Basic Structure: Episode 2 – Transfer of Power and the Birth of a Republic

Introduction
Objectives Resolution  
What happened between 15 Aug 1947 and 26 Jan 1950
Report Card
Conclusion

***

Introduction:

Hello! Welcome to Episode 2 of Basic Structure! I’m Sowmya Rao and this podcast is your friendly guide to the Indian Constitution.

In this episode we’ll finish our journey with the Constituent Assembly Debates, and then move on to reading the actual Constitution beginning with the ‘Preamble’

Let’s go!

Objectives Resolution

Last episode, I told you Nehru had submitted a resolution to the Constituent Assembly – and he wanted all the members to deeply engage with it – why? Because in that document he summarised the hopes and aspirations of an entire nation – and wrote out what he thought our country  would have wanted in a Constitution.

This is how it begins: “(1)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.”

Through these words Nehru was making his intentions pretty clear – the Assembly was here to draw up the roadmap of an independent nation,. sovereign in its own right, and a nation that was a republic – where power was concentrated in the people – not in monarchy. This was important to set out because these principles would determine what our rights and obligations would be.

To me these words weren’t the most striking part however – this was!

“WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action, subject to law and public morality;”

I’ve only read out a part of the Resolution, but I encourage you to read it in its entirety.  In fact, I would strongly recommend reading Nehru’s speech that day, not for any partisan reason, but because his speech is the stuff of dreams. It is the speech of a man, who has worked with his colleagues to achieve the fullest measure of freedom and is now able to shape that freedom towards an ideal society as he sees it.  The speech is poetic, for sure, and well drafted, as most of Nehrus’ speeches are – but it is also clear-eyed,  honest and fills one with humility.

Between this day, and the 22nd of January, 1947 – the Constituent Assembly discussed the resolution in great detail. They touched upon some trivial issues, and some not so trivial issues such as the absence of the Muslim League members, whether we should invoke the name of God in the resolution, and whether the Princely States would be ok with such as strong definition of sovereignty of the people, as opposed to a king’s sovereignty.

In responding to this Nehru said strongly: “the idea of the sovereignty of the people, which is enshrined in this Resolution, does not commend itself to certain rulers of Indian States…. It is a scandalous thing for any man to say, however highly placed he may be, that he is here by special divine dispensation to rule over human beings today. That is a thing which is an intolerable presumption on any man’s part, and it is a thing which this House will never allow and will repudiate if it is put before it. We have heard a lot about this Divine Right of Kings we had read a lot about of it in past histories and we had thought that we had heard the last of it and that it had been put an end to and buried deep down into the earth long ages ago. If any individual in India or elsewhere raises it today, he would be doing so without any relation to the present in India. So, I would suggest to such persons in all seriousness that, if they want to be respected or considered with any measure of friendliness, no such idea should be’ even ‘hinted at, much less said. On this there is going to be no compromise. (Hear, hear).

Gathering together all the objections and agreements in his speech, he also said and this is my favourite part: : t was a great responsibility to be trustees of the future, and is was some responsibility also- to be inheritors of the great past of ours. And between that great past and the great future which we envisage, we stood on the edge of the present and the weight of that occasion, I have no doubt, impressed itself upon this Hon’ble House.”

This Resolution was unanimously adopted by the Constituent Assembly on 22 January 1947, and became the seed that grew into the Constitution. With the adoption of the Resolution, called the Objectives Resolution, the Assembly went about its task of forming committees and figuring out the process of drafting a Constitution. Then, the painful discussion of partition came about and the march to independence came closer. Late in the evening of 14 August, 1947 the Assembly met in the Constitution Hall and at the stroke of midnight, took over as the Legislative Assembly of an Independent India.

On 29 August, 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India.

With that, the Constituent Assembly began its core work of writing the Constitution – these debates that they had are historic, and give you great insight into what our founding fathers and mothers wanted the country to be, and more importantly, how hopeful they were.  

While deliberating upon the draft Constitution, the Assembly moved and discussed as many as 2,473 amendments out of a total of 7,635 tabled. The Constitution of India was adopted on 26 November, 1949 and the members signed it on 24 January, 1950.

In all, 284 members actually signed the Constitution.The Constitution of India came into force on 26 January, 1950. On that day, the Assembly ceased to exist, transforming itself into the Provisional Parliament of India until a new Parliament was constituted in 1952.

With that, it’s time to jump into our next section – but before we do – it’s time for a fun fact! Why is Aug 15th our Independence Day? Here’s the story.

Fun Fact: Mountbatten and 15 Aug

Lord Mountbatten (the last Viceroy of India (1947) and the first Governor-General of Independent India was at the time managing the handover of sovereignty to the Indian peoples.  He decided to  advance the date of Indian and Pakistani independence to that particular date as he considered that date to be “very lucky”.. During World War II, it was on Aug 15, 1945 (Japan timezone) that the Japanese Army had surrendered (Lord Mountbatten was the Supreme Allied Commander in South-east Asia). Lord Mountbatten also mentions this in his congratulatory address to the Indian people on 15 Aug 1947 saying “In fact, it was, on this very day two years ago that I was with that great friend of India. Mr. Attlee in his Cabinet Room when the news came through that ‘Japan had surrendered.”

So there you go, that’s why Aug 15 is our independance day  – the vagaries of one individual.

stamp

Between Aug 15 1947 and Jan 26, 1950: The Birth of a Republic and the Transfer of Power

Thanks to Mountbatten – Aug 15 is known as our independence day – but what does this mean?  Who gave power to whom, and when?

To answer this: Let’s think of a cricket field in which there’s a fielder at the boundary and one in the midfield, and a wicketkeeper, a bowler as the key characters? Now  say the batsman hits the ball towards the boundary, the boundary fielder stops it  – throws it to the midfielder – who throws it to the wicket keeper – who throws it to the bowler.

Let’s think of the ball as sovereignty – what is  sovereignty – it’s a word that means the ability to rule over or govern with supreme power or authority.

When the boundary fielder picks up the ball, he or she is playing the role of something called ‘The Government of India Act’. Until 15 Aug 1947 – we were governed by the Government of India Act, 1935. This act was kind of like a Constitution for India – it was an act of British Parliament and every law passed in India pre-independence drew its power from the Government of India Act – so for example – say you murdered someone in 1948 – you could be punished under the Indian Penal Code, which was passed in 1860 and this law drew its legitimacy from the Government of India Act. You may ask – but the British have been in India a long time, this Act is from 1935 – what happened before. Good question. We have had many Government of India Acts and the British Parliament would keep repealing it and making a new one ever so often – and this was the most recent one.

On the stroke of mid-night, when it became 15 Aug – the boundary fielder passed the ball to the midfielder – the sovereignty also passed and India became a dominion. This was done in accordance with a British law called the Indian Independence Act, 1947, and by virtue of this law, the British Parliament created two dominions India and Pakistan, and empowered them to go about the business of becoming actual countries.  

What is a dominion? It is an independently governed state but one which owes allegiance to another authority, in this case, the King of England. Remember I told you previously that Mountbatten just picked 15 Aug out of the air, right? So the original date of our independence was supposed to be sometime in June 1948. So until 22 June 1948 – King George was still referred to as the Emperor of India – that’s right – it was only from 22 June 1948 onwards that the Proclamation Altering the Style and Titles Appertaining to the Crown omitted using Emperor of India! So there, that’s a bonus fun fact!

Ok so where are we now, midfielder throws the ball to the wicketkeeper – this is basically the drafting of the Constitution, and the adoption of the Constitution, and say as the wicketkeeper catches the ball, our Constitution is adopted, and and we the people now have sovereignty.

Most of us would have been happy with this chain of events, but not the drafters of the Constitution. A doubt arose in their minds, about whether the Indians could truly claim they were sovereign if the basis for the Constituent Assembly, and the independence and all of that came about through 2 British laws – the Government of India Act and the Indian Independence Act. Good question, right?

Therefore to ensure that there was no doubt whatsoever about the effect of these two British Laws, the Constitution through Article 395 repealed these 2 Acts, and said, they will no effect from now on.

Now, is anyone here thinking what the lawyer in the room is thinking? If these 2 Acts are British laws, passed by British Parliament, how can the Indian Constitution outlaw it? Or to think of it another way – if Donald Trump and the American Senate and Congress pass a law banning H1B visa holders from India – can our Constitution say, that law will no effect? No right? So how could the Indian Constitution overrule the Government of India Act and the Indian Independance Act?

Well, according to some legal scholars – this was done to ensure something called constitutional auto-ch-thony or in other words – :to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil.” In a wonderful  Shivprasad Swaminathan’s article on the subject,  the “Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution.

And that is how, we the people, attained the right to rule over selves and became masters of our own fate! Interestingly, the Government of India Act was repealed by the British Parliament in 1998,  and the Indian Independence Act continues to exist even today – weird!

With that piece of trivia, let me tell you a quick fun fact

Fun Fact: Good Omens and the Constitution

On that day when the Constitution was being signed, it was drizzling outside and it was interpreted as a good omen. When our Constitution was adopted, Dr. Ambedkar said: “The working of a Constitution does not depend wholly upon the nature of the Constitution …but on  people , and the political parties they will set up as their instruments to carry out their wishes and their politics.”

It’s been 68 + years now since the Constitution came into being – what does its report card look like? Should you and I still be hopeful? And have the politicians we’ve elected always promoted the values in our Constitution?  Let me know what you think!

Conclusion: 

That’s it for this episode – thanks for listening and I hope you enjoyed it! From the last episode, some of you had asked that I reduce the length of the podcast to around 20 mins, and that I try to use more sound effects to make it fun to listen to – I’m trying to figure this out – so give me a few more episodes before I start getting the hang of editing for brevity and interest!  

If you have any other feedback, please let me know – and thank you so much everybody for listening to the last episode, and for all of your comments! I look forward to more – especially if you have thoughts issues raised so far, or any questions about the Preamble which we’ll talk about in the next episode. Send me an email at basicstructurepodcast@gmail.com, or tweet to me @basic_structure. As always, the text of the podcast is up on my blog: www.sowmya.co and you can find me on twitter at @sowmyarao_

Enjoy the rest of your weekend, and see you next Sunday! Bye!

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