What happened between 15 Aug 1947 and 26 Jan 1950
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’
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.
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!
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 firstname.lastname@example.org, 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!
what’s a constitution
why should I care
how did it start
Running time: 29 mins (yikes?)
Hi! Welcome to Episode 1 of ‘Basic Structure’ – a friendly guide to the Indian Constitution.
Did you know the Indian Constitution is the longest written constitution in the world? Yep, as of today, it has 448 articles, 12 schedules, 5 appendices and its been amended 101 times!
Don’t you want to know why our Constitution is so long, what it contains? And why it matters to you? That’s the point of this podcast – we’ll read every line of the Constitution and talk about it! Are you ready?
In this episode, we’ll find out what a constitution is – how is it different from a law for example? Then I’ll move to to talk for a few minutes about why I think each of us should know the basics of the constitution. Lastly, we’ll discuss how the Constitution was written.
What is the Constitution?
The preface to the Constitution of India, which you can find on the Ministry of Law and Justice states: “Constitution is a living document, an instrument which makes the government system work.”
The Constitution is a rule-book for the country. It tells you what it means to be an Indian citizen, and what your rights and duties are, if you are a citizen here. It’s important to note here that the Constitution discusses how to deal with non-citizens, but we won’t discuss that point here.
Over and above this, the Constitution also is the rule book for how elections should be held, what the role of the Prime Minister, or the Cabinet is. What the President should do. What a court should do, etc.
Some of you may wonder, is the Constitution a law? What’s the difference between a law like say, the Income Tax Act, and the Constitution?
In a way, the Constitution is a law, but its a Supreme law, like the best of laws. All of the other laws have to follow the rules laid down in the COnstitution. To put it simply, say we are in a classroom setting, the Constitution is a teacher, the laws are class monitors, and the students are us – society.
So the teacher asks you to vote, and whoever wins the vote becomes the class monitor, the class monitors help enforce order in the class, but if the monitor bullies you, or you have a doubt about whether something can be done or not, you can check with the teacher.
So to give you an example: The Constitution will say you have a right to free speech – meaning you have the freedom to broadly say what you want, when you want, however you want. But, the Indian Penal Code, the IPC, will say, it’s an offence if you say something horrible. More specifically, Section 153(A) of the Indian penal code says if someone uses words to create any hatred between different communities, this person shall b punished and they may have to go to jail or pay a fine.
Now you could argue – hey wait a second, I have a right to free speech, but you’re saying if i cause hatred between communities you can jail me – how does that work?
It works in this fashion: The Constitution being the Supreme Law, sets out our rights, and the ways in which we can enjoy these rights. To ensure that our society functions properly, we need laws, and so our government which we elect, in elections every five years, passes certain laws. Now if a citizens feels that a particular law is restricting any right given under the Constitution, it can go to the court and say: Dear Judge, i think this law is restricting my right given to me by the Constitution – please check. Then, the judge will check and say: Oh yeah, this law is not a good law, and tell the Government, I’m disabling the law, you please pass a new one, or apply this law differently. And then its upto the Government to decide what to do.
This is one of the main functions of the Constitution – it sets down our rights, and checks against any abuse of our rights.
Another function of the Constitution is to put in place some rules for how our GOvernment functions – like for example, recently we had a Budget and the Finance Minister announced the Budget in Parliament right? Why did he do this? Why did he have to make a Budget? For that matter why do we have Parliament? All of these structures exist because our Constitution says you have to have them.
Makes sense? And through this podcast, I’ll read out all of these various parts of the Constitution, and hopefully we’ll be able to better understand the idea of India better.
Why does the Constitution matter?
I have this book in my library and it’s called ‘The Framing of India’s Constitution”, and in the preface the author talks about how there has been little concerted effort to disseminate constitutionalism and the nation’s values – and this to me, seems obvious in the events of the day.
Think of some of the questions that are discussed on television:
- Should we have a Uniform Civil Code?
- Can the Supreme Court ban Jallikattu?
- Should women be allowed to enter the Sabarimalai temple?
- Is reservation the best way to fix caste inequality in India? If yes, what about communities like the Patels and the Jats who are asking for reservation – how do we address these issues?
None of these have simple answers, yet in trying to resolve these questions, all of us will have to dig deep to figure out what kind of society we want to live in.
This is where the Constitution comes in.
The Constitution, or really any higher law, draws from philosophy to promotes ideals for how we should function, as a country, and as a society.
Not only is this seen in the way we are created, as a republic – but also in the words used to describe how the Indian people will be – words like justice, liberty, and equality don’t just mean that the State should treat us with fairness in all its actions, but that our conception of what justice is, is grounded in this framework that the Constitution provides. And without understanding what this type of justice looks like – why for example, does it place such emphasis on reservation or why it gave every single person the right to vote – without understanding what went into this indian conception of justice and liberty, it’s not productive to have debates on questions of public policy.
Just to be clear, I don’t think any of us comes to these questions from a position of complete ignorance, because I’m guessing most of you, like me, studied civics at some point and have a broad idea of … some constitutional rights, some governance.
But that’s not the point I’m making – I’m convinced that i) knowledge of the constitution helps non-experts articulate their demands better to politicians, and press for change meaningfully, and ii) knowledge of the constitution brings in nuance and sympathy to discussions facing our society today.
And this knowledge, it matters – it really matters actually – because the Constitution applies to every single act that you and I do as citizens. And we can change it. If we don’t like how a particular kind of justice is done, or how a particular group is treated, we can either say, look this law that hurts this group is against the Constitution, and we can change the effect of that law – or we can amend our Constitution to give this group the justice it deserves – its like magic! Really powerful magic.
In India, because our rights as individuals is codified, or written down in the Constitution – you and I can trace your ability to do, or not do something, to the Constitution first, and to society next. Can you think of a way in which we might want to give a certain group some justice? So think of something like homosexuality. Even if some parts of society disapprove of homosexuality – the most important thing is that the law and ultimately the Constitution gives individuals the right to love and be with anyone they choose, regardless of gender. If this legal protection is not there, then it doesn’t ultimately matter what your family thinks, or your friends think, you are never safe from the State. Scary right? We’ll discuss homosexuaity, and other issues in more detail when we discuss the Fundamental Rights in the upcoming episodes.
But you see the larger point I was trying to make? The wide-ranging effect that the State can have on you, makes it hard for you to ignore what the Constitution says and places your liberties at great peril if you do not constantly engage with questions that chip away at your rights in the interest of some hazy greater common good.
Voting is a great civic duty, but a knowledge of the Constitution keeps you safe in between elections – and we need more people than just a handful of lawyers and constitutional experts to weigh in on these matters – even these guys, maybe us guys, we come in with our own prejudices and biases on what justice should look like, and we speak for the vast majority of you, through our blogs and our tweets and our arguments in court. Are these the right arguments? I don’t know always, and I’m curious how the conversation would be different, if more people participated. Ultimately through the social contract, we are beholden to each other and our duty remains to be ever vigilant on behalf of each other – and for the good of each other.
And if you’ve ever felt like there is way too much confusion and fighting in society today, and you may not be able to pick the right side, or make the best argument, don’t worry. Doubts about how to move ahead as a society have always existed. In fact, the people who originally wrote, or as we drafted the Constitution – they too while writing it, were plagued by doubt and deep polarisation. Some issues that confused them included, the prohibition of alcohol, or reservation or whether we should give everyone the right to vote. They had some tough debates. These debates have actually been recorded, and they are called the Constituent Assembly Debates. I’ll keep referring to them as we move ahead, and you’ll start to understand why these Debates are so important in understanding the Constitution.
Now these members the people who drafted our constitution – didn’t just come together magically in one room to start. Elections were held in all of India, and elected representatives on the basis of a plan, had to come together to form an assembly, that could start discussing what a Constitution could look like. And this wasn’t without its unique challenges…
Lets talk about that in the next section!
This one’s a bit more technical? The various parts of the Constitution are called Articles, whereas the parts of a law, like the Indian Penal Code, are called Sections. Weird, right? If you’ve watched any movie with a police station scene or a courtroom scene, say in a murder or fraud case, you would have heard Section 300 of the IPC, or Section 420. In contrast, when you talk of the Right to Equality under the Constitution, you’ll hear it referred to as Article 14, not Section 14. So keep in mind as we discuss the Constitution, we will refer to its through Articles, and not Sections. There’s no legal rule or reason why this nomenclature is followed, it’s an example of a tradition that now enjoys universal use. Yeah weird.
How did it start
Today is the 4 of February, 2017, and a few days ago, India celebrated its 68th Republic Day! But turn the clock back, and imagine we are now in 1946.
For those of you not aware – the Constituent Assembly was a group of people elected from all across India, who came together to draft our Constitution.
Let’s spend some time talking about how the Constituent Assembly came into existence. In 1945, Lord Wavell, who was then the Viceroy (or Governor-General) of India, was tasked with presenting a structure for the independence and future government of India, in a manner which would be acceptable to both Congress and the Muslim League, which were the dominant political parties at this point. One key distinction was that instead of asking all the parties to nominate members to the Executive Council from all the communities, seats were reserved for members on the basis of religion and caste, and the plan apparently did not contain any guarantee of Indian independence or any mention of a future constituent assembly.
Now Lord Wavell invited the political leaders of the day to discuss the Plan at Simla on 25 June, 1945. Here, the Muslim League apparently insisted that only they had the right to appoint Muslims to the Executive Council, and the Congress could not nominate any Muslim member. I have not been as yet able to find multiple authoritative sources on this point, but whatever the reason, it is clear that the Congress and the Muslim League’s disagreements led to the Wavell Plan not being accepted.
Following the failure of the Simla Conference, the British government sent the Cabinet Mission to India in 1946 with the intention of formulating proposals for the formation of a government that would lead to an independent India.
During this time, elections were conducted in provincial legislative assemblies or what we would call State Legislatures today. It was these elected members who formed the Constituent Assembly, and from among these members were chosen the Interim Government of India – which was formally established on 2 September, 1946.
Or think of it this way: Say the Constituent Assembly is like a new startup. A bunch of people want to create something. They have to create it, but they have no details about what they actually want to create – just a broad idea. And they are not all necessarily friends or from the same college or whatever – they are a bunch of people who won some election, then they were all put in a room and told – ok now create this.
And not all of these startup founders shall we say, like each other. Some of them have legitimate grievances with each other. And they dont want to work together. And they want to walk out – but their VC funders are like – no way, you have to launch your product by this date, and it has to be a great and most important product and you can’t make a mistake because this could affect the lives and futures of millions of people.
So much pressure right? This was basically our Constituent Assembly. Now remember I told you the Assembly was made up of elected members from various parts of India right? Up until this point, there had been tremendous resistance from the Muslim League to accept some of these developments, to join the Assembly, and participate in the drafting. Some of you may also remember there was tension between the Muslim League, the Congress and the British Government on the Hindu-Muslim question, and on the issue of partition. At this time, there were also been riots and large scale violence, especially in Bengal, between Hindus and Muslims
After much discussion, the Viceroy convinced Mr. Mohammad Ali Jinnah to join Constituent Assembly. On October 26, 1946 , 5 Muslim League nominees took the oath to become a part of the Constituent Assembly.
The first step towards the drafting of the Constitution thus began in an atmosphere of communal clashes and uncertainty, and deep mistrust, and it was under these fraught circumstances that the Constituent Assembly met for the first time on the 9th of December, 1946.
Now on the 9th – 12th December, the Assembly discussed mundane matters of attendance, and rules for how the Committee would function, and a broad framework for how to move ahead with the drafting. Certain members of the Assembly, including the members of the Muslim League had not attended any of the sessions so far, and there was confusion about whether the House should move ahead with its work, and if so in what manner.
There was also some doubt about the ambit and depth of the Assembly – what could it actually do?
On Friday, the 13 of December 1946, Jawaharlal Nehru stood up to speak, and he said wanted to introduce a Resolution, and wanted all of the Constituent Assembly Members to vote on it: He said,
“Governments do not come into being by State Papers. Governments are, in fact the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole-shall wish us to go.”
“And I wish this House, if I may say so respectfully, should consider this Resolution not in a spirit of narrow legal wording, but rather to look at the spirit behind that Resolution. Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion.”
That’s a wondeful line no?
Words are magic things often enough? Its true right becuase we use words to write poeetry, create fuction, in a way create magic. And he says: ven the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. – wow. It must have been a very important Resolution for Nehru to have spoken in such a heartfelt manner about what he wanted everyone to consider. What was the resolution – what did it want to achieve? And why was it so important to Nehru that the Assembly adopt it? Tune in to the next episode, to find out!
Also in the next episode, we’ll talk briefly talk about the how Constituent Assembly went about drafting the Constitution – and then move on to examining something called the Preamble to the Constitution. The preamble is like a preface or an introduction to the Constitution, but it’s a very important part of the Constitution because the words in the Preamble – define how our country will be, somewhat like a list of ingredients in a recipe! I promise it’s going to be super interesting – so do join in!
Here’s our last Fun Fact for today – The room that the Constituent Assembly met in, was then called the the Constitution Hall and is now known as the Central Hall of Parliament. The Central Hall of Parliament is designed to be circular in shape. The dome is 98 ft. (29.87 metres) in diameter. At present, the Central Hall is used for holding Joint Sittings of the two Houses. The President of India addresses the Joint Sitting of both Houses, the Lok Sabha and the Rajya Sabha at the commencement of the first session of each year, including on this year in 20167. I’ve dug a photo of what the Hall looks like! Take a look!
You’ll find the text of the podcast, with all the references and links on my blog www.sowmya.co and general conversation on twitter at @basic_structure.
Let me know if you enjoyed this episode, and what else you’d have liked to hear. I’d also really appreciate your feedback on this podcast, as its my first time doing this – and I’m all ears for suggestions on how to make it better. You can also send me any questions you have – and I’ll try and answer them in the next episode.
Speaking of which: the next episode should be out next weekend – and I hope to have one podcast up a week – ambitious but that’s me!
P.s. I have to thank @nandu and @jimanish and @karthikb351 for listening to an early version of this podcast and giving me some great feedback (SPEAK SLOWLY). ❤ thanks!