice of a separate resolution to the effect that the consideration of the Draft Constitution should for the time be postponed. But unfortunately for some reason that resolution of mine has not been admitted. Therefore I have no option but to move an amendment for the same purpose as the resolution.

     Sir, yesterday when Maulana Hasrat Mohani Sahib moved his amendment, it was with regret that I noted that some honourable members of this House were mocking at it and were in a way playing with it.].

Shri S. Nagappa (Madras: General): Mr. President, I would like to know from the honourable member who is moving this motion whether, when he was elected to this august body, he did not recognise this as a sovereign body competent to act as the Constituent Assembly? It not why did he agree to become a member? (Laughter.)

     Mr. President: That is not a point of order.

     Shri S. Nagappa: I would like to know whether he is in order in saying that this body is not a Constituent Assembly and that a new Assembly should be constituted on the basis of adult franchise.

     Mr. President: He is in order in moving his motion. (Renewed laughter)

     Shri Damodar Swarup Seth: *[Sir, I was saying that it is easy to ridicule a resolution or amendment or to ridicule the views of its supporters but it requires some courage to understand the reality and to appreciate it. I am afraid that this amendment of mine may displease some of my friends. But everyone has a duty to perform. It is the duty of every man unhesitatingly and fearlessly to give expression to the voice of his conscience and nature before his fellow beings regardless of the consequences that may follow or of the opinion people may form about him and this because I believe, Sir, that in the lives of nations as in the lives of individuals also there is sometimes a situation in which they have to swallow the bitterest pill. I think that the consideration of the Draft Constitution has brought such an occasion in our country and therefore we need not worry about our views being welcome or unwelcome to one person or the other. We have to perform out duty. I shall at first try to throw light on the representative character of this Constituent Assembly which is assembled here and which is going to consider the Draft Constitution and to pass it….Sir, the first characteristic which a constitution-making body of a free country should possess is that it should be able to claim that it represents the will of the entire people of that country. Sir, with your permission I would put it to the Honourable Members present in this House whether they can sincerely claim that they represent, in this House, the entire people of India. I can emphatically say that this House cannot claim to represent the whole country. At the most it can claim to represent that fifteen per cent of the population of India who had elected the members to the provincial legislatures. The election too, by virtue of which the members of this House are here, was not a direct one, they are here by virtue of an indirect election. In these circumstances, when eighty-five percent of the people of the country are not represented in this House and when they have no voice here, it will be in my opinion a very great mistake to say that this House is competent to frame a Constitution for the whole country. Besides the representative character of the Draft Constitution that is being placed before the house, we have also to consider its nature. We see that the Constitutions of United States of America and Britain have been copied in this Constitution. Some articles have been borrowed from the Constitutions of Ireland, Australia and Canada. A paper has rightly remarked that this is a slavish imitation of the Constitutions of these countries. Sir, the conditions that prevailed in America, Britain, Canada or Australia do not obtain in our country. The conditions prevalent in our country can be compared only with those of Russia – Russia of pre-Soviet Republic days. Besides, we have seven lakh villages in our country and the village is its smallest unit. Thanks to Mahatma Gandhi, our struggle of freedom reached the villages and it was because of the villages and because of their might that India became free…..Read more CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)-  VOLUME VII. Friday, the 5th November 1948

An idea for a Constituent Assembly was proposed in 1934 by M. N. Roy, a pioneer of the Communist movement in India and an advocate of radical democracy. It became an official demand of the Indian National Congress in 1935,The Indian National Congress held its session at Lucknow in April 1936 presided by Pt. Jawahar Lal Nehru. The official demand for Constituent Assembly was raised and 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.……

On 8 August 1940, a statement was made by Viceroy Lord Linlithgow about the expansion of the Governor-General’s Executive Council and the establishment of a War Advisory Council. This offer, known as the August Offer, included giving full weight to minority opinions and allowing Indians to draft their own constitution. Under the Cabinet Mission Plan of 1946, elections were held for the first time for the Constituent Assembly. The Constitution of India was drafted by the Constituent Assembly, and it was implemented under the Cabinet Mission Plan on 16 May 1946. The members of the Constituent Assembly were elected by the provincial assemblies by a single, transferable-vote system of proportional representation. The total membership of the Constituent Assembly was 389 of which 292 were representatives of the provinces, 93 represented the princely states and four were from the chief commissioner provinces of Delhi, Ajmer-Merwara, Coorg and British Baluchistan.

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 the 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 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…The Constituent Assembly of India, consisting of indirectly elected representatives, was established to draft a constitution for India (including the now-separate countries of Pakistan and Bangladesh). It existed for approx. three years, the first parliament of India after independence in 1947. The Assembly was not elected on the basis of universal adult suffrage, and Muslims and Sikhs received special representation as minorities. The Muslim League boycotted the Assembly after failing to prevent its creation. Although a large part of the Constituent Assembly was drawn from the Congress Party in a one-party environment, the Congress Party included a wide diversity of opinions—from conservative industrialists to radical Marxists, to Hindu revivalists. .At 11 am on 9 December 1946 the Assembly began its first session, with 211 members attending. By early 1947, representatives of the Muslim League and princely states joined, and the Assembly approved the draft constitution on 26 November 1949. On 26 January 1950 the constitution took effect (commemorated as Republic Day), and the Constituent Assembly became the Provisional Parliament of India (continuing until after the first elections under the new constitution in 1952)….

29 August 1947: Drafting Committee appointed with B. R. Ambedkar as its Chairman. The other six members of committee were Munshi, Muhammed Sadulla, Alladi Krishnaswamy Iyer, N. Gopalaswami Ayyangar, Khaitan and Mitter. 16 July 1948: Along with Harendra Coomar Mookerjee, V. T. Krishnamachari was also elected as second vice-president of Constituent Assembly. 26 November 1949: The Constitution of India was passed and adopted by the assembly. Source.

The constitution has been, in more recent times, critiqued on the basis of the fact that the members of the Constituent Assembly were chosen not by universal suffrage, but rather, they were predominantly members of the Congress party.[citation needed] It has been argued that the Congress party aimed not to overthrow British power, but rather transfer its power into Indian hands.[citation needed] In his book The Constitution of India: Miracle, Surrender, Hope,Rajeev Dhavan has argued that the Indian people did not have much say in the making of the Constitution which was they had no choice but to accept…


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