The Road to Constituent Assembly

(The article was originally published by OPEN Magazine on November 26, 2022. Views expressed are personal.)

Daniel Patrick Moynihan, the US senator who served also as ambassador to India in the 1970s, once made a profound quip that “everyone is entitled to his own opinion, but not to his own facts”. Unfortunately, most of us do precisely that, especially when talking about history.

As we celebrate 75 years of our independence, or the “Amrit Varsh” as Prime Minister Narendra Modi calls it, we must guard against this expediency of vilifying leaders—from Savarkar to Sangh, Gandhi to Nehru and Bose to Ambedkar—based on a warped understanding of history. All those leaders fought the most difficult battles at the most daunting times and each made significant contributions in their own way. There could be disagreements over their ideological positions on different issues, whether it is Savarkar’s dogged Hindutva or Nehru’s dogmatic secularism. But that need not demean their other significant contributions.

India’s freedom movement had seen many challenges, the most important of them being the process of securing an independent Constitution for it. In the immediate aftermath of the War of Independence in 1857, the British realised that the way to perpetuate their rule in the colony was by creating a rift between Hindus and Muslims. “Divide et Impera”—or Divide and Rule—the old Roman motto “should be ours now”, proclaimed Lord Mountstuart Elphinstone, who served as the governor of Bombay.

The British had worked on Muslim leaders like Syed Ahmad Khan and Aga Khan initially and settled for Muhammad Ali Jinnah in the end. Theodore Beck, a staunch imperialist, became the first principal of Syed Ahmad’s Muhammadan Anglo-Oriental College (which became the Aligarh Muslim University later). He once resorted to threats to the Muslim community saying that “your ancestors were ruined because they opposed the government during the Mutiny… you are still suspects. Therefore, adopt loyalty… You are in a weak position, like a pumpkin. You should therefore be aware of the government’s knife. Your life depends on the special concessions granted by the authorities. Therefore, you should always request them to safeguard your rights.”

Aga Khan III was used by the British to establish the All-India Muslim League in 1906 as a counterweight to the fledgling nationalist movement led by the Indian National Congress. Lady Mary Minto, wife of Viceroy Lord Minto, recorded in her diary after the meeting between the members of the League and the viceroy in Shimla in 1906 that “a very big thing has happened today. A work of statesmanship that will affect India and Indian history for many a long year. It is nothing less than the pulling back of 62 million people from joining the ranks of the seditious opposition.”

Finally, they turned to Jinnah to continue this tirade against the nationalist forces, which ended in the tragic partition of the country and the creation of Pakistan.

However, the British were well aware that it was impossible for them to rule over 300 million natives with the help of an army of about a hundred thousand. They realised that some form of a representative government formed through a constitutional route was necessary even for their own continuance. They had the experience of other colonies like Australia and Canada, where they imposed a constitutional government whose reins remained in the hands of the rulers in London. It was this model—something like a dominion status—that the British had offered to the leaders of the nationalist movement.

The leadership of the Indian National Congress was sandwiched between the two evils—the Muslim League separatism on one hand, and the British insistence on a dominion status on the other. The Congress leaders dithered on the first, but on the second challenge, they showed a remarkable sense of firmness. In retrospect, while the strategic blunder of competing appeasement of the Muslim League indulged in by the Congress leadership had resulted in the partition of the country, their steadfast opposition to the machinations of the British had led to India getting its own constitutional republic.

Its significance could be better understood by looking at the plight of other colonies like Australia. The British were rattled by the War of Independence of 1857 and decided to impose their parliamentary control over the Indian people. The Government of India Act of 1858, promulgated by the government of Lord Palmerston, abolished East India Company rule in India and replaced it with Her Majesty’s rule led by a member of the British cabinet as secretary of state for India assisted by a number of officials. No Indians were involved in that process.

The Indian experience also prompted the British to establish similar controls over all its colonies. They passed the Commonwealth of Australia Constitution Act of 1900, which came into effect on January 1, 1901. Under this Act, all the powers of the Australian government were vested in the British parliament and the British monarch became the monarch of Australia. It took 30 years for the Australian leaders to force the British to allow Australia to be represented at the international forums by Australians, and another 50 years to curtail the powers of the British parliament to make laws for Australia. The Australia Act in 1986 finally ended the control of the British parliament over Australia.

However, the dominion status technically continues to this day with Australia, New Zealand, and Canada still having the British monarch as their monarch. The issue was raked up several times in those countries, most recently, after the demise of Queen Victoria. Three judges of the Australian high court had opined earlier that the change of monarch in the UK need not automatically apply to its Commonwealth constituents. However, that constitutional status continues.

India would have been in a similar situation today had the British had their way. Fortunately, the Indian nationalist leadership was aware of the colonial designs and steadfastly resisted each such attempt.

During World War I, when the British statesmen were haranguing about self-determination for all nations and people, some Indian leaders demanded that India be given the opportunity to draft a Constitution for itself through the popularly elected representatives. However, for all their big talk about the self-determination of the nations, the British simply ignored the demand and declared through the Government of India Act of 1919 that “each advance for the welfare and advancement of the Indian people” can be determined “only by the [British] parliament.”

Indian nationalists were unhappy. Gandhi wrote that whenever Swaraj comes, it shall be through the will of the Indian people and the British parliament shall merely have the duty of ratifying their wishes. The demand for allowing the Indian legislature to draft its own Constitution gathered momentum after the Swaraj Party, the parliamentary wing of the Indian National Congress raised the issue inside the Legislative Assembly in 1924.

Instead of giving a sympathetic ear to the Indian demand, Secretary of State for India, Lord Birkenhead, in a speech in the House of Lords on July 7, 1925, challenged Indian leaders to “produce a Constitution which carries behind it a fair measure of general agreement among the great people of India.” The British plan was simple. As long as the Muslim League and Jinnah were pitted against Congress, no Constitution could be possible. Hindu-Muslim tensions were at their peak during 1926-27. Taking advantage of this situation, Lord Birkenhead continued to taunt the Indian nationalist leadership until the appointment of the Simon Commission to look into the constitutional measures needed for India.

This time, the Congress leadership took up the gauntlet and appointed a committee led by Motilal Nehru in 1928. The committee produced its report. However, Birkenhead insisted that a general agreement of the political establishment was needed. The Congress leaders called an all-party conference to press for the Nehru Report to be ratified. As expected, the Muslim League and a few others opposed it and the initiative fell through.

But Congress persisted with its demand that any Constitution for India would be drafted only through the popular will, and not through the British parliament route.

Meanwhile, after the third Round Table Conference, the British had come out with a White Paper in March 1933, which provided a scheme for the making of the Indian Constitution almost on similar lines to Australia. It was proposed that the provincial and federal governments will be provided with limited powers, while the viceroy, as His Majesty’s representative, shall retain control over the army and foreign affairs, in addition to the power to reject any proposals that were found detrimental to any of the constitutional principles.

Congress was quick to reject it. At a conference held in May 1934, the Swaraj Party passed a resolution against the White Paper. “Proposals of His Majesty’s Government for the new Constitution of the Government of India contained in the White Paper are considered as a whole not only a negation of the National Demand made by Mr Gandhi on behalf of the Congress at the Second RTC and calculated to perpetuate the political subjection and economic exploitation of the Indian people,” it thundered. The conference reiterated that the only course should be to convene a Constituent Assembly representing all sections of the Indian people to frame an “acceptable Constitution”.

This was the first time that the Indian masses heard about the demand for a Constituent Assembly. Meanwhile, the British, ignoring Congress’ demand, went ahead and promulgated the Government of India Act of 1935. The Act provided for the formation of elected assemblies at the federal and provincial levels, leaving Congress in a dilemma. Finally, in December 1936, it declared through a resolution its “entire rejection” of the 1935 Act and the “Constitution that has been imposed on India.” However, boycotting the elections for provincial and national legislatures was not seen as a wise option. Hence, Congress declared that it “repeats its resolve not to submit to this Constitution or to cooperate with it, but to combat it, both inside and outside the legislatures, so as to end it.”

When the British government sought Indian support in World War II, Congress once again demanded a categorical commitment from them for the “recognition of India’s independence” and “the right of her people to frame their Constitution through a Constituent Assembly.” Congress’ demand was that the Constituent Assembly should be an elected body through the universal adult franchise, a principle that it had enunciated at the time of the Nehru Report in 1928.

Obviously, the British did not heed Congress’ demand and went ahead with involving India in the war, resulting in Congress quitting all provincial governments where it was in power since the 1937 elections. The next seven years saw Congress waging battles both on the streets as well as on the constitutional front. While the battles on the streets were waged by many others, Congress was alone in the constitutional battles. It also had to endure opposition from within the country.

Opposition to the popularly elected Constituent Assembly came from the Muslim League as expected. It argued that such an Assembly would be a Hindu-majority body. Jinnah demanded 50 per cent seats for Muslims in any such elected body. Ayesha Jalal’s “sole spokesman” also insisted that all Muslims would be nominated only by the League.

Besides the Muslim League, moderates in Congress, too, had apprehensions about the wisdom of involving ordinary “illiterate” people in the process of drafting the Constitution. They, instead, suggested the route of a round table conference of parties and eminences. More vehement opposition came from the princes and landlords, who owed their power and position to British paramountcy. Nehru’s insistence on a popularly elected Constituent Assembly, Gandhi’s suggestion that minorities would get proper representation, and Rajagopalachari’s statement that princes were not minorities, and hence their states will be treated on par with the British provinces caused consternation in the royal courts about their own future.

As the tussle continued, the Cabinet Mission, led by Sir Pethick-Lawrence, Sir Stafford Cripps, and AV Alexander, came to India in 1946. Clement Attlee, the then prime minister of Britain, mandated the mission to work out modalities for the transfer of power in India. Under the Cabinet Mission Plan, Viceroy Wavell appointed a government led by Jawaharlal Nehru in 1946.

A Constituent Assembly was elected in December 1946 with 389 members. Although leaders like Gandhi and Nehru always insisted that it would be a popularly elected body, given the turbulent times, it was formed through the indirect route by the election of members by provincial assemblies. More than a dozen big princely states, which were willing to join the Indian dominion, also nominated their members. Muslim League, however, boycotted it.

Finally, after the return of the Cabinet Mission, Prime Minister Attlee made the important announcement about the India Independence Act, 1947, in February of that year, which secured royal assent in July after it was accepted by both Congress and Muslim League on June 3. This Act had vindicated Congress’ stand by formally acceding that the British parliament would have no power whatsoever over law-making in India once the country was granted independence. That included the period of close to 30 months after Independence, during which time the country remained a dominion.

The Constitution-making process, led by BR Ambedkar, went on for two years, 11 months, and 18 days, and the final draft was presented to the nation on November 26, 1949. It was signed by all members on January 24, 1950, and became the Constitution of India two days later, on January 26, 1950.

It was a significant achievement in the sense that, unlike the other colonies, our Constitution did not allow any semblance of colonial control. But did it achieve all the hoary ideals that leaders like Gandhi and Nehru articulated?

“A Constituent Assembly… does not mean a body of people, or a gathering of able lawyers, who are intent on drawing up a Constitution. It means a nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment of its own making. It means the masses of a country in action through their elected representatives,” Nehru wrote.

The Constituent Assembly lived up to all those ideals, although a majority of its members were lawyers.