CONSTITUENT ASSEMBLY DEBATES FOR CONSTITUTIONAL INTERPRETATION

This article is written by Kalpana Kumari of 3^rd Semester of National University of Study And Research in Law, Ranchi

ABSTRACT

This paper aims to aware the people about the Constitution of India and how the framers framed it. This paper talks about the ideas, arguments, opposing view of the members of the Constituent Assembly who came together to frame the world’s largest constitution which took them about 3 years.

This article is divided into 3 parts: Introduction, Main Body and the Conclusion to provide a clear picture to the readers about the article and to understand it in a better way.

The Introduction is the first part of the article which talks about how Constituent Assembly was formed upon the demand of M. N. Roy and how INC agreed to the demand. It talks about the procedure of the formation of Constituent Assembly.

The main body is the second part of the article which talks about the debates and arguments of the members of the Constituent assembly. Though there are various topics on which the views were not same but this article covers only 6 topics: Untouchability (Art 17), Federalism, Uniform Civil Code (Art 44), Reservation (Art 330), Fundamental rights (Art 12 to 35), Preamble which are discussed in the detail.

The last part is the Conclusion where the article is summarized in a way so as to help the readers to understand it in a better way and they can understand it in an easy way.

Keywords – History of formation of Indian Constitution, Debates for constitution, constituent assembly.

INTRODUCTION

Constituent Assembly Debates were the talks and the arguments between the framers of the Constitution of India to make a constitution which is beneficial to every person residing in the territory of India.

The idea of Constitution was put forward by M.N. Roy and after Cabinet Mission Plan, they framed the outline of the Constitution. The first chairman of

Constituent Assembly Debates on Constitutional Interpretation

M. N. Roy put forward the idea of the constituent assembly in 1934. Indian National Congress (INC) accepted the demand of the constitution in 1935 for the 1^st time.

In 1938, Jawaharlal Nehru said that there will be no interference from Britishers in the formation of the constitution of India. The constituent assembly must be framed by an adult franchise.

In 1939, Gandhiji wrote an article in his book ‘Harijan’ called the only way in which he said that the “Constituent Assembly alone can produce a constitution indigenous to the country and truly and fully representing the will of the people.” one based on “Unadulterated adult franchise for both men and women”

In July 1946, the elections were held in August 1946. The INC Expert Committee moved a resolution in the Constituent Assembly.

This contained the declaration that India shall be a Republic where the declared social, economic and political justice will be guaranteed to all the people of India.

Issues debated from the right to employment, to social security, land reforms to property right, to organised panchayats.

CONSTITUENT ASSEMBLY DEBATES

The term “Constituent Assembly Debates” (CADs) describes the talks and arguments that the members of the Constituent Assembly held while creating the constitution of a free India.

Some facts related to CADs:

• The Constitution was drafted by the Constituent Assembly over the course of around 165 days.
• Over the course of around 101 days, lawmakers debated the Constitution’s wording clause by clause.
• Dr B. R. Ambedkar holds the distinction of having said the most words, with an estimated 36 lakh total.
• Part III’s fundamental rights were discussed for roughly 16 days, or 14% of the clause-by-clause discussion.
• Part IV’s Directive Principles of State Policy were addressed for around six days (or about 4% of the total time).
• About 2% of the notable Assembly members’ debate of each clause involved the idea of citizenship. It was a part of Part II.
• Since they regularly responded to what other members had to say on various topics, the members of the Drafting Committee participated more actively in the debates.
• About 2% of the talks were contributed by female participants overall.
• In the Assembly, there were only 15 women, and only 10 of them participated in the discussions.
• G Durgabai, a freedom warrior and member of Congress, spoke the most words among the female members.
• Members from the provinces participated more actively in the discussions than those nominated to the Assembly from the princely realms.
• About 85% of the debates were contributed to by members from provinces, whereas just 6% were contributed to by members from princely states.[1]

The assembly, which met for 114 days, deliberated and examined the contents of the constitution and the legislation that should be included. To assist in the constitution-making process, 22 committees were created. It worked for about three years in framing the largest constitution of the world.

The abolition of untouchability, the federal structure, the uniform civil code, the reservation for backward classes, fundamental rights and the preamble were some of the most important topics of discussion. Our founding fathers’ political savvy and grasp of the issues at hand throughout the debates led to the creation of a polished and progressive constitution.

INTERPRETATION OF SOME TOPICS:

1. UNTOUCHABILITY

Untouchability was a disease that plagued the nation and made inequality and injustice worse. The parliament had a vigorous discussion over establishing Article 11, which forbade untouchability. In his remarks, Mr Nasiruddin Ahmad emphasised that no one should be viewed or classed as “untouchable,” regardless of caste, race, or religion and that its observance may be rendered unlawful in any way. The phrase “untouchable” has no legal connotation, he continued and could confuse legal terminology.

According to Shri V. I. Muni swamy Pillai, the elimination of untouchability will go a long way towards helping unfortunate groups find solace from the injustice they have endured. A large percentage of the population will profit from and welcome the end of untouchability. The ratification of Article 11 will elevate the scheduled class men in society and provide them with the chance to carve out a space for themselves, he continued.

Dr Mono Mohan Das contends that untouchability must be eliminated as a fundamental right. He emphasised that while the lowest castes should not be granted any special rights or privileges, they should also be spared from their perpetual slavery, misery, and humiliation. He discussed how the practice of untouchability had damaged India’s vitality and plunged millions of Indians into a deep hole of sadness and despair. He said that untouchability should be outlawed and that November 29th will go down in history as a significant day for untouchables, a day of deliverance as they say, and a day of resurrection for many Indians who reside in this country.

According to Shri Santanu Kumar Das, social injustice, stigma, and disabilities ought to be eradicated from society. He continued by saying that discussing the matter was useless and that legislation end untouchability instead. Professor K.T. Shah offered an alternative perspective. He claimed that nowhere is the phrase “untouchability” defined. As a result, its significance and scope, as well as the outcome it will produce, are all ambiguous. He contends that the phrase “untouchable” is illegal since a sick or quarantined person can be thought of as untouchable. Since the term “untouchability” is employed differently depending on the context, he advised the group to use several expressions to illustrate its application in various settings.[2]

And hence, Article 17 of the Indian Constitution says that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with the law.

• FEDERALISM

One of the most notable aspects of the Indian Constitution is that it establishes a federation’s structure like that of several other Western states. For a very long time, there has been disagreement over the precise makeup of the federation of states that India has become. Intense discussion over federalism also took place in the Constituent Assembly. When describing the proposed Constitution, JB Kriplani, the President of the Indian National Congress during the momentous Meerut Session of 1946, stressed that it must have a federal character and grant the states the most authority possible.

Therefore, a federal form of government with significant regional and provincial autonomy was historically necessary, even if it was clear that the Union would be far more powerful than the Cabinet Mission had predicted.

Even though the phrase used in Article 1 was Union and the word “federal” was never included in the Preamble or any other provision, Dr Ambedkar described the Constitution proposed to be federal when he presented it to the Constituent Assembly.

There was a good deal of agreement in the Assembly that a unitary system was not only undesirable but also impractical in light of the external circumstances as well as the size of the country and its variety of parts.

India would have a federal constitution as a result. Despite additional centralised aspects being brought up during the proceedings, the members of the group stuck by their opinion to the very end. Going back to a unitary government system was not possible after the Partition since a strong central was required.

Federalism in India

One of the fundamental foundations of a federal constitution, according to Mr N. Gopalaswami Ayyangar, is that it must include a system of separating sovereign powers so that the governments at the centre and in the units are each within a certain field, coordinated, and independent.

Dr Ambedkar made it clear that the power granted by Articles 250, 352, and 353 of the Constitution can only be exercised by the President and that such an action needs to be approved by both Houses of the Indian Parliament.

He provided an explanation of this viewpoint when he wrote, “These provisions make the Indian Constitution both ‘Unitary as well as Federal’ according to the requirements of time and circumstances. It is designed to function as a federal system in most circumstances. However, it is built to function as though it were a unitary system during times of war.

He claimed that the traditional definition of federalism, which other constitutions had accepted, was not strictly adhered to since there was no distinct distinction between the functions of the centre and the states and that they had to be interdependent.

This term would not apply to the Indian setting because of issues that many of the constitutional designers who chose federalism had never previously encountered.

As stated in the Constitution’s Article 1, India is a Union of States. Dr Ambedkar, who served as the chairman of the drafting committee, was in charge of changing the word “federation” to “union.”

Even though India would be a federation, Dr Ambedkar made it clear that no State had the authority to secede from the federation because it was not the product of an agreement (or contract) by the States to join one. Because the Federation was irrevocable, it was a union.

• UNIFORM CIVIL CODE

On the Uniform Civil Code subject, the Constituent Assembly engaged in one of the contentious and famous discussions. Many members of the Constituent Assembly suggested the notion of having a unified code for controlling personal laws because India was to be transformed into a secular state. Draughts of articles on justified rights by K.M. Munshi and B.R. Ambedkar dated March 1947 had language that implied the existence of a uniform civil code. No civil or criminal court shall, in deciding any matter or carrying out any order, accept any custom or usage inflicting any civil impairment on any religion, race, or language, according to Munshi’s suggestion.

Ambedkar stated in a similar vein that “the subjects of the Indian state shall have the right to claim the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom based on religion and be subject to like punishment pains and penalties and to none other.”

The Parsi Minoo Masani, the Christian Rajkumari Amrit Kaur, and the Hindu Hansa Mehta all supported this plan for social change and women’s equality. They wanted UCC to be acknowledged as a basic right. They expressed their opinions in a vehement written letter, describing personal laws as one of the main factors dividing society and limiting the advancement of the country. [3]

The opposing viewpoint was held by Mohamed Ismail Saheb and other Muslim leaders, all of whom were male. They sought to incorporate the right to one’s laws as a basic religious freedom. They demanded that the UCC become a Directive Principle when this demand was not met. According to Mahboob Ali Baig Bahadur, common civil law is not necessary for a secular state, and everyone in a secular society must be free to practise their religion by their laws.

Finally, a middle ground was reached, mandating a slow and methodical building of the Uniform Civil Code. To include the uniform civil code as one of the Directive Principles of State Policy, the Subcommittee on Fundamental Rights included it in clause 39 of the draught DPSP.

• RESERVATION

Pandit Jawaharlal Nehru introduced the Objectives Resolution before the Constituent Assembly on December 13th, 1946.

According to such resolution’s paragraph 6,

“WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes;”[4]

One of the cornerstones of the Resolution is paragraph 6. It emphasises the Assembly’s goal of safeguarding the weak.

Sardar Vallabhbhai Patel delivered the interim report on fundamental rights prepared by the advisory committee to the Constituent Assembly on April 29, 1947.

The Framers’ major objective was to guarantee that everyone had equal access to opportunity. However, the Assembly was also conscious of the fact that not everyone is created equally. It is impossible to establish equality by treating everyone equally, regardless of their status. There will be Paper Equality as a result. The Assembly determined that to prevent this, plans should be made to assist the underprivileged to level the playing field between the disadvantaged and the privileged. Only when those who are unequal and those who are equal stand together will equality be improved.

No matter what social, political, or financial barriers existed, the founders aimed for a balanced representation of people from all backgrounds. They wanted the Joint Electorates to serve as the framework, with some seats reserved for underprivileged communities. The founders believed this because they knew that discrimination might engender enmity between groups. A proportional reservation system with adult suffrage was proposed by Shri Somnath Lahiri.

According to Shri. H. C. Mukherjee, reservations would not be in the national interest; as a result, he wants to avoid sacrificing the wider national interest for the sake of a certain minority. The reserve was strongly opposed by Rev. Jerome D’Souza, who argued that it is an illogical compromise. He asserted that reservations are anti-democratic.

The Assembly ultimately opted to establish reservations based on caste-based social disadvantage after months of deliberation.

When the Constitution was approved on January 26, 1950, reservations were granted to Scheduled Castes, Scheduled Tribes, and Socially Backward Classes in government positions, educational institutions, and the provincial and union legislatures. To ensure that all of the many communities in India were fairly represented, the reservation was sought. It wasn’t intended to last forever.

• FUNDAMENTAL RIGHTS

The Irish and American constitutions were brought up by the committee when it started its discussion. The Constituent Assembly eventually addressed the most pressing issue, which was how rights were divided into categories that could be litigated and others that couldn’t be. Justiciable rights are those that may be enforced in a court of law. These rights were believed to be relevant to both the actual situation and the ideal state that the nation as a whole strives towards. The first few national rights to property, migration, and profession were largely recognised by the Advisory Committee.

To underline the significance of every sentence in the constitution, the word “citizen” in the phrase “equality of law” was replaced with “person.” The reasoning was simple: a court of law cannot distinguish between individuals based on their nationality or citizenship.

The Advisory Committee sought to provide people as much freedom as was practical under the circumstances in the nation. They achieved this by somewhat limiting a few privileges. For instance, due to its expansive nature, the right to freedom of expression was one of the most contested rights. Dr Ambedkar explicitly highlighted that any publication or utterance of slanderous, seditious, obscene, or defamatory content should be against the law, with the Right issuing no defence, to ensure its effective enforcement.

In light of the British government’s callousness, the significance of the right to freedom was stressed. Diwan Bahadur responded by stating that even a concept as essential as freedom must be subject to some restrictions to safeguard society’s well-being. He said, “The independence of a nation entails the independence of society from nefarious actions.” To ensure that this provision does not affect a person’s right to employment, the concept of “illegal imprisonment” was developed.

Freedom of movement was another topic of debate. Even though this was stated as a fundamental right, a provision was added that allowed for reasonable mobility restrictions when they served the greater good. Numerous provincial delegates claimed that because each Indian province (state) is a miniature nation unto itself, each ruler should have the authority to put the needs of his or her people before those of others.

To guarantee that minorities are treated properly, the laws against discrimination were established. Among the unalienable rights given to minorities were those related to religion, education, and special prizes.

According to Dr Ambedkar, the legislature’s responsibility is to both guarantee and, probably more importantly, preserve fundamental rights.

Fundamental rights are unquestionably essential for the development of the individual and the country. The Constituent and Advisory Committees then went above and above by putting together a bundle of rights that complements every other right granted by the Constitution in some way. The protection of these rights has helped to uphold the rule of law, equality, and civil liberties. In a broader sense, fundamental rights serve as the cornerstone upon which civil society is constructed.

Article 12 to 35 contained in Part III of Constitution deals with fundamental rights. The rights are: right to equality, including equality before law, prohibition of discrimination, right to freedom, right to freedom of religion, right against exploitation etc.

• PREAMBLE

When reading any statute, the preamble is a statement made by the legislature to pass the act. It includes all facets of a person’s life necessary for them to carry themselves with honour and reputation in public. The several committees of the Constituent Assembly decided the guiding principles of the Indian Constitution. The preamble, one of the most crucial components of our constitution, was written by members of the constituent assembly after long discussions and debates during the previous session.

The words “Secular, Federal, and Socialist” should be included in the Preamble, according to Professor K.T. Shah’s argument. He claims that having these clauses in the preamble will make it easier to uphold the Constitution’s principles. A deal that is “federal” was reached on an equal footing by the states that make up the Federation. He claimed that the inclusion of the word “secular” will reassure the public on matters about the nation’s administration, particularly in situations of injustice or imbalance among citizens. He defines “socialist” as a system in which everyone has access to equal justice and opportunity by exerting their best effort, intellect, and labour. In return, people can anticipate a fair level of living.

Mr H.V. Kamath gave Professor Shah’s amendment a standing ovation. He believes they must clarify the status of the States given the House’s rejection of the qualifying adjective “federal” for the phrase “Union.” Mr Shah made the point that not all provinces, states, or chief commissioners’ provinces are created equally. As a result, we must define the States’ relationship to or place inside one another to be clear, true, and precise in constitutional terms. The line “In the name of God, We, the people of India…” should start the Preamble, he added.[5]

BR Ambedkar delivered the Preamble and encouraged the Constituent Assembly to consider the following three sets of words to be put in the Preamble before going over the Draught Constitution clause by clause. The sovereign democratic state, sovereign democratic republic, and sovereign democratic state. The name “Sovereign Democratic Republic” was finally decided upon after much consideration. The document said that “We, the People of India, have solemnly resolved to establish India as an independent, democratic republic.” B.R. Ambedkar has the final say in this argument. The terms secular and socialist were added to the Constitution by the Constituent Assembly on November 15, 1948. The proposition was met with a sneer and dismissal.

CONCLUSION:

Constitution was first demanded by M. N. Roy in 1934 and then INC also demanded for the same. Through Cabinet Mission Plan, an overview of the Constitution was provided where the total seats were 369.

Then the members of the Constituent Assembly agreed to frame the Constitution and the first meeting was held on 9^th December 1946 and they worked for 3 years to make the largest constitution of India. Though there were various topics upon which they had debates but this article has covered only 6 topics which are:

UNTOUCHABILITY– Untouchability was existing long before the Britishers came to India to rule. People who belonged to lower castes were considered as untouchables. Mr Nasiruddin Ahmad said that no one should be viewed or classed as “untouchable,” regardless of caste, race, or religion and when everyone agreed, Article 17 was established in the Indian Constitution.

FEDERALISM– members wanted India to be a federal state and B. R. Ambedkar made it clear that the power granted by Articles 250, 352, and 353 of the Constitution can only be exercised by the President and that such an action needs to be approved by both Houses of the Indian Parliament.

UNIFORM CIVIL CODE – one of the biggest arguments was the establishment of UCC in India. Some members said that it is a violation of personal laws and it should not be mandated. To include the uniform civil code as one of the Directive Principles of State Policy, the Subcommittee on Fundamental Rights included it in clause 39 of the draught DPSP.

RESERVATION – reservation was said to be provided to those who belonged to backward classes as a means to treat them equally and in a way to decrease the exploitation of them. When the Constitution was approved on January 26, 1950, reservations were granted to Scheduled Castes, Scheduled Tribes, and Socially Backward Classes in government positions, educational institutions, and the provincial and union legislatures

FUNDAMENTAL RIGHTS – the members of the assembly thought about the rights of the person which are the foremost rights and the rights cannot be taken away. These rights are right to equality, including equality before law, prohibition of discrimination, right to freedom, right to freedom of religion, right to life, right against exploitation etc. according to B. R. Ambedkar, Fundamental rights are unquestionably essential for the development of the individual and the country.

PREAMBLE – the preamble is a statement made by the legislature to pass the act. It includes all facets of a person’s life necessary for them to carry themselves with honour and reputation in public. The words “Secular, Federal, and Socialist” should be included in the Preamble. The document said that “We, the People of India, have solemnly resolved to establish India as an independent, democratic republic.” B.R. Ambedkar has the final say in this argument. The terms secular and socialist were added to the Constitution by the Constituent Assembly on November 15, 1948. The proposition was met with a sneer and dismissal.

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[1] Constituent Assembly Debates, available at https://byjus.com/free-ias-prep/constituent-assembly-debate-on-reservations/, last seen at 10/06/2023

[2] B. Shiva Rao, The Framing of India’s Constitution: Select Documents – Government of India Press, 1968, p. 79

[3] Subash C. Kashyap, Our Constitution, 5^th edition, 2018

[4] Constitution Assembly Debates, Constitution of India – The Largest digital Archive of India’s Constitutional History, available at https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.constitutionofindia.net/constitution-assembly-debates/&ved=2ahUKEwiFo63f9L3_AhUHSGwGHQyYBskQFnoECA8QAQ&usg=AOvVaw1bpWZW8GGThzN-PdDOR72W, last seen on 11/06/2023

[5] Constitution Assembly Debates – Members to Lok Sabha, available at Cohttps://www.google.com/url?sa=t&source=web&rct=j&url=https://loksabha.nic.in/cadebatefiles/cadebates.html&ved=2ahUKEwiFo63f9L3_AhUHSGwGHQyYBskQFnoECA0QAQ&usg=AOvVaw3GVV_01uOxXcoRjmFJrHHB, last seen at 11/06/2023