Two Dimensions in Evolution of Constitution

1. Evolution prior to the adoption of the Constitution (pre 1950 era), and

2. Evolution as an ongoing process (1950 onwards).

Evolution Prior to the Adoption of the Constitution 

The Constituent Assembly: The task of framing the Constitution of a sovereign democratic nation is performed by a representative body of its people. Such a body elected by the people for the purpose of considering and adopting a Constitution is called a Constituent Assembly.

Genesis of the idea:

• The idea of Constituent Assembly was implicit in the demand for Swaraj made by the Indian National Congress as early as 1906.
• In 1936, the Congress resolved, "The Congress stands for a genuine democratic State in India, where power has been transferred to the people as a whole and the government is under their effective control. Such a State can only come into existence through a Constituent Assembly having the power to finally determine the Constitution of the country.
• On March 15, 1946 Clement Atlee, the Labour Party’s Prime Minister categorically admitted the right of Indians to frame their own Constitution.
• The British Parliament passed the Indian Independence Act, 1947 in July of the same year. As per the Independence Act, the two independent dominions were created w.e.f. August 15, 1947.
• The Constituent Assembly, which had already been formed, went into action as per the Cabinet Mission plan. Its total membership for entire India was 389, out of which 93 members were from the princely states and 296 were elected from the British Indian provinces.
• The Constituent Assembly, when it met for the first time on December 9, 1946 was not a  sovereign body. It had to follow the prescribed procedure set up by the Cabinet Mission of the British Parliament.
• On December 11, 1946, the Indian National Congress elected Dr. Rajendra Prasad as the permanent Chairman of the Constituent Assembly.

1. Composition

• The Constituent Assembly was a partly elected and a partly nominated body. The members were elected indirectly by people in the provincial assemblies, who in turn had been elected on the basis of a limited franchise (on the basis of tax, property and education).
• Although, it was an indirectly elected body, yet it comprised of representatives of all sections of Indian society - Hindus, Muslims, Sikhs, Parsis and Anglo-Indians.
• Further, the Constituent Assembly included all leading personalities of India of the time, with the exception of Gandhi and Jinnah.

2. Committees

• The Constituent Assembly appointed numerous committees, which were divided as: major and minor committees
• The Constituent Assembly appointed a total of 22 committees to deal with different tasks of constitution-making. Out of these, Eight were major committees and the others were minor committees.

Major Committees of Constituent Assembly

1. Drafting Committee – Bhimrao Ambedkar

2. Union Power Committee – Jawaharlal Nehru

3. Union Constitution Committee – Jawaharlal Nehru

4. Provincial Constitution Committee – Vallabhbhai Patel

5. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas -Vallabhbhai Patel. This committee had the following 4 subcommittees:

• Fundamental Rights Sub-Committee – J. B. Kripalani
• Minorities Sub-Committee – Harendra Coomar Mookerjee,
• North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bordoloi
• Excluded and Partially Excluded Areas (Apart from those in Assam) Sub-Committee – A V Thakkar

6. Rules of Procedure Committee – Rajendra Prasad

7. States Committee (Committee for negotiating with states) – ⁣Jawaharlal Nehru

8. Steering Committee – Rajendra Prasad

Minor Committe of Constituent Assembly

1. Finance and Staff Committee - Dr. Rajendra Prasad

2. Credentials Committee - Alladi Krishnaswami Ayyar

3. House Committee - B. Pattabhi Sitaramayya

4. Order of Business Committee - Dr. K.M. Munshi

5. Ad-hoc Committee on the National Flag - Dr. Rajendra Prasad

6. Committee on the Functions of the Constituent Assembly - G.V. Mavalankar

7. Ad-hoc Committee on the Supreme Court - S. Varadachari (Not an Assembly Member)

8. Committee on Chief Commissioners’ Provinces - B. Pattabhi Sitaramayya

9. Expert Committee on the Financial Provisions of the Union Constitution -Nalini Ranjan Sarkar (Not an Assembly Member)

10. Linguistic Provinces Commission - S.K. Dar (Not an Assembly Member)

11. Special Committee to Examine the Draft Constitution - Jawaharlal Nehru

12. Press Gallery Committee - Usha Nath Sen

13. Ad-hoc Committee on Citizenship - S. Varadachari (Not an Assembly Member)

3. Working of the Constituent Assembly:

The Constituent Assembly held its first meeting on December 9, 1946 that was boycotted by the Muslim League, which insisted on a separate state of Pakistan.

Objective Resolutions

J L Nehru moved the historic ‘Objectives Resolutions’ within the Assembly. The basic idea of the ‘Objective Resolutions’ was to lay down the fundamentals and philosophy of the constitutional structure. Its prominent excerpts were:

• The Constituent Assembly declares its firm and solemn resolve to proclaim India being an independent sovereign republic.
• All the power and also the authority of independent sovereign India, its constituent parts and organs of presidency shall be derived from its people. (Advocating Democracy)
• People shall be guaranteed justice and secured social, economic and political equality of status of opportunity and before law, freedom of thought, expression, belief, faith, worship, vocation, association, action and public morality. (Fundamental Rights
• Adequate safeguards will be provided for minorities, backward and tribal areas and depressed classes, and other backward classes. (Part X, Part XVI)
• Government at the centre shall maintain the integrity of the territory of the republic of India and its sovereign rights on land, sea and air based on laws of civilized nations of the world
• India as an ancient land attains its rightful and honoured place in the world and shall make its full contribution to the promotion of world peace and the welfare of mankind.

The ‘Objectives Resolutions’ later became the basis of the Preamble of the Constitution

4. Enactment and Enforcement

• After two readings of the draft, during which various alterations were accommodated, Dr. B.R. Ambedkar proposed a motion on 26th November, 1949 which has been mentioned as the day ‘people of India in the Constituent Assembly adopted, enacted and gave to themselves the Constitution of India’. January 26, 1950 was chosen as the ‘date of commencement’ on which the Constitution came into force owing to its historic importance (although some provisions came into force on 26th November, 1949 only).
• Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949, itself.
• January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated, following the resolution of the Lahore Session (December 1929) of the INC. With the commencement of the Constitution, the Indian Independence Act of 1947 and the Government of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed. The Abolition of Privy Council Jurisdiction Act (1949) was however continued.

5. Criticism of the Constituent Assembly

• Not a Representative Body: Members of the Constituent Assembly weren’t directly elected by people according to universal adult franchise
• Not a Sovereign Body: It is said that the Constituent Assembly was formed, based on the proposals of the British Government. Further, it held its sessions with permission of British Government
• Domination of Congress members: Granville Austin, an English constitutional expert, remarked: “The Constituent Assembly was a one-party body in an essentially one-party country. The assembly was the Congress and also the Congress was India.
• Lawyer-Politician Domination: The fact that lawyers and politicians dominated the membership of the assembly is cited as the main reason behind the bulkiness and complicated nature of the Constitution.
•  
• Time Consuming: According to the critics, the Constituent Assembly took unduly long time to make the Constitution. They stated that the framers of the American Constitution took only four months to complete their worke. In this context, Naziruddin Ahmed, a member of the Constituent Assembly, coined a new name for the Drafting Committee to show his contempt for it. He called it a “Drifting Committee”.

Evolution as an Ongoing Process

Mr. Justice H. R. Khanna in his ‘Making of Constitution’ said: “The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation”.

A Constitution has to be a living thing, living not for one or two generations but for succeeding generations of men and women. It is for this reason that the provisions of the Constitution are couched in general terms, for the great generalities the Constitution have a content and significance that vary from age to age and have, at the same time transcendental continuity about them. A Constitution states, or ought to state, not the rules of the passing hour, but the principles for an expanding future.

A Constitution is lent the vitality of a living organism owing to two given innate features of a Constitution:

1. It is open to constant changes.

Whether by ratifying the Constitution by a new amendment, or by repealing an existent amendment.

We will take few examples to ascertain our point:

• The 42nd constitutional amendment mentioned explicitly the concepts of secularism and socialism as a part of the Constitution.
• Article 15(4) was added by the 1st constitutional amendment act and provides for affirmative action for socially and economically backward sections of society or for SC/STs.
• Similarly, Article 15(5) provides for affirmative action for socially and economically weaker sections of society in educational institutions, whether aided or unaided. Article 15(5) was added by the 93rd constitutional amendment act.

2. Additionally, the Constitution is open to constant interpretation by the Supreme Court. This feature allows the Supreme Court to accord such interpretations so as to make the Constitution:

• Increasingly relevant to the time and tenor of the contemporary reality
• Reflect to maximum extent possible, needs and aspirations of the people.

Again, the following examples illustrate how the Constitutional provisions have been added, modified and reinterpreted to fulfil the needs of the time and aspirations of the citizens:

a) Right to Education (Article 21A)

The Right to Education was incorporated through the 86th constitutional amendment enacted by the Parliament of India after landmark judgements by the Supreme Court in the Mohini Jain and Unni Krishnan case. This provides one of the many examples where both the above mentioned innate features have worked in tandem to reflect the aspirations of the people, making it ‘alive’ to the need of the hour

b) The Supreme Court has taken account of people’s aspirations and helped keep the Constitution alive by constantly broadening the span of Article 21 or the ‘Right to Protection of Life and Personal Liberty’. Starting with its judgment in the Maneka Gandhi vs. Union of India case, 1978, the SC has time and again brought about various judgments so as to tackle various issues crippling normal life of Indian citizens or some other need of the hour. The CNG ruling in Delhi, Ganga river protection, right to adequate shelter, right to privacy as a fundamental right, right to die with dignity as a fundamental right and thus allowing passive euthanasia et al are instances of such rulings.

Thus, in a way the Constitution constantly evolves, just as a living organism would do, learning from its experience and the surrounding environment.

Timeline of Formation of 'The Constitution of India'

9 December 1946: Formation of the Constituent Assembly (demanding a separate state, the Muslim League boycotted the meeting.)

11 December 1946: President Appointed – ⁣Rajendra Prasad, vice-chairman Harendra Coomar Mookerjee and constitutional legal adviser B. N. Rau (initially 389 members in total, which declined to 299 after partition. Out of 389, 292 were from government provinces, 4 from chief commissioner provinces and 93 from princely states)

13 December 1946: An 'Objective Resolution' was presented by Jawaharlal Nehru, laying down the underlying principles of the constitution, which later became the Preamble of the constitution.

22 January 1947: Objective resolution unanimously adopted.

22 July 1947: National flag adopted.

15 August 1947: Achieved independence. India split into Dominion of India and Dominion of Pakistan.

29 August 1947: Drafting Committee appointed, with Dr. B. R. Ambedkar as the chairman. Other 6 members of the committee were: K.M.Munshi, Muhammed Saadulah, Alladi Krishnaswamy Iyer, Gopala Swami Ayyangar, N. Madhava Rao (He replaced B.L. Mitter who resigned due to ill-health), T. T. Krishnamachari (He replaced D.P. Khaitan who died in 1948).

16 July 1948: Along with Harendra Coomar Mookerjee, V. T. Krishnamachari was also elected as the second vice-president of the Constituent Assembly.

26 November 1949: 'Constitution of India' passed and adopted by the assembly.

24 January 1950: Last meeting of the Constituent Assembly. 'Constitution of India' (with 395 articles, 8 schedules, 22 parts) was signed and accepted by all.

26 January 1950: The 'Constitution of India' came in to force after 2 years, 11 months and 18 Days, at a total expenditure of ₹6.4 million to finish.

Ganesh Vasudev Mavalankar was the first speaker when meeting the assembly of Lok Sabha, after turning republic.

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