the context
In school textbooks, the making of the constitution is usually presented as a very smooth process carried out by like minded and far sighted leaders. The reality though, was more complicated and turbulent. The Indian Constitution was drafted, debated, passed and adopted between 13 December 1946 and 26 January 1950. This was a period of considerable turmoil: a time when there was a lot of hope about a new beginning but also apprehension, distress and conflict.
The Constituent Assembly that was created to draft the constitution, functioned in a country that was torn apart by partition and racked by communal violence. The Parliament building, where the assembly met, was not far from the refugee camps that had come up in different parts of Delhi. At the same time, peasant uprisings and labour unrest was prevalent in many parts of the country (you can look up the Tebhaga and Telangana uprisings). In addition, there was the issue of the integration of the Native States into the Indian Union, a process fraught with many tensions. Do you know that several erstwhile Native States framed their own constitutions? You can read more about this here:
https://academic.oup.com/past/article/263/1/205/7147824?login=false
The Constituent Assembly was formed when the partition of India had not yet been decided - the Cabinet Mission (a high power delegation from Britain) had proposed a multi-layered federal structure as a possible solution to resolve the political tensions between various constituencies. The members to the assembly were elected through an indirect process by people who held voting rights at that time (about 28% of the adult population).Initially the Assembly had 389 members, including representatives from the Muslim League. After partition the number was reduced to 299, of whom 229 were elected through Provincial Assemblies and 70 were nominated by Princely states.
It was overwhelmingly male (with only 15 women) and the majority were Hindu and upper caste. However, it still proved to be a space where multiple voices and points of view could be articulated. B. R. Ambedkar, a staunch critic of the Congress, became the Chairman of the Drafting Committee and played a key role in steering the whole process.
The debates in the Constituent Assembly make for very interesting reading and highlight the range of views that existed on very fundamental issues such as citizenship, equality, secularism and so on. You can take a look at these debates here….https://www.constitutionofindia.net/constitution-assembly-debates/ The final adoption of the Constitution did not signal a closure of these debates. On the contrary, almost immediately, challenges were made to several of the constitutional provisions, leading to renewed debates and the passing of the first amendment - something you will discuss in class. Since then, the Constitution has been amended 106 times (more than any other constitution in the world). You can learn more about the procedures for constitutional amendments here.
In many ways the constitution continues to be at the centre of many debates around the idea of India even today. In this week you will focus on the First Amendment and its relationship to the spirit of the constitution and the idea of India.
preparing for the week
The key reading for this week is Ambedkar’s final speech to the Constituent Assembly as he tabled the final version of the Constitution. In this speech he underlines the work and the debates that went into its framing and then goes on to raise very important questions about its future. He asks whether India, as a society and polity, divided by deep hierarchies, is ready to live up to this Constitution, with its underlying principles of Equality, Liberty and Fraternity. Looking back at the decades since that speech, what do you think? How has the Indian constitution fared? Has Indian society and polity developed in ways to live up to the principles of the constitution?
Having reflected on Ambedkar’s questions and apprehensions, we will then look at the first amendment to the Constitution that was passed just 16 months later, even before the first general election was held. The first amendment made changes to several articles, qualifying the right to property, the right to equality and the right to personal liberty and the freedom of expression.
Soon after the constitution was adopted the government faced challenges to several of its laws and policies in the courts. Land reform legislations were struck down by several High courts as were provisions for affirmative action for oppressed castes. It was argued that the right to property being a fundamental right, the state could not acquire and distribute land. Similarly the right to equality was used by courts to stall reservations provided on the basis of caste. At the same time the courts also struck down government actions that restricted the freedom of expression, arguing that it was a fundamental right.
It was in this context that the First Amendment was passed after fierce debate in the Assembly, qualifying the rights to equality, free speech and property. Answering critics who questioned the hurry to amend the constitution, Nehru argued, “Far from changing this Constitution these amendments give full effect to the Constitution as we wanted it to be”. What do you think? Were these changes in the spirit of the Constitution?
More broadly, how do we reflect on the constitution being one of the manifestations of the idea of India and how do we recognise the tensions within it? How has the politics around constitutional amendments played out in the decades since independence and how does this reflect contesting ideas about the nation?
Watch a dramatization of a part of Ambedkar's final speech to the Constituent Assembly
key concept
#1:
CONSTITUTION
Sovereignty is the highest form of political authority. A sovereign--the figure or the institution or office in whom sovereignty is vested--can make laws, apply them, change them, even suspend them when it deems necessary. In other words, the sovereign has the autonomous right to rule. But for the sovereign to do all that, i.e., to exercise sovereignty, two essential ingredients are required--a people on whom the sovereign's authority applies and a territory within which it is applicable. Without these two elements, sovereignty remains purely theoretical and not effective.
The question that follows from this is: where the power of the sovereign derive from? Who grants this exceptional authority to the sovereign? In the epochs before the emergence of the nation-state in 17th century Europe, the source and the legitimacy of sovereign power, often vested in monarchs, was seen to be of divine origin. Thus you have the phrase: "god-given right (to rule)". But with the emergence of the nation-state as a new form of organizing people and territory into political units, it is 'the people' who now granted and legitimized sovereign power. Why did the people enter into this arrangement? Well, that came about with the realization that individually, human beings are selfish and vulnerable creatures, fighting with each other and exposed against somebody or force more powerful than them. However, individuals could together as a people and voluntarily entrust to some institution the power and authority to act on their behalf such that it ensured common good and offered protection against both internal and e external threats to the people's interests and well-being.
We have already encountered the constitution in Unit 1. The term Constitution is used to refer to the body of fundamental principles that govern the functioning of an organization. Etymologically it is derived from the Latin root Constitutionem, which meant regulation or anything that had been settled upon. In the seventeenth and eighteenth centuries it came to be used to refer to a set of fundamental principles and rules of government.
Historically, Constitutions as legal frameworks are intrinsically linked to modern nation-states. The first written constitution of a nation-state was the American Constitution. However, not all countries have written constitutions: Britain for example, has an unwritten constitution consisting of legal frameworks that have evolved through centuries of legislation and legal interpretation by courts.
Constitutions, at least theoretically speaking, help to hold the state accountable and ensure that power is not wielded arbitrarily. It constrains the power and actions of the government and creates a space for citizens to engage with the state. An important tool in this regard are constitutional remedies - what B.R.Ambedkar, a key architect of the constitution called its ‘heart and soul’. These are the mechanisms by which citizens can challenge the violation of constitutional principles by approaching the High courts or Supreme Court.
key concept
#2:
CONSTITUTIONAL AMENDMENT
An amendment is basically a change to a part of the constitution. Some constitutions can be more easily amended than others. The constitution of the USA for example has been amended a mere 27 times since it came into being in 1789. The Indian constitution, by contrast, has been amended 106 times in 76 years. These fairly frequent amendments have led some to call it a ‘living document’.
In the Indian case, different kinds of amendments require different procedures. Some articles can be amended by Parliament just passing a new law. For example, article 2 allows Parliament to create new states by just passing a law. Article 368 of the constitution lays out the procedure for other kinds of amendments. Some sections can be amended by ‘special majority’ of the two houses of the Parliament i.e. the support of two-thirds of those present and voting in the house as well as that of more than half the total members of the house. A third category of amendments require the consent of half of the state legislatures in addition to a special majority.
SOME TAKEAWAYS & QUESTIONS
The making of India’s Constitution, the document which consecrates India as a republic, was the monumental culmination of more than three years of debates and discussions.
The Constituent Assembly—the nodal body in which these debates and discussion of the founding framework of the new nation-state India were conducted—had members from different regions of India, from different political parties, representing different communities
and interests, including from the Princely States.
The Drafting Committee—the body within the Constituent Assembly that was responsible for the actual writing of the Constitution—was chaired by Dr. B.R. Ambedkar. The imprint of Dr. Ambedkar is writ large in the Constitution and its Preamble, especially in the enshrinement of universal adult franchise and its foundational social and economic
justice mandate, protected by an extensive set of fundamental rights.
The first challenges to this constitutional mandate were over affirmative action, property rights, and freedom of speech that were protected by the Constitution. This led to the First Amendment of the Constitution in 1951. Since then, the Constitution of India has remained a living and dynamic document, which has been amended 105 times, as of August 2024.
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Here is question for you to ponder upon: In his final speech before the Constituent Assembly, Dr. Ambedkar warned his audience of three dangers than an independent, republican India faced going forward. The first such danger, he identified as the adoption of extra-constitutional means, such as satyagraha and civil disobedience, for achieving "social and economic objectives." The second danger, he said, was the cult of personality--the mass glorification of a single 'great man.' The third danger facing India for him was forgetting the struggle for "social democracy," now that political independence had been achieved. Do you think we, the people of India, have heeded Dr. Ambedkar's warning in the nearly 80 years that India has been an independent country?