THE FRAMING O F INDIA’S CONSTITUTION A STUDY AUSTRALIA The Law Book Company Ltd. Sydney: Melbourne: Brisbane CANADA AND U.S.A. Oceana Publications, Inc. Dobbs Ferry, N. Y. NEW ZEALAND Sweet & Maxwell (N. Z.) Ltd. Wellington U.K. Sweet & Maxwell Ltd. London THE FRAMING OF INDIA’S CONSTITUTION A STUDY THE PROJECT COMMITTEE Chairman B. SHIVA RAO Members V. K. N. MENON J. N. KHOSLA K. V. PADMANABHAN C. GANESAN P. N. KRISHNA MAN! Chief Research Officer SUBHASH C. KASHYAP Research Officer .„.N. K,„. N. IYENGAR THE INDIAN INSTITUTE OF PUBLIC ADMINISTRATION NEW DELHI ' Distributors N. M. TRIP.ATHI PRIVATE LTD, BOMBAY FIRST PUBLISHED 1968 Companion Volumes THE FRAMING OF INDIA’S CONSTITUTION SELECT DOCUMENTS In four volumes © THE INDIAN INSTITUTE OF PUBLIC ADMINISTRATION, 1968 PRINTED IN INDIA THE MANAGER, GOVERN®MENT OF INDIA PRESS, NASIK 19 6 8 m WT 1?0,1845-.PMI|/6S, MINISTER'S HOUSE NEW DELHI August 6, 1963, My dear Shiva Radj Your letter of the 6th^ I think the work you are doing in connection with the Constituent Assembly will be of enduring inportance, I wish you success in it. Yours sincerely, 3 Shri B, Shiva Rao, 85 Lodi Bstate, Hew Delhi 3. TTMH ^ PRIME MINISTERS HOUSE NEW DELHI Circuit House, Delira Dun, May 24, 1964, My dear SMva Rao, T o 1 letter of the 19th may. on™ Sudv "*? working I =«rs this Study will be very helpful, tn If T^? mj writing a foreword so definitely promise to do stage. But I shall try to send you a foreword later in this year. Yours sincerely. Shri B. Shiva Rao, 85* Lodi Estate, New Delhi 3. FOREWORD hI Rashtrapatj Bhavam, New I)ELiti-4. January 1, 1966. The worn of tlxe Constituent Assembly ana the drawing up of India’s Constitution, occupies a pre-eminent place in the recent history of India, For the first time, a comprehensive and an objective study has been made of this subject in all its facets. We are indebted to Sri B.Shiva Rao and his colleagues who have laboured to produce these five volumes, which forma rich store-house of source neterial for the study of Indian Constitution. , Our Constitution has adopted adult suffrage. It is the most powerful instrument devised by man for breaking down social and economic injustice and destroying the walls that imprison men’s mlxids. This can be achieved only if our peops are aware of their rights and responsibilities and this is the task of dedicated leaders to teach the people. I commend these volumes to students of politics and public affairs and to research scholars interested in our Constitution. { S .EadhaKrllBliten ) PREFACE A proposal for a comprehensive study of India’s Constitution based on much hitherto uncoordinated material in the form of notes, reports, memoranda and other relevant documents originated in 1961 with my predecessor (as Director of the Indian Institute of Public Administration), Professor V. K. N. Menon. His scheme implied the publication in intelligible sequence of all the available source material and of an interpretative account of important provisions of the Constitution. Such a study, it was felt, would be of general interest to students of India’s Constitution and furnish research workers in particular with adequate material on which further study could be undertaken on various aspects of the Constitution. Professor Menon pursued this proposal with his customary energy. Already in 1960, B. Shiva Rao, who was a member of the Constituent Assembly, had prepared the groundwork through a volume containing the papers and memoranda written by B. N. Rau, Constitutional Adviser to the Constituent Assembly. In a foreword to this volume. Dr. Rajendra Prasad, the President of the Assembly and later of the Indian Union, had observed that it “underlined the urgent need for further research to bring together the scattered mass of material and data which influenced and shaped thinking in the Constituent Assembly and (gave) to our Constitution its present form and content”. Such research, he had pointed out, was “necessary, not only for the study of contemporary politics, but for a full understanding by future generations of our Constitution and of the interplay of social forces and* attitudes behind the prosaic work of legal draftsmanship”. On Professor Menon’s'initiative, the Indian Institute of Public Administration decided to sponsor the project. A Committee was formed, with B. Shiva Rao as its Chairman, to undertake it. The other members of the Committee Were— VI apart from Professor Menon — K. V. Padmanabhan, P. N. Krishna Mani (both of whom were on the staff of the Constituent Assembly Secretariat from its inception), and C. Ganesan (who had been associated with constitutional reform in India since 1934). Later in 1964, when I became the Director of the Indian Institute of Public Administration, I associated myself with the Committee as a member. The project had from its start the warm support of President Dr. Rajendra Prasad who readily permitted full access to all the relevant documents in his possession. It received constant encouragement from Prime Minister Nehru, who was kept informed of the progress of the project at regular intervals. The publication comprises a set of five volumes — a volume of study and four volumes of select documents. The scope and contents of the document volumes are explained in the preface to each of them. The study volume seeks to present a lucid and straightforward account of the progress of the Assembly through the clash of divergent views and interests that influenced the Constitution-makers at various stages. It examines in sober perspective the genesis of important provisions and the alterations made in successive drafts of the Constitution. In addition, the editor’s historical introduction surveys in broad outline the background and briefly records the significant landmarks in the field of Constitution-making during the previous half-a-century of the national movement for freedom; and it concludes with a discussion of the British Government’s plan of May 16, 1946 which set up a Constituent Assembly for India, and the subsequent developments which resulted in a radical transformation of the character and task of the Assembly. No Constitution-making body in recorded history faced tasks so colossal in their nature or of such complexity, as were implicit in the establishment of a full-fledged democracy in India. The achievement of the Constituent Assembly in less than thirty months, despite major upheavals, including the assassination of the Father of the Nation almost half-way through its ‘labours, is a tribute to the courage, persistence and clear vision that inspired the Assembly. . No words can adequately egress the debt'of*deep gratitude vii that the Committee owes to India’s first, Prime Minister, Jawaharlal Nehru, for his keen and unfailing interest in the project from its commencement. His encouragement and assistance proved invaluable at every stage. There would have been a foreword from him, had he lived to see the completion of the study. His last brief letter, received a few hours before his tragic death, is published as an indication of his abiding interest. The Committee is deeply grateful to Dr. S. Radhakrishnan for writing a foreword to the series before laying down his office as the President of India. The burden of supervising and guiding the research project fell primarily on Shiva Rao, the Chairman of the Committee. He had exceptional opportunities of being closely associated with the leading personalities of the freedom movement and of interpreting developments in the political situation in India for the last half-a-century; he was thus able to utilize his ripe judgment, fortified by long experience, in guiding the work of the Project Committee. He was greatly assisted in this task by the other members, some of whom were intimately connected in one capacity or the other with the working of the Assembly. Mention must be made of the valuable contributions made by individual members of the Committee. Professor Menon continued his active association with the project even after his retirement. Padmanabhan secured for the Committee several original and unpublished papers of the Assembly, greatly enriching the collection of documents. Krishna Mani’s assistance proved to be of inestimable value. Besides placing at the disposal of the Committee a large number of valuable documents, he assisted the Committee with his intimate knowledge of the day-to-day work of the Assembly and of its different Committees. The Committee was fortunate in securing Ganesan’s services which facilitated a speedy completion of the project. It has been my good fortune to serve on the Committee for over four years. I know that, the strain on its members, busy with their normal activities, has been heavy in seeing, these volumes through all the stages of th6ir preparation. In the vlll discharge of they responsibilities they have been moved by a high sense of public service. It is ’necessary to make a reference to the useful service rendered by the staff of the Committee. Dr. S. C. Kashyap, as Chief Research Officer for part of the time, did commendably good work in assembhng the papers and drafting some important chapters and generally managing the project during the period of his association with the Committee. M. A. Amladi has supervised the work for the last two and a half years of the Committee’s labours and performed a difficult task with devotion and earnestness. N. K. N. Iyengar has been with the Committee from the beginning and made himself very useful in many ways. A number of others have been of positive help : in particular, must be mentioned the proof-readers and the typists; and M. R. Bhattacharyya and B. G. Gujar of the Rajya Sabha Secretariat who compiled the index. Our grateful acknowledgments are due to the Ministry of Finance, Government of India, for a grant of. Rs. two lakhs for meeting the expenses of the production and publication of the work; to the Asia Foundation whose initial grant of Rs. 62,000, supplemented later by a further grant of Rs. 32,000, enabled the Committee to make a start; and to the Government of Australia for the gift of good quality printing paper. The Committee is grateful to the Rajya Sabha and the Lok Sabha Secretariats for permission to make use of their libraries; to the Chief Controller of Printing and Stationery, Government of India, for his willing and helpful cooperation at all stages of printing; and also to the Manager and the staff of the Government of India Press, Nasik, for their quality printing. Appreciative mention must also be made of Messrs N. M. Tripathi Pvt. Ltd., Publishers and Booksellers, Bombay, for their Valuable assistance in ccfordinating the various processes involved in the preparation of the volumes. The project has kept both the •Committee and the members of the staff busy for more than six years. It will be a source of satisfaction, to all of them and tp myself if these five volumes succeed to some extent, at least, in achieving Dr. Rajendra Prasad’s conception of ^n objective study of In(Ma’'s Constitution. • • ' # IX In the execution of the project, the Committee’s constant aim has been to produce, in Jawaharlal Nehru’s words, “a study of enduring importance” for students of India’s Constitution all over the world interested in the functioning of the world’s largest democracy. It is the Committee’s earnest hope that the publication of these volumes would serve as an incentive for further research in the actual working of India’s Constitution, since it came into force in 1950, and for a more intensive study of the various forces now at work in our federal polity. New Delhi: J. N. KHOSLA September 26, 1968. CONTENTS Page Hbhru's Letters « . . , I, ii Foreword by S. Radhakrishnan iii Preface . • • • . . ^ . v 1. Historical Background . . I 2. Membership of the Constituent Assembly . . » . . . ^ 93 3. Progress of tli3 Constitution through the Assembly ... * 107 4. Preamble . . ^ . . . . . . ■ . . . 119 5. ' The Union and its Territory 133 6. Citizenship . . ... . . ■ . > 149 7. Fundamental Rights— 170 .Introductory . . . . . . 170 Right to Equality (articles 14-18) 179 ... .Right to Freedom (articles 19-2.2) . . ' . . « » 211 Right against Exploitation (articles 23-24) - . . . « 249 Right to Freedom of Religion (articles 25-28) . . . . ■ « 257 ■ - Cultural and Educational Rights (articles 29-30) . . , „ , 272. ' Right to Property (article 31) ....... 281 Right to Constitutional Remedies (articles 32-35) .... 301 8. Directive Principles of State Policy . ' . . . . . 319 9. The President and the Union Executive ...... 334 10. The Governor and the State Executive ...... . 3S2 ! I. . The Attorney-General and the Advocate-General • . « , 408 12. The Conipl roller and Auditor-General . . . . , . 412 13. The Union Parliament . . . , . , . . . 418 14. The State Legislatures . . . . . , . . 445 1 5. Franchise and Elections . « « 459 16. Legislative Powers of the President and the Governors . • , 473 17. The Judiciary — 480 The Supreme Court . . . • * « • . . .480 The High Courts . ... . , . , , , . 49 g „ The Subordinate Courts , ' . . . . 506 18. The, .Indian Stales . . . . » . . . . , , f 511 ! 9. The 'Union Territories ' . . . ■ . ... • . ' . . ".'**'558 20. The. 'Scheduled and Tri.bal Areas . .■ . $ 69 * XIX Page 21. Relations between the Union and the States — 592 Introductory . • . ® • 592 'Legislative Relations 595 Administrative Relations 641 Financial Relations ......... 649 22. Trade, Commerce and Intercourse within the Territory of India . . 699 23. The Services 708 24 . Public Service Commissions 724 25. Minorities • . 741 26. The Official Language « 78 1 27 . Emergency Provisions ......... 802 28 . Amendment of the Constitution ....... 824 29 . Summing up . . . . . . r . . . . 835 Appendices — I. Biographical Sketches of the members of the Drafting Committee and the Chairmen of other Committees 842 II . List of persons who served as members of the Committees of the Constituent Assembly 846 Bibliography 850 Index . . 853 1 HISTORICAL BACKGROUND I The first meeting of India’s Constituent Assembly in New Delhi, on December 9, 1946, was for many of its 296 members the fulfilment of a long-cherishcd hope. The business before the meeting was purely formal ; the swearing-in of members and the election of a temporary President to conduct business until the installation of the permanent head. But the meeting symbolized an event of unique significance, namely the commence- ment of the great task of framing free India’s Constitution without outside interference or pressure. Ahead lay a number of formidable problems for the Constituent Assembly. The absence of the members of the Muslim League from the session was a sharp reminder of the uncertainty of the outcome, even after seven months of discussion of disputed passages in the British Cabinet Mission’s plan of May 16, 1946, on the issue of the partition of the country into India and Pakistan. The future relations with the Princely States, after the withdrawal of British authority over India, were to be the subject of negotiations. Free India’s membership of the Commonwealth on the terms of the British offer was a matter which bristled with complications. These and other problems placed a heavy responsibility on the members summoned for their first gathering; nevertheless, in its atmosphere was a sense of achievement after decades of bitter struggle. The oldest among the members could recall memories going back by half a century and more of the earliest efforts at constitution-making. The Sw'araj Bill of 1895' (attributed by some to Bal Gangadhar Tilak’s direction and guidance) was notable as a first effort, though it was the handiwork of a single individual, reflecting the aspirations of that generation. For two decades thereafter, until the first world war roused to a new tempo the political aspirations of the people, there was in the Indian National Congress a growdng de.sire for e.xpression in concrete terms of the country’s political needs. The emergence during this period of two new Dominions in the British Empire did not pass without notice. Australia had achieved Dominion Status in 1900 through negotiations based on a scheme prepared by a representative constituent Convention and later ratified without change by the British Parliament. Joseph Chamberlain had observed in introducing ‘Select Documents I, 2, pp. 5-14. 2 ' 2 FRAMING OF INDIANS CONSTITUTION the measure (the Coixunaiiwealth of Australia Bill) in the House of Commons on May 14, 1900 f On the one hand, we have accepted without demur, and we shall ask the House® of Commons to accept, every point in this Bill, every word, every line, every clause, which deals exclusively with the interests of Australia. . . Wherever the Bill touches the interests of the Empire as a whole, or the interests of Her Majesty’s subjects, or of Her Majesty’s possessions outside Australia, the Imperial Parliament occupies a position of trust which it is not the desire of the Empire, and which I do not believe for a moment it is the desire of Australia, that we should fulfil in any perfunctory or formal mannerh Less than a decade later her example was followed by South Africa after an unsucosssful war with, Britain. Indian thinking was influenced by these developments into the same constructive mould. Britain’s initial response to the demand for constitutional progress, defined by Dadabhai Naoroji, the President of the Congress in 1906, as /‘self- government or Swaraj like that of the United Kingdom or the Colonies”" was disappointing. The scheme of reforms (introduced in 1909) associated with Morley (at that time Secretary of State for India) and Minto, the Viceroy, provided for little more than the association of an Indian with the administration at the Centre and some limited powers for the Legislatures. Even Morley, despite his reputation as a Liberal statesman, was an imcompromising opponent of responsible government as being impracticable under the conditions prevalent in India. Speaking in the House of Commons on December 17, 1908, he said : If I were attempting to set up a parliamentary system in India, or if it could be said that this chapter of reforms led directly or necessarily up to the establishment of a parliamentary system in India, I for one would have nothing at all to do with it. . . If my existence, either officially or corporeally, were prolonged twenty times longer than either of them is likely to be, a parliamentary system in India is not at all the goal to which 1 wouki for one moment aspi^e^ ^ The Congress response to the British offer was modest in its immediate objective, limited to a demand for an adequate representation of Indians in the ; Governor-Generars Executive Gouncil and in, the Executive Councils of the two Provinces of Madras and Bombay, and the expansion of the Central and Provincial Legislative Councils so as to secure larger and more effective popular representation than was conceded under the Morely-Minto scheme. But even at that stage the Congress, split into moderates and extremists at Surat in 1907, and contr(^Ied for some years by the former, a Deb., Vol $3, col 56. ^Natesan, f/ie Indian National Congress 2nd edn., (I917), p. S34. Deb., Yol, m, HISTORICAL' BACKGROUND 3 kept clear the vision of the ultimate goal. Led by men like Gopal Krishna ■ Gokhale, the moderates adopted a new constitution for the Congress in, which the. objects of that organization were defined as ^ the attainment by the people of India of a system of government similar to that enjoyed by the self-governing members of the British Empire and ■ a participation by them in the rights and responsibilities of the Empire on equal terms with those membersh Further progress might have been gradual but for the forces released by the first world, war , (1914- 191 8) which infused a new vitality into India’s freedom movement. The sustained, nation-wide campaign for home rule, sponsored by Annie Besant and Tilak, represented a technique until then unknown in India. In 1914 the Madras session of the Congress adopted a resolution asserting India’s claim to equality of status with the self-governing Dominions in the reconstitution of the British Empire after the war, with a substantial concession of reform as an immediate step, so as to ensure' ‘hhe recognition of India as a component part of a federated Empire, in the full and the free enjoyment of the rights belonging to that status”\ Less than a decade earlier, in 1906, the Aga Khan had led a delegation of Muslims which sought and obtained the creation of separate electorates for the Muslims based on religious distinctions. But the Muslim League now associated itself with the Congress in the demand for self-government for India within the British Empire. It seems paradoxical in the light of subsequent events that Mohammad Ali Jinnah (later the founder of Pakistan) should have moved the resolution in the Congress at its session in 1916 inviting the co-operation of the Muslim League for joint action on all questions of national interest. These two organizations, representing the great bulk of educated Indian opinion, decided to evolve a scheme for India’s self-governraent during the world war acceptable to both parties. This was the first faint beginning- of the process of formulating a national demand. The essentials of this scheme were Legislative Councils, to consist of four-fifths elected and one-fifth nominated members; the me,mbers to be elected directly by the people on as broad a franchise as possible; and resolutions adopted ' by the Councils normally to be binding on the executive. The scheme had the backing of nineteen members of the Imperial Legislative Council (as the Central Legislature w^as then called)— not all of them members of the Congress party — who submitted a .memorandum, in 1916 on similar li,nes to the Viceroy for post-v/ar reforms in India''. II '^.',..The ..im.pact". of -the ■■ first world war -on. India’s . political \asplrat.ionsv. and,''' Annie Besa,ii,t, E.ow India Wrought for Freedom, p. 470, ^ ,5S7., ■ • _ .'^Select ^ 3ocumen^\' 4, pf. 19 - 24 , , 4 FRAMING OF INDIANS CONSTITUTION indeed, on the concept of the status of a Dominion, in the British ’.Commonwealth, was far-reaching. In April 1917 an Imperial War Conference had . expressed the opinion that the readjustment of the constitutional relations of the component parts of the British Empire was too important and intricate a subject to be dealt with during the war; but that it should form the subject of a special Imperial Conference, to be summoned as soon as possible after the cessation of hostilities. The resolution passed by the Imperial War Conference placed on record their view that any such readjustment while thoroughly preserving all existing powers of self-government and complete control of domestic affairs, should be based upon a full recognition of the Dominions as autonomous nations of an Imperial Commonwealth, and of India as an important portion of the same, should recognize the right of the Dominions and India to an adequate voice in foreign policy and in foreign relations, and should provide effective arrangements for continuous consultation in all important matters of common imperial concern, and for such necessary concerted action, founded on consultation, as the several Governments may delermineh The effect of these sentiments on India was far-reaching. An announcement of British policy was made by Montagu, the new Secretary of State, on August 20, 1917, in the following terms: The policy of His Majesty’s Government, with which the Government of India are in complete accord, is that of the increasing association of Indians in every branch of the administration and the gradual development of self-governing institutions with a view to the progressive realization of responsible government in India as an integral part of the British Empires Neither the British Government nor Montagu meant this statement to imply self-government for India even at a distant date. Only a month earlier, Montagu had, in a letter written to the Prime Minister, Lloyd George, outlined his own views on the issue of Indian self-government : I definitely expressed my belief that home rule for India is not possible. I asked that the goal for which we were aiming should be stated to be a federation of great self-governing provinces and principalities in order that both the people of India and those who control its destinies might have the trend of policy explained to them. The policy should be safeguarded as to time. Before that goal is achieved, many years, and indeed many generations, will have been spent and different parts of India can be treated at different speed. I asked for a statement of the goal and some instalment as an earnest of it. I have not the slightest intention of urging my colleagues if I become a member of your Government to embark upon precipitate action. I should not dream of suggesting touching the great C. Banerjee, Indian Constitutional documents, 2nd ed., Vol. II, p. 325. Report on Indian Constitutional Reforms (Montagu-Chelmsfprd Report), para 6. HISTORICAL BACKGROUND B fabric of the Government of India without careful ^vestigationl The approach was so cautious that, acting against the opinion of. the- CJovernment of India and Montagu himself, the British Cabinet® decided' to avoid the use of the word ‘‘self-government” as the goal of British policy in India and used the phrase “responsible government” instead^ Nevertheless, the Declaration of August, 1917, marked a clear departure from Motley’s earlier dictum in the previous decade that India could never aspire .to responsible government. In a report of some significance (officially described as the- Montagu-Chelmsford Report) the authors expressed the hope that ' India’s connection with the Empire would be endorsed by the wishes of her people- but on a new basis. Her progress during a century of political experiment had confirmed them in their view that with power transferred to the people of a Domioion, their attachment would become the stronger to the Empire which comprehended them in a common bond of union. The existence of distinctive national cultures, far from weakening such a bond, could (in their view) strengthen it on the basis of a Commonwealth. The authors of the report visualized India’s ultimate destiny as a sisterhood of States, self-governing in all matters of purely local or provincial interest, in some cases corresponding to existing provinces, in others perhaps modified in area according to the character and economic interests of their people. Over this congeries of States would preside a central government, increasingly representative of and responsible to the people of all of them ; dealing with matters, both internal and external, of common interest to the whole of India ; acting as arbiter in inter-State relations, and representing the interests of all India on equal terms with the self-governing units of the British Empire^. The Princely States would have an honourable place in such a structure: not disappearance through accession or absorption, but through the dedication of their peculiar qualities to the service of the country for certain common purposes, without, however, loss of individuality. The immediate reaction of Indian opinion to the Montagu-Chelmsford Reforms, with a strictly limited field of responsibility in the Provinces and a completely bureaucratic set-up at the Centre, was one of great disappointment. All the hopes raised by President Wilson’s slogan of' “self-determination” faded away into disillusionment. Even so, India might' have pursued the course set for her without seriously challeiig,ing British autho'rity, but for several events which took place about this time, and which stiffened nationalist seotiment in its opposition to British rule. Tlie most,, important of these was the harshness of martial ,law adniinisf ration-' D. Waley, Edwm Moniagu, p. 131. ♦ ; - p. 135. * ; ^Report OH' Indian Constitutioml Reforms (Montagu-IDbelmsford,' Repo,rt), paia . 349. 6 framing of INDIANS CONSTITUTION in the Punjab and massacre of several hundreds of persons at Amritsar in April 1919. The horrors of martial law imposed on the Punjab brought about a radical change in the temper of the people. Even so, Gandhi, an ardent follower of Gokhale in his political views, was able to prevail on his colleagues in the Congress to follow the path of moderation. It was entirely due to his personal powers of persuasion that at the Congress session held in Amritsar in December 1919 a resolution was adopted which while characterizing the reforms as “inadequate, unsatisfactory and disappointing”, neverthelesis committed that organization to a policy of cooperation. The resolution said : Pending such introduction (of full responsible government) this Congress trusts that, so far as may be possible, the people will so work the Reforms as to ensure an early establishment of full responsible government and this Congress offers its thanks to the Rt. Hon’ble Montagu for his labours in connection with the Reforms*. In the course of the next six months, however, the Congress attitude and in particular the attitude of Gandhi himself underwent a radical transformation. The two causes for this change were, first, the Peace Treaty with Turkey, published in May 1920, and, second, the publication about the same time of the report of the Hunter Committee, appointed by the Governor-General of India in September, 1919, to enquire into the Punjab disorders. The resentment aroused was so widespread that it was considered necessary to hold a special session of the Congress in September 1920. Gandhi, who had by this time become the unchallenged leader of the freedom movement, also became the uncompromising opponent of the continuance of British rule in India, and, giving up entirely his attitude of cooperation, he evolved the policy of non-violent non-cooperation. The resolution adopted at the special Congress session in Calcutta in September 1920 referred to the Khilafat issue. The grievance of the Muslims v/as that the Sultan of Turkey, who as the Khalifa, was the religious head of the Muslims, was subjected to undue humiliation by the Allied Powers— Great Britain, France and the United States. The resolution also referred to the Punjab martial law administration, and affirmed that both the Indian and the British Governments had grossly neglected or failed to protect the innocent people of the Punjab and punish officers guilty of unsoldierly and barbarous behaviour. The resolution then went on to say that the only effective means to vindicate national honour and to prevent a repetition of similar wrongs would be the establishment of Swaraj; and that the course left open for the people of India to adopt was a policy of progressive non- violent non-co-operation inaugurated by “Gandhil ipattahhi Sharamayya, The History of the Indian National Congress (1885-1935). Vol. I,^). 180. %id., pp. 189-203. HISTORICAL BACKGROUND 7 Tlie country was in no mood after this harrowing experience of martial law to accept the assurance of a royal proclamation that the new Constitution (the Government of India Act of 1919, which conceded an ^element of responsibility in the provincial field) “points the way to full representative government hereafter”; and even that “the control of her domestic concerns is a burden which India may legitimately aspire to taking upon her own shoulders”*. The time-factor was for the leaders of the freedom movement of primary significance. All progressive elements in India were impatient with the implication in the statement in the royal proclamation that “the burden was too heavy to be borne in full until time and experience had brought the necessary strength”. The view that the pace and the measure ot each advance were to be decided by Britain alone before the next step of political reform could be sanctioned evoked vigorous opposition. The phrase “Swaraj” used officially for the first time in the King’s message® read by the Duke of Connaught in inaugurating the new Indian Legislature under the Reforms in 1922 sounded hollow to his Indian listeners. Even without the shock of the Amritstar tragedy, post-war events would have brought into sharp focus the contrast between India’s domestic position and her external status. In the latter sphere she had advanced in some respects to a position of equality with the self-governing Dominions: her membership of the League of Nations and of the Imperial Conference inevitably served as a reminder of the urgency of the need for a swift advance to full-fledged Etominionhood. In a letter to Chelmsford, Montagu gave an account of the manner in which India came to be treated in the same way as the Dominions in the Imperial War Cabinet and at the Peace Conference. He referred to the “profound, irretraceable changes that have been made in the constitution of the British Empire during the last few months”. At the Peace negotiations India’s representatives, Sinha and Bikaner, became, full members of the War CabLnet. At the Inter-Allied Conference on matters concerning Britain and the Dominions, Montagu, Sinha and Bikaner had the same rank as the Dominion delegations. Montagu observed as regards India : Ex-pro-consuls and others are holding up their hands with horror at any substantial efforts towards self-government, and at the same time we have gone — shall I say lightly ? — into a series of decisions which put India, so far as international affairs are concerned, on a basis wholly inconsistent with the position of a subordinate country. Her status has soared far more rapidly than could have been accomplished by any of our reforms, and this trend is strengthened by the Prime Minister’s appointment to a parliamentary position of Lord ■•Sinha (as Under-Secretary of State for India)’. /'Indian Annual Register, 1921, Vol. I, Part II, p. ii. 1922, Vol. I, p. 108. ®S. D. Waiey, Edwin Montagu, pp. 193-4. MaMing of India's constitution • Gta ttie other hapd* responsibility for administration in the domestic sphere was seriously circumscribed by constitutional restrictions, presenting a contradicslion which would not last long. ;■ Differences; developed within the Congress on the tactics to be adopted in- regard to the Government of ' India Act of 1919; but the first general elections were boycotted by the Congress under Gandhi’s leadership and as mass movement of non-violent non-co-operation initiated by him gathered impressive support. But three years later, chastened by experience, an influential wing under Motilal Nehru and C. R. Das decided in 1924 to contest the second general elections. Meanwhile, outside the Congress was developing a carefully planned, constructive effort sponsored by Annie Besant and T'ej Bahadur Sapru resulting in a constitutional scheme entitled ‘The Commonwealth of India Bill”'. Its starting point was Mrs. Besant’s statement in 1919 before the Joint Select Committee on the Government of India Bill that India could not be satisfied for all time with a Constitution framed for her at Westminster. From 1921, for the next three years, representatives of different parties (but not including the Congress) participated in committees on different aspects of the Constitution. On the completion of their labours a National Convention, again without representatives of the Congress, met at Kanpur to finalize the draft. The Bill had its first reading in the House of Commons in 1926, sponsored by George Lansbury, a member of the British Labour Party’ls executive, though only as a private member’s Bill Gandhi and the Congress as a whole did not associate themselves with this measure. But in an article on “Independence” in his weekly Young India in January 1922, even while the scheme was in its formative stage, he had observed : Let us see clearly what Swaraj together with the British connection means. It means undoubtedly India’s ability to declare her independence if she wishes. Swaraj, therefore, will not be a free gift of the British Parliament. It will be a declaration of India’s full self-expression. That it will be expressed through an Act of Parliament is true. But it will be merely a courteous ratification of the declared wish of the people of India, even as it was in the case of the Union of South Africa. Not an unnecessary adverb in the Union scheme could be altered by the House of Commons. The ratification in our case will be of a treaty to which Britain mnli be a partyl The Commonwealth of India Bill was notable as the first example of a comprehensive measure giving constitutional shape to India’s political Tor a detailed account of the National Convention and the main provisions of the Conimonwealth of India Bill, soc Select Documents I, II, pp. 43-8, ^Young India, January 5, 1922. Historical background 9 aspirations. To strengthen the movement in favour of freedom, a resolution was moved by an active supporter of the Bill, T. Rangachariar, in the Central Legislative Assembly on February 5, 1924, callii^ on the Government to take the necessary steps (including the appointment of a Royal Commission) for revising the Government of India Act of 1919 so as to secure for India full self-governing Dominion Status within the British Empire and autonomy in the Provinces’. The British Government’s attitude was not one of outright rejection : in the debate Malcolm Hailey, the main spokesman for the Government, referred to difficulties in giving effect to tlie resolution. Many interests (he observed) would be involved in the consideration of the problem, particularly the Indian States and British commercial interests. Moreover, the British Government was committed by its pronouncement of August 20, 1917 to “the gradual development of self-governing institutions with a view to the progressive realization of responsible government in India”. Hailey drew a distinction between responsible government and self-government and maintained that the introduction of self-government was not at the time part of the British Government’s policy. On specific points arising out of the resolution the British Government sought clarification : (1) Was Dominion self-government to be confined to British India only or to be extended to the Indian States; and under what terms were they to come in? (2) Were they to be dependent on the Crown or to accept the control of the new Government responsible only to the Indian Legislature, instead of a Government responsible to the British Parliament ? Some kind of federation (Hailey believed) was inevitable as the ultimate objective to be kept in view. Again, no conception of full Dominion self-government was possible which retained in the hands of an authority other than the Dominion Legislature itself the protection of minority communities. The debate gave an opportunity to Motilal Nehru, as the leader of the Swaraj Party in the Central Legislative Assembly, to clear the ground for India’s progress towards the status of a Dominion. The minimum demand of his party (he declared) was the summoning “at an early date of a representative Round Table Conference to recommend, with due regard to the protection of the rights and interests of important minorities, the scheme of a constitution for India”. The dissolution of the Central Legislature was under his plan to follow the preparation of such a constitution, so that a newly-elected Legislature might give its approval before the submission of the scheme to the British Parliament for its sanction. The "very basis of the Government of India Act was, in Motilal Nehru’s view, bad ; namely, that the British Parliament and its agent, the Government of India, were entitled to « ' A . Deb ., (1924), Vol. IV, Pt I, p. 221. 10 FRAMING OF INDIA’S CONSTITUTION satisfaction before r^ecommending a further advance. The problem of the Indian States coming into the structure of an all-India government was contingent qn the results of negotiations with them. Motilal Nehru observed in the course of the debate : We have come here to offer our co-operation, non-co-operators as we are, if you will care to co-operate with us. That is why we are here. If you agree to have it, we are your men ; if you do not, we shall like men stand upon our rights and continue to be non-co-operators. 'There was thus little common ground on the fundamental basis of the positions as expounded respectively by the spokesmen of the two sides. The Indian leaders’ assertion of India’s right to make her own constitution without reference to the British Parliament was a view which the British Government declined to accept. Nothing (Hailey pointed out in his reply) either in political equity or in the history of the Dominions could justify the claim that India should frame her own constitution without any other reference to the British Parliament than the demand that it should at once be ratified'. He added: If it is really intended that this Conference should not be one to find a remedy for the problems which beset our future but should only ratify the demands of himself (Motilal Nehru) and his friends for immediate self- government, then I say it is not a conference in which any representative of the British Crown could or would take part. Motilal Nehru’s proposal was carried by 76 votes to 48; but the opponents consisted only of the entire bloc of 26 official members, the representatives of British commerce and a number of members nominated by the Government’. Meanwhile, developments In Britain produced far-reaching reactions in India. After the installation in office of the first Labour Government in Britain in 1924 a significant shift occurred in Britain’s attitude; Ramsay MacDonald (the Prime Minister) observed: “Dominion status for India is the idea and the ideal of the Labour Government”. In the following year, the Labour Party, by that time out of office, adopted at its annual conference a resolution recognizing “the right of the Indian people to self-government and self-determination’”. The conference welcomed the declarations of representative Indian leaders in favour of free and equal partnership with the other members of the British Commonwealth of Nations. Quick to respond to this sentiment, Motilal Nehru through a resolution in the Central Legislative Assembly urged the British Government to make a declaration in Parliament embodying certain radical changes in the constitutional machinery and the administration of India. Iffie resolution 'Jinnah intefjected at this point: “Let us create one.” “L. A. Deb. (1924), Vol. IV, Pt. I, pp. 3*19-400; 518-82; 709-69. ’H. ftessel Tiltman, James Ramsay MacDonald, p. 249. HISTORICAL BACKGROUND 11 was ..passed by 72 votes against 45. The. main pointS' of his demand, were ; (a) the .Government of India tO' be responsible to the l^ndian Legislature ; (b) iiationalizatioii of the Indian army within a reasonably short §nd definite period of time, the Goveroor-Generai nnd the Commander-iii-Chief being assisted in the transition period by a Minister responsible to the Legislature ; (c) the Central and Provincial Legislatures to consist entirely of members elected on as wide a franchise as possible ; (d) the- principle of responsibility of the Central Govermnent to . the Legislature to be subject to certain reservations to be in force for a transitional period, during which residuary powers would be vested in the Governor-General for the control of. defence, and foreign and political affairs for a fixed term of years; (e) the Indian Legislature, after the expiry of this fixed term of -years, to have full . power to make such amendments , in the -Constitution from time to time as might appear iiecessa.ry or desirable. The resolution reiterated the earlier demand and urged the Gover.nment of India to take steps to constitute, in consultation with the Central Legislative Assembly, a Convention,, a Round Table Conference -or other suitable agency adequately representative of all Indian, European and Anglo-Indian interests, to frame, with due regard to the interests of minorities, a detailed scheme for the prior approval of the Legislative Assembly before submission to the British Parliament for adoption as a statute. Motilal Nehru observed : We are making this offer to you as one that has been agreed upon by all the Nationalists and I must emphasize the fact that it is only because it is in the nature of an offer for a settlement that it has been adopted. It is an offer by which the Swaraj Party as a whole is as much bound as the other nationalists in this House or outside. It was clear that the procedure adopted earlier in the cases of Australia and South Africa had influenced the Swaraj Party’s leader in formulating his policy. He referred to Joseph Chamberlain’s House of Commons speech on Australia in 1900. A significant supporter of the proposal was Jinnah who observed in his speech : India is not a nation, we are told. We were a people when the g,reat war was going on, and an appeal was made to India for blood and money... We were a people when we were asked to be a signatory to the Peace Treaty in France. We are a nation when we beco,iiie a member of the- League of Nations to which we made a substantial contribution. We are a nation or a people for the purpose of sending our representative to the Imperial Conference. We are .your partners, but we are not a nation. , We are, not a people, nor a na|ion,when we ask you for a substantial advance ■ towards the , establishment of responsible government and parl!ame.!itary institutions in our own countryk FRAMING OF INDIANS CONSTITUTION 12 ^ M'otilal Nehru and the Congress were not content with making these proposals in the dentral Legislative Assembly. Speaking in Parliament, Birkenhead^ the Secretary of State for India, had several times thrown out a •challenge that it was for Indians to get together and produce a generally acceptable constitution. “Let them produce a constitution which carries behind it a fair measure of general agreement among the great peoples of India” he said on July 7, 1925' : and he repeated this again when on Noveinber 24, 1927, he spoke in the House of Lords announcing the appointment of the Simon Commission". The appointment of the Simon Commission provoked universal resentment in India. The exclusion of Indians from that body was widely regarded as an insult and an affront, and indicative of the attitude of Birkenhead and the Conservative Government not to associate Indians with decision-making processes in the matter of political and constitutional advance in India. The Congress at its Madras session of 1927 condemned the appointment of the Commission and adopted all measures for boycotting it; and in the same session the Congress, in answer to Birken- head’s challenge, authorized its Working Committee to confer with other similar committees appointed by organizations, political, labour, commercial and communal, to draft a Swaraj Constitution for India". Representatives of twenty-nine' organizations met for a meeting at Delhi on February 12, 1928. The first major hurdle was a controversy over the objective of the proposed Constitution, some members favouring the Dominion form of government, while others insisted on complete independence. Ultimately a compromise formula was evolved to include both view-points. It was felt that Dominionhood had come to mean something indistinguishable from independence, except for the link with the Crown. The proposal to ^Indian Quarterly Register, 1925, Vol. I, p, 344. mid,, 1927, Vol. 11, p. 70. ^Select Documents I, 14(ii), p. 56. accordance with the resolution of the Madras Congress (1927), the Congress Working Committee invited the following organizations: (1) The National Liberal Federation, (2) the Hindu Mahasabha, (3) the All India Muslim League, (4) the Central Khilafat Committee, (5) the Central Sikh League, (6) the South Indian Liberal Federation, (7) the All India Trade Union Congress, (8) the General Council of All-Burmese Associations, (9) the Home Rule League, (10) the Republican League, (11) the Independent Party in the Central Legislative Assembly, (12) the Nationalist Party (also in the Assembly), (13) the Indian States’ Subjects’ Association, (14) the Indian States’ Subjects’ Conference, (15) the Indian States’ Peoples’ Conference, (16) the Anglo-Indian Association, (17) the Indian Association of Calcutta, (18) the Parsi Central Association, (19) the Zoroastrian Association, (20) the Parsi Rajkeya Sabha, (21Vthe Parsi Panchayat, (22) the All-India Conference of Indian Christians, (23) the Southern India Chamber of Commerce, (24) the Dravida Mahajana Sabha, (25) the Landholders’ Association of Oudh, Agra, Bihar, Bengal ^nd Madras, (26) the Bombay Non-Brahman Party, (27) the Nationalist Non-Brahman Party, (28) the Communist Party of ^Bombay, and (29) the Bombay Workers’ and Peasants’ Party. HISTORICAL BACKGROUND 13 'adopt the formula of full responsible government was, therefore, accepted with a clear understanding that those who believed in independence would have full liberty to work for it. The conference also adopted resolutions on the redistribution uf Provinces, electorates and reservation of seats. A committee was appointed by the conference with instructions to report on such subjects as a bicameral or a unicameral constitution; franchise; a declaration of rights; the rights of labour and the peasantry; and the future of the Indian States. The labours of this committee came up against obstacles; and in a meeting held in Bombay in May 1928 the conference adopted a resolution appointing another committee with Motilal Nehru as chairman to consider and determine the principles of the Constitution of India, after giving the fullest consideration to the Congress resolution on communal unity as well as the resolutions and suggestions made by other parties and organizations'. The Motilal Nehru Committee strongly objected to the maintenance of separate or communal electorates as a hindrance to the minority concerned. It favoured the reservation of seats for minority communities in some Provinces under a system of mixed or joint electorates, as an inevitable compromise, for a period of ten years. The committee dealt at length with the relations between British India and the Indian States. At that time the problem of Indian States was being examined in all its aspects by an official committee presided over by Harcoiirt Butler. The Motilal Nehru Committee had before it the suggestion for an all-India federation, though the attitude of the Princes was still in some doubt. It adopted the line that It would be a most one-sided arrangement if the Indian States desire to join the federation, so as to influence by their votes and otherwise the policy and legislation of the Indian Legislature, without submitting themselves to common legislation passed by it. It would be a travesty of the federal idea. If the Indian States would be willing to join such a federation, after realizing the full implications of the federal idea, we shall heartily welcome their decision and do all that lies in our power to secure to them the full enjoymeiit of their rights and privileges. But it must be clearly borne in mind that it would necessitate, perhaps in varying degrees, a modifleation of the system of government and administration prevailing within their territories*.. The most significant' conclusion of the Butler Committee, that '^pa,ramountcy must remain paramount”, had not officially emerged during the '-.d'eMberations of the M'otilal Nehru Committee. But enough was known of ''the trend'' of official opinion to» justify the assuniption that neither the British'\, 'Government ,.iior its agent, the Govermii,ent ' ' of India, would t , ' ^Indian Qimrierly .Register, 1928, ¥ol. I,*pp. 13-4, 14 FRAMING OF INDIA’S. CONSTITUTION countenance the idea that the subject of relations with the Indian States would be handecf over to a responsible government at the Centre. The Nehru Committee, laid down, therefore, that in regard to the Indian States the plain fact ought not to- be overlooked that the Government of India as a . Doni,inion will be as much the King’s Government as the present Government of India is, and that there is no constitutional objection to the . Dominion Government of India stepping into the shoes of the present Government of Indian Another factor weighed considerably with the Princes. They had good reason to be disturbed by a letter wTitten in 1926 by • Reading ' as Viceroy to the Nizam of Hyderabad claiming for the Crown the unilateral right to interpret the treaties governing relations with the Princely States. The relevant passage in Reading’s letter was as follows : The sovereignty of the British Crown is supreme in India, and therefore no Ruler of an Indian State can justifiably claim to negotiate with the British Government on an equal footing. Its supremacy is not based only upon treaties and engagements, but exists independently of them and, quite apart from its prerogative in matters relating to foreign Powers and policies, it is the right and the duty of the British Government, while scrupulously respecting all treaties and engagements with the Indian States, to preserve peace and good order throughout India. . . The right of the British Government to intervene in the internal affairs of the Indian States is another instance of the consequences necessarily involved in the supremacy of the British Crown. , . The varying degrees of internal sovereignty which the Rulers enjoy are all subject to the due exercise by the Paramount Power of this responsibilityl These apprehensions did not, however, have the effect of bringing the Princes and the British Indian poHtical parties together, even to a limited extent.. Relying always on the protecting arm of the Paramount Power, the Rulers of Indian States generally speaking reacted strongly against forces operating in favour of democratic administration; and this created an ever widening gulf between, them and . political parties like the Congress. Developments within the Congress and in particular the demand for, India’s complete independence in 1927, increased the apprehensions of the Princes, wliG; adopted a resolution early in 1929 (in the Chamber of Princes) that— ^ the recent pronouncements of a section of B,ritish Indian politicians ' indicative of a diiff towards complete independence, they (the Princes) desired to place on record th|t in the light of mutual obligations arising from their treaties and engagements with the British Crowm, they Undian Quarterly Register, 1928, Vol. I 5 p, 36. HVhke Paper on Indian States, pp, 149 - 50 . HISTORICAL BACKGROUND 15 , could not assent to any proposals- having for liieir object the adjustment of equitabie relations between the Indian States and®BFitish India unless such proposals proceeded upon , the initial basis of the British corniection. : The installation fo-r a second time of a Labour Governiiient in, Britain in 1929, though again as a minority administration, with Ramsay MacDonald as the Prime Minister, marked a new phase in Indo-British relations. On the eve., of his assumption of office, he had declared at the CoiTi,mo-nwealth Labour Confere,iice that India’s attainment of .Dominion Status was imminent. MacDonald’s reference was in the following terms : I hope that within a period of months rather than years, the,re will be a new Do, minion added to the Commonv/ealth of our nations, a Dominion that will find self-respect as an equal within ■ this Co,mmonv¥ealth. I refer to India", III One of the first steps taken by the Labour Government was to invite the Viceroy, Irwin (later Halifax), to London for a discussion of the policy to be pursued in regard to India. Irwin was authorized to say on his return to India that in the judgment of the British Government it is implicit in the declaration of August 20, 1917 that the natural issue of India’s constitutional progress as there contemplated is the attainment of Dominion Status^ Motilal Nehru’s suggestion of a Round Table Conference was accepted in principle; but an essential point of difference lay in the proposal that India’s representatives would be nominated by the British Government, not elected by a popular vote. The Viceroy’s declaration failed to carry conviction with left-wing elements in the Congress who, under Jawaharlal Nehru’s lead, comm,itted the organization to complete independence at its session in Lahore in December, 1929''. The first session of the Round Table Conference met in London in 1930. Etespite the absence in prison, for participat,ioii in the civil disobed,ience movement, of Gandhi and the Cong.ress leaders, an atmosphere of hope' of. a settkment was created by its- proceedings. Ramsay .MacDonald in inaugiirating .the conference sa.id : The atlendance of representatives -of the Dominion Governments Is an earnest , . of -.the interest and goodwill with which the sister-states in the G-ommonwcalth ... of Nations will follow our labours. . . Nor .is it without signifi-ca.nce that ^Indian Quarterly Register, 191%., 'Vo,l, -IT,.- p. 293. ^Gwyer and Appadorai., Speeches and Documents {ui the Imlkm Constituii&n, -■ 227-S. 16 FRAMING OF INDIANS CONSTITUTION ■ we, who, though not of India, also seek India’s honour, are drawn from all three parties m*this Parliament^ Important delegates like Tej Bahadur Sapru, V. S. Srinivasa Sastri and Mohammad Ali Jiimah referred to British pledges as calling for immediate fulfilment. Pointing to the presence of Dominion Prime Ministers, Jinnah said. I am glad that they are here to witness the birth of a new Dominion of India which would be ready to march along with them within the British Commonwealth of Nations^ The spokesmen for the Rulers — ^Kashmir, Bikaner and Bhopal — ^not only agreed to an all-India federation but made responsibility at the Centre a condition for the entry of the States. The British Prime Minister made a policy statement at the end of the conference on January 19, 1931, in the following terms : The view of His Majesty’s Government is that responsibility for the Government of India should be placed upon Legislatures, Central and Provincial, with such provisions as may be necessary to guarantee, during a period of transition, the observance of certain obligations and to meet other special circumstances, and also with such guarantees as are required by minorities to protect their political liberties and rights. In such statutory safeguards as may be made for meeting the needs of the transitional period, it will be a primary concern of His Majesty’s Government to see that the reserved powers are so framed and exercised as not to prejudice the advance of India through the new Constitution to full responsibility for her own governmenf. MacDonald coupled it with a personal assurance which went even further : Finally, I hope and I trust and I pray that by our labours together, India will come to possess the only thing which she now lacks to give her the status of a Dominion amongst the British Commonwealth of Nations — what she now lacks for that — the responsibilities and the cares, the burdens and the difficulties, but the pride and the honour of responsible self-govenimeiif , The immediate reaction to this statement was a strengthening of the impression that India would be endowed with a constitution that would mean, except for a few reservations of a temporary character in regard to defence and foreign affairs, full responsible government, and that even the removal of these reservations would rest with the Indian Federal Government of the future. At no point in India’s freedom campaign did success appear so near as immediately after the termination of the first Round Table Conference early in 1931. MacDonald’s declaration to the final meeting was obviously , , # ^Indian Annual Register, 1930, VoL II, pp. 288-9. ^Indian Round Table Conference (Nov. 1930--Jan. 1931), Sub-Committee Reports, Conference Resolution and Prime MMstefs statement, p. 80. Hbdi., p. 83, HISTORICAL BACKGROWD 17 lEtended to conciliate Gandhi and his colleagues and bring the main section of the Congress into the subsequent deliberations of* the Round Table Conference. Negotiations were opened in India between the Viceroy and Gandhi, resulting in the famous Irwin-Gandhi pact, of which the two main features were : (1) civil disobedience to be called off by the Congress; (2) the Congress to participate in the second session of the Round Table Conference- There was also a clear understanding on the basis of which discussions were to take place : As regards constitutional questions, the scope of future discussion is stated, with the assent of His Majesty’s Government, to be with the object of considering further the scheme for the constitutional Government of India discussed at the Round Table Conference. Of the scheme there outilncd federation is an essential part; so also are Indian responsibility and reservations or safeguards in the interests of India, for such matters as for Instance, defence ; external affairs ; the position of minorities ; the financial credit of India and the discharge of obiigationsl (The reference here was to the imposition of such conditions as would ensure the fulhiment 01 the obligations incurred under the authority of the Secretary of State.) Tlie prospects of success further brightened in the early stages of the Second Round Table Conference in the late summer of 1931, wuth Gandhi as the sole representatives of the Congress. But at this stage in India’s political fortunes Britain faced a domestic crisis, necessitating a general election which proved disastrous to the Labour Party. Undeterred by this sudden transformation in the complexion of the new Government — MacDonald continuing to be the Prime ■ Minister but in a predominantly Conservative House of Commons — Gandhi told the Federal Structure Committee of the Second Round Table Conference on September 15„ 1931 : India, yes, can be held by sword! 1 do not for one moment doubt the ability of Britain to hold India under subjection through the sword. But what will conduce to the prosperity of Great Britain, the economic freedom of Britain— an enslaved but rebellious India, or an India an esteemed ■ partner to share her sorrows, to take part side by side with Britain IQ her misfortunes ? Yes, If need be, but at her own will, to fight side by side with Britain: — ^not for the exploitation of a single race or a single human being on earth, but it may be conceivably for the good of the whole w^orld r If I want freedom for my country, believe me, if I can possibly help it, ,1 .do not want that freedom in order that .1, belonging to a nation which contains one-fifth of the human race, may exploit any other race upon earth, or .any, single individual. If I want that freedom for my country, I would. *Gwyer and Appadorai, Speeches and Documents on the Indian ConhiiuHon, Vol. T, pp. 231-2.' . „ 3' ■ ■ • ' , , 18 FRAMING OF INDIA’S CONSTITUTION not be deserving of that freedom if I did not cherish and treasure the equal right of every "other race, weak or strong, to the same freedom. . . I would love to go away from the shores of the British Isles with the conviction that there was to be an honourable and equal partnership between Britain and India'. At the end of the conference, despite Conservative members occupying key positions in the new Government, MacDonald was able to repeat the pledge he had earlier given on behalf of the Labour Government. Subsequent events, however, gave rise to the fear that in effect the British proposals would be whittled down. Immediately on the termination of the conference, there was a debate on India in the House of Commons on December 2 and 3, 1931, in which not only the Prime Minister but Samuel Hoare, John Simon, Stanley Baldwin, Winston Churchill and other leading members took part. Churchill sought to add three general reservations to the Government’s motion endorsing its India policy ; (a) nothing in the policy would commit the House to the establishment in India of a Dominion Constitution as defined by the Statute of Westminster: (b) the policy would effectively safeguard British trade in and with India from adverse or prejudicial discrimination; and (c) no extension of self-government in India at that juncture would impair the ultimate responsibility of Parliament for the peace, order and good government of the Indian Empire. In his speech in the Commons debate, quoting Fox (that “men have equal rights to unequal things”) in support of his view, Churchill maintained that, though India might have been promised Dominion Status, status applied only to rank, honour and ceremony". In a vain effort to conciliate Churchill, the Prime Minister had given the assurance that the Government’s policy would not bring India under the Statute of Westminster unless a specific amendment was made to the Statute in Parliament adding India to the lisf. It was embarrassing for the Prime Minister later in the same debate to have to shift his position to the other side under pressure from his former colleagues in the Labour Government. He assured Clement Attlee (in order to neutralize the effect of his concession to Churchill), “obviously, the Round Table Conference will remain, and in the end. we shall have to meet again for a final review”^ The third and final session of the Round Table Conference, though promised by MacDonald for a final review, would probably not have been held but for vigorous protests from men like Tej Bahadur Sapru. When summoned, it was a much smaller body than its two predecessors, with Gandhi and several other Congress leaders §gain in detention. It met in an ^Proceedings, Vol. I, pp. 45-7. C. 260, cols. 1287-9. TWi, cot 1114. col. 1120. HISTORICAL BACKGROUND 19 atmosphere of increasing suspicion on the Indian side tha^the promises made at the first and second sessions might not be fulfilled. MacDonald, who had played a prominent part in the two earlier conferences, was conspicuously in the background in the third session and did not address the conference even once in the course of its proceedings. Despite this sharp setback after the defeat of the Labour Party in the British general elections of 1931, the positive gains for India in her progress towards freedom were not negligible. Step by step, in the decade following the end of the first world war, she had gone forward to secure the right to frame a Constitution for herself with full Dominion Status as promised by the Labour Party, and based on an all-India federation of Provinces and Princely States. Montagu’s dream of the future of a free India, with the States represented therein, and taking her place in the Commonwealth, had been brought visibly nearer fulfilment by these achievements- Immediately, however, the tide seemed to be flowing strongly against India. Motilal Nehru’s death early in 1931 was a grievous loss at a time when his wise leadership might have proved decisive in effecting a satisfactory settlement. The new Viceroy, Willingdon, did not share Irwin’s regard for Gandhi and refused to conduct any negotiations with him. The Congress ranks were sharply divided on Jawaharlal Nehru’s policy of socialism as its main plank. Tlie coalition Government in Britain seemed to react to a situation in India which, at any rate on the surface, suggested lack of unity of purpose among the different parties and even within the Congress. 'The full proposals, published in a White Paper' in the early part of 1933, only deepened India’s misgivings. The safeguards proposed were to be in “the common interests of India and the United Kingdom” — ^not in the interests of India alone, as had been laid down in the Irwin-Gandhi pact. Samuel Hoare, the new Secretary of State, made it clear in a debate on the While Paper on March 27, 1933, that the White Paper proposals which laid down the British Government’s policy in relation to constitutional reform in India did not contemplate self-government but were only another stage in the continuous bestowal of new instalments of constitutional progress’. This was a definite repudiation of his predecessor’s (Wedgwood Benn) assertion at the Second Round Table Conference that the reference in the preamble to the Government of India Act of 1919, that the British Parliament would be the sole judge as to the manner and pace of India’s advance to self-government, was completely out of date. In the White Paper it was stipulated that the Federation of India would not come into existence without certain preliminary conditions being fulfilled, a primary one being that the Rulers of States, representing not less than half the aggregate population of the States and entitled to not less than half the ‘ White Paper on the Proposals for Indian Constitutional Reform (Comd. 4268). C. Deb., Vol. 276, col. 698. 20 FRAMING OF INDU’S CONSTITUTION seats allotted to tljpm in the federal upper chamber, should have executed Instruments of Accession. In the Federal Legislature, which was to be bicameral, the upper chamber was to consist of 260 members, 150 from the Provinces, 100 from the States and 10 nominated by the Governor-General ; and in the Lower House 375, 250 elected from the Provinces and 125 appointed by the Rulers of States. In addition to being solely responsible for India’s defence and external affairs to His Majesty’s Government and the British Parliament, the Governor-General was vested with other “special responsibilities” in respect of important matters, including the prevention of a grave menace to the peace or tranquillity of India, the safeguarding of the Federation’s financial stability and credit, the protection of the legitimate interests of minorities and the public services, the protection of the rights of the States and the prevention of discrimination against British commercial interests. At the time of the adoption of the 1935 Constitution, the Princely States had second thoughts about joining the Federation. With Akbar Hydari (Hyderabad) as their leader, they stepped up their demand for an unequivocal declaration that their treaty rights would remain “inviolate and inviolable” under the Federation. The smaller States represented in the Chamber of Princes sought other concessions; even after the inauguration of Federation, the exercise of paramountcy, they urged, should be placed beyond doubt. Their original sovereignty had become trammelled with the lapse of time and anything entrusted to the Crown during a period of their tutelage could not fairly be retained at a time when Federation was conceived in the belief that Indians could govern themselves. In assuming this inflexible attitude, the Princes were influenced by a lawyer, J. H. Morgan who held that the safeguards in the Government of India Act would prove to be “utterly inadequate”. The Princes were warned against finding themselves, after their accession to Federation, “caught in a trap”; their expectations that the enforcement of federal obligations on a State would remain exclusively with the Viceroy in the exercise of paramountcy, they were told, would turn out to be a “painful delusion”. Dominion Status having been promised to India, the safeguards for the rights and interests of the States in the 1935 Act, he warned the Princes, were bound sooner or later to disappear, because their maintenance was incompatible with such status. On the other hand, there were forces active in India of a reverse nature, for the extension of popular rights in opposition to the perpetuation of princely privileges. The representatives of the States’ people summarized some of their essential needs for inclueion in the 1935 Constitution in the followiag terms ; (1) election of the States’ representatives to the Federal Parliament;^ (2) justiciable fundamental rights; and (3) all Central subjects to be federalized and administered directly by the federal authorities. HISTORICAL BACKGROUND 21 IV It would be relevant to note at this stage that at a session o£ the Joint Parliamentary Committee on the White Paper Proposals on August 1, 1933, Reginald Craddock asked a Muslim deputation led by A. Yusuf Ali to comment on the scheme outlined by a Cambridge student, Rehmat Ali, for the establishment of Pakistan. Yusuf Ali’s reply was that it was a student’s scheme, which no responsible people had put forward. Further questioning by Craddock invited an intervention from Muhammad Zafrullah Khan (a delegate to the Joint Parliamentary Committee) who told his colleagues, “We have already had the reply that it was a student’s scheme and there is nothing in it.” Yusuf Ali himself added : “We have considered it chimerical and impracticable’”. Jinnah was not in the picture at all, and no other Muslim leader had backed the demand for Pakistan at the time of the inauguration of the 1935 Constitution. The growth of the Pakistan cult was phenomenal after the first general elections in 1937, and in three years the political scene in India underwent a radical transformation. The fact is that in the official world of New Delhi and Simla the prevalent impression in the pre-election year was that despite ail the criticisms of the shortcomings of the new Constitution, the soberer elements in the country would capture the seats of power and authority in the general elections. But the results of these elections in the early part of 1937 completely upset all official calculations and considerably altered the outlook of the different political groups, of the Princes and of the British authorities. The Congress emerged as the largest party in seven Provinces out of eleven, with a clear majority m five (Madras, the United Provinces, the Central Provinces and Berar, Bihar and Orissa). In the Punjab the Unionist Party — ^not the Muslim Leaguei — under the leadership of Sikandar Hyat Khan secured a majority and he formed a Cabinet of six Ministers consisting of three Muslims, two Hindus and a Sikh. In Bengal, Fazlul Huq, the leader of the Praja Party, came to the fore with a strong tenants’ programme. His plea for the abolition of the permanent settlement and the release of political prisoners and detenus brought him and his party much Congress support before and during the elections. In the United Provinces (a key province), the unexpected success of the Congress party” at the polls was due, in large measure, to the solid support of the peasantry. Suppressed for generations and hard hit by the economic depression of the early thirties, the peasants had responded with warmth • ' ^Joint Commiitee on Indian Constltiitianal Reform, Session 1932-3, Minutes of Evidence, , VoL IIC, p. 1496. ^In the United Provinces the forecast of the officials gave' the Congress about 70 seats "out oi a total of 228, while Congress leaders hoped to win 100. ActiialK% the Congress secured 135 seats and formed a Ministry. 22 FRAMING OF INDIA’S CONSTITUTION to the election appeal of the Congress. They felt elated that they had a share in installing a Congress Government in the Province. They could go to distpct officers and even to Cabinet Ministers with their complaints against landlords and their agents without fear of persecution. Socialists and Communists, taking advantage of the Congress Ministry in office, campaigned in the rural areas, preaching radical doctrines with impunity. The performance in the general elections of the Muslim League by contrast was modest: of 492 Muslim seats in all the Provincial Legislatures, only 109 were captured by League’s candidates. In the Punjab, many Muslim candidates preferred the platform of the Unionist Party and in Bengal -.’jc Praja Party’s programme proved more attractive. In the United Provinces a number of Muslim landlords declined the offer of the Muslim League to contest the elections on behalf of the League. It is significant that even after the elections Jinnah’s thoughts were not in the direction of a separate State of Pakistan. In a public statement shortly after the elections in 1937 he declared, “nobody will welcome an honourable settlement between the Hindus and the Muslims more than I and nobody will be more ready to help it”; and he followed it with a public appeal to Gandhi to tackle this question. The latter’s response was somewhat depressing : “I wish I could do something, but I am utterly helpless. My faith in unity is bright as ever ; only I see no daylight but impenetrable darkness and in such distress I cry out to God for fight”. The primary fact, mentioned earlier, needs to be stressed that in 1937 there was singularly little support for the establishment of Pakistan. How then did the Indian situation alter within three years to give this movement vitality? For an explanation, one must go to the United Provinces, where the Muslims, who were only 14 per cent of the population, had played an important part in the political development of the region. Until the general elections, the relations between the Congress and some of the prominent Muslim leaders were cordial and even friendly. The Congress Party, though confident of weakening the landlords’ position and influence in the Provincial Government and in the Legislature for many years, was not hopeful of securing a definite majority. Before the elections, the Congress Party, working on the assumption that a decisive majority in the United Provinces Legislature was difficult to get, had a tacit electoral understanding with the Muslim League. This understanding in fact extended beyond that Province and was designed to facilitate a working arrangement between the two organizations during the elections, so as to avoid contests between candidates of the Congress and those of the Muslim League in several Muslim constituencies. In pursuance of this understanding the Congress contested only 58 out of the 492 Muslim seats. It has already been mentioned that the Muslim League as a political party did not have much success in the Provinces— the Punjab, Bengal, Sind and the HISTORICAL BACKGROUND 23 North-West Frontier Province — where they constituted . majority of the popiiiatioii. Such success as this organization had in the elections was mainly in the Provinces where the Muslims were . in a . mincirity. The Muslim League and the other Muslims, especially in the United Provinces, were expecting that the Congress would form coalition Ministries consisting of Muslims drawm from the League and other communal groups. They were perhaps fortified in this belief by the provision in the Governor’s Instrument of Instructions : III making appointments to his Council of Ministers, our Governor shall ose his best endeavours to select his Ministers in the following manner, that is to say, to appoint in consultation with the person who in his judgment is most likely to command a stable majority in the Legislature those persons (Includlog so far as practicable members of important minority communities) who will best be in a position collectively to command the confidence of the Legislaturek It is true that these instructions did not require the Governor to include members of minority communities elected through their own communal organizations. Nevertheless the Muslim League expected that Muslims returned on the party ticket wuuld be asked to cooperate in forming Ministries. But the Congress Party in the United Provinces after its success in the elections, with a membership of 135 seats in a House of 228, decided to form a purely Congress Ministry. It preferred to exercise the right of forming an exclusively party government because that was held to be the verdict of the electorate. A coalition, it was argued, could not “wreck the Constitution from within”— the avowed object of a section of the Congress. Nehru and the left-wing elements in the Congress pinned their faith in a policy of which the main points were : . . .the Indian people do not recognize the right of any external power or authority to dictate the political and economic structure of India, The Indian people will only accept a constitutional structure framed by them and based on the independence of India as a nation and which allows them full scope for development according to their needs and desires. The Convention (the National Convention of Congress legislators) stands for a genuine democratic State in India where political power has been- -transferred to the people as a whole. Such a State can only be created by the Indian people themselves through the medium of a Constituent . Assembly elected on the basis of adult suffrage, and having, the power ' tO' determine finally the Constitution of the country^ The formation of purely Congress Ministries appeared to the ' Congress to;,. be the best under. the circumstaiices from many points- of view. - On /^N.,- Rajagopaia Aiyangar, The Government of India Act, 1935, p. 'Xiv. ■ ■'2Gwyer''-& Appadorai , and Documents on the Indian C onsti tut! on,. ■..'Vot I, p,':391. , 24 FRAMING OF INDIA’S CONSTITUTION the inclusion of minority members in the Provincial Cabinets, the position of the Congress was clear and unambiguous. The inclusion of the representatives of the Muslim League and other communal parties would have adversely affected the spirit of joint responsibility among the Ministers, and also weakened the national front, which had to be maintained at the optimum strength to achieve independence. Preference shown in the selection of Ministers to persons who clung to communal politics as against those who had thrown in their lot with the Congress would have had a disheartening effect on the latter and the fight against communalism would have received a severe setback. A firm refusal to share power with the communal parties would avoid this danger, and would also serve as a warning to the latter that with communal politics they would be eternally doomed to occupy opposition benches, and that their salvation lay in coming out of their communal shells. A further complicating factor w'as Nehru’s “mass contact” programme to win over the Muslim masses to the Congress creed. Nehru declared (on March 19. 1937) : We have too long thought in terms of pacts and compromises between communal leaders and neglected the people behind them. . . It is for us now to go ahead and welcome the Muslim masses and intelligentsia in our great organization and rid this country of communalism in every shape and form'. In pursuance of this policy the Congress initiated a “mass contact” programme with the object of bringing the Muslim voters and the Muslim masses within the Congress fold. This programme did not however have appreciable success. Muslim leaders in the United Provinces regarded the post-election policy of the Congress and its refusal to form a coalition with the Muslim League as a breach of faith. Many Muslims even outside the United Provinces felt that the League’s very existence was being threatened ; and in reply to the Congress “mass contact” programme the League launched a vigorous counter propaganda, with emphasis on two issues. It was argued that the non-inclusion of representatives of the Muslim community in the executive would necessarily lead to the adoption of policies which would hurt the interests of the Muslims as a community : it was further argued that the policies of the Congress would for ever exclude the Muslims from a share in the executive power unless they gave up the communal platform. The cry of “Islam in danger” was raised. It was at this time that the Muslim League further strengthened its propaganda by spreading stories about the “atrocities” on the part of tfec Congress Governments committed against the Muslim community. This propaganda had a great effect 'Gwyer Appadorai, 5peec/i« and Documents on the Indian Constitution, Vol. r, pp. 422-3. HISTORICAL BACKGROUND 25 among the Muslim masses; the facts that the Governors had a special responsibility for protecting the legitimate interests of*the minorities, but had never had occasion to use this special power; and that in all this propaganda no specific act prejudicial to the Muslim community could be proved to have taken place, were overlooked. So effective was the propaganda that in a number of bye-elections in Muslim constituencies the Congress candidates were defeated. These defeats showed that Nehru and the Congress had committed a serious tactical error'. The defeat of the Congress candidates in the bye-elections had a definite psychological effect. The stock of the Muslim League among the Muslim masses rose all over India. Other parties which had been defeated in the elections saw in the Muslim League a rallying point for a combined opposition to the Congress. Landlords in particular, whether Hindu or Muslim, fearful of the Congress agrarian programme, naturally turned to the League for indirect assistance and in return gave it support. The Muslim League, under Jinnah’s leadership, continued to press its communal demands based on the theory that the Muslims were a separate “nation”. During 1937-1938, correspondence took place between Jinnah and Nehru and Subhas Chandra Bose, the then Congress President. The demands of the Muslim League were summarized in three major points : (1) the Muslim League should be recognized to be the only authoritative and representative political organization of the Mussalmans of India ; (.2) the Congress should accept the Communal Award given by the British Government and cease all opposition to it ; (3) coalition ministries should be formed in the Provinces and include a fair share of Muslims who commanded the confidence of the Muslim members of the Legislatures. The first of these demands particularly proved quite unacceptable to (he Congress because thereby the Congress would forfeit its claim to be a national organization representing all the people of India. The negotiations for evolving a common front against the British for national independence thus broke down^ The tension between the Congress and the League grew, and the League continued to carry on sustained propaganda against the Congress Governments. The Congress in the United Provinces reflected, more than elsewhere, left-wing leanings. The Premier (Govind Ballabh Pant) could not curb, without inviting serious misunderstanding with some of his own supporters, a campaign for a socialist programme. Obviously, the liberty which the left-wingers in tl^p Congress enjoyed could not be denied ’Gwyer & Appadorai, Speeches and Documents on the Indian Constitution, Vol. I, p. 410-20. • Hbid., pp. U-iii. * 26 FRAMING OF INDIA’S CONSTITUTION to Muslim League organizers who made full use erf their opportunities for their own programme to win the allegiance of the Muslim masses. The deterioration in Hindu-Muslim relations in the United Provinces attracted attention from outside. The strength of the Congress, it was felt, could be challenged with prospects of ultimate success, on the communal side. A significant consequence of the Muslim League attracting mass support was that at the end of 1937, the League followed the example of the Congress set ten years earlier and adopted complete independence as its creed. The Muslims were not the only major factor to be considered at this stage of India’s political development. Princes — even Hindu Princes'— resentful of the demands for popular reforms in the States and the trouble stirred up among their people, became markedly sympathetic to the Muslim League. Gandhi continued his efforts to reach an understanding with the Viceroy. He was quoted (by Rajagopalachari) as having said, “I would die in an effort to prevent (the) tragedy (of a deadlock), but there must come a time when my efforts will be fruitless”. Nevertheless, he lent his weighty support to those in the Congress Party who held that “the Government of India Act of 1935 was an attempt, however limited it might be, to replace the rule of the sword by the rule of the majority”. Nehru and Gandhi viewed the developing situation in India from sharply divergent standpoints. Nehru harped on his favourite theme that the logic of events would lead the Congress to Socialism as the only remedy for India’s ills. He was keen on a National Convention consisting of all the members of the Provincial Legislatures elected under the new Constitution and of the members of the All-India Congress Committee to frame the new Constitution. Gandhi’s view of a Constituent Assembly, on the other hand, was that the Convention should, instead of frittering away the results of the success at the polls, adopt a programme to be pursued in the Legislatures. He said that there was no need for the British to leave India : “India is a vast country. You and your people can stay comfortably, provided you accommodate yourselves to our conditions here.” Meanwhile, in Europe war clouds were gathering ominously in 1938. The Congress Working Committee adopted in October of that year a resolution expressing great anxiety over the events as they were occurring in Europe. At Calcutta in the following summer the All-India Congress Committee strongly criticized the despatch of Indian troops to Aden and ♦ ^On one occasion the Maharaja of Nawanagar (at that time the Chanceilor of the Chamber of Princes) remarked, in discussing an alliance between the Muslim League and t%e Chamber for the federal elections: “Why should I not support the League? Mr. Jinnah is willing to tolerate our existence, but Mr. Nehru wants the extinction of the Princes”. HISTORICAL BACKGROUND 27 the ameodmeiit of the Government of India Act by wliicli, in the event of war, ail power would be concentrated in the- hands of ' the Central Government. The amendment, according to the leaders of tlie^ Congress, created "‘a war dictatorship of the Central Government in India which (made) Provincial Governments the helpless agents of Iiiiperialisni’'h Brushing aside the vigorous protests of the Congress and despite' the Centra! Government's earlier assurance on the subject, more Indian soldiers were subsequently despatched to Egypt and Singapore without coiisulting the Centra! Legislature. The Congress Workiog Committee condemned in August 1939 the Government’s action and called upon the Congress members of the Central Legislative Assembly to refrain from attending its next scssionh Events in Europe were moving fast. After Hiller's attack on Poland, a major war became inevitable, and early in Septem,ber, 1939, Britain and France declared war on Gerniany. On ■ the same day Linlithgow, as India’s Viceroy, issued a proclamation declaring that India too was at war with Germany. This action was taken without consulting the Central Legislative Assembly then in session and against the will of the Congress. Indian leaders were in a dilemma : Gandhi’s advice of iincaiiditioiial cooperation at the beginning of the war did not commend itself to his Congress colleagues. For years the Congress had seen in the policy of the British Government evidence of appeasement of the Axis Powers (Germany and Italy) and it was not prepared to* adopt Gandhi’s advice without a clear declaration of Britain’s post-war policy towards India. An article in the Hindu (an influential daily published in Madras) early in October, 1939 examined the possibilities of establishing, even within the limitations of the 1919 Constitution, an Executive Council which could function more or less as a National Government responsive to popular needs tliougli not constitutionally responsible to the Legislature. Linlithgow seem-ed interested in the proposal, but had his misgivings about its practical usefulness. Moreover, hinted the Viceroy, with ChurcMlI in the Cabinet, there would' be serious difficulties in securing British approval for it. The Congress demand at this time was for a speciflc declaration that Britain should agree to a Constituent Assembly, elected on adult suffrage, to frame a Constitution for India, with complete freedom, as its basis. Since the fear had been expressed that it might imply a Hindu majority 10 perpetual power, the Congress was willing to accept that the CO'iistitiition .must have the support of all important' minorities, particularly the Muslims, before British ratification of the scheme. . The , resoluti' 0 .ii.. of the Working •Committee, adopted o.!i' September 14, 1939, invited the 'B.ritish Government to ■ ■^Indian Annual. Register, 1939, Vol. I, pp. 350-1. ■ Vol. II, pp. 214-5. : ' ( 28 FRAMING OF INDIA’S CONSTITUTION ■declare in unequivocal terms what their war aims are in regard to 'democracy and imperialism; and the new order that is envisaged; in particular, how ■ these aims are- going to apply to India and to be given effect to in the present^. Elaborating this demand further, the committee declared in November, 1939: The committee wish to declare again that the recognition of India’s independence and of the right of her people to frame their Constitution through a Constituent Assembly, is essential in order to remove the taint of imperialism from Britain’s policy and to enable the Congress to consider further cooperation. They hold that a Constituent Assembly is the only democratic method of determining the Constitution of a free country, and no one who believes in democracy and freedom can possibly take exception to it. Referring to the communal issue, the Working Committee said: The Working Committee believe too that the Constituent Assembly alone is the adequate instrument for solving the communal and other difficulties. This, however, does not mean that the Working Committee will relax their efforts for arriving at a solution of the communal problem. This Assembly can frame a Constitution in which the rights of accepted minorities would be protected to their satisfaction, and in the event of some matters relating to minority rights not being mutually agreed to, they can be referred to arbitration. The Constituent Assembly should be elected on the basis of adult suffrage, existing separate electorates being retained for such minorities as desire them^ The attitude of the Muslim League has also to be mentioned in this context. The League had not yet begun to think in terms of Pakistan, though the rift between it and the Congress had widened to a degree which seemed beyond the resources of its leaders to remedy. Tlie resolution adopted by the Muslim League in September, 1939, was devoted to denunciation of ihe federal scheme, of the Congress Ministries, and of the Governors for failing to use their special powers to safeguard the interests of the Muslims. It declared that Muslim India stood against the exploitation of the people of India and upheld the goal of a free India, but would be irrevocably opposed to any federal objective which must necessarily result in a majority community rule under the guise of democracy and a parliamentary system of government. Such a Constitution is. totally unsuited to the genius of the peoples of the country which is composed of various nationalities and does not constitute s national State. ■ ' ^Gwyer & Appadorai, Speeches and Documents on the Indian Constiiution, VoL 11, p. 4S7. Tm. p. 497. HISTORICAL BACKGROUND 29 The resolution reiterated the claim of the League to be the only organization that could speak for the Muslims of India and demanded an assurance that no declaration regarding the question of constitutional advance for India should be made without the consent and approval of the League*. The reaction of the British Government and the Viceroy did not reveal a sympathetic response to India’s national aspirations. Samuel Hoare, then Lord Privy Seal in the British Government, speaking in the House of Commons on October 26, declared that while the ultimate aim of British policy in India was Dominion Status, the pace of political advance had to be decided by the British Government. He said: Muslims are firmly opposed to a Hindu majority at the Centre ; the Depressed Classes and other minorities genuinely believe that responsible Government, meaning a Government dependent upon a Hindu majority, will sacrifice their interests. . . These anxieties still exist. I wish they did not. But as long as they do exist, it is impossible for the Government to accept a demand for immediate and full responsibility at the Centre on a particular date. If we did so, we should be false to the pledges that time after time we have given in the most solemn words to the Muslims and the other minorities and the European community^. In one respect, however, Hoare went further than his predecessors: he gave an assurance that Dominion Status W'ould mean the application to India of the Statute of Westminster. Its significance lay in the fact that it committed a Government which included Churchill to a policy which he had opposed with vigour six years earlier when Baldwin was the Premier. For Gandhi and the Congress this gesture did not appear to be adequate. They insisted on India’s right to frame her own Constitution without outside interference. Independence, they asserted, need not mean hostility to Britain. Through all the twenty years that Gandhi had been the leader of the Congress, he had never faltered in his vision of an Indo-British partnership on a free and voluntary basis. In October-November 1939 came the resignations of the Congress Ministries from the seven Provinces in which they had held office for over two years. The decision to abandon office came as the inevitable sequel to the divergent policies of the right and left wings of the Congress. The latter were determined to pursue a course of action, designed to compel the British Government to accept the demand of the Congress for a definite commitment to India’s right to frame her own Constitution: but their methods of agitation would have involved the right wing elements who held office in situations of embarrassing perplexity. The easier course was to give up office rather than take action against their radical colleagues. TGwyer & Appadorai, Speeches and Documents on the Indian Constitution, Vol. II, pp. 489-90. • m. C. Deb., Vol. 3S2, cols. 1637-S. * 30 FRAMING OF INDIA’S CONSTITUTION The Viceroy continued his parleys with Gandhi, summoning in addition the Congress Presicfent and Jinnah for a joint but unsuccessful discussion of a proposal to expand the strength and authority of his Executive Council within the frauiework of the 1935 Constitution. The Congress emphasis was on India’s post-war status; but the British were unwilling to give any guarantees acceptable to the Congress and go beyond an offer of immediate changes of an interim character. In' the early stages of the world war the Congress leaders decided to^ ask for an unequivocal statement of British war aims towards India before deterniiiimg their attitude to the war. Gandhfs proposal of unconditional cooperation with Britain and her Allies was limited to moral not active support conS'istent with his creed of non-viole'uce. Nehru, on the other hand, keenly aware of the danger of a Nazi victory to the world’s progress on democratic lines, was in favour of full support in men and resources, provided that India’s place as a free country was assured in the reconstruction of the world at the end of the w^ar. The Viceroy, on his side, could not be persuaded to go further than a general assurance that the goal of Dominion Status was implicit in British policy towards India in an undefined future. At that stage the Congress leaders would liave been co<ntent with the kind of declaration which Stafford Cripps later offered to India in March 1942 on behalf of Churchill’s War Cabinet. Until the collapse of Belgium, Holland and France in the summer of 1940 had undermined their confidence in an ultimate British victory, they were more concerned with India’s post-war status and position than with any temporary arrangements during the war. In January 1940, a statement by the Viceroy in Bombay, offering India Dominion Status of the “Statute of Westminster variety” at the end of the war evoked a prompt response from Gandhi who saw in it “germs of an honourable settlement”. This hope, however, proved short-lived : an interview between the two in Delhi in February ended in failure. The British Government was prepared (the Viceroy told Gandhi) to examine the entire field of constitutional progress in consultation with representatives of all parties and interests in India at the appropriate time and to shorten to tils utmost extent possible the transition period. The federal scheme in the 1935 Act he commended as affording the swiftest transition to Dominion Status. The British offer was indicated as being in two stages: (a) an immediate expansion of the Executive Council by the inclusion in it of representatives of the political parties in India; and (b) after the war, the reopening of the federal scheme to expedite the achievement of Dominion Status. « The vital ffifference between^ the Congress demand' and the Viceroy’s' offer was, according to Gandhi, that' while the former contemplated the final determination - of India’s 'destiny by the British Government, the position of the Congress was that the people India should decide it without outside HISTORICAL BACKGROUND 31 interference. Gandhi saw no prospect of a peaceful and honourable settlement between Britain and India without the el'mination of this fundamental difference; self-determination for India, he argued, would automatically solve the problems of defence, the minorities, the Ponces and European interests'. Early in Marchs 1940, a proposal was published in an article in the Hindu of Madras that a scheme broadly on the lines of the Anglo-Egyptian agreement of 1922 might provide a useful basis for the discussion of the Indian problem. It sought a British declaration that India would be free to draft her own Constitution at the end of the war on the basis of complete freedom, subject to certain conditions: (1) the Constitution to be acceptable to Muslims and the other minorities; (2) a prior agreement between the representatives of Britain and India “in a spirit of friendly accommodation” (a phrase borrowed from the Anglo-Egyptian agreement) on (a) defence, (b) British interests and (c) the Indian States. Such a declaration could be coupled with an offer from the Viceroy accepting the principle of a provisional National Government at the Centre, the details of which could be worked out by a conference of the Premiers of the eleven Provinces. Gandhi’s approval of the formula was prompt as an acceptable solution of the Indian problem. Modifications suitable to local conditions could be worked out. he added, by a “committee of the best Indians and the best Englishmen”. There was, however, no response from the British Government. The reverses which nearly overwhelmed Britain and her Allies in Europe in the summer of 1940 produced profound reactions in India. A section of the Congress, impressed with the need for coming to terms with Britain, offered active cooperation in the prosecution of the war through a National Government, though radical elements continued to press their demand for a long-range declaration of British policy. With Churchill’s assumption of the Prime Ministership in May 1940, suspicion deepened in India that the British would not part with power. Negotiations, however, continued behind the scenes for a settlement between the Congress and a section of the Muslim League which did not favour the division of India into two sovereign States. Sikandar Hyat Khan, the Punjab’s Unionist Premier, placed before the Congress leaders a formula that the British Government should make a declaration making it clear that India’s status would be that of a self-governing Dominion in accordance with the Statute of Westminster. So far as the framing of the Constitution was concerned, it should be left to Indians themselves to formulate a scheme by mutual agreement. The machinery of the agency to which this task of constitution- framing would be entrusted could fee settled by the various parties and interests concerned; and the British Government and the Viceroy, if so ’Gwyer & Appadorai, Speeches and Documents on the Indian* Constitution, Vol. U, p. 499. • 32 FRAMING OF INDU’S CONSTITUTION desired, should be^prepared to assist in bringing about a settlement on the question of the machinery. For the transition period, which must necessarily elapse before India could assume full responsibility, appropriate arrangements could be made for the administration of certain subjects like defence, external affairs, etc. The duration of this period, the nature of the arrangements to be made, as also the question of British commercial interests and the Indian States, were to be settled by negotiation in a conference of British and Indian representatives. So far as Britain was concerned, she should be prepared to confer Dominion Status immediately after the war, or even earlier; in fact, as soon as the parties and interests concerned were able to formulate an agreed constitution. Gandhi, impressed with the possibility of coming to terms with Sikandar Hyat Khan, indicated his personal approval, reserving full assent until after discussions with the other leaders of the Congress. Realizing that he could no longer remain a detached adviser of the Congress, he assumed control of the movement and by skilful manoeuvring secured some more time for further parleys with the Viceroy. He made it abundantly clear that he would not launch a campaign of civil resistance (for which the leftwingers were clamouring) so long as the Viceroy was persisting in his efforts to reach a settlement through negotiations. Moreover, Hindu-Muslim tension had become more acute through the occurrence of riots in some parts of the country. At the back of Gandhi’s mind was the feeling that, however unsatisfactory might have been Britain’s policy towards India, in a war which was forced on her by Germany’s aggression, it would be morally wrong to seek advantage from her difficulties in Europe. Meanwhile, the concept of a separate State of Pakistan had begun to take shape in a Muslim League resolution at its Lahore session on March 23. 1940. The resolution stated certain basic principles for the framing of a Constitution; geographically contiguous units were to be demarcated into regions which should be so constituted with such territorial readjustments as might be necessary, that the areas in which the Muslims were numerically in a majority as in the North-Western and Eastern zones of India should be grouped to constitute independent States in which the constituent units should be autonomous and sovereign”. Secondly, adequate, effective and mandatory safeguards were to be specifically provided in the Constitution for minorities in these units in the regions for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them. Reciprocally, in other parts of India where the Muslims were in a minority, safeguards of the same kind were to be inserted in the Constitution for their protection and that of other minorities. The Muslim League’s resolution further empowered its Working Committee to frame a tonstitution in accordance with these basic principles providing for the assumption flnaUy by the respective regions of all powers such as ■HISTORICAL .BACKGROUND 33 defeaee, ..external affairs. .comiiiuoicatiO'ns, customs and sugh other matters .as . might be , necessaryh The ..resolution , was interpreted, by Jinnah and Sikaiidar Hya^ Khan .in very di.fferent ways. The former was clear in his mind that the League’s resolution implied the establishment of a sepa.rate State or States; .while Sikaiidar Hyat Khan interpreted it as meaning no more than the .concession of maximum autonomy to regions .in which the Muslims formed a majority of the population. A section of the Congress Working Committee was willing to .proceed on the .latter basis. A meeting between Maukna Aza-d, the ■President 'Of the Co,ngress and Sika.iidar Hyat Khan took place in Delhi early ...in July . 1940.; but the negotiations could not ma.ke much headway in the absence of , a pos...itive response from, the British. Early in August came an announcement which was made by the Viceroy on. behalf of the British Government. This announcement again e.mphasized that Dominion Status was the objective of British policy in India; -but the immediate objective was the achievement of a unity of national purpose in India which would enable her to make the fullest contribution in ‘'the world struggle against tyranny and oppression”. For this purpose the Governor- General intended to invite representatives of Indian political life to join' his Executive Coimci!; he also proposed to establish a War Adviso,ry Councih including representatives of the Indian States and of other interests in The national life of India as a whole. The announcement finally appealed for the cooperation of the .Indian political partiesl There followed, again a series- of discussions between the Viceroy and the leaders of the various political parties. ■ The Congress rejected the offer because, according to it, apart from other fundamental questions, there was no kind, of suggestion in it for the setting up of a National Goveniment in India'*. The M'uslim League carried o.n. some negotiations with the Viceroy, mainly for strengthening its- own . position. Thus the. .League considered that a r!i.eiiibersliip of two, allotted to it in the expanded Executive Council, was inadequate and "did not give any real and substa-ntial share in. the authority of the Government”. There being no satisfacto.ry response from the Viceroy on the assurances, sought -by Jinnah, the Muslim League ..also decided, not to accept the August ■1,940 .offerk With the two. major organizations in I-ndia hostile to his proposals, the Vice.roy announced, that he .W'Oiild ■ not proceed- with the. enlargement of the. Executive- .Council, .and -.the setting up of a ■ War .A-dvisory Council The " Congress Working Committee, --while rejecting the August ..■ offer, was ' m . ^Gwyer & Appadorai, Speeches '.-and Documents 'oti''the Indinn Const! tuikm, Vol. Ih p. 443. \SeIect Documents I, 35, pp. 123-5. ' - - P. Menon, The Transfer of Power in Indio, p. 97, p. 99, ■4- ■- 34 FRAMING OF INDIA’S CONSTITUTION nevertlieless williag to reconsider its attitude if the section of the Muslim League led by Sikandar Hyat Khan would come to terms iii spite of Jinnah’s opposition to such a move. But the Muslim leader from the Punjab seemed unwilling to dissociate himself from Jinnah. Gandhi’s attitude at that stage was one of unwillingness to embarrass the British; but he was reluctantly moving to the conclusion that the British were intent only on exploiting the situation by raising the problem of minorities. TOe attempt was renewed some months later by Sikandar Hyat Khan to reach a settlement on certain tentative proposals; (1) a representative committee to draft a constitution on the basis of full Dominion Status; (2) reservations in regard to defence, Indian States, etc. to be agreed to by the representatives of India and the British for incorporation in the Constitution; (3) coalition Ministries in the Provinces; (4) the reconstitution of the Central executive for the interim period to be settled by a conference of the eleven Premiers of the Provinces; (5) the Viceroy to agree to the transfer of all portfolios (with the exception of certain parts of defence) to Indian members of the Executive Council; (6) such questions as the number of permanent civil servants in the Executive Council, their portfolios, their right to vote or merely to participate in discussions, etc., to be settled by the Viceroy in consultation with the eleven Premiers; (7) joint deliberations on all subjects by the Central Executive Council. In the face of the British Government’s persistent refusal to go beyond the existing structure of the Government of India and the attitude of the political parties, no advance was possible and the political stalemate continued. The only change made was that in July 1941 five Indian members were added to the Governor-General’s Executive Council. V Stafford Cripps, then Lord Privy Seal, arrived in New Delhi towards the end of March 1942, as a member of Churchill’s War Cabinet, bringing with him proposals for a settlement of the Indian problem. The details of the British Cabinet’s plan, known subsequently as the Cripps plan, were not known to the members of the Government of India before his arrival, nor to the Governors of the Provinces. The contents were disclosed to the former at a special meeting of the Executive Council a day after his arrival, and later individually to the Governors of Provinces who were invited to visit Delhi. One of the Indian Executive Councillors revealed what he and his colleagues thought of the proposals: We all heaved a sigh of relief wheif Cripps revealed them to us last night. I said to a colleague next to me, these will never be accepted by the Congress. The Executive Council was resentful that it had not been taken into coqgdence until almost the commencement of the negotiations. Even later. Members of the Council saw Cripps only once during the negotiations and HISTORICAL BACKGROUND 35 collectively again ^ after the final breakdown. Also, ChurchilFs, annouiiceiiieiit in. London of the Cripps Mission sounded oddly significant: Cripps, it was said, would discuss the ' political problem with Indian leaders and the military situation with the Viceroy and General Wavell. Press correspondents in New Delhi :were briefed to say that the Viceroy, far from resenting this aixangement, was . ‘‘delighted”, because he would be. free, from the preoccupations of the political problem. Cripps was under the impression that the Congress point of view had not greatly altered during the two years and more that had passed since his first visit tO: India in 1939. He realized only late in the negotiations that from the Congress leaders' standpoint the centre of interest had shifted almost entirely from the future to the immediate present. It was clear that he had succeeded only after considerable difficulty in getting the War Cabinet to assent to the proposals associated with his name. They were not entirely his; Amery too had a hand in shaping them. But they were the utmost (he told some Press correspondents) that he could get from Churchill: and having gone so far, he was embarrassed to think that the Congress demand was likely to be very different. An important factor governing India's attitude towards defence at this critical juncture has received singularly little attention. On February 21, 1942, a month before Cripps’ arrival in New Delhi, General Molesworth, then Deputy Chief of General Staff in India, broadcast to the country. Japanese warships are operating in the Bay of Bengal and the Indian Ocean, and we must expect that these activities will be increased. Such activities may affect both our east and west coasts. These activities may include sporadic bombardments of coastal towns coupled with attacks by aircraft carried by surface raiders. The possibility of minor raids and landings on our coasts cannot be excluded. If the threat to Burma develops further, we may have air attacks on North Eastern India from land-based aircraft. Our eastern coast line is some 2,000 miles in length and it Is far from easy to locate a raider on so vast a seaboard. Anxieties in India deepened as a result of even franker admissions by the same officer at a Press Conference of likely developments in the Bay of Bengal. Later still, in March 1942, in an address to the Rotary Club of Delhi, he said : Everybody in India is asking : What are we going to do to keep the Japanese out. From the point of view of the army in this enormous battle-front we shall hold vital places which it Is necessary to hold In order to make India safe, but we cannot hold every one. . Therefore, what ' Is. to be done for^the rest of India where we are unable '.to put .troops or 'air or naval forces? 36 FRAMING OF INOIa'S CONSTITUTION ^ ' We cannot agn all. 'On the other hand, we can 'do a great deal to educate ■ the masses to give the Japanese a great deal of trouble. This' must be done ' by 'tjie civil people like you. The' army cannot do it. The people can work in bands and give ' trouble and delay invasion. It may be there is no proper lead from the top and no proper leadership down below. Still ; Tfeel the Japanese invasion can be beaten, if we educate the people on the lines, of They shall not pass’. Psychologically it ■ can only be done ,,by the intelligentsia, working definitely shoulder to shoulder to work up the peasant. ' ' It was clear from some of Gandhi’s subsequent writings that these passages in the broadcast had made a profound impression on him. The terms of the declaration made by Cripps were as follows: (a) Immediately upon the cessation of hostilities steps shall be taken to set up in India in the manner described hereafter an elected body charged with the task of framing a new Constitution for India. (b) Provision shall be made, as set out below, for participation of the Indian States in the constitution-making body. (c) His Majesty’s Government undertake to accept and implement forthwith the Constitution so framed subject only to : (i) The right of any Province of British India that is not prepared to accept the new Constitution to retain its present constitutional position, provision being made for its subsequent accession if it so decides. With such non-acceding Provinces, should they so desire, His Majesty’s Government will be prepared to agree upon a new Constitution giving them the same full status as the Indian Union and arrived at by a proce- dure analogous to that here laid down. (ii) The signing of a treaty which shall be negotiated between His Majesty’s Government and the constitution-making body. This treaty will cover all necessary matters arising out of the complete transfer of responsibility from British to Indian hands; it will make provision, in accordance with the undertakings given by His Majesty’s Goveramenl, for the protection of racial and religious minorities, but will not impose any restriction on the power of the Indian Union to decide In the future its relationship to the other member States of the British Commonwealth. not an Indian State elects to adhere to the Constitution it will be necessary to negotiate a revision of its treaty arraogeriierits so far as this may be required in the new situation. (d) The constitution-making body shall be composed as follows unless the ■ leaders' of Indian opinion in the principal communities agree upon, some, other form before the end of hostilities : Immediately upon the result be^g known of provincial elections which will be necessary at the end of hostilities, the entire membership of the Lower Houses of the Provincial Legislatures shall as a single electoral college .proceed to the , election, of the constilutlon-making body by the - ' .system of proportional representation. This new body shall be in number HISTORICAL BACKGROUND 37^;: about one-tenth of the number of the electoral colie^. ..'■Indian .States, shall be invited to appoint representatives in .the same proportion to their total population as in the case of the representatives of British India as a whole and with the .same powers as the, British Indian members. (e) During the critical period which now faces India , and until the new Coiistitution can be framed His Majesty’s Government must inevitably bear the responsibility for and retain control and direction of the defence of India as part of their world war effort ; but the task of organizing tO' the full the military, moral and material resources of India, must be the responsibility of the Government of India with the cooperation of the peoples of India. His Majesty’s Government desire and invite the immediate and effective participation of the leaders of the principal sections of the Indian people in the counsels of their country, of the Common w'ealth and of the United Nations. Thus they will be enabled to give their active and constructive help in the discharge of a task which is vital and essential for the future freedom of Indiah in spite of the eventual failure of the Cripps proposals, it is iindeoiable that they represented the first clear recognition by the British Government of India’s right to independence. As a long-term arrangement, the proposals enunciated the right of India to frame her own Constitution in a duly elected Constituent Assembly. As an immediate measure, transfer of power to Indian hands was clearly envisaged. According to Cripps’ declaration at a Press Conference on March 29, 1942 the intention of the British Government was “as far as passible, subject to the reservation of defence, to put power in the hands of Indian leaders”. He explained that the object was to “give the fullest measure of government to the Indian people at the present time consistent with the possibilities of the present Constitution which could not be changed till the end of the waf’l In an earlier Press Conference he had observed: I want to play my part as a member of the War Cabinet in reaching a final settiement of the political difficulties which have long vexed our relationships. Once these questions are resolved, and I hope they may be q,tiickly .and satisfactorily .resolved, the Indian peoples will be enabled,; to, associate themse.l,ves, fully and freely, not only with Great Britain .and the other Dominions but with our great Allies, Russia, China and the United States of America so that together we can assert our deterniination ^ to preserve the liberty of the peoples of the woiid‘\ On behalf . .of , the Congress, Abul Kalam' Azad accepted. . the position thus outlined by ■; .Cripps. ■'■ O'bserved: ^Select Documents I, 36(ii), pp. 127-9. -M. Subramanyan, Why Cripps Failed, p. 56. ^Indian Annual Register (Ian,“June), 1942, p. 219. 38 FRAMING OF INDIA’S CONSTITUTION We did not ask for any legal changes, but we did ask for definite assurances and conventions which would indicate that the new Government would function as a free government, the members of which act as members of a Cabinet in a constitutional government. In regard to the conduct of the war and connected activities the Commander-in-Chief would have freedom, and he would act as War Minister*. The Congress was prepared to consider constitutional progress during the war through “assurances and conventions”, though Cripps himelf did not rule out the possibility of minor changes in the Constitution, such as the elimination of the provision for three members of the Executive Council with a minimum qualification of ten years’ service under the Crown in India. Early in April Cripps ran into serious difficulty in regard to the arrangements for the administration of the portfolio of defence. Tej Bahadur Sapru, Rajagopalachari and B. N. Rau evolved at Cripps’ request a formula which might prove acceptable to the Congress leaders on the one side and to the British Government on the other: During the critical period which now faces India and before the new Constitution is framed and implemented : (a) India shall in every possible respect be treated as a free member of the Commonwealth. His .Majesty’s Government therefore invite the leaders of the principal sections of the Indian people to undertake the governance of their country and to participate in the counsels of the Commonwealth and of the United Nations in the world war effort. (b) The members of the Executive Council of the Governor-General will function on the principle of joint responsibility in the manner of a Council of Ministers. Louis Johnson, President Roosevelt’s special envoy, arrived in Delhi on April 3. His first remark to the editor of these volumes seemed to open up new possibilities for India: “We are fighting this war”, he said, “more than the British”. The President, he added, was anxious about two points: (1) Would India continue fighting alongside the Allied Powers until the end and not seek a separate peace with Japan? (2) Would free India give guarantees that she would treat the Muslims and the Untouchables fairly? If he could be convinced on these two points, the President would use his influence with Churchill to give India her freedom. After a long discussion with Nehru on the deadlock in regard to defence, Johnson produced his own formula: In amplification of clause (e) of the draft declaration His Majesty's Government make the following proposition upon the subject matter of the Defence of India : (a) The Defence Department shall be placed in the charge of a Subramatiyao, Why ^Cripps Failed, pp. 74-5. HISTORICAL BAGBCGROUND 39 representative Indian member with the exception of fiiiictions to be exercised by the Commander-in-Chief as War Member of the Executive Council. (b) A War Department will be constituted which will take-over such functions of the Defence Department as are not retained by the Defence Member. A list of ail the retained functions has been agreed to, to which will be added further important responsibilities, including the matters now dealt with by the Defence Coordination Department and other vital matters related to the defence of Indiak Defence continued to be the centre of controversy in the negotiations. Cripps ultimately proposed, on behalf of the British Cabinet, the following formula: (a) The Commander-in-Chief should retain a seat on the Viceroy’s Executive Council as War Member and should retain his full control over all the war activities of the armed forces in India, subject to the control of His Majesty’s Government and the War Cabinet, upon which body a representative Indian should sit with equal powers in all matters relating to the defence of India. Membership of the Pacific Council would likewise be offered to a representative Indian. (b) An Indian representative member would be added to the Viceroy’s Executive who would take over those sections of the Department of Defence which can organizationally be separated immediately from the Commander- In-Chiefs War Department and which are specified under head (I) of the annexure (Not reproduced). In addition, this member would take over the Defence Coordination Department which is at present directly under the Viceroy, and certain other important functions of the Government of India which are directly related to defence and which do not fall under any other existing departments and which are specified under the head (II) of the annexure (Not reproduced)^ This formula, if it proved acceptable to the Congress and other ‘important bodies of Indian opinion”, Cripps suggested, would enable the Viceroy “to embark forthwith upon the task of forming the new National Government in consultation with the leaders of Indian opinion”. Negotiations continued until April 10, when Azad, in the course of a final letter to, Cripps, explained the Congress point of view: “We cannot accept them (the long-range proposals) as suggested.” At the same time, , he added, .“the ultimate decision... would be governed by the changes made, -in' the present”. Elaborating this point, he went on: ..The over-riding probiem before all of us, and ,mo.re especially before' all , .Indians, is,, the defence of the country from agg,ression and invasion." The , future, . important as ' it is, will depend on w.hat happens ,, in the,,, next few ■^M. Subramanyan, Why Cripps Failed, p. I2S. , W. P. "Menon, The Transfer ..of Power in India, p. 111, 40 FRAMING OF INDIA'S CONSTITUTION ■ .months^ and y^rs. We were, therefore, prepared to do, witiioiit any ' assurances for this uncertain future, hoping that through our sacrifices in the defence of our country we would lay the solid and enduring foundations ^ for a free and' independent India. We concentrated, therefore, on the present. Regarding proposals for the present, the criticism was that they were vague and incomplete, except in so far as it was made clear that His Majesty’s Goveiiinieiit must inevitably bear the full responsibility for the defence of India. These proposals, in effect, asked for participation in the tasks of today with a view ' to ensure “the future freedom of India”. Freedom was for an uncertain ■ future, not for the present; and no indication was given in clause (e) of what arrangements or governmental and other changes would be made in the present. In the final stages of the negotiations, however, the Congress leaders were disappointed with Cripps’ explanation, Azad’s letter complained: You had referred both privately and in the course of public statements to a National Government and a ‘Cabinet’ consisting of ‘ministers’. These words have a certain significance and we had imagined that the new Government would function with full powers as a Cabinet, with the Viceroy acting as constitutional head. But the new picture that you placed before us was really not very different from the old, the difference being one of degree and not of kind. The new Government could neither be called, except vaguely and inaccurately, nor could it function, as a National Government. It would just be the Viceroy and his Executive Council with the Viceroy having all his old powers. We did not ask for any legal changes ; but we did ask for definite assurances and conventions which would indicate that the new Government would function as a free Government the members of which act as members of a Cabinet in a constitutional government. In regard to the conduct of the war and connected activities the Commander-in-Chief would have freedom and he would act as War Minister^ Cripps left India for London on April 12. Before going lie broadcast to India giving the reasons for his failure. He blamed the Congress leaders for the breakdown and gave two reasons to account for it: (1) they had demanded ah immediate change in the Constitution, a point (he said) they raised at the last moment; (2) they had asked for a National Government untrammelled by any control by the Viceroy or the British Government. He interpreted the second point as a system of government ' ‘Responsible, to no legislature or electorate, incapable of being changed and the majority of whom would be in a position to dominate large minorities”. Such a position the iiiiiioritics would never accept; nor' could the British ■ Government consent to a lircacfi of its pledges to themR ■M. Subramanyan, IF/iy Cripps Failed, pp. 72-5. Hbid.f p. 60. HISTORICAL BACKGROUND 41 Explaining from the Congress point of view the cause the ^ breakdown, Pvajagopalacliari said: We were proceeding ail along under- an impression that ' tiif National Govemnient to be, set ' up would be a Cabinet functioning as in a constitutional government ; that is to say, that the Governor-General would accept the advice of Ministers and that the o-niy reservation was the authority of the Cooimander-in-Chief -and of the British War Cabinet, but we were aghast when we were told that all the new Members of Government would only function like the present Executive Coimcil Members, and not as Ministers in a constitutional government. A point of considerable significance needs to be made at this stage. ; A major reversal of roles seemed to have occurred between Gandhi and Nehru after the failure of the Cripps Mission. By temperament Gandhi v/as constructive and accommodating in ■ his po'Iicies and outlook. He had for some years supported the section of the Congress represented by Rajagopalachari which w’as keen on making the maximum use of the powers conferred on India by the 1935 Constitution; in the early stages of the- second world war, he was for India’s unconditional support of Britain and her Allies, consistently with his creed of non-violence; he encouraged more than one efiort ill 1940 and ;1941 designed to establish a transitional war-time federation with the cooperation of Sikaodar Hyat Khan and States like Baroda and Jaipur. But from 1941 his faith in the sincerity of British promises and assurances weakened and was practically extinguished by the fate of the Cripps mission. On the other hand, Nehru, who had no use for the 1935 Constitution, except for wrecking it from within, saw in the rapid ris-e of the Nazi and Fas- cist movements in Europe a grave warning to India and the rest of the world. With the Allied Powers facing a crisis, especially after Japan’s entry into the second world war and her spectacular successes in Soiith-,East Asia, Nehru’s tactics underwent a complete transformation. The failure of the Cripps mission had much less of an. impact on him tha.n on Gandhi. The imminence of Japan’s attack on I:ndia w^^as for him a coinpelling reason, for the need to do fresh thinking on lodo-British relations. In the fateful days following the departure of Cripps, it was Nehru, assisted by Azad, w’ho exercised a sobering iiifiiience on Gandhi and prevented him from plunging the country into '■'anarchy and chaos”. On their insistence, the resolution of the All-Iiidia Congress Committee at Allahabad adopted in May 1942 underwent modifications. While demaodiog’ that Britain must ''abandon her hold on India” and adopting noii-violeiil non-cooperat,ioi,i as its |>olicy, the resolution kept the door open for further-’ negotiations,, if possible, with the British Government ; it asserted that India could -deal with Britain only on. the basis of Independence. Tlie reactions of the different Congress leaders to the failure of the Cripps Mission were characteristically .different Rajagopalachari, for instance 42 FRAMING OF INDIA’S CONSTITUTION coming from Mac^fas,. reached quick but far-reaching decisions. He was convinced that the British would not resist the Japanese and the people had not the m^ans for effective resistance. Only a National Government could save the country; but the British were not willing to part with , power. ■ Therefore, power had to be wrested from them. How could it be done.? Only, he argued, by coming to terms with Jinnah and the Muslim League. Their demand for Pakistan after the war was the lesser of the two evils, since refusal would mean invasion of India by the Japanese. Gandhi reflected on the situation very differently. He made the suggestion, much discussed at the time all over the world, of the complete withdrawal of British and Allied troops from India. Referring to Britain he said in his paper Harijan : There is no guarantee that she will be able to protect during this war all her vast possessions. They have become a dead weight round her. If she wisely loosens herself from this weight, and the Nazis, the Fascists or the Japanese, instead of leaving India alone, choose to subjugate her, they will find that they have to hold more than they can in their iron hoop. Whatever the consequences, therefore, to India, her real safety and Britain’s too lie in an orderly and timely British withdrawal from India. Nehru’s position was extremely difficult. The Congress Working Committee was faced with a double crisis. Rajagopalachari was determined to raise the issue of coming to terms with Jinnah on the basis of conceding the principle of Pakistan. Tliese two Congress leaders were agreed on the attitude to be adopted towards the Japanese and on the urgent need for a National Government to take charge of India’s defence. But their solutions were different. Even after Cripps had abandoned his plan, Johnson felt that another effort should be made to bring about some agreement between the Congress and the Muslim League : the defence of India, he considered, would be impossible without such agreement. Johnson proposed a declaration by the British Government that the British Cabinet would be willing to go to the farthest limits possible to convert the Governor-GeneraFs Executive Council into a National Government in practice. The Viceroy would invite a small number of representative leaders to examine the Constitution from this standpoint. Johnson added: If Churchill and Cripps would approve above generally, then through Viceroy, at London’s direction, Nehru, Jinnah and Rajagopalachari could be brought together here and if necessary taken to London for final agreement, I can persuade Nehru and Rajagopalachari to attend meeting. Viceroy can get Jinnah. Before meeting I would have G. D. Biria, most prominent industriaiist and backer of Gandhi, talk with Gandhi. Both Congress and Cripps have stated there will be no further approach by either ; therefore, outside move must be made if India is to defend fierself and not be another France. At this distance I believe no one but HISTORICAL BACKGROUND 43 President can move successfully, Nehru writes me to^ay of “ierce feeling against Britain”. America alone can save India for' the United Nations cause and my suggestion ought not be disposed of on basis of meddling' in internal affairs of a subject nation. I respectfully urge that saving India concerns America as much as Great Britain. The effort cannot harm. It may be the miracle. I urge immediate consideration and, being on the ground, pray for President’s aid. Time of essence'. But President Roosevelt had become cautious • and was. reluctant- to pressurize Churchill further. He told Johnson' that .■ while he greatly appreciated his earnest efforts, an unsuccessful attempt to solve the problem along the lines which you suggest would, if we are to judge by the results of the Cripps Mission, further alienate the Indian leaders and parties from the British and possibly cause disturbances among the various communities. On balance, therefore, I incline to the view that at the present moment the risks involved in an unsuccessful effort to solve the problem outweigh the advantages that might be obtained if a satisfactory solution could be founds Johnson returned to Washington later in the summer, a sick man. Reporting at a conference, he said : The Viceroy and others in authority were determined at the time of the Cripps Mission that necessary concessions should not be made and are still of the same opinion; ... the British are prepared to lose India, as they lost Burma, rather than make any concessions to the Indians, in the belief that India will be returned to them after the war with the status quo ante prevailing. Johnson added that he had been reliably informed that the authorities did not propose to attempt any serious defence of India in the event of Japanese attack*. Roosevelt must have felt somewhat reassured by a long message from Nehru received in April, 1942, in which he had assured the President : The failure of Sir Stafford Cripps’ mission has added to the difficulties of the situation and reacted unfavourably on our people. But whatever the difficulties we shall face them with all our courage and will to resist. Though the way of our choice may be closed to us, and we are unable to associate ourselves with the activities of the British authorities in India, still we shall do our utmost not to submit to Japanese or any other aggression and invasion. We, who have struggled for so long for freedom and against an old aggression, would prefer to perish rather than submit to a new invader. Our sympathies, as we have so often declared, are with the forces, fighting against fascism and for democracy and freedom. With freedom in our own '^'Foreign, Relations of the United States* Vol. I (1942), ppv, '649-50., ' ■ ^!bid„ p. ,650. ' ' * ■ ■ Hbid,, p. 659. 4 ‘ 4 ^ FRAMING OF INDIA’S' CONSTITUTION country those syippathies could have been translated into dynamic action'. Nehru was obviously worried and sad. He decided, after reflecting on the situation foj;'a quiet , week in Kulu, to go to Wardha for a frank talk with Gandhi. They had not met for over two months, and much had happened in' that interval. The details of the talk had not at that time been made public; but 'Gandhi’s letter of June 14, 1942 to General Cliiang Kai-shek (published in India in August, 1942 after the arrests of the Congress leaders) throws significant light on the inner working of his mind: I am anxious to explain to you that my appeal to the British Power to withdraw from India is not meant in any shape or form to weaken India’s defence against the Japanese or embarrass you in your struggle. India must not submit to any aggressor or invader and must resist him. 1 would not be guilty of purchasing the freedom of my country at the cost of your country’s freedom. That problem does not arise before me as I am clear that India cannot gain her freedom in this way, and a Japanese domination of either India or China would be equally injurious to the other country and to world peace. That domination must, therefore, be prevented, and I should like India to play her natural and rightful part in this. 1 feel India cannot do so while she is in bondage. India has been a helpless witness of the withdrawals from Malaya, Singapore and Burma. We must learn the lesson from these tragic events and prevent by all means at our disposal a repetition of what befell these unfortunate countries. But unless we are free, we can do nothing to prevent it, and the same process might well occur again, crippling India and China disastrously. I do not want a repetition of this tragic tale of woe. * ;ic 5}{ Unless we make that effort, there is grave danger of public feeling in India going into wrong and harmful channels. There is every Hkeiiliood of subterranean sympathy for Japan growing simply in order to weaken and oust British authority in India. This feeling may take the place of robust confidence in our ability never to look to outsiders for help in winning our freedom. We have to learn self-reliance and develop the strength to work out our own salvation. This is only possible if we make a determined effort to free ourselves from bondage. That freedom has become a present necessity to enable us to take our due place among the free nations of the world. : To make it perfectly clear that we want to prevent in every way Japanese ; , agg'ression,, 1; would personally agree and I am .sure the Government of free ' India would agree that, the 'Allied Powers might, under treaty with us, keep their armed forces in India and use the country as a base for operations against threatened Japanese attack. ^Foreign Relations of the United States, Vol. I (1942), p. 636. HISTORICAL BACKGROUND 45 The major, points on which Nehru succeeded in gettiijg Gandhi to modify •his viewpoint were: (!) no action against Britain which might even indirectly |issist Japan against China; (2) a treaty between the Allies and free India permitting the use of India as a base for Allied operations against the Japanese; (3) avoidance of conflict with British authority, if at all- possible'. At the end of June, the Viceroy announced a further expansion of his Execiitive Council, adding more Indians to it, but not giving more power to them. Home and Finance continued to be in British hands,, and a non- official British businessman was appointed for the first time as the member in- charge of the newly constituted portfolio of War Transport including Railways. This step had a two-fold effect. It meant that the British Cabinet was not willing to go as far as Cripps in having a completely -Indian personnel for the Executive Council ; and secondly that no settlement would be sought with the Congress. At the July (1942) meeting of the Congress Working Committee at Wardha, it was pointed out in a resolution : The freedom of India is thus necessary not only in the interest of India but also for the safely of the world and for the ending of nazism, fascism, militarism and other forms of imperialism, and the aggression of one nation over another. Ever since the outbreak of the world war, the Congress had studiedly pursued a policy of non-embarrassment. Even at the risk of making its satyagmha ineffective, it deliberately gave it a symbolic character, in the hope that this policy carried to its logical extreme would be duly appreciated and that real power would be transferred to popular representatives, so as to enable the nation to make its fullest contribution towards the realization of human freedom throughout the world, which is in danger of being crushed. It had also hoped that negatively nothing would be done w^hich was calculated to tighten Britain’s hold on India. These hopes have, however, been dashed to pieces. The abortive ' Cripps proposals showed in the -clearest possible manner that "there was no change in the British Government’s attitude towards India .and' that -the 'British hold on India was in no way to be relaxed. In ' the negotiations' with Sir : Stafford Cripps Congress representatives tried their utmost to. U'chieve 'a . m,mi!Tiu,m consistent with the .. national demand, but to mo avail; ' This .frustration has re.sulted In a' rapid and widespread increase ofill-wiil against .'-.:-'-Britaln"and:a growing 'satisfaction at 'the' success ■■ of Japanese arms, On the withdraw^a! of ' British rule 'in 'India, responsible men and women ^Foreign Relations' 'of the United States^ VoL I "■(1942),-':'-^pp.""'675-6. 46 FRAMING OF INDIA’S CONSTITOTION of the country jvill come together to form a Provisional Governrnent, representative of all important sections of the people ; of India, which will later evolve a scheme by which a Constituent Assembly can be convened in order to prepare a constitution for the Government of India acceptable - to all sections of.the people. ■ Representatives of free India and representatives of Great Britain will confer together for the adjustment of future relations and for the cooperation of the two countries as allies in the common task of meeting aggression. It is the earnest desire of the Congress to enable India to resist aggression effectively with the people’s united wilj and strength behind it. In making the proposal for the withdrawal of British rule from India, the Congress has no desire whatsoever to embarrass Great Britain or the Allied Powers in their prosecution of the war, or in any way to encourage aggression on India or increased pressure on China by the Japanese or any other power associated with the Axis group. Nor does the Congress intend to jeopardise the defensive capacity of the Allied Powers. The Congress is therefore agreeable to the stationing of the armed forces of the Allies in India, should they so desire, in order to ward off and resist Japanese or other aggression and to protect and help China. The proposal of withdrawal of the British Power from India was never intended to mean the physical withdrawal of all Britishers from India.. The decision of the Government of India to arrest Congress leaders after the endorsement of this resolution by the All-India Congress Committee was actually taken on July 15. The resolution of the Working Committee added that on the failure of the British Government to Avithdraw its ruling power from India and deal with it on the basis of independence, the Congress would reluctantly be compelled to utilize all its accumulated non-violent strength in a widespread struggle, under the leadership of Gandhi. But the decision of the British Government took no account of the fact that the resolution did leave the door open for further negotiations. Clearly, the British Government and the Viceroy had made up their minds not to make any further concessions on the independence issue. Worried by reports from India about the possibility of Gandhi starting a civil disobedience movement. President Roosevelt wrote a letter to him on August 1, 1942, in the course of which he observed : l am sure that you will agree that the United States has consistently striven for or supported policies of fair dealing, of fair play, and of all related principles looking towards the creation of harmonious relations between nations. Nevertheless, now that war has come as a result of Axis dreams of world conquest, we, together with many other nations, are making a supreme effort to defeat those who would deny for ever all hope of ^in^ian Annua! Register, 1942, Yol. IJ, pp. 207-9, HISTORICAL BACKGROUND 47 freedom throughout the world. I am enclosing a gopy -of an address of July 23 by the Secretary of. State- made with my complete -approval which illustrates the attitude of this Government. I shall hope that our common interest in democracy and righteousness will enable your countrymen and mine to make common cause against a common enemy\ ^ Gandhi, Nehru and Azad took a conciliatory line in their statements, both before the commencement of the meeting of the All-India- Congress Committee in Bombay on August 8 and during the debates on the main resolution, Nehru told the Manchester Guardian on the eve of the meeting that it would be dishonest betrayal of the Allied cause if free India were ever to think of a separate peace with any of the Axis Powers"’; that “the National Government would reaffirm the signature of the representatives of the Government of India to the pact of the United Nations”; and further that China was only an example of Japanese aggression. Japan would have to withdraw from Burma, Malaya, the Dutch East Indies, etc. But, added Nehru, India would not fight so that these territories could revert to their old status as imperialist possessions. India would demand the freedom of all such territories^ The resolution, which was passed by an overwhelming majority by the All-India Congress Committee on August 8, said that British rule was “degrading and enfeebling India and making her progressively less capable of defending herself and of contributing to the cause of world freedom”. Therefore its termination was “a vital and immediate issue on which depend the future of the war and the success of freedom and democracy”. In order to assure the minorities and particularly the Muslims, who had expressed their fear of a permanent Hindu majority governing India, the Congress accepted the view that the permanent Constitution after the war would be a federal one, with the largest measure of autonomy for the federating units, and with the residuary powers vesting in these units. The future relations between India and the allied nations will be adjusted by representatives of all these free countries conferring together- for their mutual advantage and for their cooperation in the common task of resisting aggression. Freedom, will enable India to resist aggression effectively with the people's united will and strength behind it.., , The, freedom of India must be the symbol of. and prelude to, the freedom of all other Asiatic nations under foreign domination, Burma, .Malaya,' ' Indo-China, the Dutch Indies, Iran and Iraq must also ' attain their, complete, . ■freedom. It must be clearly understood, that such of these ,counfrIes as are ^Foreign Relatims of the United States, Vol. I (1942), p. 703, ' ^Manchester' Guardian, August 7, 1942. ■ 48 FRAMING OF INDIA’S CONSTITUTION ■ 'Under Japane^sj^ control now must not subsequently be .placed .under the rule or control of any colonial power\ Viewing the immediate present from this standpoint, the resolution made 'an earnest appeal to Britain and the 'United Nations to end ‘'imperialist and authoritarian government” in India; otherwise, a mass struggle based on non-violence was inevitable, adding that the freedom resulting from the '■'Success of such a miovement would be for all the people in India, not for the Congress alone. This mass struggle, the resolution said, would be -under 'Gandhi’s leadership^. "In one respect, the resolution differed from that adopted at Wardha thrcre weeks earlier. The formation of a National Government, it was laid down, ■would follow the declaration of India’s freedom, not the withdrawal of British rule. The distinction was made so that no question, could arise about a possible interval between these two developments wiiicli Gandhi had sometimesi declared might be one of chaos. Nehru declared in his speech in Bombay that the resolution was not a threat, only an offer of cooperation, but of a free India. Gandhi dwelt at great length in his final speech on the efforts he and the Congress had made to secure a Hindii-Muslim settlement. He endorsed Azad’s suggestion that if the British would transfer power to India, the Congress would be willing to impose a self-denying ordinance and keep out of the Governiiieiit. And he added, significantly, that he proposed to ask for a meeting with the Viceroy. But neither the resolution nor the speeches had any effect on the decision of the British Government. They did not wait for the reports of the speeches, but hastened to carry out the decision to arrest the leaders. The' interest of the U.S.A. in Indian affairs continued even after Louis Johnson’s return to Washington. William Phillips, who came out to India as President Roosevelt’s envoy towards the end of 1942, was more cautious than his predecessor. But Gandhi’s fast early in 1943 compelled him to act, if only to prevent the unfortunate impression that the U.S.A. was backing Britain in regard to India. With a crisis impending— possibly Gandhi’s death— he was authorized by Washington to express to Linlithgow 'the President’s great concern about the possible' consequences of such a calamity.' That tragedy fortunately did not occur, though Phillips was 'becoming increasingly diffident about an immediate solution of the Indian problem. After 'the termination of Gandhi’s fast, Phillips sent a long letter to President Roosevelt in which he observed : Therels ..thus' a co.mpl.ete deadlock afid' I -should imagine; that the . Viceroy and '.'GhiirchilT are well satisfied Ao"' let .the deadlock .reitialii as long .as ^Select Documents 31,: pp, 132 - 5 . nhid, ' ^ ■ ■ HISTORICAL .BACKGROUND 49 , possible. That ^ Is^ at leasts the general impression in most Indian circles. , The problem, therefore, is, can 'anything be done to break this deadlock through our .help? It seems to me that all we can do is to try to, induce the Indian political leaders to meet together and discuss the" form of government which they regard as applicable to India, a.nd, thus to show the world that they have sufficient intelligence to tackle the problem. , , We must not assume that they will . adopt the American or British systems. ^In view of the importance of guaranteeing protection to the minorities, a majority form of government may not be appiieable,, and a coalition may prove to be the only practical way of guaranteeing ■ internal harmony. We cannot suppose that the British Government can or will transfer, power to India by the scratch of a pen at the coiiciiislon of the Peace ,Coeference unless there is an Indian Guvernment fit to receive it ,The question, , remains, there,for,e, how to iiidiiee the leaders ^ to begin now to prepare for their future responsibilities. There is, perhaps, a way out of the deadlock which I suggest to you, not because I am sure of. its success, but because I .think ' it is worthy of your consideration. With the approval and .blessing of -the British Government, an invitation could 'be addressed, to the leaders of all Indian political groups on behalf of the President of the United States to meet together. to discuss plans for the future. The assembly could be presided over by an American .who could exercise influence in harmonizing the endless divisions of caste, religion, race and political views. The conference might well be under the patronage' of the .King-Emperor, the President of the .United States, the President of the Soviet Union and Chiang Kai-shek., In order to bring pressure .to bear on Indian politicians; Upon the issuance 'of the invitations, 'the ,Kiog-E.mperor could give a fresh .assurance of the Intention . of the .British Government to transfer power to India upon a certain..c!ate, as we!! as his desire to grant a provisional set-up for the duration. The conference could be held In any city in India except Delhi. American chairmanship would have the advantage, not only of exp.ressing the ‘Interest of .America In. the .future independence of .India, but would also ’be a guarantee' to the "Indians .of the British offer.' of independence, .This iS' an 'important point because, as I have already .said in' ,previous' ' letters, British promises in this regard are no longer believed. If either of the principal parties 'refused to attend, .the. confe,re.nce, it, would be notice to all the world that India was not .ready for self-go vern,men,t, and I doubt whether a political leader" would put hteself in such a position. Mr. Churchill and' Mr.. A,mery may be , o.bsta.cles, for, notwithstanding statements to the contrary, India is governed, from London, down to the smallest details. Should you approve the, , general ' idea and ' care '. .to consult Churchill, he might, reply that since .the Congress .leaders are .in jail, , a meeting such as is . contemplated Is Impossible.- The answer. could be. that certain ofcthe ■50 FRAMING OF INDIA’S CONSTITUTION leaders, notably Gandhi, might be freed unconditionally in order to attend the -conference. The British may even be searching for a good excuse to ■ release Gandhi, for the struggle between him and the Viceroy is over with - honours for both— -the Viceroy has maintained his prestige ; ' Gandhi has carried out his protest against’ the Government by his successful fast and has come back into the limelighth •In a letter (May 14, 1943) to Roosevelt (after his return to Washington) Phillips analyzed the Indian situation. ■ In the course of this letter he said : Assuming that India is bound to be an important base for our future operations against Burma and Japan, it would seem to me of highest importance that we should have around us a sympathetic India rather than an indifferent and possibly a hostile India. It would appear that we will have the primal responsibility in the conduct of the war against Japan. There is no evidence that the British intend to do much more than give token assistance. If that is so, then the conditions surrounding our base in India become of vital importance. . . . Indians feel that they have no voice in the Government and therefore DO responsibility in the conduct of the war. . . The present Indian Army is purely mercenary. . . General Stilwell has expressed to me his concern over the situation and in particular in regard to the poor morale of the Indian officers. The attitude of the general public toward the war is even worse. Lassitude and indifference and bitterness have increased as a result of the famine conditions, the growing high cost of living and the continued political deadlock. While India is broken politically into various parties and groups, all have one object in common, eventual freedom and independence from British domination. M ^ m I feel strongly, Mr. President, that in view of our military position in India we should have a voice in these matters. It is not right for the British to say “this is none of your business” when we alone presumably will have the major part to play in the future struggle with Japan. If we do nothing and merely accept the British point of view that conditions in India are none of our business then we must be prepared for various serious consequences in the internal situation in India which may develop as a result of despair and misery , and anti-white sentiments of hundreds of millions of subject people. The peoples of Asia— and I am ^‘supported in this opinion by ■ other ■ diplomatic and military observers— cynically regard this war as one between ^orei^n Relations of the United States, Vol IV (1943), pp. 206-7. HISTORICAL BACKGROUND Si Fascist' and Imperialist Powers. A generous British gesti^e to India would , change this undesirable political atmosphere. India itself might then be expected more positively to support our war effort against Japan. China, which regards the Anglo-American bloc with misgiving and mistrust, might then be assured that we are in truth fighting for a better world. And the ' colonial peoples conquered by the Japanese might hopefully feel that they have something better to look forward to than simply a return to their old masters. Such a British gesture, Mr. President, will produce not only a tremendous psychological stimulus to flagging morale through Asia and facilitate our military operations in that theater, but it will also be proof positive to all people — ^our own and the British included — ^that this is not a war of power politics but a war for all we say it ish VI After the arrests of Gandhi and the Congress leaders in August, 1942, a group of men led by Tej Bahadur Sapru took the initiative to make an effort to resolve the deadlock. In December, 1942, Sapru invited a number of prominent persons in public life to a special meeting at Allahabad. There were present one or two members of the Congress like Rajagopalachari (who had not subscribed to the “quit India” resolution and were, therefore, out of prison) and spokesmen of the Hindu Mahasabha, the Christian Conference, the Trade Union Congress, the Liberal Federation, the Akali Party and the Federation of Indian Chambers of Commerce. These persons met on December 12 and 13, 1942 to consider the situation. No formal resolution was adopted, since the primary object was to explore the possibilities of holding later an all-parties’ conference; and the members had declared that they had no mandate from their respective organizations to commit themselves to any definite course or policy. After discussions for two days, Sapru declared that there was a widespread anxiety to reach a solution of the political deadlock and also a basis of agreement likely to prove generally acceptable. The details of such an agreement could not assume final shape until those present at the conference had an opportunity of discussing them with their respective organizations. Therefore, at that stage, an early summoning of an all-parties’ conference, including therein the two major parties in the country, namely, the Congress and the Muslim League, appeared to be imperative for reaching a settlement.' Sapru also revealed to the conference that Gandhi was earnestly anxious shortly before • his arrest to be co-opted for the deliberations "of ' such a conference. Jinnah too had repeatedly declared his willingness to ■discuss with leaders uf other parties the details of a possible solution. In order,, however, to ensure the success of the conference Sapru' and 'those 'associated '^Foreign Relations of the United States^ Yoh IV (1943), pp. 220-2, 52 FRAMING OF INDIA’S CONSTITUTION with him considerid it essential that the British Government should announce forthwith: (1) tjiat the provisional Government of India, to be formed as a result of a general agreement, would be endowed with full powers and authority over the administration, subject only to the position of the Commander-in-Chief being duly safeguarded in order to promote the efficient prosecution of the war; and in its relations with Britain and the Allies, enjoying the status of a Dominion and entitled to all the rights and privileges associated with such status; (2) the release of Gandhi and aU Congressmen to enable the representatives of the Congress to participate in the all-parties’ Conference. These two steps were essential for the creation of a proper atmosphere in which the conference could conduct its deliberations and reach a successful conclusion. The tragic chapter of events of the previous four months, in particular the decision of the Congress to launch a civil disobedience movement, no less than the methods adopted to suppress the disturbances in several parts of the country, it was felt, must be ended without delay if bitterness and resentment were to be prevented from assuming dangerous proportions. Sapru concluded the statement in the following terms : As men anxious to see India throw all her resources into the war effort we ask the British Government to make this positive contribution towards the success of the All Parties’ Conference. On his personal responsibility, Sapru sent a cable to the Prime Minister. Churchill, for a fresh effort. Certain concrete measures were suggested in his appeal ; (1) the conversion and expansion of the Central Executive Council into a truly National Government^ consisting entirely of non-officials of all recognized parties and communities, and in charge of all portfolios, subject only to responsibility to the Crown ; (2) the restoration in Provinces now ruled autocratically by Governors in accordance with Section 93 of the Government of India Act, 1935, of popular governments broad-based on the confidence of the different classes and communities; failing this, the establishment of non-official Executive Councils responsible to the Crown, as proposed for the Centre ; (3) the recognition of India’s right to direct representation through men chosen by the National Government in the Imperial War Cabinet (should such a body be set up), in all Allied War Councils, whenever established, and at the Peace Conference ; (4) consultation with the National Government, precisely on the same footing and to the same extent as His Majesty’s Government consult the Dominion Governments in all matters affecting the Commonwealth as a whole and India in particular. These are war measures whose adoption need in no way prejudice the claims "or demands of different parties in regard to India’s permanent constitution. HISTORICAL BACKGROUND 53 But knowing intimately the feelings and aspirations of pm countrymen as we do, we must express our cQiiviction that nothing less than the inauguration of this policy can resolve the crisis in India. The urgency of immediate action cannot be over-emphasized. We appeal to you in all sincerity, but with the greatest emphasis, to act while there is still time for such action, so that India may line up with the other anti- Axis Powers on a footing of absolute equality, with them in a common struggle for the freedom of humanity. This attempt on the part of Sapru and liis . associates met with no better fate than all the previous efforts. Later, on the termination of Gandhi’s fast, a request was made to the Viceroy by the Sapru group to permit a deputation to meet Gandhi for a discussion of the Indian problem. Even this request was turned down. The Viceroy would not permit any special facilities for meeting Gandhi and the other Congress leaders unless they changed their attitude and repudiated their policy. So the political stalemate coiitinued all through 1943 until Gandlii’s release from detention in 1944 following an illness. Towards the end of July of that year Sapru met Gandhi, with Rajagopalachari and Bhulabhai Desai, a prominent Congress leader from Bombay. Gandhi approved of the suggestion that a number of eminent lawyers like Sapru should draft a memorandum pointing out the reasonableness and practicability of his proposals. Sapru himself was in favour of the suggestion, though he vigorously opposed the idea of a deputation to the Viceroy in order to discuss it with him. Gandhi was not particular about a deputation, but he seemed clear in his mind that such a memorandum drawn up without reference to himself could well be made the rallying point for public opinion of different shades. A movement not confined to the Congress could thus grow round it. Later, however, when Sapru went to see Gandhi again, he seemed to have revised his view, particularly when he found that Sapru, Bhulabhai Desai and Rajagopalachari agreed that responsibility of the executive to the legislature could not be brought about without a change in tlie existing Constitution. Gandlii’s immediate reaction to the view was that if the memorandum could support his recent proposals embodied in a letter to the Viceroy it would certainly strengthen his hands. If, on the other hand, the memorandum explicitly or otherwise emphasized the difference between Gandhi’s proposals and the demands put forward by men like Sapru, it would be a hindrance and an obstacle. " Meaiiwliile, in an attempt to break the deadlock, another move was; made to reach a settlement with Jinnah and the Muslim League, and the initiative in this move was taken by , Rajagopalachari. As early as April 1942, Rajagopalachari had, been convinced ' that, as progress .towards independence depended on an agreement with the Muslims, and as the MusBm League had adopted partition as the only basis on which they would cooperale, iX m FRAMING OF INDIANS CONSTItUflON had becGine iaevil^ble that Congress should concede in principle the Pakistan demand. He had accordingly given notice of a resolution, to be moved in the All-India Congress Committee at Allahabad at the end of April 1942. This resolution said that to sacrifice the chances of the formation of a National Government at this grave crisis for the doubtful advantage of maintaining a controversy over the unity of India is a most unwise policy and ... it has become necessary to choose the lesser evil and acknowledge the Muslim League’s claim for separation, should the same be persisted in when the time comes for framing a Constitution for India. ■ , The resolution suggested that on this basis the Muslim League should be invited for consultations for the purpose of arriving at an agreement and securing the installation of a National Government to meet the emergency. It was rejected by the All-India Congress ComniitteeL Rajagopalachari did not however give it up; in 1943 he drew up a formula to form a basis for a settlement between the Congressi and the Muslim League. He consulted Gandhi during the latter’s incarceration and had communicated it to Jinnah in April 1944. The formula read : (1) Subject to the terms set out below as regards the Constitution for free India, the Muslim League endorses the Indian demand for independence and will cooperate with the Congress in the formation of a provisional interim Government for the transitional period. (2) After the termination of the war, a commission shall be appointed for demarcating contiguous districts in the north-west and east of India, wherein the Muslim population is in absolute majority. In the areas thus demarcated, a plebiscite of all the inhabitants held on the basis of adult suffrage or other practicable franchise shall ultimately decide the issue of separation from Hindustan. If the majority decide in favour of forming a sovereign State separate from Hindustan, such decision shall be given effect to, withoul prejudice to the right of districts on the border to choose to join either State. (3) It will be open to all parties to advocate their points of view before the plebiscite is held, (4) In the event of separation, mutual agreement shall be entered into for safeguarding defence, and commerce and communications and for other essential purposes. (5) Any transfer of population shall only be on an absolutely voluntary basis. (6) These terms shall be binding only in case of transfer by Britain of MI power and responsibility for the governance of India". 'Gwyer & Appadorai, Speeches and Documents on the Indian Comthution, _yol. II, p. 547. HISTORICAL BACKGROUND 55 Gandhi did not seem optimistic about a settlement with Jinnah. In his mind the acceptance of the principle of self-determination for the Muslim areas was vitally linked up with the formation of a National Government for the interim period. Gandhi wanted Jinnah to associate himself with the demand for (a) a clear declaration of independence to become operative immediately upon tlie termination of the war; (b) the formation of a real National Government except for reservations in regard to Defence; (c) the release of Congress leaders. He was not in favour of two complete separate sovereign and independent States according to Jinnah’s conception. Nevertheless, in July 1944 he agreed to discuss the formula with Jinnah. In agreeing to the Rajagopalachari formula he relied on the hope contained in the phrase “mutual agreement shall be entered into for safeguarding defence, and commerce and communications and for other essential purposes”; Gandhi contemplated a treaty of separation which would provide for a common administration for these matters. In any event, Gandhi did not seem at all inclined to commit himself to far-reaching assurances in regard to the functions and authority of the interim National Government without securing a definite promise of independence after the war. He felt handicapped by the fact that the members of the Congress Working Committee were not available to him for consultations before and during his talks with Jinnah. The Gandhi- Jinnah talks in Bombay in September 1944 produced no positive results; but Gandhi made his own position clear. Modifying in some respects Rajagopalachari’s formula for an understanding with the Muslim League, Gandhi wrote to Jinnah on September 24, 1944, offering the following terms: The areas should be demarcated by a Commission approved by the Congress and the Muslim League. The wishes of the inhabitants of the areas demarcated should be ascertained through the votes of the adult population of the areas or through some equivalent method. If the vote is in favour of separation it shall be agreed that these areas shall form a separate State as soon as possible after India is free from foreign domination and can, therefore, be constituted into two sovereign independent States. There shall be a treaty of separation which should also provide for the efficient and satisfactory administration of foreign affairs, defence, internal communications, customs, commerce and the like, which must necessarily continue to be matters of common interest between the contracting parties. The treaty shall also contain terms for safeguarding the rights of minorities in the two States. « Immediately on the acceptance of this agreement by the Congress and the League the two shall decide upon a common course of action for the attainment of independence of India. The League will, however, be free to remain out of any direct action to" 56 PEAMINQ of IKDIA^S CONSTITUTION •which the Con*ress may resort and in which the League may not be willing to participated The Gaiidlii-Jimali talks, broke down after eighteen days of discussions. Jionah’s conception of Pakistan covered not only the, Mulsim majority areas but the whole of the Punjab, Baluchistan, Sind, the North-West Frontier Province, Bengal and Assam, subject to such minor territorial adjustments as might be agreed upon. He did not want any plebiscite for the reason that the Muslim League had claimed Pakistan on the basis that the Muslims were a' separate nation and could not therefore be asked whether they sought separation or not. Moreover, according to him, there was to be no treaty of separation between India and Pakistan on the lines contemplated by Gandhi; such matters as foreign affairs, defence, communications, customs, commerce and the like were, Jinnah maintained, the life-blood of any State and could not be delegated to any central authority or Government. Jiniiali concluded : You will therefore see that the entire basis of your new proposal is fundamentally opposed to the Lahore resolution". Jiimali’s response, though inadequate, did not appear to rule out a friendly understanding with the Congress ' as one of the conditions for the creation of Pakistan. Jinnah was prepared on his side, as he told a newspaper correspondent on October 5, 1944, to make a gesture, if not an agreement: Certainly Pakistan ' will have neighbourly relations with Hindustan, like any other independent national State. We will say “hands off -India” to all outsiders. Pakistan will not tolerate any outside design or aggression on this sub-continent. We will observe something like the Monroe Doctrine. Sapru’s comments on Gandhi’s attitude at this time are of interest He wrote to B. N. Rau : , He (Gandhiji) showed me his letter to the Viceroy and discussed the whole . situation with me at length. I told him that it was, in my, opiiiio,ii, .hopeless to aim at establishing a National Government responsible to the Legislature . . during the war and that therefore .he might accept . my ' formula which was ■ to the effect that a National Government .might be established, ■ consisting " of representatives of ail parties, .who would not be liable to be d.ismissed by the Legislature during the interim period but , would technically be ' '"responsibie to the Crown.. It meant that the power of (the British) Parliament and the Secretary of State would continue during the i.iiterim . ' period. He entertained this proposal at first as a possible aiteraative to his formula; but later in the evening he thought that he- would not be meeting , ' ; Ms own de.mand:by mentioning' it as a possible alternative. He was prepared to agree to the principie of self-determination on democratic grounds ; but I do not ..think he, would be 'prepared to go further than the formula of ^Gwyer and Appadorai, Speeches md Poeumenis on ^ Indimi Constitution, II, p. 550. "■ md,. p."'55i. ■ ■ .• ■ - HISTORICAL BACKGROUND 57 Mr, Rajagopalachari. He seemed to me to be in earnest about a settlement.. As you are no doubt aware, it has provoked a great controversy. The Hindu Sabha people and the Sikhs are up in arms. ' Ultimately the whole matter resolves itself into two questions : (1) is there going to be one Centre or are there be two Centres? Assuming, that „ Jinnali insists on two Centres, what is going to be the nexus between them? (2) w,iii the two Centres be combined by an Act of Parliament or by a treaty ? If by a treaty what will be the means adopted for implementing that' treaty ? If machinery is set up for implementing it, that machinery must 'inevitably take the shape of a government. So far as Gandhi’s desire to bring about a settlement is concerned, I am in co,mpiete sympathy with him and I also realized that without winning over the minorities we can make no advance. The failure of the Gandhi-Jinnah talks carried with it the danger that the political stalemate in India would continue indefinitely. Meanwhile another attempt was made by Tej Bahadur Sapru and his friends (who represented the Non-Parties’ Conference) to explore the possibilities of a settlement of the minorities issue. Sapru had taken the initiative in this matter soon after the release of Gandhi, and had a meeting with him in August 1944. At that time negotiations were going on for direct talks between Gandhi and Jinnali — talks which, as we have seen earlier, ended in failure. In October 1944, Sapru wrote again to Gandhi. They met in November', when Gandhi made the suggestion that Sapru should take the lead and invite an All Parties’ Conference. Sapru was not however in favour of this idea, and favoured Gandhi himself calling a national convention — a suggestion to which Gandhi would not agree. After further discussions, the two agreed that a committee should be set up. The object of this comniittee would not be to “bring about a settlement in the sense that the document would be executed, sealed, signed and delivered”. The whole purpose W'ould be to understand the point of view of each party and to act as a sort of conciliatioi} board by establishing contacts with leaders of all parties and then to recommend a solution on its own responsibility. It would be open to these parties, the Hindus, Muslims, Depressed Classes, Sikhs, Christians and Parsis to accept it wholly or partially or reject it. There is no question of failure or success. When that had been done It would be for leaders of the different parties to consider whether at that stage they should not call a bigger conference", : It was further agreed that the members of such a committee would not belong to the Congress, the Muslim League, the Hindu Mahasabha or any one, of the recognized parties, big or small, and that they would be persons who had not committed themselves* definitely to any particular views since the .breakdown',,' of the talks between Gandhi' and J',in.nali- “^Comiiiuiionai Pmposais of the Sapru Committee, p. 2. 58 FRAMING OF INDIA’S CONSTITUTION At the request c€ the Standing Committee of the Non-Parties’ Conference, Sapru himself undertook the appointment of the committee. It consisted of eminent and talented persons. The recommendations of the committee were fonnulated in April, 1945. The committee rejected the Pakistan idea; it was convinced that “the partition of India would be an outrage justified neither by history nor by political expediency”'. Having said this, its recommendations were directed towards the formulation of an acceptable arrangement for the immediate freedom of India and the eventual formation of a Constituent Assembly to frame her Constitution. As an immediate solution, the committee proposed that India should by a royal proclamation be declared an independent State and “treated as a Dominion equal and in no way inferior to any other Dominion in the British Commonwealth of Nations”. In order to achieve this, the committee suggested that popular ministries should be re-established in the Provinces, and that in the formation of Ministries the Premier representing the largest single party in the Legislature should be required to include persons commanding the confidence of other important parties in the Legislature'. The immediate formation of a National Government at the Centre was also recommended, either by altering the Constitution by making provision for the functioning of the Governor-General in Council as a body consisting of Indian members commanding the confidence of the Central Legislature (except for the Commander-in-Chief who would continue to be ex-officio a member of the Council in charge of war operations), or by bringing the federal portion of the Government of India Act of 1935 into immediate operation without the condition, of the entry of Indian States, and setting up a Federal Legislature and federal executive in accordance with the provisions of that Act. For a long-term solution the committee recommended the setting up of a Constituent Assembly with a total membership of 160 of which 51 would be Hindus (other than, Scheduled Castes) and 51 Muslims. This Assembly was to be elected by the members of all the Provincial Legislatures by the system of proportional representation. The committee also set out its own views on the leading principles to be included in the new Constitution. In spite of the eminence of the members of the committee and the obvious efforts they were making to face their task in an impartial manner, their recommendations did not contribute in any appreciable measure towards a solution of the Indian political problem. Several reasons contributed to this failure. In the first place, the outright rejection of the idea of Pakistan necessarily meant that the Muslim League would not even look at a solution on the lines recommended by the Sapru Committee. The idea of parity for Muslims and Hindus, in spite of the much larger number of the Hindu population, made the scheme unpalatable 'Constitutional Proposals of the Sapru Committee, p. 161. ’Ibid., App. II, pp. iii-xvi.r historical background 59 to many Hindus. Above all, the committee’s recommendations were formulated at a time when the Viceroy was himself in London discussing with the British Government his plan for breaking the political stalemate in India; and the proposals of the Sapru Committee were not taken seriously in official circles. Thus the earnest labours of the committee failed to make any impression on official thinking. Meanwhile, the Viceroy, Wavell, had taken the initiative for a fresh effort to tackle the political problem in India. The formulation of this plan was started in the summer of 1944, with a definite turn in the fortunes of the war in favour of the anti-Axis countries. It took into account both the political situation and practical considerations. Wavell expected that Germany would be completely defeated by the end of 1944 and that Japan could not hold out for more than some months thereafter. On the political plane, the promise of Dominion Status made to India would have to be redeemed. On the practical side, the Viceroy foresaw that difficult post-war problems would arise for settlement — widespread demobilization and a big rise in unemployment resulting from the large-scale release of labour from war industries. In tackling these problems, the Viceroy formed the opinion that the assistance of popular elements in the country would be invaluable. The actual plan formulated by Wavell, after consulting all the Governors, was simple and straightforward. He would call a small conference of the leaders of all the important parties in the country and discuss with them the formation of a “transitional” Government under the existing Constitution. This executive would consist of an equal number of Hindus and Muslims, with one representative of the Depressed Classes and one Sikh, in addition to the Viceroy himself and the Commander-in-Chief. Its task would be to prosecute the war with Japan with the utmost energy and to carry on the government of British India until a new Constitution came into force; to appoint British Indian representatives to the Peace Conference and other international conferences; to consider the composition of the Constituent Assembly, or other body, which would draft the Constitution and negotiate a treaty with His Majesty’s Government; and to secure the approval of the leaders of Indian opinion in the principal communities to the composition proposed. The conference would also consider the best means of re-establi.sh- ing popular governments in the Provinces, governed under section 93, preferably with Coalition Ministriesh In the face of considerable resistance from the British Government, the Viceroy persevered with his proposal. Eventually, in March 1945, he went for personal consultations to London. In the meanwhile another developiJtent had taken place in India. This was 'V. P. Menon, The Transfer of Power in India, pp. 167-8. In these Provinces, following the resignation of Congress Ministries, administration had been diiecti^ assumed by Governors — Madras, Bombay, the U.P., thp C.P., Bihar and Orissa. 60 framing of INDIANS CONSTITUTION the - ‘"Bhnlabliai iDesai-Liaquat Ali Plan” formulated early in 1945. Bhulabliai Desai was a Congress leader of high standing and Liaqat Ali Khan was the de facto leader of the Muslim League Party in the Central Legislature,, his position in the party being second only to that of Jinnah. The. plan was that the Congress and the League agree that they will join in forming an Interim Government in the Centre. The composition of such Government will be on the following lines : (a) an equal number of persons nominated by the Congress and the League in the Central Executive (the persons nominated need not be members of the Central Legislature); (b) representatives of minorities (in particular the Scheduled Castes and the Sikhs); (c) the Commander-in-Chief. The Government will be formed and function within the framework of the existing Government of India Act. It is, however, understood that, if the Cabinet cannot get a particular measure passed by the Legislative Assembly, they will not enforce the same by resort to any of the reserve powers of the Governor-General or the Viceroy. This will make them sufficiently independent of the Governor-General. It is agreed between the Congress and the League that if such interim Government is formed, their first step would be to release the Working Committee members of the Congress. The steps by which efforts would be made to achieve this and are at present indicated to take the following course: On the basis of the above understanding, some way should be found to get the Governor-General to make a proposal or a suggestion that he desires an interim Government to be formed in the Centre on the agreement between the Congress and the League and when the Goveriior- Generai invites Mr. Jinnah and Mr. Desai either jointly or separately, the above proposals would be made declaring that they are prepared to Join in forming the Government The next step would be to get the withdrawal of section 93 in the Provinces and to form as soon as possible Provincial Governments on the lines of a coalitionL This plan came very close to the one which Wayell himself had in view, and it had the further merit that it was produced in India. Unfortunately for the latter argument, after Bhulabhai Desai had sponsored it, both Jiniiali and Liaqat Ali Khan repudiated this formula. In London the Viceroy’s plan was* generally adopted after prolonged discussions, and the Viceroy returned to India early in June 1945. Meanwhile 'Gwyer .and AppB,dorzl/ Speeches and Documents on the" Indian Comiitutimi Vol.ll, p. 556. ' HISTORICAL BACKGROUND 61 Germany had laid down arms on May 9 and the end of tie war with Japan, it was expected, would soon follow. Soon after his return to India, Wavell proceeded to act. On June 14, 1945,' Amery, the Secretary of' State for India, made a statement in the House of Commons, the important points from which were: The main constitutional position remained as it was. The offer of March 1942 stO'(xi in its entirety without change or qualification. The Government still hoped that the political leaders in India might be , able to come to an agreement as to the procedure whereby India’s permanent future form of government could be determined. It was proposed that the Executive Council should be reconstituted and that the^ Viceroy should in future make his selection for nomination by the Crown for appointments to his Executive from amongst leaders of Indian political life at the Centre and in the Provinces, in proportions which would give a balanced representation to the main communities, including equal proportions of Muslims and caste Hindus. In order to pursue this object, the Viceroy would call into conference a number of leading Indian politicians who were the heads of the most important political parties or who had recent experience as Premiers of Provinces, together with a few others of special experience and authority. If such co-operation could be achieved at the Centre, it would no doubt be reflected in the Provinces where, owing to the withdrawal of the majority party from participation, it became necessary to put into force the powers of the Governors under section 93 of the Act of 1935 . This was supplemented by the Viceroy in a broadcast talk on the same day: I have considered the best means of forming such a Council (referring to the Executive Council); and have decided to invite the following to the Viceregal Lodge to advise me : Those now holding office as Premier in a Provincial Government; or those who last held the office of Premier for Provinces now under : , section 93 Government ; , The Leader of the Congress Party and the Deputy Leader of the Muslim. League in the Central Assembly; the leaders of the Congress Party and the Muslim League In the Council of State; and also the leaders of '■ the ; Nationalist' Party and the European Group in the Assembly ; .. Mr. Gandhi; and Mr. linnah as the recognized leaders of- the two main political', parties. .. -^ 'Rao,, .Bah to represent the Scheduled Castes. Maste,r Tara' .Singh to represent the Sikhs\ ■ ■ ' ■ ^Cwyer .and Appadorai, Speeches and Documents on the ■Indian Const! mtion.^V'^ 'll, ■p,p.,557-6L. ■ ' ■ 62 FRAMING OF INDIA’S CONSTITUTION Both the Secretaiy of State’s statement and the Viceroy’s broadcast made it clear that steps would be taken to give India an independent standing in international affairs. External Affairs was to be placed in charge of an Indian member of the Viceroy’s Executive Council. Fully accredited representatives were to be appointed for the representation of India abroad; and it was also proposed to appoint a British High Commissioner in India, as in the Dominions, to represent Britain’s commercial and trade interests. The attention of the Congress all through the war years had primarily been fixed on a war-time solution of the Indian problem. It was announced by the Viceroy that the Cripps offer would remain open with reference to the permanent constitution after the war, and its terms could be altered, if at all, only in accordance with the unanimous wish of the Indian leaders. It appeared that the Viceroy’s policy was designed to avoid the controversial points w'hich had proved fatal to the Cripps Mission in 1942. A modest beginning to be fitted into the framework of the existing Constitution, as the Viceroy’s offer claimed it to be, there were nevertheless in it points which impressed leaders like Nehru. The fact that the start of the negotiations coincided with Churchill’s decision in favour of an immediate election in Britain had a definite effect on India. Attlee, in a broadcast, pledged his party to complete self-government for India as an immediate development. Ernest Bevin, in an election speech, promised on behalf of the Labour Party the abolition of the India Office and the transfer of Indian affairs to the Dominions Office as a transitional measure. Even without such encouragement from British Labour leaders, the Wavell offer contained many features which appeared to be significant : the transfer of external affairs, hitherto within the Viceroy’s portfolio, to an Indian member of the Executive Council; the enhanced status of India’s diplomatic representatives abroad from that of Agents-General, inferior in rank to Ministers of even the smallest countries, to ambassadorial dignity; the opportunity thus afforded to make friendly contacts with the other members of the United Nations in their respective capitals; the appointment of a British High Commissioner in India to represent British commercial and financial interests — in all these moves was clearly implicit an attempt at approximation in practice to the position of a full-fledged Dominion. The Viceroy’s efforts, nevertheless, ended in failure. Wavell’s insistence on an equal number of Hindu and Muslim members in the Executive Council did not deter the Congress leaders from seeking an agreement. Another organization, however, the Hindu Mahasabha, vigorously protested against the proposal to regard 250 million Hindus and 90 million Muslims as on an equal footing. _Oj?iections came not only from the Hindu Mahasabha. The issue on which the conference bro|ce down related to the method of nomination of HISTORICAL BACKGROUND 63 the Muslim members. Jinnah, on behalf of the Musliqji League, claimed the exclusive right to nominate all the Muslim members of the Executive Council. This claim was opposed by all the other parties. The position at the time in the Muslim majority Provinces was that the Punjab, with a Unionist Ministry under Khizr Hyat Khan, had broken away from the League. In Bengal the Muslim League Ministry had been defeated and had resigned, and the Province was under Governor’s rule. The North- West Frontier Province had a Congress Ministry with Khan Sahib as Premier. Only Assam and Sind had Muslim League Ministries, and the former was backed by Congress support. Khizr Hyat Khan, the Premier of the Punjab, insisted on the inclusion in the Central Cabinet of a Muslim nominee of the Unionist Party. Nor would the Congress agree to giving the Muslim League the sole and exclusive right to nominate Muslim members to the Central executive; such a concession would be inconsistent with its basic position as a non-communal body representing the freedom urge of the country as a whole. The Viceroy himself had no hesitation in rejecting Jinnah’s claim as unreasonable; but he felt that he could not go ahead without cooperation from the Muslim League; and, since this was not forthcoming, he declared that his efforts had failed and that he proposed to take a little time to consider in what way he could best help India after the failure of the conference’. The general elections in Britain in the late summer of 1945 resulted in a radical alteration of the situation from the standpoint of India’s prospects of securing complete self-government. A Labour Government was installed in office with a definite majority in the House of Commons for the first time in the history of the party. Attlee, the new Prime Minister, took prompt steps to make preliminary soundings regarding the resumption of negotiations with India’s leaders. He had the advantage of having Nehru’s views on some vital matters expressed in a discussion with B. N. Rau, who later became the Constitutional Adviser to the Constituent Assembly. Nehru was in favour of the reconstitution of the Central Government even for the transitional period while the Constitution was being framed, but only after fresh elections under the 1935 Constitution. The strength of the Constituent Assembly, he suggested, could be fixed at 300 or even 400 members, though the task of actual drafting, he recognized, would have to be entrusted to a committee appointed by the Assembly. He had no objection to option being given to a provincial unit, in regard to accession to the new Constitution, to await the completion of the deliberations of the Constitution-making body, so as to avoid any trace of coercion in the matter. At the same time, the greatest emphasis was to be on State activities being explicitly provided for in the Constitution— in particular, planning, industrial development, relief of unemployment and nationalization of key P. Menon, The Transfer of Power in India, pp. 206-8. FRAMING OF INDIANS CONSTITUTION m mdustries. Safegii|rds for the protection of minorities could include the formation of an Upper House of the Central Legislature constituted on ' a province-basis. As a possible alternative to the partition of , India, ''Nehru agreed that the' expedient of creating half -provinces, with a certain, degree of ^ autonomy in cultural and other matters for each half, on the lines, of the half-cantons in Switzerland, merited consideration. VII The next definite step towards the formulation of an India policy was' taken by the Labour Government through a statement made in Parliament on February 19, 1946, with the approval of the Opposition. In this statement it was announced that a special mission of Cabinet Ministers was to be sent to India (consisting of Pethick-Lawrence, Secretary of State for India, Stafford Cripps, President of the Board of Trade, and A. V. Alexander, First Lord of the Admiralty)'. Explaining the object of the Cabinet Mission in the House of Commons on March 15, 1946, the Prime Minister, Attlee, said that the three Ministers were going to India with the intention of using their utmost endeavours to help her to attain freedom as speedily and fully as possible. What form of government was to replace the existing regime was for India to decide; but the desire of the British Government was, Attlee said, to help India to set up forthwith the machinery for making that decision. Attlee made it clear that it would be for India alone to decide for herself whether to remain in the Commonwealth or not. He added: I hope that the Indian people may elect to remain within the British Commonwealth. I am certain that she will find great advantages in doing so. In these days that demand for complete, isolated nationhood apart from the rest of the world, is really outdated. Unity may come through the United Nations, or through the Commonwealth, but no great nation can stand alone without sharing in what is happening in the world. But if she does so elect, it must be by her own free will The British Commonwealth and Empire is not bound together by chains of external compulsion. It Is a free association of free peoples. If, on the other hand, she elects for independence, in our view she has a right to do so. It will be for us to help to make the transition as smooth and easy as possibles The Cabinet Mission arrived in India on March 24, and started discussions inimediately with the various political party leaders and other individuals. These' discussions were continued through April until the middle of May, but a common basis of agreement, either on principle or procedure, proved to be impossible of attainment. Jinnah and the Muslim League— which had ^ iSeiect Documents I, 45, pp. 177-8. m. a Deb,, Vol 420, col 142h HISTORICAL BACKGROUND 65 in the new elections to the Provincial Legislatures capturW practically the entire Muslim membership throughout India— now took the opportunity formally to define the territories which the contemplated Pakistan should include. On April 10, Jinnah convened a meeting in Delhi of all the members of the various Legislatures of India elected on the Muslim League ticket. This meeting passed a resolution demanding that the sovereign and independent State of Pakistan should include six Provinces — Bengal and Assam in the north-east of India, and the Punjab, the North-West Frontier Province, Sind and Baluchistan in the north-west. The resolution added that there should be two constitution-making bodies, one for Hindustan and one for Pakistan, for the purpose of framing separate constitutions for these two countries. The Congress was totally opposed to the division of the country. It was, however, prepared for the maximum amount of local autonomy consistent with the maintenance of the unity of the country. .Accordingly it suggested that the future framework of the country’s Constitution be based on a federal structure with a limited number of compulsory central subjects such as defence, communications and foreign affairs; the federation would consist of autonomous Provinces in which would vest the residuary subjects. The Congress also suggested that there should be a list of “optional subjects” in respect of which any Province or group of Provinces would be free to accept federal executive and legislative jurisdiction. It was proposed that on the completion of the constitution-making process a Province could elect to stand out of the Constitution altogether, or federate on the essential minimum subjects, or federate on the essential as well as the optional subjects. On May 16, 1946, the Cabinet Mission put forward its own proposals. In doing so the Mission observed : After prolonged discussions in New Delhi we succeeded in bringing the Congress and the Muslim League together in conference at Simla. There was a full exchange of views and both parties were prepared to make considerable concessions in order to try to reach a settlement, but it ultimately proved impossible to close the remainder of the gap between the parties and so no agreement could be concluded. Since no agreement has been reached, we feel that it is our duty to put forward what we consider are the best arrangements possible to ensure a speedy setting up of the new constitution’. It may be relevant to note here the various phases through which, starting from the Cabinet Mission’s proposals, the decision to partition India was reached, all in the course of a year. In its statement of May 16, 1946 the Cabinet Mission was “convinced that there was in India an almost universal desire outside the supporters of the Muslim League for its unity”. Neverthe- less, the proposal of the Muslim League for partition was examined by the ^Select Documents 6 66 FRAMING OF I,NI>IA’S CONSTITUTION Mission with' greal care, since it was impressed by the, ‘Very genuine and acute anxiety of the Muslims lest they should find themselves subjected to a perpetual Hindu majority .rule”. It rejected the claim for a separate and fully independent sovereign State of Pakistan, consisting of the two areas claimed by the League, namely, the Punjab, the North-West Frontier Province, Sind and Baluchistan in the north-west and Bengal and Assam in the north-east. The north-western area would comprise a non-Muslim, population of 38 per ■ cent and the north-eastern area would have an even larger minority of 48 per cent. The Cabinet Mission therefore came to the conclusion : a separate sovereign State of Pakistan on the lines claimed by the Muslim League would not solve the communal minority problem; nor can we see any justification for including within a sovereign Pakistan those districts of the Punjab and of Bengal and Assam in which the population is predominantly non-Muslim. Every argument that can be used in favour of Pakistan can equally, in our view, be used in favour of the exclusion of the non-Muslim areas from Pakistan. This point would particularly affect the position of the Sikhs. The Cabinet Mission therefore considered the question whether a smaller Pakistan could be set up, comprising those areas in which the Muslims were in a majority. The Cabinet Mission declared : We ourselves are also convinced that any solution which involves a radical partition of the Punjab and Bengal, as this would do, would be contrary to the wishes and interests of a very large proportion of the inhabitants of these Provinces. Bengal and the Punjab each has its own common language and a long history and tradition. Moreover, any division of the Punjab would of necessity divide the Sikhs leaving substantial bodies of Sikhs on both sides of the boundary. We have therefore been forced to the conclusion that neither a larger nor a smaller sovereign State of Pakistan would provide an acceptable solution for the communal problem. In addition to these practical difficulties, the Cabinet Mission found weighty administrative, economic and military considerations against any such proposal. The Mission also referred to the geographical fact that the two halves of the proposed Pakistan State would be separated by some 700 miles. It came to the decision: We are, therefore, unable tp advise the British Government that the power which at present resides in British hands should be handed over to two entirely separate sovereign States. ^ The Congress proposal of two groups of Provinces, one to have full autonomy subject only to the ceding of jurisdiction over a minimum number ui^central subjects, such as foreign affairs, defence and communications, and a second group exercismg the option of expanding the jurisdiction of the HISTORICAL ' BACKGROUND 67 Centre over a number of other subjects, particulariy economic and administrative planning, seemed to the Mission to present considerable constitutional disadvantages and anomalies. Having . rejected the proposals of the Congress and the Muslim League, the Cabinet Mission proceeded to. argue the nature, of 'a solution which in our view would be just to the essential claims of all parties and would at the same time be most likely -to bring about a sfable and practicable form of Constitution for all India. The Cabinet Mission recommended that the Constitution should take the following basic form: (1) There should be a Union of India, embracing both British India and the States which should deal with the following subjects : Foreign Affairs, Defence and Communications; and should have the powers necessary to raise the finances required for the above subjects. (2) The Union should have an Executive and a Legislature constituted from British Indian and States’ representatives. Any question raising a major communal issue in the Legislature should require for its decision a majority of the representatives present and voting of each of the two major communities as well as a majority of all the members present and voting, (3) All subjects other than the Union subjects and all residuary powers should vest in the Provinces. (4) The States will retain all subjects and powers other than those ceded to the Union. (5) Provinces should be free to form groups with Executives and Legislatures, and each group could determine the Provincial subjects to be taken in common. (6) The Constitutions of the Union and of the groups should contain a provision whereby any Province could by a majority vote of its Legislative Assembly call for a reconsideration of the terms of the Constitution after an initial period of ten years and at ten-yearly intervals thereafter. In making these suggestions, the Cabinet Mission made it clear that its object was not to lay down the details of a Constitution but to set in motion machinery whereby a Constitution could be settled by Indians for Indians. It had become necessary to make this recommendation because the Cabinet Mission was satisfied that not until that was done was there ‘‘any hope of getting .the two , major communities to join in the setting up of the constitution-making machineiy”. The Cabinet Mission not only lai(| down the basic form which the new Constitution would take but also prescribed how the constitution-making body would be set up, as well as the procedure it would follow. " In . setting up the constitution-making machinery, the Cabinet Mission suggested;- that the only: practicable course would be to utilize the recently elected ProvinCmi Legislative Assemblies as electing bodies. . Anfl the Tairest and' most 68 FRAMING OF INDIA’S CONSTITUTION f practicable plan would be— (a) to. allot to each. Province a total number of seats proportional to its population, roughly in the ratio of one to a million, as the nearest substitute for representation by adult suffrage ; (b) to divide this provincial allocation of seats between the main communities in each Province in proportion to their population; (c) to provide that the representatives allotted to each community in a Province should be elected by the members of that community in its Legislative Assembly. For these purposes the Cabinet Mission recognized only three main communities in India, General, Muslim and Sikh, the General community including all persons who were not Muslims or Sikhs. The actual elections were to be by the method of proportional representation by means of the single transferable vote. As regards the procedure to be followed by the Assembly, the Cabinet Mission divided the Provinces into three Sections: Section A consisted of Madras, Bombay, the United Provinces, Bihar, the Central Provinces and Orissa; Section. B consisted of the Punjab, the North-West Frontier Province and Sind; and Section C of Bengal and Assam. The Chief Commissioners’ Provinces of Delhi, Ajmer-Merwara and Coorg were included in Section A while British. Baluchistan: was included in Section B. The intention was that all the representatives would first meet in. New Delhi for a preliminary session which would decide the. general order of business, elect a Chairman and other officers and set up an Advisory Committee on the rights of citizens, minorities and tribal and excluded areas. Thereafter the provincial representatives would divide up into the Sections A, B and C. These Sections would proceed to settle the provincial constitutions for the Provinces included in each Section and would also decide whether any Group constitution should be set up for those Provinces and if so with what subjects the Group should deal. The representatives of the Sections and the Indian States would reassemble thereafter for the purpose of settling the Union Constitution. As soon as the new constitutional arrangements came into operation, it would be open ta any Province to come out of any Group in which it had been placed, on such a decision being taken by the Legislature of the Province after the first general election under the new Constitution. Any proposal varying any of the basic features of the Constitution or raising any major communal issue would require a majority of the representatives present and voting of each of the two major communities. Regarding the Indian States, the Cabinet Mission’s plan generally cofltemplated that the proposed Union of India would have the same jurisdiction in Indian States as in the Provinces. Recognition was, however, given to the fact that their position was totally different from that of British Biuia. The Cabinet Mission expressed the view that with the grant of independence to British feidia, whether inside or outside the Commonwealth, HISTORICAL BACKGROUND 69 the old relationship between the Rulers of the States and the British Crown would no longer be possible. It added : Paramountcy can neither be retained by the British nor transferred to the new Government. The Mission noted the fact that the representatives of the States were ready and willing to cooperate in the new development of India. The precise form of such cooperation would be a matter for negotiation during the building up of the new constitutional structure, though it need not be identical for all the States. The position of the States was summed up as follows : (a) The States would retain all subjects and powers Other than those ceded to the Union; (b) it was the intention that the States would be given in the final Constituent Assembly appropriate representation which would not, on the basis of the calculation of population adopted for British India, exceed 93 ; (c) the States would in the preliminary stage be represented by a negotiating committee ; (d) after the Provincial Constitution and the Group Constitutions, if any, had been settled, the representatives of the Sections and the Indian States would reassemble for the purpose of settling the Union Constitutionh Differences in regard to interpretation immediately started on various provisions contained in the Cabinet Mission’s statement. The main point raised at this stage by the Congress was in relation to the procedure envisaged in the Mission’s plan that, after the preliminary session of the Assembly, it would divide up into Sections, and that whether they liked it or not, the representatives of Sind and the North-West Frontier Province would atong with those of the Punjab be included in Section B while Assam would have to go into Section C along with Bengal. The clarification that questions in the Sections relating to the Provincial Constitutions and the question of grouping would be decided by a majority vote made the position worse from the point of view of the Congress. The Congress urged that any compulsion making it obligatory on a Province to sit in a particular Section as outlined in the statement would be contrary to the basic principle laid down in the statement itself that Provinces would be free to form Groups ; and it maintained that a Provincial Assembly might give a mandate to its representatives not to enter any Group or a particular Group or Section. The Congress did not disguise its ajjprehensions that the relatively smaller number of the representatives of Assam and the North-West Frontier Province ran the danger of being swamped by the much larger majorities of Bengal and the Punjab if they sat together in Sections. 'Select Documents I, 48(i), pp. 209-18. 70 MAMING OF INDIA’S CONSTITUTION As Sections B and C have been formed it is obvious that one Province will play a dominating role in the Section, the Punjab in Section B and Bengal in Section C, It is conceivable that this dominating Province may frame a Provincial Constitution entirely against the wishes of Sind or the North- West Frontier Province or Assam. It may even conceivably lay down rules, for elections and otherwise, thereby nullifying the provision for a Province to opt out of a group. Such could never be the intention as it would be repugnant to the basic principles and policy of the scheme itself'-. There were other points too which the Congress raised; but differences were in the main concentrated on the issue of whether or not a Province could initially refuse to join the Section in which it was placed. The Cabinet Mission in its statement of May 25, 1946^ maintained that the interpretation placed by the Congress resolution to the effect that the Provinces could in the first instance make the choice whether or not to belong to the Section in which they were placed did not accord with the Mission’s intentions. One of the basic demands of the Congress already mentioned was that the substance of independence should be granted in the immediate present and no plan which failed to do this would find acceptance. On principle there was no difference between the Cabinet Mission and the Congress on this issue. The Cabinet Mission had said : It is agreed that the interim Government will have a new basis. That basis is that all portfolios including that of the War Member will be held by Indians and that the members will be selected in consultation with the Indian political parties. These are very significant changes in the Government of India, and a long step towards independence. His Majesty’s Government will recognize the effect of these changes, will attach the fullest weight to them, and will give to the Indian Government the greatest possible freedom in the exercise of the day-to-day administration of India, As the Congress statement recognizes, the present Constitution must continue during the interim period; and the interim Government cannot therefore be made legally responsible to the Central Legislature. There is, however, nothing to prevent the members of the Government, individually or by common consent, from resigning, if they fail to pass an important measure through the Legislature, or if a vote of no-confidence is passed against them®. The Viceroy started negotiations with the various political parties, particularly the Congress and the Muslim League, on the question of the formation, of a Coalition Ministry on these lines. By June 15, the Viceroy came . to -the conclusion that agreement' between the two parties was impossible of attainment, and the next day the Cabinet Mission issued a ^Select Documents I, 50(i), p. 251. I, 51, p. 258. Hbld„ p. 259. «* HISTORICAL BACKGROUND 71 Statement announcing that the Viceroy proposed to form an Executive Council, consisting of fourteen members apart from the Viceroy*. The names of these fourteen were also published. One feature of the list was that it contained six Congressmen and five members of the Muslim League; and that none of the Congress members was a Muslim. The announcerhent added: In the event of the two major parties or either of them proving unwilling to join in the setting up of a coalition Government on the above lines, it is the intention of the Viceroy to proceed with the formation of an interim Government which will be as representative as possible of those willing to accept the statement of May 16th. Meanwhile developments had occurred in regard to the long term plan of the Cabinet Mission. After prolonged deliberations both the Congress and the Muslim League accepted the Cabinet Mission’s plan but both with reservations of their own. At this stage, neither appeared to have accepted the basic proposals in the spirit in which the Cabinet Mission had iatended the plan to be implemented. The Congress took some time to reach a decision and prolonged correspondence went on on various issues on wMch clarification was being sought. But it was clear that on the question of sitting in Sections, which was sought to be made compulsory by the Cabinet Mission, the Congress was going to take a stiff attitude. Oa June 6, 1946, the Council of the League passed a resolution declaring : In order that there may be no manner of doubt in any quarter the Council of the All India Muslim League reiterates that the attainment of a goal of a complete sovereign Pakistan still remains the unalterable objective of the Muslims in India for the achievement of which they will, if necessary, employ every means in their power and consider no sacrifice or suffering too great®. The Council accepted the Cabinet Mission’s plan merely because it considered that the basis and the foundation of Pakistan were inherent in the plan by virtue of the compulsory grouping of the “six Muslim Provinces” in Sections B and C. The resolution added that the Muslim League would keep in view the “opportunity and right of secession of Provinces or Groups from the Union”, which according to the League had been provided in the plan “by implication”. The willingness of the League to cooperate with the constitution-making machinery was based on the “hope that it would ultimately result in the establishment of complete sovereign Pakistan”. The uncertainty of the situation became more apparent in July. The announcement of the list of Executive Councillors came on June 16*. The reactions of the Congress and of th^ Muslim League to this decision were different. The Congress, having tried to get a Nationalist Muslim in its ^Select Documents I, 57, pp. 276-7. nbid., I, 53, p. 263-4. Hbid., I, 57, pp. 276-7. 72 FRAMING OF INDIA’S CONSTITUTION quota of Executive Councillors and failed in the attempt, adopted a resolution on June 25 afflnning its decision to join the Constituent Assembly; but it rejected the Viceroy’s proposal for the formation of an interim Executive Council. In this resolution the Working Committee merely mentioned that taking the proposals as a whole, there was sufficient scope for enlarging and strengthening the Central authority and for fully ensuring the right of a Province to act according to its choice in regard to grouping. Carefully avoiding all reference to the requirement of sitting in Sections, this merely paraphrased what was implicit in the Cabinet Mission’s plan, so that it could not be said that the resolution contained anything in the nature of reservations inconsistent with the plan. But the rejection of the Viceroy’s proposal to reconstitute the Executive Council was clear and definite. The Working Committee said : In the formation of a provisional or other Government Congressmen can never give up the national character of the Congress or accept an artificial parity, or agree to a veto of a communal grouph On the other hand, the Working Committee of the Muslim League decided to agree’ to join the interim Government on the basis of the statement of June 16. Faced with a dilemma, the Cabinet Mission issued a statement or, June 26, in which it was stated: . (a) that further negotiations on the formation of an interim Governnent should be adjourned for a short time ; : (b) that until a new interim Government was set up, the Viceroy wodd form a temporary care-taker Government of officials ; and (c) that during this interval elections to the Constituent Assembly would take place*. This statement evoked an immediate response from the Muslim League. Writing , to the Viceroy two days later, Jinnah put forward the view that, according to all the relevant documents, particularly the two statements of the Cabinet Mission of May 16 and 25, the long term plan and the formation of the interim Government formed one whole, each constituting an integral part of the whole scheme. He wanted therefore that the formation of the interim Government having been postponed, elections to the Constituent Assembly should also be deferred*. The Viceroy could not, however, accept this suggestion : naturally, because the whole purpose of the Cabinet Mission’s plan was that the future Constitution should be framed without avoidable delay..' ’^Select Documents I, 5%, pp. 278-9. ^G'Kytt and Appadorai, Speeches and Documents on the Indian Constitution, Vol. II, pp. 609-10. ^Select Documents I, 59, pp. 280-1. ‘‘Ibid., I, 60(ii), pp. 283-^. HISTORICAL BACKGROUND 73 Dramatic developments took place in July. The first complication was a statement by Nehru on the issue of grouping. In a Press Conference held on July 10, he said : The big probability is that, from any approach to the question, there will be no grouping. Obviously, Section A will decide against grouping. Speaking in betting language, there is 4 to 1 chance of the North-West Frontier Province deciding against grouping. Then Group B collapses. It is highly likely that Assam will decide against grouping with Bengal, although I would not like to say what the initial decision may be, since it is evenly balanced. But I can say with every assurance and conviction that there is going to be finally no grouping there, because Assam will not tolerate it under any circumstances whatever. Thus you see this grouping business approached from any point of view does not get on at all'. The Cabinet Mission had. of course, made a clear distinction between sitting in Sections, which was compulsory, and formation of Groups, which was voluntary; and it was obvious that Nehru was referring to the probability that Assam would not agree to sit in the same Section as Bengal, nor the North-West Frontier Province in the same Section as the Punjab. This attitude was gravely disturbing to the Muslim League, which used this statement as an argument for withdrawing support from the whole scheme. On July 27, 28 and 29 it held a series of meetings, and passed resolutions which put the whole of the Cabinet Mission’s plan into jeopardy. The first of these tw’O resolutions contained a long tirade against the Viceroy and the Congress. The Viceroy and the Cabinet Mission were accused of dishonesty in failing to form an interim Government as outlined in the statement of June 16. The resolution then went on to express the view that the Congress had not accepted the Cabinet Mission’s plan, their acceptance being conditional on their own interpretation ; it maintained that the policy of the British Government was one of sacrificing the interests of the Muslim nation and some other weaker sections of the people of India, particularly the Scheduled Castes, to appease the Congress. The resolution then withdrew the Muslim League’s acceptance of the Cabinet Mission’s proposals. The League passed another resolution calling on the Muslims of India to respond to a programme of direct actiotf— the first results of which were the Calcutta riots of August 1946. Meanwhile the political situation in India had reached a stage when both the British Government and the Viceroy felt that it would no longer be possible to defer the transfer of power to Indian hands. In accordance with the statement of June 16, the British were committed to proceeding with 'Gwyer and Appadorai, Speeches and Documents on the Indian Constitution, Vol. II, p. 613. ^Select Documents I, 60(iv) and (v), pp. 284-6. See also Gwyer and Appadorai, Speeches and Documents jn the Indian Constitution, Vcf. 11, pp. 618-21, 74 FRAMING OF INDIA’S CONSTITUTION the formation of an Interim Government which would be as representative as possible of those willing to accept the statement of May 16. The Muslim League having withdrawn its acceptance of the statement, the Congress party remained the only one major political party which had accepted the May 16 plan. The Viceroy issued on August 12 a Press Communique announcing that he had invited the President of the Congress (Jawaharlal Nehru) to form the provisional Government and that the latter had accepted the invitatiotf. At the same time, at the Viceroy’s instance, Nehru agreed to approach Jinnah and invite his cooperation in the formation of the interim Government. Nothing tangible emerged from the discussions, however, and the new Executive Council, consisting entirely of nominees of the Congress, took oflBce on September 2, 1946^ Earlier, in the summer of that year, after the Congress and the Muslim League had passed their respective resolutions accepting the Cabinet Mission’s plan, elections had been held to the Constituent Assembly and these elections had been completed in July even before the League’s decision to withdraw its acceptance of the plan. The Sikhs had not at this stage elected their representatives; this they did after August, 1946. The Congress was anxious to take steps to convene die Constituent Assembly. It had been hoped at one time to convene the Assembly in August; but this proved impossible and Nehru thought of convening it, first in mid-September and then late in October. But the Viceroy was anxious that efforts should be made to persuade the Muslim League also to join; and in order to give time for the necessary negotiations, it was eventually decided to summon the Assembly on December 9, 1946’. Nehru’s talks with Jinnah having failed, the Viceroy undertook further negotiations. He was able to persuade Jinnah to nominate five members to the interim Government from his party, without any further conditions or stipulations*. Nehru and the Congress representatives pointed out that the representatives of the Muslim League could not join the Interim Government without a formal acceptance of the proposals of the Cabinet Mission and the League’s agreement to cooperate in the work of constitution-making within the framework of the plan. On this point the Viceroy gave Nehru a categorical assurance. He said : 1 have made it clear to Mr. Jinnah, whom I have seen today, that the Muslim League’s entry into the interim Government is conditional on the acceptance of the scheme of the Cabinet Delegation. . . As I told you, Mr. Jinnah has assured me that the Muslim League will come ‘V. P. Menon, The Transfer of Power in India, p. 293. "Gwyer and Appadorai, Speeches and Documents on the Indian Constitution, Vol. II, p. 643. ^Select Documents I, 68(i), p. 386. '■’’Gwyer and Appadorai, Speeches and Documents on the Indian Constitution, Vol. n, p, 653. ' HISTORICAL BACKGROtFNB 75 into ttie interim Government and the Constituent Assembly with the intention of cooperatingh The Muslim League members were sworn in on October 26, 1946. ■ Jinnah hads however, no intention of getting the Muslim League to participate in the Constituent Assembly. The Viceroy spoke to him about this and also .wrote to him on November 5 reminding ' him of his obligationl Meanwhile, the Viceroy was also making efforts to persuade the Congress categorically to accept the British Government's interpretation of the provisions of the Cabinet Mission's statement of May 16 on the issue of sitting in Sections and formation of Groups of Provinces. These provisions, it may be recalled, prescribed : (a) that the Provinces would have to sit in Sections as laid down ; (b) that the Provincial Constitutions as well as Group Constitutions would be framed in these Sections by majority vote ; (c) that the only procedure available for any Province to '‘opt out” of a Group would be by a resolution of the new Provincial Legislature under the Constitution so framed after the first general elections. The Congress felt that it had gone to the farthest possible extent according to its own view of the statement ; Nehru and the Congress had accepted the arrangement for sitting in Sections to consider the question of the formation of Groups of Provinces. On September 7, 1946, Nehru made a conciliatory appeal in a broadcast for the termination of the deadlock : An equally urgent and vital task for us is to conquer the spirit of discord that is abroad in India. Out of mutual conflict we shall never build the house of India’s freedom of which we have dreamt so long. All of us in this land have to live and work together, whatever political developments might take place. Hatred and violence will not alter this basic fact, nor will they stop the changes that are taking place in India. The Congress had also maintained that, if either in regard to Grouping or any other disputed point of procedure agreement could not be reached, the proper course would be to refer it to an impartial tribunal like the Federal Court. On the other hand, the Viceroy wanted the Congress categorically to accept the intention of the statement of May 16 that Provinces cannot exercise any option affecting their membership of the Sections or of the Groups if formed, until the decision contemplated in paragraph 19{vlil) of the statement of 16th May is take,ii by the new Legislature after the new constitutional arrangements have come into operation and the first general elections have been heid‘\ ■ This the , Congress refused to ^do*. Meanwhile, Jinnah had further "^Gwyer and Appadoral,. Speeches and Documents on the Indian ■'Constitution, VoL II, pp. 653-4. HMd,, p. 655. ®V. P. Menon, The Transfer of Power in India, p. 302. ^Ibid,,p:SQ4, 76 FRAMING OF INDIA’S CONSTITUTION discussions in, September with B. N.'Rau on various matters relating to the functioning of the Constituent Assembly. He asked for replies to ten questions, on the procedure that the Assembly was likely to follow, before determining^ the final attitude of the Muslim League. Giving Ms personal interpretation of the rules tentatively formulated, B. N. Rau quoted the words of a British statesman on the eve of the Irish settlement after the ■first; world war : Now and again in the affairs of men there comes a moment when courage is safer than prudence, when some great act of faith touching, the hearts of men and stirring their emotions achieves a miracle that no art of statesman- ship can compass. Such a moment may be passing before our eyes now as we meet. In his letter answering Jinnah’s questions, he pointed out that a constitution was only a means to an end ; when by working together as a team, the various parties realized that the ends were common, there would be little difficulty in agreeing upon the means\ Jinnah made his position clear in the middle of November. In a long letter to the Viceroy he repeated the charge that the Congress had not accepted the Cabinet Mission’s plan of May 16. He took the opportunity to impose a further condition : it would not be sufficient to get the Congress to agree to the fundamentals of the plan “in the clearest possible language”: it would also be necessary to devise ways and means by which the proposals could be implemented and enforced by His Majesty’s Government if the Congress break their word. Jinnah then referred to the communal riots which Iiad broken out in the country, and suggested that the Viceroy should immediately announce the postponement of the Constituent Assembly sine die^, Nehru was definitely of the opinion that plans for summoning the Assembly should be put through in spite of the fact that the attitude of Jinnah and the Muslim League at the time was one of non-cooperation. On November 20 the Viceroy issued an invitation to all members to attend the first meeting of the Assembly which, it was stated, would be held at 11 A.M. on the 9th December, 1946 at the Constituent Assembly Chamber in the Council House, New Delhi®... Keeping in view the decision of the Muslim League not to participate in the Assembly, B. N. Rau devoted some thought to the consideration of the possible legal effect of such non-participation. The plan itself did not prescribe a quorum for meetings, either of the Sections or of the Union Constituent Assembly. But this did^not mean that even half a dozen members could get together and discharge the functions of the Assembly or' its. SectiQns.. 'B.' 'N.'Rau said,- ■ quoting' Halsbury, that the acts of a '^Select Documents I, 63(iv)(b), pp. 318-20. I, 63(vi), pp. 323-5. Hbid,, I, 68{v), p. 388. " HISTORICAL BACKGROUND 77 corporation, other than a trading corporation, were those of the major part of the corporations, corporately assembled. In other words, in the absence of special custom or special provision in the constitution the major part must be present at a meeting, and of that major part there must be a majority in favour of the act or resolution contemplated. If this principle was applied to Sections B and C the result would be that, as the absence of the Muslim League would reduce these Sections to less than half their strength, a valid meeting of either would become impossible. The Union Constitution was to be settled after the several Sections had met and settled the Provincial Constitutions and the Group Constitutions, if any. If two of the three Sections could not meet at all, the settling of the Union Constitution would be delayed indefinitely. Further, Rau pointed out, if the several provincial contingents were considered to be “select bodies” or “definite integral parts” of the Union Constituent Assembly, the rule would make even a preliminary meeting of the Assembly impossible. Rau added that it was possible that the League might wish this point to be adjudicated upon by the Federal Court*. On the other hand, Munshi’s contrary opinion was clear and definite. His conclusions were : (a) the Constituent Assembly was representative of the population of India as a whole and not a conference of representatives of certain groups ; (b) the Constituent Assembly was not a body of delegates representing different communities, but an organ of the sovereign people ; (c) the withdrawal of a member or members — even of a whole group of members — could not prevent the Constituent Assembly from discharging its duties ; (d) the Constituent Assembly could therefore function by a majority of its members present until a quorum was fixed by its own rules”. The political implications of the abstention of the Muslim League were considered by the Viceroy and the Secretary of State. The latter was convinced that any assurances on the question of grouping would not satisfy Jinnah, who wanted not only an assurance as to the Cabinet Mission’s intentions, but also an assurance that those intentions would be enforced by His Majesty’s Government. This would amount to exercising control over the working of the Assembly, and an assurance of this kind could not therefore be given’. Nevertheless, the Secretary of State felt that one more attempt should be made to bring about a settlement between the major political parties. Accordingly on November 26, the Viceroy conveyed to Nehru, Jinnah, Liaqat Ali Khan and Baldev Singh an invitation from the British Government for ^Select Documents I, 69(i), pp, 3S9-^90, I, 69(nX pp. 390-2. ' ^V. P. Menoii, The' Transfer of Power in India, p. 352. 78 FRAMING OF INDIANS CONSTITUTION discussions, in. London.' The discussions did not. lead to any , settlement ■ buL with a view to allaying the fears of the Muslim League and enabling it to participate in the Constituent Assembly, the British Prime Minister, in a statement issued on December 6, 1946, made the position of his Government clear on the issue of Grouping and Sections : The Cabinet Mission have throughout, maintained the view that the decisions of the Sections should, in the absence of an agreement to .the contrary, be taken by a simple majority vote of the representatives in the Sections. This view has been accepted by the Muslim League, but the Congress have put forward a different view. They have asserted that the true meaning of the statement, read as a whole, is that the Provinces have the right to decide both as to Grouping and as to their own Constitution. His Majesty’s Government have had legal advice which confirms that the statement of May 16 means what the Cabinet Mission have always stated was their intention. This part of the statement, as so interpreted, must, therefore, be considered an essential part of the scheme of May 16 for enabling the Indian people to formulate a new Constitution which His Majesty’s Government would be prepared to submit to Parliament. It should, therefore, be accepted by all parties in the Constituent Assembly. It is, however, clear that other questions of interpretation of the statement of May 16 may arise and His Majesty’s Government hope that if the Council of the Muslim League are able to agree to participate in the Constituent Assembly, they will also agree, as have the Congress, that the Federal Court should be asked to decide matters of interpretation that may be referred to them by either side and will accept such a decision, so that the procedure, both in the Union Constituent Assembly and in the Sections, may accord with the Cabinet Mission’s plan. On the matter immediately in dispute, His Majesty’s Government urge the Congress to accept the view of the Cabinet Mission in order that the way may be open for the Muslim League to reconsider their attitude. If in spite of this reaffirming of the intention of the Cabinet Mission, the Constituent Assembly desires that this fundamental point should be referred for decision of the Federal Court, such a reference should be made at a very early date. It will then be reasonable that the meetings of the Sections of the Constituent Assembly should be postponed until the decision of the Federal Court is known. There has never been any prospect of success for the Constituent Assembly except upon the basis of an agreed procedure. Should a Constitution come to be framed by a Constituent Assembly in which a large section of the Indian population had not been represented, His Majesty’s Government could not, of course, contemplate— as the<Dongress have stated they would not contemplate— forcing such a Constitution upon any unwilling parts of the countryh ^Select Documents I, 65(w), pp. 347-S. HISTORICAL BACKGROUND 79 This statement drew a sharp reaction from the Congress. The Working Committee of the Congress, meeting on December 22, passed a resolution declaring that the point at issue was not merely one of procedure but the fundamental principle of provincial autonomy, and whether or not a Province or. part should be coerced against its will. (Later on however the resolution referred to this as a “doubtful point of procedure”), Further, the statement had made it clear that, while it was open to the Constituent Assembly to refer the issue to the Federal Court if it so chose, the British Government would not be bound by the opinion of the Court if such opinion went against the view taken by that Government ; nor was the Muslim League willing to accept judicial opinion on the issue. In the circumstances, a reference to the Federal Court became “totally uncalled for and unbecoming and unsuited to the dignity of either the Congress or the Federal Court”. At the same time, the Working Committee wished to adopt an attitude of conciliation because the Congress seeks to frame, through the Constituent Assembly, a Constitution of a free and independent India with the willing cooperation of all elements of the Indian people. The Working Committee regret that the Muslim League members of the Constituent Assembly have refrained from attending its opening session. . . The Committee will continue their efforts to make the Constituent Assembly fully representative of all the people of India and trust that members of the Muslim League will give their cooperation in this great task. In order to achieve this, the Committee have advised Congress representatives in the Assembly to postpone consideration of important issues to a subsequent meeting\ On December 13, Nehru moved the Objectives Resolution on the Assembly’s aims and objects in the following terms ; (1) India would be an independent sovereign republic, free to draw up for her future governance a Constitution ; (2) British India, the Indian States and other parts of India outside British India and the States, as well as such other territories as were willing to.be constituted in the independent sovereign India, would be a Union of them all ; (3) these territories, with their present boundaries or such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, would possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, except those vested in or assigned to the Union, or were inherent or implied in the Union ; * (4) all power and authority of independent sovereign India, its constituent parts and organs of government, would be derived from the people ; ^Select Documents I, 65(v), pp. 348-5Z 80 FRAMING OF INDIA’S CONSTITUTION (5) there would be guaranteed 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 ; and (6) adequate safeguards would be provided for minorities, backward and tribal areas, and depressed and other backward classes^. The resolution evoked a sharply worded protest from the Muslim League; it was described as “illegal, ultra vires and not competent of the Constituent Assembly to adopt”. By taking these decisions in the Constituent Assembly and by appointing a packed committee consisting of individuals chosen by the Congress, the Congress has already converted that truncated Assembly into a rump and something totally different from what the Cabinet Mission’s statement had provided for. On December 21, consideration of this resolution was deferred, in the hope that it might be possible to persuade the Muslim League to join the Assembly before long. A further step in the direction of conciliation was taken by the Congress when the AU-India Congress Committee adopted a fresh resolution on January 6, 1947 ; while maintaining that there must be no interference whatsoever by any external authority, and no compulsion of any Province or part of a Province by another Province, it said : The All India Congress Committee is anxious that the Constituent Assembly should proceed with the work of framing a Constitution for free India with the goodwill of all parties concerned and with a view to removing the difficulties that have arisen owing to varying interpretations, agree to advise action in accordance with the interpretation of the British Government in regard to the procedure to be followed in the Section®. The Muslim League postponed a decision on its future course of action until January 31, by which time the Objectives Resolution had been passed. On that day the Working Committee of the League adopted a lengthy resolution, again putting forward the argument that the Congress had not accepted &e “correct” interpretation in regard to Grouping. It called upon the British Government to declare that the constitutional plan formulated by the Cabinet Mission, as announced in the statement of May 16, 1946. had “failed because the Congress after all these months of efforts have not accepted” the statement. The constitution of the Constituent Assembly and its proceedings and decisions it held, were ultra vires, invalid, and illegal, and it should be forthwith dissalved’. Hie Muslim League’s prompt acceptance of the plan in June 1946 was 'C. A. Deb., Vol. I, p. 57. ^Select Documents I, 65(vii), pp. 353-9. ’Ibid., I, 65(vi), pp. 352->. HISTORICAL BACKGROUND 81 motivated by the fear that, on any other basis it would be left out of the interim Government. The League’s withdrawal of this acceptance in July enabled the Congress to form a Ministry. The effect of this miscalculation was soon neutralized by the admission of nominees of the League into the Ministry. The Muslim League had to give in on two points to get into the Cabinet. It had to agree to the Congress nominating a Muslim member, and thereby give up the right, long claimed, exclusively to nominate all Muslim members of the Cabinet; and it had to undertake to join the Constituent Assembly. This undertaking was not implemented ; the League’s final stand not to cooperate with the Assembly came in January 1947, after it was sure that it could safely take this stand without any prejudice to the continuance of its nominees in the Executive. On February 1, 1947, the Viceroy told the Congress that the Congress was in a position to demand the resignation of the Muslim League members from the interim Government ; but (he added) whether it would be possible to carry on the administration of the country more effectively with the League in active opposition was a matter which required careful consideration'. The Viceroy was always of the opinion that, with widespread communal tension in the country, the best safeguard lay in a coalition Government. Matters came to a head, with widening differences between the Congress and the Muslim League. The Congress made it clear that the Viceroy, who had assured Nehru that it was a condition of the participation of the Muslim League in the interim Government that they would also join the Constituent Assembly, should secure the withdrawal of the League from the interim Government as a consequence of their refusal to cooperate; otherwise the Congress members would themselves resign'. The Viceroy was not in favour of such a course; he wanted one more effort to be made to bring the Muslim League into the Constituent Assembly. The withdrawal of the Congress from the interim Government would, it was felt, lead to even more serious difficulties, especially in view of the communal situation in the country which had greatly deteriorated. In the face of this difficult situation, the British Government decided to act with courage. In a statement issued by the Mme Minister on February 20, 1947, a definite date was set by which British power would terminate in India. In view of the Constituent Assembly’s inability to function on the plan originally laid down by the Cabinet Mission, the British Government desired to hand over its responsibility to authorities established by a Constitution approved by all parties in India; but, with no clear prospect that such a Constitution and such authorities would emerge and in view of the danger of a state of uncertainty continuing indefinitely, the necessary steps would be taken to effect the ?ransfer of power to responsible Indian 'V. P. Menon, The Transfer of Power in India, p. 335. VWd., p. 337. 7 82 FRAMING OF INDIA’S CONSTITUTION hands by a date not later than June, 1948. Such transfer, declared the Prime Minister, would be to a Government resting on the sure foundations of the support of the people and capable of maintaining peace and administering India with justice and efficiency. The Government, therefore, agreed to recommend to the British Parliament a Constitution worked out in accordance with the proposals of May 16, 1946, made by a fully representative Constituent Assembly. But in the absence of such a Constitution, the British Government would have to consider to whom the powers of the Central Government in British India should be handed over cn the due datc—whether as a whole to some form of Central Government for British India, or^ in some areas to the existing Provincial Governments, or in such other way as might seem most reasonable and in the best interests of the Indian people'. Nehru welcomed this declaration as a wise and courageous decision, bringing reality and a certain dynamic quality to the Indian situation. He urged the Constituent Assembly to work with greater speed, so that a new and independent India might take shape and be endowed with a Constitution worthy of her. The appeal was renewed to those who had kept aloof to be partners in this joint and historic undertaking, casting aside fear and suspi- cion, and it was coupled with the assurance that the Constituent Assembly, however constituted, could only proceed with its work on a voluntary basis. There could be no compulsion, except the compulsion of events. With the withdrawal of British rule, the responsibility for the governance of India must inevitably rest on her people and their representatives alone. Such a responsibility, he hoped, would be undertaken by ail parties to find integrated solutions of India’s problems. Concluding, Nehru observed: The British Government on behalf of their people have expressed their goodwill and good wishes to the people of India. We have a long past of conflict and illwilL But we earnestly hope that this past is over. We look forward to a peaceful and cooperative transition and to the establishment of close and friendly relations with the British people for the mutual advantage of both countries and for the advancement of the cause of peace and freedom all over the world®. Even after the Prime Minister’s statement of February 20, hopes were entertained that the complete partition of the country might be averted through certain built-in-devices in the Constitution. The Constitutional Adviser pointed out in a note to the President that the essence of the Cabinet Mission’s plan was to maintain a single Centre for the administration of a minimum number of subjects on an all-India basis, while the remaining subjects were to be dealt with on a regional basis. Applying the basic principle of fhe same plan as in the Provinces, he ^Select Documents I, 84(i), pp. 515-8. Hbid., I, 84(11), pp. 518-9. HISTORICAL BACKGROUND 83 suggested that where a Province contained distinct regions— racial, religious, linguistic— most of the provincial subjects could be dealt with on a regional basis and only the remaining few on a provincial or joint basis. He referred to the administrative arrangements in force in the United Kingdom where certain subjects were dealt with by common Ministers for all parts of the United Kingdom; while for Scotland the administration was in the hands of the Secretary of State for Scotland who held charge of the departments of health, agriculture, police, prisons and education. Even in the sphere of legislation, there was, he said, some measure of regionalism in the United Kingdom. A somewhat similar plan was to be found in the Russian Constitution. The central departments (called the People’s Commissariats) were in two classes, the all-Union departments and the regional departments. The subjects requiring to be dealt with on an all- Union basis were administered by the former, and subjects requiring regional administration by the latter. Working on these analogies, B. N. Rau proposed that in the Provinces there might be some provincial subjects such as education, agriculture and local self-government which could be termed regional subjects, while a few, such as finance, irrigation, the High Court, etc. could be joint subjects. The Governor of a Province could then have a single Cabinet, one set of Ministers exclusively to advise him on the regional subjects of a sub- region and another set similarly to advise him in regard to regional subjects of a different sub-region. On joint subjects, the entire Cabinet with both sets of Ministers could come together to advise the Governor. At the Centre, under this proposal, there would be a similar division of departments into two classes : (1) all-India departments including defence, foreign affairs, communications and finance and (2) regional departments comprising the rest. In his argument in favour of such a plan, the Constitutional Adviser indicated that the following advantages would flow from its implementation : (i) it might succeed in healing the existing differences, whether at the Centre or in the Provinces ; (ii) it would reveal the difficulties, if any, in more far-reaching schemes of partition or separation, including the Cabinet Mission’s plan ; (iii) if the redistribution proved inconvenient in any particular, it could be immediately amended by amending the rules of business; if necessary it could be entirely scrapped and the status quo ante restored’. A major point that remained to be settled related to the procedure that the Constituent Assembly should follow in the light of the British Prime Minister’s two statements, one on December 1946 and the second on February 20, 1947. B. N. Rau had a discussion with the President of the Assembly, Rajendra Prasad, on March 9, 1947 and recorded the results in a note. ‘B. N. Rau, India’s Constitution in the Making, 2nd edn., pp. 27-36. 84 FRAMING OF INDIA’S CONSTITUTION The subject that engaged their attention was the possibility of the final constitutional structure not being ready before June 1948, the date fixed for the final transfer of power. In such an eventuality, it would be necessary to have a provisional Constitution and a provisional Government. Three points, according to the Constitutional Adviser’s note, were inevitable in the circumstances visualized in the last paragraph. There would have to be, first, a provisional Constitution for undivided India ; in other words, a single federation for what was then the whole of British India. Secondly, in the absence of any explicit declaration by the unwilling parts whether their independence would be within or outside the British Commonwealth, the provisional Constitution would necessarily have to be that of a federation enjoying independence within that Commonwealth or full Dominion Status. A third point centred round the British Government’s insistence on a fair measure of agreement between the diSerent parties in India even for the transfer of power to a provisional Government. Cripps had indicated in a speech in the House of Commons on the official statement of December 6, 1946 that if only a large group of Provinces — but not all— should agree upon the form of the Constitution, it might become necessary to hand over power separately to areas not fully represented in the Constituent Assembly. All this meant that there must be at least an agreed provisional Constitution ready before June 1948, as even more urgently necessary than the framing of the ultimate constitutional structure. The Constitutional Adviser drew up a questionnaire bearing on the salient features of the Constitution to facilitate the framing of the final Constitution. A draft prepared on the basis of replies received from the members of the Constituent Assembly and of the various Provincial Assemblies, he felt, was likely to save much time and provide a basis for the preparation of the new Constitution. It was also the intention of the Constitutional Adviser to get ready as early as possible the outlines of a provisional Constitution, so that at the end of the next session of the Constituent Assembly it could divide into Sections for framing Provincial Constitutions for each of the Provinces included in each Section. That, the President hoped, might be possible before the end of June 1947. On the assumption, necessarily provisional, that the Sections would be ready with their respective drafts not later than the middle of July (allowing some more time for Sections B and C because of their comparatively more difficult tasks), it was hoped to complete the Constitution, including the Union portj;pn, before the end of September 1947. By then, the Constitutional Adviser expected the draft of the provisional Constitution also to be ready". N. Rau, India's Constitution in the Making, 2nd edn., pp. 37-41. HISTORICAL BACKGROUND 85 Meanwhile, (functioning of course outside the Constituent Assembly) the Congress Working Committee made a last attempt (on March 8, 1947) to bring the Muslim League’s representatives into the Constituent Assembly, It declared the work of the Assembly to be essentialy voluntary and gave the assurance that there could be no compulsion in the making of the Constitution for India. Without such compulsion or coercion, it would be easy, observed the Working Committee, to determine India’s future so as to safeguard the rights of all communities and give opportunities to all. The Constitution framed by the Assembly would apply only to those areas which accepted it. Any Province or part of a Province which accepted the Constitution and desired to join the Union could not be prevented from doing so. There would be no compulsion either way. An earnest appeal to all parties and groups to discard violent and coercive methods and to cooperate peacefully and democratically in the making of the new Constitution concluded : The end of an era is at hand and a new age will soon begin. Let this dawn of the new age be ushered in bravely, leaving hates and discords in the dead past. In such a mood the Congress Working Committee invited the Muslim League’s representatives for a joint meeting to consider the situationh This appeal proved futile. Nevertheless, the Constitutional Adviser proceeded with his programme of work as endorsed by the President. The questionnaire® was issued on March 17 , 1947 , with a covering letter which explained that though the questions related to the Constitution at the Centre, most of them would apply, mutatis mutandis, also to the provincial sphere. The replies were invited so as to reach the Constitutional Adviser not later than April 10 , 1947 . No questions were included on Group Constitutions, since it would have been premature to do so until the Sections had decided to set up such Constitutions. The Constituent Assembly adopted a resolution on April 30, 1947, for setting up a committee to report on the main principles of the Union Constitution. Copies of the Constitutional Adviser’s questionnaire were sent to the members of this committee; but only one member out of twelve sent his replies, while a second sent a memorandum embodying general directives as well as a draft Constitution. B. N. Rau prepared an independent memorandum on the Union Constitution^ including in it a detailed draft of as many of the proposed provisions of the Constitution as could be drafted at that stage and submitted it to the committee on May 30, 1947. At the same sitting of the Constituent Assembly (on April 30, 1947) it ^Select Documents I, 84(iii), pp. 519-20, mid., II, 13, pp. 437 mid.,11, 15(iiX pp. ) 86 FRAMING OF INDIA’S CONSTITUTION was decided to establish a second committee to report on the main principles of a model Provincial Constitution. Of the twenty-one members of this committee to whom the questionnaire was sent only seven responded with replies to the Constitutional Adviser who prepared an independent memorandum for the committee’s consideration on a model Provincial Constitution*. Another step worth recording as relevant to the framing of the Constitution was Rajendra Prasad’s reference to the Constitutional Adviser of two questions which had given rise to apprehensions regarding the rights of minorities, especially among the Muslims and the Sikhs. These questions were : (1) Could the Union Assembly direct that the Sections should not meet until the Advisory Committee on minority rights had submitted its report ? (2) What could be done to meet the Sikh demand for safeguards ? The Constitutional Adviser’s reply was, as regards (1), that there was nothing to prevent such a direction being given ; but it was possible that the Sections (or some of them) might hold a preliminary meeting on the footing that they would not be settling the provincial Constitutions at that stage. On the question of safeguards for the Sikhs, he suggested inviting the Sikh members of the Assembly to formulate their claims in precise terms*. Developments in India outside the Constituent Assembly in the spring and early summer of 1947 had a profound reaction, both on the British Government and the Indian political parties. The outbreak of large-scale communal riots in several parts of Northern India and the sharply adverse comments of the Muslim League on the Objectives Resolution adopted by the Constituent Assembly convinced the new Viceroy, Mountbatten, who had assumed charge in March 1947. that the transfer of power would have to be hastened in order to prevent a further deterioration of the situation. The circumstances in which this conclusion was reached deserve mention. It has already been noted that, in its resolution of March 8, 1947, the Congress Working Committee made an effort to persuade the Muslim League representatives to join the labours of the Constituent Assembly. The committee had, however, to take note of two factors. In the first place, the British Government’s statement of February 20, 1947, had declared that if it should appear that such a Constitution (a Constitution worked out in accordance with the proposals made in May 1946) will not have been worked out by a fully representative Assembly before the time mentioned in ''■Select Documents II, 2I(ii), pp. 632-41. 'B. N. Rau, India's Constitution in the Making, 2nd edn. 1963, pp. Ixx-lxxi. HISTORICAL BACKGROUND 87 paragraph 7— i.e. before June 1948 — ^His Majesty’s Government will have to consider to whom the powers of the Central Government in British India should be handed over on the due date, whether as a whole to some form of Central Government for British India, or in some areas to the existing Provincial Governments, or in such other way as may seem most reasonable and in the best interest of the Indian people. Gandhi, an opponent of partition till the last, giving his reaction to Attlee’s statement, wrote to Nehru : Evidently I had anticipated practically the whole of it. My interpretation of Mr. Attlee’s speech is this : 1. Independence will be recognized of those parts which desire it and will do without British protection; 2. The British will remain where they are wanted; 3. This may lead to Pakistan for those provinces or portions which may want it. No one will be forced one way or the other. The Congress pro- vinces, if they are wise, will get what they want; 4. Much w'iil depend upon what the Constituent Assembly will do and what you as an interim Government are able to do; 5. If the British Government are and are able to remain sincere, the declaration is good. Otherwise it Is dangerous\ In view of the rapidly deteriorating communal situation in the Punjab, the Congress Working Committee had also adopted a resolution on March 8 suggesting that the Province of the Punjab should be divided into two parts so that the predominantly Muslim portion might be separated from the predominantly non-Muslim portion ; and the Congress President explained in a Press interview that the same remedy would have to be adopted in Bengal if similar circumstances arose in that province^ Clearly then, even if as a last resort. Congress thinking was moving in the direction of a division. This was further emphasized by Rajendra Prasad in his speech in the Assembly on April 28, 1947, in which he referred to the possibility that the Union of India might not comprise all the Provinces. In that case, he said, we can and should insist that one principle will apply to all parts of the country and no Constitution will be forced upon any unwilling part of it. This may mean not only a division of India but a division of some Provinces®. The Muslim League for its part maintained a studied silence regarding the British Government’s decision to transfer power by June 1948. But Jinoah was forthright in his criticism of the proposal to divide Bengal and the Punjab. Tim ""moth-eaten” Pakistan which years earlier he had 7D. G. Tendiiikar, Abdul Ghaffar Khan, p. 401. W. P. Menon, Transfer of Power in India, p. 347. ■ „ A, Deb., Vdl. III,. ,p. . 345., ■ FRAMING OF INDIA’S CONSTITUTION rejected. The proposal for the partition of Bengal .and the Punjab he considered sinister move actuated by spite and bitterness”. Meanwhile the- communal situation was assuming dangerous proportions. When Mountbatten came as Viceroy, the instructions given to him were (1) to try to obtain a unitary Government through a Constituent Assembly in accordance with the Cabinet Mission’s plan of May 16, 1946; (2) if by October 1947 it turned out that there was no prospect of reaching a settlement on this basis, to report on the steps which in his view would be necessary for the handing over of power by June 1948h Mountbatten soon came to the conclusion that it would not be possible to get the Congress and the Muslim League to work together in the Constituent Assembly and hammer out a Constitution which would have the general support of both. Alternatives had therefore to be devised. In these circumstances, the British Cabinet, backing Mountbatten, again acted with courage. After consultations with the leaders of the Opposition in Britain and the leaders of the political parties in India, a fresh statement of policy was made by the British Government on June 3, 1947, reviewing the situation in the following terms : The majority of the representatives of the Provinces of Madras, Bombay, the United Provinces, Bihar, Central Provinces and Berar, Assam, Orissa and the North-West Frontier Province, and the representatives of Delhi, Ajmer- Merwara and Coorg have already made progress in the task of evolving a new Constitution. On the other hand, the Muslim League party, including in it a majority of the representatives of Bengal, the Punjab and Sind, as also the representative of British Baluchistan, has decided not to participate in the Constituent Assembly. It has always been the desire of His Majesty’s Government that power should be transferred in accordance with the wishes of the Indian people themselves. This task would have been greatly facilitated if there had been agreement among the Indian political parties. In the absence of such agreement, the task of devising a method by which the wishes of the Indian people can be ascertained has devolved upon His Majesty’s Government. After Mi consultation with political leaders in India, His Majesty’s Government have decided to adopt for this purpose the plan set out below. His Majesty’s Government wish to make it clear that they have no mtention of attempting to frame any ultimate Constitution for India ; this is a matter for the Indians themselves. Nor is there anything in this plan to preclude negotiations! between communities for a united India. The plan now put forward recognized the inevitability of partition, P. Mmon, The Transfer of Power in India, p. 351. HISTORICAL BACKGROUND 89 despite the strongly held opinion of Gandhi and the Congress in favour of a united India : it also recognized the inevitability of the partition of Bengal and the Punjab, in spite of all the protestations of Jinnah and the Muslim League that such a division would be unacceptable to them. It accordingly proposed the following solution ; (a) the work of the Constituent Assembly would not be interrupted but steps would be taken to ascertain the wishes of the Muslim majority areas on the issue whether their Constitution was to be framed (1) by the existing Constituent Assembly; or (2) in a new and separate Constituent Assembly consisting of the representatives of those areas which decided not to participate in the existing Assembly ; (b) for this purpose the Provincial Legislative Assemblies of Bengal and the Punjab (excluding the European members) would be asked to meet in two parts, one representing the Muslim majority districts and the other the rest of the Province. For the purpose of determining the population of district the 1941 census figures would be taken as authoritative ; (c) the members of the two parts of each Legislative Assembly sitting separately would be empowered to vote whether or not the Province should be partitioned. If a simple majority of either part decided in favour of partition division would take place : (d) before the question of partition was decided, if any members so demanded, a meeting of all the members (excluding the European members) would be held at which a decision would be taken on the issue as to which Constituent Assembly the Province as a whole would join if it was decided by the two parts to remain united ; (e) in the event of partition being decided upon each part of the Legislative Assembly would, on behalf of the areas they represented, decide whether it would join the existing Constituent Assembly or the new Assembly for Muslim majority areas; also if there was to be partition the boundaries of the new Provinces would be finally demarcated by a Boundary Commission ; (f) the Legislative Assembly of Sind (excluding the European members) would also take its own decision as to the Constituent Assembly in which that Province would participate ; (g) if one of the two parts of the Punjab decided not to join the existing Constituent Assembly (the reference being obviously to the MusBm majority areas constituting West Punjab) a referendum would be held in the North-’VV^st Frontier Province (in which the electorate to the Legislative Assembly of that Province would participate) on the question whether the North-West Frontier Province would remain isolated from India or would participate in the existing Constituent Assembly or join the new Assembly ; 90 FRAMING OF INDIA’S CONSTITUTION : -. (h) British Baluchistan would also be given’ the same o-ption. (But' the precise miacliinery for exercising the option was not decided at this . stags. It was later decided that the option, would be left to the ■decision of a, joint meeting of the Shahi Jirga — the principal tribal council of the Province — and the non-official members of the Quetta municipality); ,(i),ia the event' of it being decided that Bengal should be partitioned, , a .referendum would be held in- the Sylhet District of Assam (Assam v/as a predominantly non-Muslim Province, but this district was predominantly Muslim) to' decide whether it ■ would continue to be part ; of Assam or whether it should be amalgamated with the new Province of East Bengal The British Government was ready to transfer power at the earliest possible moment ; it was even willing to anticipate a date earlier than June 1948 for the handing over of power by the setting up of an independent Indian Government or Governments. Legislation was proposed to be introduced in the British Parliament for the transfer of power on a Dominion Status basis to one or two successor authorities, according to the decision taken as a result of this announcement. This, it was added, was without prejudice to the right of the Constituent Assembly to decide whether India would remain within the British Commonwealth or go ouf . Mountbatten, explaining the revised British plan, announced that with the acceptance of the Muslim League’s demand for the partition of India, the argument that certain Provinces should also be partitioned was unassailable. The transfer of power was to take place at the earliest possible moment ; but Britain could not wait until the completion of the deliberations of the Constituent Assembly. The only solution for the dilemma, according to the Viceroy, was therefore the transfer of power immediately to one or two Governments of British India on the basis of Dominion Status. The way would thus be open to an an-angement by which power could be transferred many months earlier and at the same time it could be left to the people of India to decide their future for themselves. Finally he mentioned August 15, 1947, as the date for the transfer of powerl Nehru accepted the Mountbatten plan, describing it as ‘‘another histone occasion when a vital change affecting the future of India was being proposed”. In the course of a broadcast message on June 3, 1947, he said : This announcement lays down a procedure for self-determination in certain areas of India. It envisages, on the one hand, the possibility of these ■ areas seceding from India; on the other, it promises a big advance towards complete independence. Such a bi# change must have the full concurrence of the people before effect can be given to it, for it must always I- ^Select Documents I, 85(i), pp. 521-6. ®V. P. Menon, The Transfer of Power In India, p. 382. HISTORICAL BACKGROUND 91 remembered ■ that the future of, India, can only be. decided by the people of India and not by any outside authority, however friendly. Tliese proposals will be placed soon before representative assemblies of the people for considerationh The partitian of India into two States having become inevitable, Nehru concluded his broadcast on a note of sadness. He had no doubt in his mind that the course adopted was the right one. But he added : For generations we have dreamt and struggled for a free independent and united India. The proposal to allow certain parts to secede, if they so will is painful for any of us to contemplate. Nevertheless, I am convinced that our present decision is the right one even from the larger viewpoint. The united India that we have laboured for was not one of compulsion and coercion but a free and willing association of a free people. It may be that in this way we shall reach that united India sooner than otherwise and that she will have a stronger and more secure foundation^ Neither Jinnah nor the Muslim League categorically accepted the plan — they had for long opposed the division of Bengal and the Punjab. But Jinnah came as near acceptance as he could in his observation that so far as I have been able to gather, on the whole the reaction in the Muslim League circles has been hopeful. And, meeting on June 10, the Council of the League passed a resolution declaring that although it could not agree to the partitian of Bengal and the Punjab, or give its consent to such partition, it had to consider the British plan for the transfer of power as a whole ; and full authority was given to Jinnah to accept the principles of the plan as a compromise and to take all the necessary further steps*. It remains to add that in pursuance of this plan a separate Dominion of Pakistan was constituted with effect from August 15, 1947, comprising the areas of East Bengal and West Punjab, the Provinces of vSind, the North- West Frontier Province and British Baluchistan, and Sylhet district in Assam. These areas thus were excluded from the jurisdiction of the Constituent Assembly of India. Legal sanction for partition accompanied by the conferment of Dominion Status was contained in the Indian Independence Act, 1947. In respect of the functions of the constitution- making body, the Act said : .In the, case of each uf the new Dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the Constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the Legislature of the Dominioi? shall be construed accordingly^ / ' ^Select . Bmuments I, 85(ii), pp. 527-8. nbid, '■■■ ;^V. F. Menon, The Transfer of Power m India, p, 3ZS. '■ ^Select' Docummis J, 86(iiX p. 543; 92 FRAMING OF INDIA’S CONSTITUTION With this anEOuncement of indepeEdence, all the restrictions and conditioEs contained in the Cabinet Mission’s plan of May 16, 1946 ceased to operate. The Constituent Assembly became a ' truly sovereign body, free from all external control. At last, after twenty-eight months of sustained and exacting labour, uninterrupted by even the great tragedy of Gandhi’s assassination (on January 30, 1948), the final session of the Constituent Assembly was able to declare on behalf of the people of India that ‘'we do hereby adopt, enact and give to ourselves this Constitution”. It was the achievement ' in ' full measure of an aspiration which had undergone radical alterations in the interval between the two wars. In the decade following the end of the first world war, India’s leaders claimed no more than the right to frame a Constitution subject to its ultimate ratification by the British Parliament. The demand was stepped up in the next decade to the creation of a sovereign Constituent Assembly entrusted with the unrestricted responsibility of framing a Constitution for an independent India. The forces operating during the second world war compelled the British Government to move steadily in the direction of granting the substance of such a claim. But not until June 3, 1947, was it conceded in full, primarily as a result of the British decision to withdraw its authority over India on August 15, well before the completion of the task of the Constituent Assembly. No outside authority, after that dale, could sit in judgment over the draft of a Constitution framed by a sovereign body. 2 MEMBERSHIP OF THE CONSTITUENT ASSEMBLY A NOTABLE FEATURE of India’s Constituent Assembly was the number of transformations it was subjected to in the course of its career between July- August 1946, when it was first elected, and November 1949, which marked the end of its complicated task. In its first stage, the election of representatives was from the territories then described as British India, excluding the Indian States. In the setting up of the Constituent Assembly, the suggestions of the Cabinet Mission, as outlined in its statement of May 16, 1946, were faithfully adopted. Having rejected the method of election by adult franchise, which, though obviously the most satisfactory basis for the constitution of the Assembly, would have resulted in a wholly unacceptable delay in the formulation of the new Constitution, the Cabinet Mission came to the conclusion that the only practicable course was to utilize the recently elected Provincial Legislative Assemblies as the electing bodies. The fairest and most practical plan, it declared, would be — (a) to allot to each Province a total number of seats proportional to its population, roughly in the ratio of one to a million, as the nearest substitute for representation by adult suffrage; (b) to divide this provincial allocation of seats between the main communities in each Province in proportion to their population ; (c) to provide that the representatives allotted to each community in a Province would be elected by the members of that community in its Legislative Assembly. The Cabinet Mission added : We think that for these purposes it is sufficient to recognize only three main communities in India : General, Muslim and Sikh, the “General” community including all persons who are not Muslims or Sikhs. As the smaller minorities would, upon the population basis, have little or no representation, since they would lose the weightage which assures them seats in the Provincial Legislatures, we have made the arrangements “Set out in paragraph 20 below to give them a full representation upon all matters of special interest to the minorities^ In paragraph 20 the Cabinet Missjpn had proposed that the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas should contain due representation of the interests affected. Elaborating ^Select Documents I, 48(i), p. 214. 93 94 FRAMING OF INDIANS CONSTITUTION this point, Cripps said : We were met by the difficulty of how we could deal fairly with the smaller minorities, the tribal and the excluded areas. In any constitution-making body it would be quite impossible to give them a weightage which would secure for them any effective influence without gravely upsetting the balance' "between ’ the ■ major parties. To give them a tiny representation would be useless to them. So we decided that minorities would be dealt ^-with really in a double way. -The major minorities such as the Hindus in the Muslim Provinces, and the Muslims in the Hindu Provinces, the Sikhs in the Punjab and the depressed classes who had considerable representation in a. number of Provinces would be dealt with by proportional representation in the main construction of the constitution-making bodies. But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians, and also the tribal representatives, a better opportunity of influencing minority provisions, we have made provision for the setting up by the constitution-making body of an influential advisory commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This commission will make its recommendations to the constitution-making body and will also suggest at which stage or stages in the Constitution these provisions should be inserted: that is, whether in the Union, Group or Provincial Constitutions or in any two or more of them\ On this basis the allotment of seats among the various Provinces and communides in British India was as follows : Table of Representation Section A Province General Muslim ■ Total Madras . • . . • 45 4 49 Bombay « « . . . • • 19 2 21 United Pro%dnces 47 8 55 Bihar • , « ■ . • • . . 31 5 36 Central Provinces . . 16 1 17 Orissa ..... 9 ■ 0 9 167 , , 20' , . 187 ^Select Documents I, 48(iii), pp. 223-4. MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 95 Section B Province General Muslim Sikh Total Punjab . • „ » 8 16 4 -28 North-West Frontier Province ' • 0 3 . 0 ^ 3 Sind 1 3 ■0' 4 9 22 ■■ 4 ■ 35 Section C Province Genera! Muslim Total Bengal ..... . 27 33 60 Assam . , .... • 7 3 10 34 36 70 Total for thi Governors’ Provinces of British India : 292. In order to represent the Chief Commissioners’ Provinces there were added to Section A the member representing Delhi in the Central Legislative Assembly, the member representing Ajmer-Merwara in the Central Legislative Assembly, and a representative to be elected by the Coorg Legislative Council. To Section B was added a representative of British Baluchistan. So far as the Indian States were concerned, the Cabinet Mission said ; It is the intention that the States would be given in the final Constituent Assembly appropriate representation which would not, on the basis of the calculations adopted for British India, exceed 93, but the method of selection will have to be determined by consultation. The States would in the preliminary stage be represented by a Negotiating Committee'. Thus, the total membership of the Assembly was 389, of whom 93 were representatives of the Indian States and 296 were from British India (292 from the Governors’ Provinces and 4 from the Chief Commissioners’ provinces). On the basis of the proposals of the Cabinet Mission, elections were held in July and August, 1946, to the 292 seats allotted to the Governors’ Provinces, and to the two seats allotted to <!!oorg and British Baluchi^an. The members representing Delhi and Ajmer-Merwara in the Central Legislative ^Selecl Documents I, 48(i), pp. 215-6, 96 FRAMING OB INDIA’S CONSTITUTION Assembly automatically became the representatives of these Provinces in the Constituent Assembly. It has already been mentioned that these elections were held in three communal divisions — ^Muslims (in all the Governors’ Provinces except Orissa). Sikhs (in the Punjab) and General (in all the Governors’ Provinces except the North-West Frontier Province). Under the proposals outlined by the Cabinet Mission, the total number of seats allotted from the Governors’ Provinces to Muslims was 78, to Sikhs 4, and to candidates in the “General” category 210. Of the 210 general seats the Congress was able to capture 199. The Congress won all the general seats in Madras (45), tlie Central Provinces and Berar (16), Bombay (19), and Assam (7) and gained twenty-five out of the twenty-seven seats in Bengal, twenty-eight out of the thirty-one seats in Bihar, all but three of the forty-seven seats in the United Provinces, eight out of the nine seats in Orissa, six out of the eight seats in the Punjab and the general seat in Sind. In addition, the Congress was also able to secure the three seats allotted to Coorg, Ajmer-Merwara and Delhi. It won the Coorg seat in election; and the members of the Central Legislative Assembly from Ajmer-Merwara and Delhi, who became members of the Constituent Assembly, were both from the Congress. The Congress also won three of the four Sikh seats from the Punjab and three Muslim seats. Thus the total number of Congress seats in the Assembly was 208. The Muslim League had similarly decisive success with the Muslim seats, capturing seventy-three out of a total of seventy-eight; the Congress could get only three Muslim seats from the Governors’ Provinces — one in the United Provinces and two in the North-West Frontier Province. The representative from Delhi, a Congressman, was also a Muslim. Two facts relating to the Congress attitude to the elections are worthy of note. In the first place, the Congress was anxious that the Assembly should be as truly representative as possible of all elements in India’s national life; and recognizing its own inherent strength, the Congress also appreciated its responsibility to bring this about; accordingly the Congress nominations were not confined to its own party members. Of the two hundred and five members elected to the Assembly from the Governors’ Provinces on the Congress vote, as many as thirty were from outside the party. From the minorities, the Scheduled Castes accounted for twenty-nine; the Indian Christians had six, Anglo-Indians three, Parsis three and Tribals four’. Thus liberal representation was given to all minorities’. Again, the Congress did not hesitate to accept Gandhi’s advice and go outside the party in order to secure the assistance of the best available talent in the country for framing India’s '‘•pew Constitution, irrespective of party 'Select Documents I, 61, pp. 287-310. MEMBERSHIP OF THE CONSTITUENT ASSEMBLY , 97 affiliations. Thus the Congress nominees included N. Go-palaswarai Ayyangat, a former civil servant who had built up a reputation as a conspicuously successfur administrator; Hriday Nath Kuiizru, President of the Servants of India Society; Alladi Krishnaswami Ayyar, an eaninent advocate; S. Radhakrishnan, philosopher and educationist, who later v/as to fill the office of . the President of India with great distinction; and H. C. Mookherjee, a respected educationist from Bengal. These were not strictly speaking party men; but their participation undoubtedly added distinction to the deliberations of the Assembly. This anxiety of the Congress to secure the largest measure of agreement for the Constitution was reflected also in the composition of the Drafting Committee. Of the seven members of the Drafting Committee, only K. M. Munshi and later T. T. Krishnamachari were members of the party. One member, Muhammad Saadulla, was a member of the Muslim League; and the others B. R. Ambedkar, Alladi Krishnaswami Ayyar, N. Madhava Rau, and D. P. Khaitan were independent members. B. R. Ambedkar, who was elected Chairman of the committee and who piloted the Constitution through the Assembly with remarkable skill and ability, had for many years been a vigorous critic of the Congress and its policies^ He remarked on his election : I had not the remotest idea that I would be called upon to undertake more responsible functions. I was therefore greatly surprised when the Assembly elected me to the Drafting Committee. I was more than surprised when the Drafting Committee elected me to be its Chairmanh The party-wise break-up of the Assembly’s British Indian membership was as follows : Congress Muslim League . Unionist Unionist Muslim Unionist Scheduled Castes Krishak Proja Scheduled Castes Federation Sikh (Non-Congress) . Communist Independents 208 73 I 1 1 I 1 1 1 S 296 'Among the members of the Consj;ituent Assembly were' the Presidents of The Indian National Congress, the Depressed Classes League, the Muslim League, the All-India Scheduled Castes Federation, the All-India, Women’s A. Deb., VoL XI pp 973-A 8 98 FRAMING OF INDIA’S CONSTITUTION Conference, the All-India Landholders’ Association, the Hindu Mahasabha, the Servants of India Society, and the Anglo-Indian Association. Analysed from' another standpoint, the membership included ten members of the Central Government; five ex-Presidents of the Congress; seven members of the Congress Working Committee; seven ex-members of the Congress Working Committee; eight members of the Muslim League Working Committee; eleven Presidents , of Provincial Congress Committees; two Presidents of the Provincial Muslim League;, four ex-Members of the Viceroy’s Executive Council; eight Premiers of Provinces; ten Ministers of Provinces; seventeen ex-Ministers of Provinces, or ex-Members of Governors’ Executive Councils; thirty-four members of the Central Legislature ; three ex-members of the Central Legislature; 155 members of Provincial Legislatures; four ex-members of the Provincial Legislatures; the Speaker of a Provincial Legislature; and an ex-Speaker of a Provincial Legislature. There were also eminent lawyers, members of the medical profession, educationists including some Vice-Chancellors, industrial and commercial magnates, working class (industrial and agricultural) representatives, journalists and authors. Out of the 296 iiienibers, 207 members took part in the inaugural session on December 9, 1946. Seventy-six out of a total of eighty Muslim members abstained; and only the four Congress Muslim members attended. With regard to the 93 seats allotted to the Indian States under the Cabinet Mission’s plan, paragraph 19(ii) of the Mission’s statement of May 16, 1946, had stated that the method of selection of these representatives would have to be determined by consultation between the States and the British India section of the Constituent Assembly. Mainly for this purpose a Negotiating Committee was set up by the Chamber of Princes and a corresponding States’ Committee was appointed by the Constituent Assembly. These two committees, after a series of meetings, finally approved of the following scheme of distribution. As in British India, the bigger States, which had a right to be represented individually on the strength of their population, were to be allotted seats on the basis of one seat for a million of the population (fractions of three-fourths or more counting as one and lesser fractions being ignored). Smaller States v/ere classified into (1) Frontier groups and (2) Interior groups. In the case of these groups, fractions of more than half a million of population were to be counted as one, lesser fractions being ignored. It was also agreed that States, so desiring, could pool or share their proportion of the allotted representation, whether individually or grouped, with that of any other State or group of States by mutual agreement, provided that the total representation of the States and/or of J;he groups affected was not , disturbed, and also that geographical proximity, economic considerations and ethnic, cultural and linguistic affinities were also kept in view. There were 20 single. States with a. total population of 61.86 million. The total number of seats allotted to them was 60, in the following numbers : MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 99 Hyderabad (16), Mysore (7), Travancore (6), Kashmir and Gwalior (4 each), Baroda and Jaipur (3 each), Udaipur, Jodhpur, Rewa and Patiala (2 each) and Cochin, Bikaner, Alwar, Kotah, Indore, Bhopal, Kolhapur, Bahawalpur and Mayurbhanj (one each). Four seats were allotted to the frontier groups of States with an aggregate population of 3.32 million. Twenty-nine seats went to States classified as interior groups with a total population of 27.82 million. With regard to the method of selecting the States’ representatives, the two committees agreed that not less than 50 per cent of the total representatives of States should be elected by the elected members of the Legislatures of the States concerned; or, where such Legislatures did not exist, by other electoral colleges. The States, it was expected, would endeavour to increase the quota of elected representatives to as much above 50 per cent of the total number as possible. On the basis of the distribution mentioned above, Baroda, Cochin, Udaipur, Jaipur, Jodhpur. Bikaner. Rewa and Patiala were the first to select their representatives: and they took their seats in the Constituent Assembly on April 28, 1947. The next phase was reached with the partition of India finally decided upon in accordance with the statement of the British Government on June 3, 1947. As a result the following territorial distribution took place. The new Dominion of Pakistan was to include the Provinces of Sind, Baluchistan and the North-West Frontier Province; the Muslim majority districts of the Punjab and Bengal; and the district of Sylhet in Assam. The precise territorial delimitation was determined by the Radcliffe Commission’s award. As a result of the partition. West Bengal was allotted a membership of nineteen (fifteen general and four Muslim seats) and East Punjab twelve (six general, four Muslim and two Sikh seats). The representation of Assam was reduced to eight. The membership of the Constituent Assembly underwent, in consequence, the following revisions : Governors’ Provinces 226 Ajmer-Merwara, Delhi and Coorg 3 Indian States 89 318 It was further decided that fresh elections would be held to the Constituent Assembly in the new Provinces of East Punjab and West Bengal'. Subsequently on January 27, 1948, the Constituent Assembly itself added two more members to West Bengal and, in view of the change in the communal strengths in East Punjab, Jhc representation of that Province was altered so as to provide for eight general seats and four Sikh seats-. ^ ^ '^Select. -Documents'^ 1, 85(i), p, 525, ■ 4. Dek^ Vol, VI pp. 3-13, . 100 FRAMING OF INDIA’S CONSTITUTION The distribution of the seats returned from the Governors’ Provinces and Chief Commissioners’ Provinces as on November 10, 1948, was as follows ; General Sikh Muslim Total Madras 45 . , 4 49 Bombay 19 • • 2 21 West Bengal 16 .. 5 21 United Provinces 47 8 S5 East Punjab 8 4 4 16 Bibar . 31 • • 5 36 C.P. & Berar 16 1 17 Assam 6 2 8 Orissa. 9 .. 9 197 4 31 232 Delhi . • • . . • • . . 1 Ajmer-Merwara . • • • . » . . 1 Coorg • • • • •• •* 1 235 The foregoing paragraphs have dealt with changes in the numerical strength of the Constituent Assembly and in its representative character. There was, however, a series of changes of a different kind in the representation accorded to the Indian States which deserve separate mention. While the Constituent Assembly was in session holding its deliberations between December 1946 and November 1949, many of the smaller States were merged in the Provinces; many others were united to form Unions of States; and some were directly administered by the Centre as Chief Commissioners’ Provinces. These changes necessarily called for a readjustment of representation of the States from time to time. The general plan adopted was as follows : • (i) Where States were merged in Provinces, the Speaker of the Legislative Assembly of the Province was authorized to hold elections and bye-elections wherever necessary, and notify the person or persons elected or nominated; MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 101 (ii) where States were united to form Unions of States and in the case of Hyderabad, Mysore and Jammu and Kashmir, the Rajpramukh or the Ruler of the State was entrusted with this function ; (iii) in the case of States constituted into Chief Commissioners’ Provinces this function was entrusted to the Chief Commissioners. The allocation of the seats, as on October 15, 1949, was follows : Hyderabad . . 16 Mysore 7 Kashmir . . . ,4 United State of Kathiawar (Saurashtra) .... 5 United State of Rajasthan 12 United State of Vindhya Pradesh 4 United State of Gwalior-Indore-Malwa (Madhya Bharat) . 7 Patiala and East Punjab States Union ..... 3 United State of Travancore-Cochin 7 Bhopal . » . I Himachal Pradesh r ^ Bilaspur . J Cooch-Behar 1 Kutch 1 Manipur Tripura . . Bombay States 8 Central Provinces & Berar States ...... 3 Madras States 1 Orissa States 5 United Provinces States ....... 2 89 Hyderabad did not send its representatives to the Constituent Assembly at any stage of its deliberations, A list of members of the Constituent Assembly as in November 1949, is given below : 102 FRAMING OF INDIA’S CONSTITUTION O. V. Alagesaa Mrs. Ammu Swammadhan M. Ananthasayanam Ayyaagar Moturi Satyaoarayana Mrs. Dakshayani Velayiidhan Mrs. G. Durgabai Kala Venkatarao N. Gopalaswami Ayyaiigar D. Govinda Das Rev. Jerome D’Souza. P. Kakkan K. Kamaraj V. C. Kesava Rao T. T. Krishnamachari Aliadi Krishnaswami Ayyar L. Krishnaswami Bharathi P. Kunhiraman M. Thirumula Rao V. I. Muniswamy Piilay M. A. Muthiah Chettiyar V. Nadimutiiu Piilai S. Nagappa P. L. Narasimha Raju B. Pattabhi Sitaramayya C. Pemmalswami Reddi Baichandra Maheshwar Gupte Mrs. Hansa Mehta Hari Vinayak Pataskar B. R. Ambedkar Joseph Alban D’Souza Kanayalal Nanabhai Desai Keshavrao M.arutirao Jedhe Khandubhai Kasanji Desai Bal 'Gangadhar ' Kher ' M. R. Masanl ' ' K.'M. Munshi MADRAS T. Prakasam S. H. Prater Raja Swetachalapathi Ramakrishna Renga Rao of Bobbin R. K. Shanmukham Chetty T. A. Ramaiingam Chettiar Ramnath Goenka O. P. Ramaswami Reddi yar N. G. Ranga N. Sanjiva Reddi K. Santhanam B. Shiva Rao Kaiiur Subba Rao U. Srinivasa Maliayya P. Siibbarayan C. Subramaniam V. Subramaniam M. C. Veerabahu P. M. Velayudapani A. K. Menoii T. J. M. Wilson Mohamed Ismail Sahib K. T. M. Ahmed Ibrahim Mahboob Aii Baig Sahib Bahadur B. Pocker Sahib Bahadur BOMBAY Narhar Vishnu Gadgil S, Nijaiingappa S. K. Patil Ramchandra Manohar Nalavade R. R. Diwakar Shankarrao Deo (J. V. Mavaiankar Vallabhbhai J. Patel Abdul Kadar Mohammad Shaikh ■ ■ A, A. Khan MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 103 WEST BENGAL Monomohan Das Anin Chandra Guha Lakshmi Kaiita Maitra Mihit Lai Cfaattopadhyay Satis Chandra Samanta Suresh Chandra Majumdar Upendranath Barman Prabhodayal Himatsingka Basanta Kumar Das Mrs. Renuka Ray H. C. Mookherjee Surendra Mohan Ghose Syama Prasad Mocker jee Ari Bahadur Gurung R. E. Platel K. C. Neogy Raghib Ahsan Jasimuddio Ahmad Naziruddin Ahmad Abdul Hamid Abdul Halim Ghuznavi UNITED PROVINCES Ajit Prasad Jain J. B. Kripalani Algu Rai Shastri Mahavir Tyagi Balkrishna Sharma Khurshed Lai Bans hi Dhar Misra Masurya Din Bhagwan Din Mohan La! Saksena Damodar Swarup Seth Padampat Singhania Dayal Das Bhagat Phool Singh Dharam Prakash Paragi Lai A. Dharam Dass Mrs. Purnima Banerji R. V. Dhulekar Purushottamdas Tandon Feroz Gandhi Hira Valla bha Tripathi Gopal Narain Ram Chandra Gupta Krishna Chandra Sharma Shibban Lai Saxena Govind Ballabh Pant Satish Chandra Govind Malaviya John Matthai Har Govind Pant Mrs. Siicheta Kripalani Harihar Nath Shastri Sunder Lall Hriday Nath Kunzru Venkatesh Narayan Tivary laspat Roy Kapoor Mohanla! Gautam lagannath Baksh Singh Vishwambhar Dayal Tripathi Jawaharlal Nehru Begum Aizaz Rasul Jogeiidra Singh Hyder Hussain Jugal Ki shore Hasrat Mohaiii Jwala Prasad Srivastava Abul Kalam Azad B. V. Keskar Muhammad Ismail Khan Mrs. Kamala Chaudhri Rah Ahmad Kidwai Kamaiapati Tiwari Mohd. Hifzur Rahman EAST PUNJAB Bakshi Tek Chand Achint Ram Jairamdas Daulatram Nand Lai Thakurdas Bhargava Sardar Baldev Singh Bikramla! Sondhi Giani Gurmukh Singh Mu^air Yashwant Rai Sardar Hukam Singh Ranbir Singh Sardar Bhopin^r Singh Mann 104 FRAMING OF INDIA’S CONSTITUTION BIHAR Amiy.o Kumar Ghosh ■ Krishna Ballabh Sahay Anugrahnarayan Sinha Raghunandan Prasad Banarsi Prasad Jhunjlianwala ■ Rajendra Prasad Magwat Prasad Rameshwar Prasad Sinha Boniface Lakra Ramnarayan Singh Brajeshwar Prasad Sachchidananda Sinha Chandika Ram Sarangdhar Sinha K. T, Shah Satyanarayan Sinha Devendra Nath Samanta Binodanand Iha Dip Narain Sinha P. K. Sen Guptanath Singh Sri Krishna Sinha Jadubans Sahay Sri Narayan Mahtha Jagat Narain Lai Syamanandan Sahaya Jagjivan Ram Hussain Imam Jaipai Singh Saiyid Jafar Imam Kameshwara Singh of Darbhanga Latifur Rahman Kamaleshwari Prasad Yadav Mohammad Tahir Mahesh Prasad Sinha Tajamu! Husain CENTRAL PROVINCES & BERAR Raghu Vira Ghanshyam Singh Gupta Rajkumari Amrit Kaur Lakshman Shrawan Bhatkar B. A. Mandloi Panjabrao Shamrao Deshmukh Brijiai Nandlal Biyani Ravi Shankar Shukla Thakur Chhedilai R. K. Sidhva Seth Govind Das Shankar Tryambak Dharmadhikarl Hari Singh Gour Frank Anthony Hari Vishnu Kamath Kazi Syed Karimuddin Hemchandra Jagofoaji Khandekar ASSAM Nibaran Chandra Laskar Kuladhar Chaliha Dharanidhar Basu-Matari Rohini Kumar Chaudhury Gopinath Bardoloi Muhammad Saadulla J. J. M. Nlchois-RoV Abdur Rouf ORISSA . B, , Das Lhkshminarayan Sahu Biswaiiath IJas Lokanath Misra Krishna Chandra Gajapati Narayana Nandkishore Das Deo of Parlakimedi . Rajkrishna Bose Harekru'shiia Mahatab ■ Santanu Kumar Das MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 105 DELHI Deshbhandtiu Gupta AJMER-MERWARA Miikut Bihari Lai Bhargava COORG C. M. Poonacha fC, Chengalaraya Reddy T. Siddalingaiya H. R. Guruv Reddy S. V. Krishnamurthy Rao MYSORE K, Hanumanthaiya H. Siddaveerappa T. ehanniah JAMMU AND KASHMIR Sheikh Muhammad Abdullah Mirza Mohmmad Afzal Beg Motii'am Baigra Maulana Mohammad Sayeed Masoodi TRAVANCORE-COCeiN A. Thanu Piilai K. A. Moliamed R. Sankar P. T. Chacko P. S. Nataraja Piilai P. Govinda Menon Mrs. Annie Mascarene MADHYA BHARAT V. S, Sarwate Brijraj Narain Gopikrishna Vijayavargiya Ram Sahai Kusum Kant Jain Radhavallabh Vijayavargiya Sitaram S. Jajoo SAURASHTRA Balwant Rai Gopalji Mehta Chimanlal Chakubhai Shah laisukhlai Hath! Samaldas Laxmidas Gandhi Araritial Vithaidas Thakkar RAJASTHAN V. T. Krishnamachari Hiraial Shastri Sardar Siiighji of Khetri Jaswant , Singhji Raj Bahadur Manikya La! Varma Gokui Lai Asava Ramchaiidra Upadliyaya Balwant Siiiha Mehta Dale! Singh laiaarain Vyas 106 FRAMING OF INDIA’S CONSTITUTION PATIALA AND BAST PUNJAB STATES UNION Ranjit Singh Bhagwant Roy Sochet Singh BOMBAY STATES Vinayakrao Balshankar Vaidya B. N. Munavalli Gokuibhai Daulatram Bhatt Jivraj Narayan Mehta Gopaldas A. Desai Parania! Thakurlal Miinslii B. H. Khardekar Ratnappa Bharamappa Knmbhar ORISSA STATES Lai Mohan Pati Sarangadhar Das N. Madhava Rait Yudhishthir Misra Raj Kanwar CENTRAL PROVINCES STATES R. L. Maiaviya Ramprasad Potai Kishorimohan Tripathi B. H. Zaidi V. Raniaiah UNirED PROVINCES SI’ATES Krishna Singh MADRAS STATES VINDHYA PRADESH Avdesh Pratap Singh Ram Sahai Tiwari Shambu Nath Shukla Mannulalji Dwivedi COOCH BEHAR Himmat Singh K. Maheshwari TRIPURA AND MANIPUR Girja Shankar Guha BHOPAL Lai Singh KUTfH Bhawani Arjtm Khimji HIMACHAL PRADESH Y. S* Parmar 3 PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY Elections to the Constituent Assembly were completed by the end ot July 1946 (except for the Sikh seats in the Punjab). The Congress was anxious for an early meeting of the Constituent Assembly so that the new Constitution could be framed and adopted with the least possible delay and enable India to emerge as a fully independent nation. On the other hand, when the Cabinet Mission announced on June 26, 1946, that the formation of an interim National Government would be postponed, the Muslim League began to press for a more or less indefinite postponement of the Constituent Assembly as well. In his letter to the Viceroy, written on June 28, Jinnah declared that it would be undesirable to proceed with elections to the Constituent Assembly : he argued that the long terra plan and the formation of the interim Government formed one whole, each constituting an integral part of the scheme. Subsequently, on July 29, the Muslim League withdrew its acceptance of the Cabinet Mission plan. The Congress started in a business-like way. In July it set up an Experts Committee', consisting of Jawaharlal Nehru as the Chairman and Asaf AM, K. M. Munshi, N. Gopalaswami Ayyangar, K. T. Shah, D. R. Gadgil, Humayun Kabir and K. Santhanam as members, for the purpose of preparing material for the Assembly. The committee held two sessions, the first from July 20 to 22 and the second from August 15 to 17, and evolved the procedure to be followed by the Assembly. The Assembly would, according to the committee, first elect a temporary or acting Chairman, preferably by agreement between the two parties, from amongst its members. A resolution would then be adopted prescribing the procedure for the election of a permanent Chairman. The Assembly would also elect one or more Vice-Chairmen. The next item of business would be to form committees — a Steering Committee of fifteen, with a quorum of five members, a Staff and Finance Committee, consisting of the Chairman, the Vice-Chairman, the Secretary -General and nine other members, and a Procedure Committee. A Secretary-General was also to be elected. It was contemplated that the Assembly would then proceed to elect a Fundamental Rights Committee with a membership of forty-five, all of whom need not necessarily be members of the Assembly. This committee was to consist of three sections, one dealing with fundamental rights, the second with the protection of minorities and the third ’^Select Documents 1, 64, pp. 326-43. 107 108 FRAMING OF INDIA’S CONSTITUTION sub-committee with the special interests of tribal and excluded areas. The Assembly was then to address itself to the task of defining the objectives; these would be in the form of an appropriate resolution, a draft of which was also prepared. The' Experts Committee proposed that the next task of the Assembly would be to indicate the scope covered by the subjects to be reserved for the Union in terms of the Cabinet Mission’s plan of May 16, 1946. After this, the Assembly would divide itself into Sections for the purpose of framing the Provincial Constitution. The Constituent Assembly had its first meeting on December 9, 1946. The Muslim League was not at the time participating, but there persisted still a faint hope that, as a result of the discussions which had taken place a few days earlier in London, it might be persuaded to change its mind. Meanwhile the Congress leaders had agreed that, pending a decision of the League Council, no decisions should be taken in the Assembly on controversial issues. The meeting, which commenced on December 9, continued till December 23, when the Assembly adjourned for a month. During this period not much business was done. Rajendra Prasad, a veteran Congressman described by Radhakrishnan as “the suffering servant of India, of the Congress, who incarnates the spirit for which the country stands”, was elected Chairman — an office subsequently designated President'. The Objectives Resolution was moved by Jawaharlal Nehru on December 13, but after six days’ discussion, its consideration was postponed to the Assembly’s next meeting, so that, as the President observed : We may have the advantage of others, who are not present here today, coming in, and we may have the advantage of their views also on that resolution^. To deal with the problem of the States, a Negotiating Committee was set up on December 21, to discuss with the representatives of the Chamber of Princes and with other representatives of the Princely States the question of their participation in the Assembly^ The Committee on the Rules of Procedure was elected on December ll\ This committee submitted its report on December 21 and after two days’ discussion in camera the Rules were adopted by the Assembly on December 23'\ It is relevant to recall that these Rules provided for the Assembly sitting in Sections, as coiitemplated in the Cabinet Mission’s plan of May 16, 1946, for the purpose of deciding whether a Group Constitution should be set up for the Provinces included in the Section and, if so, with what provincial subjects the Group should deal. The Rules also contemplated that the Sections should have full freedom # ; VoL I, pp. 36-51. HUd., p. 159. ' pp. 149-58. Hbid., pp. 51-2. Hbid., p. 247. ^ " PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY 109 to- frame their own procedure, subject to the. condition that no section could trespass upon the functions of the Union Assembly or vary any decision of. the Union Assembly taken on the Report of the Advisory Coinniittee on Fundamental Rights, Minorities and Tribal and Excluded Areas. The Rules also provided that opportunity should be given, to the Provinces and Indian States through their Legislatures to formulate their views: on ' the main features of the Union Constitution; and that before the Constitution of any Province was finally settled, or the decision to^ set up a ■ Group Constitution for the Section in which the Province was included was finally taken, an opportunity would be given to it to formulate its views- — (a) upon the resolutions outlining the main features of the Constitution, or, if the majority of the representatives of the Province so desired, upon the preliminary draft of such Constitution, and (b) upon the preliminary decision of the Section concerned, as to whether a Group Constitution should be set up for the Provinces included in the Section and, if so, with what provincial subjects the Group should deaP. The political developments outside the Assembly, v/hich eventually led to the decision for the partition of India, have already been outlined. About the end of January, 1947, it became clear that the Muslim League had no intention of participating in the Constituent Assembly. The Constituent Assembly went ahead with its programme of business. The Objectives Resolution was adopted on January 23\ The Steering Committee, whose duties were generally to arrange the business of the Assembly, was elected on January 21, its ex-officia Chairman being the President of the Assembly', Three days later the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas was elected, and provision was made in the resolution electing the committee for the participation of Muslim League members if and when they chose to participate'. The Assembly also elected (1) a committee — called the “Business Committee” or the “Order of Business Committee” — consisting of N. Gopalaswami Ayyangar, K. M’. Munshi and Biswanath Das, to recommend the order of the further business of the Assembly in framing the Constitution for India and to submit its report before the commencement of the next session of the Assembly; and (2) a committee on the subjects to be assigned to the Union Centre. The second committee, which came to be' known as the Union Powers Committee, was considered ■ necess^y ■ because in the Cabinet " Mission’s ^Select Documents I, 74, p. 436; C, A. Deb., VoL I, p. 229, "C. Vol. II, pp. 303-4. ^Ihid., p. 273. nbid,, pp. '308-27, no FRAMING OF INDIA’S CONSTITUTION Statement of May 16, 1946, Union subjects were generally and compendiously indicated under four broad categories and an understanding of the scope of the subjects was essential for the purpose of framing the Union and the Provincial Constitutions, and of avoiding as far as possible overlapping and conflicts between the Union Constitution on the one hand and the Provincial and Group Constitutions on the other'. The Constituent Assembly next met on April 28, 1947, and was in session for five days till May 2. By this time a basic understanding had been reached on the issue of the participation of the Indian States, and several of them had sent their representatives to the Assembly. The main business conducted during this period was a discussion of the various recommendations of the Advisory Committee pertaining to fundamental rights. The Union Powers Committee presented its first report, but no discussion took place. N. Gopalaswami Ayyangar, in presenting the report, referred to the various uncertain features of the situation. The Muslim League was not participating; neither were several Indian States. Above all, political discussions were taking place outside the Assembly; and if, as was feared, the result was a decision to divide India into two or more independent States, it might be necessary for the Assembly to deviate from rigid conformity to the Cabinet Mission’s plan. Gopalaswami Ayyangar suggested therefore, and the Assembly agreed, that discussion on the Union Powers Committee’s report should be postponed and that in the light of further developments the committee would, if necessary, submit a further report". The Order of Business Committee presented its report on April 30. The committee took note of the fact that in accordance with the statement of the British Government made on February 20, 1947, power was to be transferred not later than June, 1948, and suggested that this decision imported an element of urgency into the work and proceedings of the Assembly and made it essential that the Constitution should be framed well before the end of 1947. The Order of Business Committee suggested that two separate committees be appointed, one to report on the main principles of the Union Constitution and the other to report on the principles of a model Provincial Constitution. The suggestion was also made that the two committees should have an element of common membership and they should work side by side in considering the inter-related principles of the Union and the Provincial Constitutions. The work of the committees would be of an exploratory character and would facilitate the work of the Union Assembly and the Sections. The Order of Business Committee concluded its recommendations in the following terms : The' Constituent Assembly shouldt complete its work , by the end of October this year (1947). A meeting will be necessary at the end of June ^C. De/x, VoL II, pp. 329-36. mid., Vol. Ill, pp. 352r62. PROGRESS OE THE CONSTITUTION THROUGH THE ASSEMBLY 111 or the beginning of July to consider the reports of the various committees and thereafter the matter of going into Sections. A meeting of the Assembly to finalize the Constitution should be held in September*. In pursuance of the recommendations of the Order of Business Committee a resolution was adopted fay the Assembly on April 30, authorizing the President to appoint a Union Constitution Committee and a Provincial Constitution Committee with instructions to report before the next session®. Meanwhile, as a preliminary to the consideration of the principles of the Union Constitution and the Provincial Constitutions, the Constitutional Adviser had prepared a questionnaire on the salient features of the Constitution®. This was circulated to all the members of the Provincial Legislatures and the Central Legislature on March 17, 1947, in order to elicit their views. Copies of this questionnaire were subsequently also circulated to members of the two committees ; and it was decided that on the receipt of the views of the members, the Constitutional Adviser should prepare a self- contained memorandum embodying the greatest common measure of agreement of the views of the several members. The questionnaire was divided into five parts with a number of questions appearing on the relevant subject-matter in each part. Wherever necessary brief explanatory notes were inserted under each question. The questionnaire dealt only with the Constitution of the Centre; but most of the questions applied naturally also to the provincial sphere. Members of the Legislatures were given three weeks’ time for their replies. It was considered unnecessary at that stage to frame any questions regarding Group Constitutions until the Sections referred to in the Cabinet Mission’s plan had decided to set up such Constitutions. The questionnaire related to (A) Head of the Union, (B) Executive, (C) Legislature, (D) Judiciary, and (E) Amendments to the Constitution. Under “A ” — ^Head of the Union, the questions related to his designation, the mode of choice, the duration of his office, eligibility for re-election, rotation of the office among different communities, the appointment of one or more Vice-Presidents with his (or their) term of office, the functions of the President and the Vice-President, the procedure to be adopted for the removal of the President, and the filling of any temporary vacancy in the office of the President. Under “B” — Executive, the questions related to the nature and type of the Union Executive, the provisions necessary for securing a suitable executive in the event of its being of the parliamentary type, the composition of the executive and the maximum (if aijy) of the number of Ministers, the 'C. Vol. Ill, pp. 463-4. ■ ^Ibid., pp.. 461 - 2 . ■ ^Select Documents 13, pp. 433-51. 112 FRAMING OF INDIA’S CONSTITUTION representation of different communities on the executive, the principle of joint responsibility or coordination, the procedure for the choice of the members of the executive and for their removal and the relation between the Head of the Union and the executive. Under ‘'^—Legislature, the questions raised were whether there should be one or two chambers for the Union Legislature, the constitution of the two Houses, if bicameral the composition, franchise, electorates, constituencies and the methods of election and allocation of seats. Under “D” — Judiciary, the questions raised related to the desirability of establishing a separate chain of courts to administer Union laws. Under ‘'E ' — Amendments to the Constitution, the question was on the provisions to be made to regulate the procedure for amending the Constitution. Only a few replies to the questionnaire had been received by the end of May. The Constitutional Adviser, therefore, prepared, a memorandum embodying his ideas on the main principles which should guide the committee in devising the structure of the Union Constitution. He also prepared a memorandum on the principles of a model Provincial Constitution. These were ready by the end of May and were circulated to the members of the respective committees on June 2. Immediately thereafter appeared the British Government’s proposal of June 3, which embodied the decision to partition India and to set up two Constituent Assemblies. The result of the action taken in pursuance of the new policy was the setting up of a new Dominion of Pakistan, and the transfer of power to the Dominion Government of India in respect of the governance of the country minus the parts separated from it and forming part of the Pakistan Dominion. There was no longer any question of going into Sections. The immediate result of this was a decision by the Union Constitution Committee and the Provincial Constitution Committee that India would be a federation with a strong Central Government and Legislature, that there would be three legislative lists on the lines of the Government of India Act, 1935; and that residuary powers would vest in the Centre and not in the Provinces. The position of Indian States continued to be much the same as before. It was contemplated that they would accede on the subjects of defence, external affairs and communications, and that any further cession of jurisdiction to the Union would be in the nature of a voluntary act. The announcement of partition made a deep impact on the Assembly. It was as a last effort to maintain the unity of India that the Congress had accepted the Cabinet Mission’s plan for a, weak Centre. The debate on the Objectives Resolution gave an' opportunity to ' several members to voice their conviction that a strong Centre was necessary to build up national strength and prosperity. When therefore this plan was abandoned and freedom was given to the Assembly to devise a constitutional structure according to its own choice, there were many who hailed the new development PROGRESS OF THE CONSTITUTION imOUGH THE ASSEMBLY 113 as a release from the handicaps of curbs and conditions. Munshi gave expression to this reaction when he said in the Assembly ; The plan of May 16 had one motive — ^to maintain the unity of the country at all costs. A strong Central Government was sacrificed by the May 16 plan at the altar of preserving the unity which many of us after close examination of the plan found to be an attenuated unity which would not have lasted longer than the making of it As a matter of fact, very often, if I may express my own sentiment, while examining the plan of May 16, over and over again, the plan looked to me more like the parricide’s bag which was invented by ancient Roman Law*. Now that partition had been accepted, opinion was unanimous that the preservation of the unity of India was one of the foremost requirements to be embodied in the Constitution. With this objective, the Union Powers Committee, the Union Constitution Committee and the Provincial Constitution Committee went ahead with their labours, often consulting one another, and formulated their recommendations. The next session of the Assembly began on July 14 and lasted until the end of the month. Reporting on the programme of work, the Order of Business Committee told the Assembly that there would be three reports for consideration by jthe Assembly — the Reports of the Union Powers Committee, the Union Constitution Committee and the Provincial Constitution Committee : Between them these reports will deal with a large majority of questions that would have to be decided by the Assembly. We recommend that the Assembly take decisions on these reports in the July session and direct that the work be taken up at once of drafting the Constitution Bill. We recommend also that the Assembly appoint a committee of members to scrutinize the draft before it is submitted to the Assembly. . . The matters that will remain outstanding at the end of the July session will be the reports of the Advisory Committee on Fundamental Rights, Minorities and the Administration of the Tribal and Excluded Areas. We suggest that the Advisory Committee complete its work in August and the recommendations made by them incorporated by the draftsman in his Bill notwithstanding that no decisions will by then have been taken on them by the Assembly. The Order, of Business Committee thought it possible even at that stage that the Assembly could complete its work by October 1947°. The business actually transacted by the Assembly in July included consideration of the Reports of the Union Constitution Committee and the Provincial Constitution Committee ;•&€ Report of the Union Powers Committee was not ready till the beginning of August. *C. v4. UeJ., Vol. IV, p. 544. Hbid., pp. 560-1; Select Documents 1, 81(iii), pp. 487-8. 9 • 114 FRAMING/OF INDIA’S -CONSTITUTIOK : V . ' The -next meetiog of the Assembly was held on August .14 and temiinated on the 30th, The first act of the Assembly, on the midniglit/of; August- M, was to redeem what Jawaharlal Nehru called the Nation’s pledge for a ‘‘tryst with destiny”. This was the moment of India’s attainment of independence ; and all the members of the Constituent Assembly, after the last stroke of midnight, took a pledge dedicating themselves anew to the service of India : ' . . ' . At this solemn moment when the people of India, through suffering and sacrifice have secured freedom, I. . ' a member' '• of the Constituent Assembly of India, do dedicate myself in all humility to the service of India and her people to the end that this ancient land attain her rightful and honoured place in the world and make her full and willing contribution to the promotion of world peace and the welfare of mankind'. ^ At this series of meetings, there was a detailed debate on the Report of ' the Union Powers Committee ; 6n the issue of minorities and the rights to be guaranteed to them ; on the Report of the Advisory Committee on the Directive Principles of State policy ; and on one or two recommendations relating to fundamental rights which had been referred back to the Advisory Committee when these rights were discussed in April and May. There was also discussed at these meetings the Report of the Coiiimittee on the Functions of the Constituent Assembly under the Independence Act, which was presented to the Assembly on August 29. This committee, appointed by the President, consisted of G. V. Mavlankar, Hussain Imam, Purushottamdas Tandon, B. R. Ambedkar, Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, and B. L. Mitter; its functions were to report on the position of the Constituent Assembly under the Independence Act. The major questions which the committee considered related to the changes in procedure necessitated by the fact that as from August 15, the Constituent Assembly would also function as the Legislature of the Indian Dominion^ On August 29, the Assembly adopted a resolution appointing a Drafting Committee consisting of Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, B. R. Ambedkar, K. M. Munshi, Muhammad Saadulla, B. L. Mitter and D. P. Khaitan. Later, N. Madhava Rau was appointed in B. E. Mitter’s place. Another vacancy caused by the death of D. P. Khaitan was filled by T. T. Krishnamachari, The committee was ’ to scrutinize the draft of the text of the Constitution of India prepared by the Constitutional Advisee giving effect to the decisions taken already in the Assembly and including all -'matters which are ancillary thereto or which have to be provided in such a Constitution, and to submit to the 'C. A. Deb., Vol. V, P...J.0. '' ' ‘ mid., pp. 337-60. , ^ PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY 115 v Assembly for consideration the text of the Draft Constitution as revised by the Committee*. After the Assembly adjourned on August 30, 1947, there was a long pause in its proceedings ; and except for a meeting on January 27, 1948, mainly to consider certain changes in the procedure rules, the Assembly did not meet again till November 4, 1948 to consider the Ehraft Constitution. This long interval was inevitable because, before the Draft Constitution was ready for consideration by the Assembly, a considerable amount of preparatory work had to be completed. The work of drafting the Constitution was undertaken by the Secretariat of the Constituent Assembly in August 1947, and the first draft prepared by the Secretariat and the Constitutional Adviser was ready by October”. The Drafting Committee sat from day to day from October 27, 1947, scrutinizing each clause of this Draft, until its own revised text was ready in February 1948V Meanwhile, several committees were considering important matters. An Expen Committee was appointed by the President in November, 1947, to advise on the various financial issues that would arise in connection with the framing of the Constitution. This committee submitted its report on December 5”. The two sub-committees set up by the Advisory Committee, one to consider the problems of the backward areas and tribes in Assam, ' and the other to consider similar problems arising in the other Provinces, did not complete their labours until the autumn of. 1947”. The recommendations of these sub-committees, which were generally accepted by the Advisory Committee, were incorporated in the Draft Constitution prepared by the Constitutional Adviser. r : ; . During the consideration of the Report of the Union Constitution Committee by the Assembly, Deshbandhu Gupta moved, on July 30, 1947, an amendment that a committee should be appointed by the President to suggest suitable constitutional changes to be brought about in the administrative systems of the Chief Commissioners’ Provinces so as to accord with the changed conditions in the country and to give them their due place in the democratic Constitution of free India”. The report of the committee appointed by the President in pursuance of this resolution was ready in October 1947', . The proposals made by all these committees were taken into consideratipn by the Drafting Committee in preparing its Draft Constitution. The Draft Constitution as settled by the Drafting Committee was ready ■%.A::Deb.,Nc\;v,p.^ ^ ^Select Documents III, l(i), pp. 13-197. , VWd., Ill, 6, pp. 509-677. ‘Ibid., Ill, 4(ii), pp. 255-312. ‘Ibid., Ill, 7, pp. 681-782. •G. ,4. Voi. IV, p. 998, ‘Select Documents III, 3(v), pp. 248-52. 116 BHAMING OB INDIA’S CONSTITUTION in Febraary 1948. Wide publicity was given to the proposals contained in the Draft Constitution. Copies were sent to each member for comments. Copies were also sent to the Ministries of the Government of India, the Provincial Governments and Legislatures, the Federal Court and the High Courts. The idea was that all comments received should be examined by the Drafting Committee. The Committee met on March 22, 23 and 24 to consider the comments and suggestions received till then. Later, another proposal was adopted, calculated to secure the widest possible degree of consensus for the proposals to be placed eventually before the Assembly. This was the constitution of a Special Committee, consisting mostly of the members of the Union Constitution Committee, the Union Powers Committee and the Provincial Constitution Committee. The Draft Constitution contained a number of provisions on which the Constituent Assembly had no opportunity to express its views. There were a number of matters in which the Drafting Committee had found it necessary to depart from the decisions adopted earlier by the Constituent Assembly, e.g., the appointment of Governors. It was considered advantageous to refer them, as well as other important provisions of the Draft Constitution together with the amendments bearing on them, to a Special Committee of the kind proposed. The views of such a large body on the Draft Constitution and the decisions of the Drafting Committee based on those views would, it was thought, enable the committee to settle the final form of the Draft in such a way as to minimi25e the subsequent work of the Constituent Assembly. The Special Committee met on April 10 and 11,1948. Suggestions for amendment continued to come in — ^from members of the Assembly, from Provincial Legislatures, from Ministries of the Government of India, from Provincial Governments and from other governmental organizations as well as from non-official bodies and individuals. The Drafting Committee reassembled on October 18, 19 and 20 to exa m ine these comments and criticisms, as well as the opinions expressed by the Special Committee. Eventually it was decided that the Draft Constitution prepared in February 1948 should be presented to the Constituent Assembly, as representing the official proposals of the Drafting Committee ; any further proposals for amendment would be placed before the Assembly in the form of appropriate motions. A repnnt of the Draft Constitution was issued showing in parallel columns the provisions ctf the Draft together with the amendments which at the time the Drafting Committee proposed to sponsor. Discussions on the Draft Constitution took place in several stages. Hiere was first a general discussionf mainly on the principles of the Constitution, which took five days. The clause by clause consideration of the Draft Constitution began on November 15, 1948, and concluded on October 17, 1949. During this period of eleven mon^N the Assembly was in session, with three breaks PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY 117 from January 8 to May 15, June 17 to July 30 and September 19 to October 5. Amendments were moved from time to time, both on behalf of the Drafting Co mmitte e and by individual members of the Assembly, as and when "^rSTaftiHe and schedule came up for consideration. While the Assembly was considering the Draft Constitution, important political developments were taking place in relation to the Indian States. The processes of merger and integration of these States, which had just beguHt when the Draft Constitution was issued, were practically complete by October, 1949. To start with, the position was that these States would accede to the Union of India through suitable Instruments ; and their internal constitutions were not to be part of the business of the Constituent Assembly. All this changed with remarkable rapidity and the position as it finally emerged was that the States would occupy the same position as the other units of the new Union of India; and the new Constitution would also provide for their internal constitutions. The fundamental rights provided in the Constitution would also extend to them; so would adult franchise. And the same type of democratic institutions as were being set up in the Provinces of India would also be set up in the Indian States. The Constitution had, therefore, to be enlarged to provide for these radical developments". Another important development which took place during this period was the abolition of special privileges for religious minorities. Separate electorates, the reservation of seats in Legislatures, special arrangements for representation in the public services and other similar political privileges had featured as parts of the Indian political arrangements ever since the early years of the century. Some of these arrangements were, in the earlier phases of the discussion on the new Constitution, adopted for inclusion in the new constitutional set-up. The committee in its re port on Mav — 11. 1949 recommended that any special safeguards would be required only for the backward and depressed sections of the people such as the Scheduled Castes and the Scheduled Tribes. This epoch-making decision was placed before the Assembly on May 25, 1949, and adopted by it”. The question of Centre-State relationship inevitably demanded a considerable measure of attention. In July 1949, the Drafting Committee held a conference with the Premiers of the Provinces and of some Indian States and representatives of Central Ministries to discuss various matters, especially those governing the administrative and financial relationship between the new Union Centre and the States. The discussions covered a wide range ; they included among other things financial relationship, the legislative lists, the exercise of taxing "powers, the emergency provisions and the composition of Legislative Councils in States. Items which claimed ■C. A Deb., Vol. X, pp. 161-8, 154-61 and 175-7. mid.. Vo!. VIII, pp. 269-355. 118 •: FRAMING OB INDIA’S ■CONSTITUTION" ■ Special attention, were; the. exercise '-of', the powers "of States' to.:' .levy sales taxes, and the: liability of the property of the Union "to ^ State" taxes . and" of State property to taxation by the Union'. Another subject' which claimed -.a considerable ■amount' of attention and evoked' a. great 'deal of feeling was the language issue. This issue was kept out Pf formal discussion in the Assembly ^ until the very end ; but the indications were. that it might threaten to divide the whole Congress party sharply ;on regional lines. Fortunately it was ' found possible To ..evolve a formula: which proved acceptable to all — even if the acceptance was in some res.pects "half-hearted. Appropriate provisions for all these matters were made through suitable amendments- to the- Constitution, After all the articles had been adopted the Assembly adjourned for about four weeks, the "Draft Constitution together with the amendments adopted by the Assembly being again remitted to the Drafting Committee with instructions to carry out such renumbering of the articles, clauses and sub-clauses with necessary changes in punctuation and the revision and completion of the marginal notes as might be necessary. On the completion of the task, the Drafting Committee was to recommend such formal and consequential or necessary amendments fo the Constitution as might be required. In other words, the Drafting Committee had the onerous task of incorporating all the amendments adopted by the Assembly and giving final shape to the Constitution. This it completed in the course of a few weeks. . The Draft Constitution as revised by the Drafting Committee contained 395 articles and eight schedules and was submitted to the President of the Assembly on November 3, 1949^ Apart from the additions, deletions and amendments incorporated in this revised Draft, the Drafting Committee gave notice of a number of further amendments. Notice of amendments was also given by other members of the Assembly. ; All these amendments were considered by the Assembly on November 14, 15 and 16 and they were put to vote on November 16 . On the next day, the Assembly proceeded to consider a motion by Ambedkar that the Constitution as settled by the Assembly be passed. The discussion on the motion concluded on November 26 when it was put to the vote and the. Constitution adopted with enthusiastic support ^Select Documents IV, 15, pp. 659-704. nbid., IV, 18, pp. 745^-932. 4 PREAMBLE One of the first tasks to which the Constituent Assembly addressed itself was the formulation of the objectives and the guiding principles that were to be the basis of the constitution and reflect the democratic spirit of the Constitution. As noticed earlier in the chapter on the historical background, nationalist sentiment in India, led by the Indian National Congress, had over the years stressed that no Constitution imposed by any outside authority and no Constitution which curtailed the sovereignty of the Indian people would be acceptable to the country. This objective of freedom as the birthright of the nation Was always linked with the reahzation that it would be the responsibility of free India, with a Constitution based on democratic traditions, to bring about a just social and economic order, to remove poverty and ignorance, and generally to better the lot of the common man. The Congress had always regarded its primary responsibility as being to emphasize its objective of an independent and united India, with no scope for exploitation, and all the diverse elements in the nation cooperating for the common good and advancement of the people. Nehru particularly was clear about the vital points that inspired the freedom movement. After the general elections of 1937, he had said : We went to our people and spoke to them of freedom and the ending of their exploitation ; we went to that forgotten creature, the Indian peasant, , and remembered that his poverty was the basic problem of India ; we identi- fied ourselves with him in his suffering and talked to him of how to get rid of it through political and social freedom'. With the announcement of the Cabinet Mission’s plan of May 16, 1946, j the primary objecti-ve-.^ of__a Constituent Assembly, as envisaged in the I aspirations”bf the National Cong^ress^’ during the several decades of its ! struggle for freedom, seemed to be within the grasp of the nation; not fully, ' because the scheme fell far short of the Congress demand. Despite its shortcomings, the view prevailed that here was the longsought opportunity for India to frame her own Constitution, and the Working Committee of the Congress felt that, taken in their entirety, the proposals gave sufficient scope for working out a constitution* for a free India. Accordingly, in its resolution of June 24, 1946, the committee decided that the Congress should join the Assembly with a view to framing the constitution for a free. ^Select Documents I, 24(1), p. 87. 120 FRAMING OF INDIA’S CONSTITUTION united and democratic Indian The objective of the Congress was clearly outlined in this resolution. It was ‘Imiiiediate independence and the opening out of avenues leading to the rapid advance of the masses economically and socially”, so that their material standards might be raised; poverty, malnutrition, famine and lack of the necessaries in life might' be ended; and all the people of the country could have freedom and the opportunity to grow and develop according to their genius. ' Apart from the ideals for which the Congress was striving, constitutional precedents also- underlined the need for laying down objectives. In the Constitution of the United States of America the purpose of the Union was laid down as being to “establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity”. The Irish Constitution had also embodied national goals in its Preamble. In these circumstances it was perhaps inevitable that the Experts Committee appointed by the Congress in July, 1946, to prepare material for the Assembly should have turned its mind to the formulation of ‘‘objectives”. At its meeting of July 22, the committee drew up a “declaration” which was to be moved after the appointment of the Advisory Committee on Fundamental Rights. In wording, the Objectives Resolution eventually moved in the Constituent Assembly by Nehru closely followed the draft declaration framed by the committee^ The path of the Constituent Assembly was, however, by no means smooth. Shortly after the Congress had agreed to join the Constituent Assembly, the Muslim League withdrew its acceptance of the Cabinet Mission’s plan, declaring that nothing less than Pakistan, inYoIving the division of the country, would satisfy its demands. Nevertheless, it was decided to go ahead with the convening of the Assembly. Adopting a conciliatory attitude towards the Muslim League and other parties, the Congress Working Committee said : The committee realize that there are differences in the outlook and objectives of the Congress and the Muslim League. Nevertheless, in the larger interests of the country as a whole and of the freedom of the people of India, the committee appeal for the cooperation of all those who seek the freedom and the good of the country, in the hope that coopera- tion in common tasks may lead to the solution of many of India’s ' ■ problems'l" . ■ The object^^^^ were again considered by the Congress and at its session held ■ in . November, 1946, on The eve of the meeting of the ■ Constituent Assembly, it adopted a resolution declaring that ^Select Documents I, 58, p. 279. Hbid. I, 64(ii), p. 328-30. ^Congress resolution, August 10, 1946, Select Documents 1, 63(i), p. 314. PREAMBLE 121 it stands for an independent sovereign republic wherein all powers and authority are derived from the people, and for a constitution wherein social objectives are laid down to promote ■ freedom, progress and equal opportunity for all the people of India . . / At the time of the Assembly’s first meeting on December 9, 1946, the political atmosphere in the country was one of suspicion and uncertainty, both of which were fostered by several factors. The Muslim League had stubbornly resisted all efforts to persuade it to participate in the deliberations of the Assembly. It sought encouragement from the British Government’s statement of December 6. 1946, which had expressly stated that '"should a constitution come to be framed by a Constituent Assembly in which a large section of the Indian population had not been represented” the British Government would not contemplate '"forcing such a constitution upon any unwilling parts of the country”^ The absence of the Muslim League and of the Indian States from the opening session of the Assembly added to the complexities of the political situation and to the difficulties of the Assembly’s task. In this atmosphere of unpredictability in regard to the course of events in the immediate future, the leaders of the Indian freedom movement set a two-fold objective before themselves. They were labouring for freedom and unity not for a party or a section but for the country as a whole. The task on which they were determined to go ahead was the framing of a constitution for India which promised both freedom and unity. Their primary concern was with the declaration of the sovereign character of the Constituent Assembly, notwithstanding the limitations under which it was functioning: but without compromising on such a stand, they were anxious to ensure that everything possible was done to enable the Muslim League, the Indian States and all other elements in Indian political life to take part in the work of constitution-makingl All this was sought to be achieved by the Objectives Resolution drafted by Jawaharlal Nehru and moved by him in the Assembly on December 13, 1946, four days after its first meeting. The resolution read: (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 ; (2) Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union' of them all; and • ^Select Documents 1, 64(v), pp. 342-3. I, 65(iv), p. 348. •^C. A, Deb., VoL !, pp. 56-62 and Vol. II, pp. 253-7: Select Documents Jl,. l(ii) and (iii) pp. 4-18. Speeches of Nehru and Radhakrishnaij. 122 FRAMING OF INDIA’S 'CONSTITUTION (3) Wherein the said territories, whether with their present bdundarles or with such others as may be determined by the Constituent Assembly and thereafter according. to' the law of the constitution, shall possess 'andTetain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as ■ are inherent or implied in the Union or resulting therefrom ; and (4) Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the ■ people and ■ ' (5) Wherein shall be guaranteed and secured to ail 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 ; and (6) Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes ; and (7) Whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations ; and (8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind'. In an eloquent and inspiring speech Nehru commended the resolution to the acceptance of the Assembly,. The resolution was to be viewed by the Assembly as a solemn pledge to the people to be redeemed in the Constitution they w^ould frame: the resolution was a declaration, a firm resolve, a pledge, an undertaking — and, for all, a dedication. It had been drafted after mature deliberation and no effort had been spared to avoid all controversy. The resolution dealt with fundamentals which were commonly clierisliec! and accepted by the people. Nehru emphasized that it did not go beyond the limitations laid down by the British Cabinet. They accepted the ‘White Paper” which might be called the foundation of the Assembly and would endeavour to work within its limits. At the same time the people of India were the source from whom the Assembly derived its strength, and any attempt on the part of the British Government at “imposition” or the slightest /trace -of patronage would cause resentment; Earlier, Rajendra Prasad as the President of the - Assembly had declared in a similar mood that the Assembly with all its limitations was a sovereign body, with whOvSe proceedings no outside power could meddle". In a pointed reference to the Indian States, Nehru desired that the' .'people of the States should completely share in the freedom that was to come; and :'C. ' A*' '-DeLr Vol. I, p. 57; Select Documents II, l(i), pp. 3-4. ' Hbid,., p. 51. v... PREAMBLE : 123 he :wa's -clear that in theframing-of the Constitution for 'India 'there'^shonlci be the assoeiatidn of the/Tepresentatives of .the people of the States. It was 'not ■intended to ■ impO'Se anything, on the States against their will but to invite their co-operation and assistance. , ■'■.-‘Referring to the.absentees—the Muslim 'League .and' the States xepresenta- ;tiyed~~Nehru -expressied the ■, earnest. hope that' they too might' .come... into' the ■Asseiiibly. In the , meanwhile a: duty was cast •on the- m'embers to remember always that they were not there to functiO'H for one party or one group "but always to think of Indians a whole: ■ A time comes when, we have to, rise above party and- think of the, nation, •• ■ think' 'Sometimes of even the world at large of which oiir nation is a great : part. ■ ■ ^ , ■ Anticipating perhaps -the difficulties ahead, Nehru referred to the French National Assembly and the formidable challenge it had to face : My mind goes back to that mighty revolution which took place also over 150 years ago and to that Constituent Assembly that met in that gracious and lovely city of Paris which has fought so many battles for freedom, to the difficiiities that that Constituent Assembly had and to how the King and other authorities came. in its way, and still it continued. The House will remember that when these difficulties came and even the room for a meeting was denied to the then Constituent Assembly, they betook themselves to an open tennis court and met there and took the oath, which is called the Oath of the Tennis Court, that they continued meeting in spite of Kings, in spite of the others, and did not disperse till they had finished the task they had undertaken. Well, I trust that it is in that solemn spirit that v/e too are meeting here and that we, too, whether we meet in this chamber or other chambers, or in the fields or in the market-place, will . go on meeting and continue our work till we have finished it. About his experience in London . w.hich he had visited -on a personal invitation from the,.B.ritish Prime Minister early in December, 1946. Nehru ^said:. - , ■ It has been a blow to. me, and it has hurt me that- just at the moment when we, are. going to stride, ahead, obstructions were placed in our way, new .limitations were., mentioned which had not been mentioned previously; and new, methods- of .procedure were . suggested. Ido not wish to challenge, the ....bona fides of. any .person'*, but I .wish to say that .whatever the legal ■ aspect of the thing might be, there are moments when law is a very feeble reed to rely _ upon, when we have to deal with a nation which is full of the passipn for freedom. Most ...of 'us here during the past .many years,, for. a 'generatioh Of ' more,' have- often ^aken-part.- in ...the.' struggle' for India’s freedom. We have,; gone ''through -the , 'r-valley of the., .shadow,.' We. are used and if necessity arises, we-shali’ga through it againh^"" ’■C. A, Deb., Vol. I, pp. 55-62, Select Documents II, IQi), pp. 7, V 124 FRAMING OF INDIA’S CONSTITUTION The introduction of the resolution and Nehru’s speech— both in Hindustani and English— took exactly an hoiur, and the Assembly felt uplifted by the quiet but solemn words aSBrming the unbending resolve of the country to march onward to its goal of freedom, whatever the obstacles in the way and however long the struggle ahead might be. Nehru’s speech thrilled the entire Assembly and seemed for the moment to transform the mood of the House ; the atmosphere acquired a unique dignity, almost a religious fervour’. The resolution was debated on December 13, 16, 17. 18 and 19, 1946, with most of the speakers enthusiastically supporting it. Some memliers however wanted further consideration of the question to be postponed in order to enable the Muslim League and the Indian States to participate in the debate. M. R. Jayakar, who moved an amendment to this effect, expressed the opinion that the Assembly had no power at that stage to adopt any fundamentals of the Constitution; and that apart from the legal point, considerations of expediency were in favour of postponing discussion to a later stage. By adopting the simple device of not being present, the Muslim League, he argued, could make the whole of the work useless; and at least for a month or so (when the Assembly was due to meet again) the way should be kept open for the League to take part in its proceedings. In this view he was supported by Ambedkar, Frank Anthony and Hriday Nath Kunzru; all the other speakers whole-heartedly supported the resolution’. Meanwhile statements had been made outside the Assembly on behalf of the Rulers of the Indian States that, so far as the States were concerned, power was derived from the sovereign and not from the people; and a suggestion was made by Syamanandan Sahaya’ that the resolution should be amended to meet their feelings. Dealing with this point, N. Gopalaswami Ayyangar pointed out that the Cabinet Mission itself had, in its statement of May 25, stipulated the “cession of sovereignty to the Indian people” on the conclusion of the labours of the Constituent Assembly, and the words “Indian people” included, in the overall context, also the people of the Indian States. In any case, the claim of the Princes to be the repositories of all legislative, executive and judicial powers, with provisions to that effect found almost invariably in the written constitutions of most of the States, was reminiscent of an “all-pervasive autocracy” and deserved to be swept away ‘For a description of the prevailing atmosphere, see the Hindu and The Hindustan Times of December 14, 1946 and Indian Annual Register, July-December 1946, p. 335. V. A. Deb,, Vol. I, pp. 69-78 ; Speech'of M. R. Jayakar. A formal amendment seeking postponement of further consideration of the resolution was moved by Jayakar on December 16, 1946. The amendment which was supported, among a few others, bv Ambedkar and Kunzru, was withdrawn by the mover on Januarv 21, 1947. C. A. Deb., Vol. II, pp. 289-90. nbid., p. 83. V PREAMBLE 125 aad replaced by a provision to declare that all powers of government were derived from the people’. On the question of the structure of the republic, several members, m supporting the resolution, made no secret of their preference for a “centralized republic” with a strong Centre. Nevertheless, they were willing to accept the scheme of autonomous units endowed with residuary powers, envisaged in the resolution, in order to secure the cooperation of the Muslim League. Moreover, the scheme was in accord with the Cabinet Mission’s plan which they had no desire to transgressl The socio-political objectives stipulated in the resolution were welcomed by different sections of the Assembly. M. R. Masani supported the clear rejection contained in the resolution of the existing social structure and the gross inequalities prevailing in the country. As a democratic socialist who felt that democracy needed to be extended from the political to the economic and social spheres, he welcomed the resolution because it had the content of economic democracy. From another point of view he commended the resolution as a refutation of the argument sometimes put forward, that far- reaching social and economic changes could not be made unless individual liberty and democracy were first destroyed and that only an all-powerful State could push its programmes through. The resolution, Masani said, envisaged social justice in the full sense of the term but it worked for these social changes through the mechanism of political democracy and individual liberty*. Alladi Krishnaswami Ayyar felt that the expression “justice, social, economic and political”, while not committing the country and the Assembly to any particular form of polity coming under any specific designation, was intended to emphasize the fundamental aim of every democratic State. Ambedkar expressed his disappointment with the content of the resolution; he expected in it a clear enunciation of the doctrine of socialism. Another member, V. D. Tripathi, felt that since the word “justice” could be interpreted in diverse ways according to the predilection of those in power at a given time, it was necessary to declare beforehand that the State to be created under the Constitution would not be established on a capitalistic basis*. On December 21, further consideration of the resolution was postponed. The Chairman expressed the hope that the absent members would take part in the subsequent discussions. This hope was however not fulfilled. The Assembly discussed the resolution again on January 20, 21 and 22, 1947. In the course of this discussion Radhakrishnan stated that republican 'C. /t. Vol. I, pp. 123-6. mid., pp. 64-5, 86, 93-4, 99-100, 103: Speeches of P. D. Tandon, S. K. Siaha, S. P. Mookerjee, Ambedkar and Ujjal Singh. mid., pp. 90-2. pp. 136-8, and Vol. Ill, p. 292. 126 FRAMING OF INMA’SvCONSTITUTO India would .of-tlie British Commonwealth, because, .the Dominions o! Australia, New Zealand, Canada or South Africa, she heither shared 'a community of ideals with Britain' nor was-' she bound to,; her by ties, of . race, religion; and- culture. : He ; added, .however, that even if India-, elected to quit: the Gommonwealth, 'there: Were a;, hundred, ways .of voluntary coo'peration in trade, defence and ' matters, of. culture, Whether or not all; these forms '.of'-.mutuai ' cooperation.., would •in fact: develop depended eatire-ly on ;the attitude ■ vAich:: Br,itain"'adopted::in .the-: crisis through-; which., Indo-Britisli relatio-ns were then passing. Among others,- :,N.- V. Gadgil, Jagat Narain Lai and .R;' V. Bhulekar urged “that -the future relations between the. , two countries should .be conditioned by the .manner- Britain, conducted herself towards the Constituent Assembly an.d the ultimate issue of the transfer of power.to:India\ : In. liis reply to' the -debate .on .January-. 22 , 1947, Nehru .dealt- at some length, with . the Princes’ objection -to.,the- resolution and, the •question; of the .Indian, Republic’s position ; the .British Commonwealth,. As ..rega.rds, the hrst. point, -he had thought that- the divine .right -of ;-,Kings. had been- ''buried deep down the ^ earth--- long ages ago”. He added, however, that- the resolution did not interfere with ^ the system of monarchy in, the States,- if the people., of the 'States; chose to have that system;,- but it was - clear that, whatever; the -'S-tates' might-, or might not- have, new- India was bound to, be a.. republic-. Regarding- ''-the-' question of the future relations- be-tween India- and the British Commonwealth, Nehru did not draw the conclusion .that India’s, becoming' a -republic, -necessarily meant- her dissociation' -from Other countries.' -.India- w-anted; to,.- be- .friendly with -the ..British- people .and the- British'' Commonwealth-- and to -cooperate '.with. them... as- well as with other countries;- -but-Teal cooperation" .would only .come ''when ; we know .'that' we .are free., to- cooperate and --are- not imposed .upon and'.forced to:, cQoptote”l"" ;■' ■' ■ ' ■' ■ '■ , " ' After, Nehru’s; speech, -all amendments, including that' of Jayakar for the postponement of the-, -issue,., were withdrawnAand,. the -resolution was.adopte.d' by-; the' Assembly in a solemn, manner— 'all the members -standing^ ' ^C. A. Deb., Voi. 11, pp. 254-5, 259-60, 268-9, 283-4. ^ "299-302-., ; .•dii,-„a note suggesting -to- Nehru . certain " Hne-s -on -which -he might refe.r to the, matter in .,his.., reply to- .the debate,. B. N. Rau„,ha(!. .observed that, labe-is ..like the “British. Commonwealth”, had ceased to have m'uch signi:&c:ance,„ and " no, longer governed the relations between the States— -for' instance, _'the U.S. A., " which ■" had" been a republic .for' over ' iSO - years, had' fought M 'the 'two world wars'" on the. same side' -as 'B.r.'itaM. ''wMl© Ireland'.' which '.was"- -treated-' as ,a Dominion had remained- neutral in the second world war. Accordingly, the main thing to be emphasized was, B. N. Rau suggested, that India’s relations with otherrmmbers, of 'the,,; international community; iiic.ludmg--'the,;'"U..;'-,K'.-. and.-'‘-the:-.-:-Domi,.mons‘: -would .bc' oL the friendliest .;and closest collaboration. B. N. Rm, Indians.: Constitution in the M 2nd edn. pp. Ix-ixL ..■,4'-“-. ■ ^Ibid., -p. 304. ■ , , ... "v;- ' 127 : , ^7 PREAMBLE . .. Ie the eariy drafts of the^ U^ Constitution, the Preamble was a somewhat formal affair. The one in B. N. Rau’s memorandum on the Union Coustitution, dated May 30, 1947. read: We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution. Then came the Plan of June 3, 1947„ which led to the decision to partition the country and to set up the two independent Dominions of India and Pakistan. This produced an immediate and decisive swing in the Assembly in favour of a strong Centre; and five days later, on June 8, a joint sub- conunittee of the Union Constitution and Provincial Constitution Committees took note that the Objectives Resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3. it may be recalled, made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947: also that if the Punjab and Bengal so decided, these Provinces: would be partitioned and that East Bengal and West Punjab, together with Sind, Baluchistan, North-West Frontier Province and the district of Sylhet in Assam would form a new and independent Dominion of Pakistan. A special sub-committee consisting of Gopalaswami Ayyangar, Alladi Krishnaswami Ayyar, K. M. Munshi and B. N. Rau, was asked to examine in detail the implications of partition'. The sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only “when effect had actually been given” to the June 3 planl The Union Constitution Committee provisionally accepted the Preamble as drafted by. B. N. Rau and reproduced it in its report of July 4, 1947’, without any change, with the tacit recognition at that stage that the Preamble would finally be based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947, Nehru inter alia observed that the Preamble was “covered more or less” by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to “some modification on account of the political changies resulting from partition”. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid. down, in the ObjeQtives Resolution and these could be incorporated in the Preamble 'Joint sub-committee minutes, June 8, 1947. Select Documents II, 20(ih p. 6I6i. ' ' ^Special sub-committee minutes, June '9, 1947. Later , bn July 12, 1947, the spfecial sub committee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. ■ - . ■ : •“Miiuites. June 30, 1947; Report, July 4, ' 1947. Se/eci Documents II, 16 and 18(i), pp. 561, 575. ' ■ '. • ■ ■ ■■ ' 128 FRAMING OF INDIA’S CONSTITUTION itt the light of the changed situation^ The suggestion, was accepted by the Assembly and further consideration of the Preamble was held over. However, as a matter of form, in the October 7, 1947 draft of the Constitution, the Preamble which B. N. Ran had originally recommended in his May 30 memorandum on the Union Constitution was reproduced. The Drafting Committee considered the Preamble at a number of its meetings held during February 1948. The committee had little difficulty in omitting that portion of the Objectives Resolution which declared that the territories of India would retain, the status of autonomous units with residuary powers. Two other committees had already made a positive recommendation for a strong Centre with residuary powers'* and the Assembly itself had given, sufficient indication of its approval of this new pattern of relationship between the Union and the units^ The Drafting Committee felt that the Preamble should be restricted to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt with in the resolution could be more appropriately provided for in the substantive parts of the Constitution. Accordingly the Preamble, as formulated by the committee and included in itsi February 1948 Draft of the Constitution, read as follows : We, the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens ; Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship ; Equality of status and of opportunity ; and to promote among ail ; Fraternity assuring the dignity of the individual and the unity of the Nation; In our Constituent Assembly this of ( day of May 1948 A.D.), do hereby adopt, enact and give to ourselves this Constitution'^. The Drafting Committee explained that while generally it had tried embody in the Preamble the spirit and, as far as possible, the language of the Objectives Resolution”, certain modifications were considered necessary. Thus the phrase ‘‘Sovereign Democratic Republic” was adopted instead of “Independent Sovereign Republic” since independence was implied in the word “sovereign”. A new clause about “fraternity” was added, as, in the opinion of the committee, the need for fraternal concord and goodwill in ^Nehru’s statement. Select Documents II, IS(ii), pp. 592-3 and C /I. Deb,, VoL IV, p. 730. “Union Constitution Committee Report, July 4, 1947. Select Documents il, iS(i), p. 584; Union Powers Committee, Second Report, July 5, 1947. Select Documents II, 330), p. 777. “C. A. Deb., Yols. IV & V. Debates on the second report of the Union Constitutioii Committee (July 21, 23, 25 and 28-31, 1947) and debates on the second report of the Union Powers Committee (August 20-22, 25 and 26, 1947). ^Minutes, February 6 and 9, and Draft Constitution, Documents III, 5 and 6, pp. 484, 489-90, 510, 517-8. PREAMBLE 129 India was never greater than at that time and this particular aim. of the Constitution required to be emphasized through a special mention in the Preamble'. When the Draft Constitution was circulated for eliciting opinion, there were some interesting suggestions for the modification of the Preamble. For instance, a Calcutta advocate wanted a definite provision in the Constitution prescribing the method by which a decision for remaining in or going out of the British Commonwealth would be taken. B. N. Rau saw no necessity for such a specific provision since as a sovereign country India could adopt any method of settling its relationship with the Commonwealth. The members of the Drafting Committee themselves did not appear to be unanimous at this stage on the precise implications of the use of the word “republic” v/s-a-vw India’s membership of the Commonwealth. Soon after the publication of the Draft Constitution, the Chairman of the Drafting Committee, Ambedkar, came forward with a proposal for the replacement of the word “republic” by the word “State”. However, another important member of the committee, Alladi Krishnaswami Ayyar, expressed himself categorically against any amendment of the Preamble at that stage. The question of the inter-relation between India and Britain could come up later, depending upon the kind of nexus that might be acceptable to both countries. He was doubtful whether India could take up the same position as the Dominions so long as race considerations seemed to dominate the policies of three different Dominions^ When on March 23, 1948, the Drafting Committee met again to consider the various amendments and comments in respect of the Draft Constitution, it accepted the amendment to the Preamble suggested by Ambedkar’. The Special Committee, which also went into the matter a few days later, was of the view that the time was not ripe for considering amendments to the Preamble and suggested that its final form could be left to the decision of the Constituent Assembly*. Commenting on Ambedkar’s amendment, subsequently incorporated by the Drafting Committee in the October 1948 reprint of the Draft Constitution. B. N. Rau observed in an elaborate note that in the changed and still changing conception of the Commonwealth there was “room for a completely independent State inside the Commonwealth”. Whatever description of India might be adopted in the Preamble would not by itself suffice to define effectively its relationship to the British Commonwealth. For instance, Australia was a part of the British Commonwealth, even though its Constitution described it as a “Commonwealth”, which literally meant the same thing as a republic. Much the same could be said of Ireland and the !' . m ■ ^Draft Gonstltiitioi!. Select Documents lU^ 6, p. 510. “CommeEts and Suggestions on the Draft Constitution. Select Documents IV, 1(iX p.p, 5-8.. ^Minutes, March 23, W Seiect Documents W, p. ^Minutes, April 10, 1948, Select Documents I(iii), pp. 408-9. .'lO':"' '.v; 130 FRAMING OF INDIA’S CONSTITUTION Union of South Africa. The question of India’s future relationship to the Commonwealth would therefore have to be decided separately. Nevertheless, he felt that the term ‘‘republic” had certain associations and its use in the Preamble might give an impression that the question was being prejudged. He counselled, therefore, that it might be wise to avoid the word “republic”'. Some time later, giving his entirely personal views in another note, he expressed the opinion that the concept of the Commonwealth had reached a stage when even a State with a republican constitution might well be given a place in it and urged that India might continue to remain in the Commonwealth, not only because of ideological affinities based on common institutions and traditions with the Commonwealth of Nations, but also for many practical reasons’. However, the controversy over the use of the word “republic” in the Preamble, in so far as it had a bearing on the question of India’s continued membership of the Commonwealth, lost all its force when by a Declaration^ adopted at the end of April 1949, the Governments of the various Common- wealth countries announced their acceptance and recognition of India’s continuing membership of the Commonwealth even after the adoption of her new republican Constitution. The Declaration was ratified by the Constituent Assembly on May 17, 1949, after two days’ debate\ Meanwhile, important developments had taken place in regard to the Indian States establishing, as a fact, the principle that sovereign powers vested in the people of those States and not in their Rulers. With the completion of the processes of merger and of integration, all the States had agreed that their constitutions should be framed by the Constituent Assembly itself as an integral part of the Indian Constitution and their position as constituent units should be the same as that of the rest of the country. As Vallabhbhai Patel told the Constituent Assembly on October 12, 1949, unlike the scheme of 1935, the new Constitution was “not an alliance between democracies and dynasties, but a real union of the Indian people, built oil the basic concept of the sovereignty of the people’”. The draft Preamble was considered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as /Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i), pp, 6-7. /B. N. Rau, India's Constitution in the Makings 2nd edn., 1963, p. 383. B. N. Rau realized that there were genuine political difficulties in the way of India’s continuing to remain in the Commonwealth and he was anxious to do what he could to remove them. Writing to Lord Jowitt, the then L^rd Chancellor of Britain, early in April 1949, he pleaded that those who desired India to remain in the Commonwealth should make it as easy as possible for her to do so. Ibid., p, 381, ^For text of Declaration, see C. A. Deb,, Voi. VIII, p. 2. mid,, pp, 2-72. A, Deb., Vpl X^^p. 164. See also the Chapter on Indian States. PREAMBLE 131 accepted. Accordingly, some amendments suggested by Hasrat Mohani — for example, the one which sought to describe India as a “Union of Indian Socialistic Republics to be called UISR on the lines of USSR”— which were regarded as being inconsistent with the Constitution, as already adopted, were negatived by the Assembly. An amendment, proposed by H. V. Kamath, for prefixing to the Preamble the words “In the name of God” evoked some animated discussion and provided one of those rare occasions when the Assembly actually divided by a show of hands. The Ayes lost (41 to 68) eventually, after some of the opponents of the amendment had forcefully pleaded that the invocation of the name of God was inconsistent with the freedom of faith which was not only promised in the Preamble itself but was also guaranteed as a fundamental right'. Then there was an amendment, proposed by Mrs. Pumima Banerji which sought to recast the opening part of the Preamble to read “We on behalf of the people of India from whom is derived aU power and authority of Independent India...”, so that it might be made clear beyond any possibility of doubt or dispute that sovereignty vested in the people of India. The amendment was supported by Mahavir Tyagi and J. B. Kripalani. Ambedkar maintained that the Preamble, as drafted, could convey no other meaning than that the Constitution emanated from the people and “the sovereignty to make this Constitution” vested in them. He therefore saw no justification for accepting the amendment. Ambedkar also utilized the occasion to allay certain apprehensions that India’s association with the Commonwealth would in some way detract from the sovereignty of the people. Every independent country, he said, must have some kind of a treaty with some other countries, and there was no reason to suppose that a sovereign country became less sovereign just because it had made a treaty with another country”. The spirit of the amendment, however, found a place in the phrase in the final paragraph of the Preamble, “give to ourselves this Constitution”. It may be relevant to add that the British Cabinet Mission’s original plan of May 1946 had visualized approval of the Constitution by the British Parliament on the completion of the labours of the Constituent Assembly. Later developments in India, however, made it clear that it was desirable, indeed essential, to proceed with all possible speed. Mountbatten, after consultations with the British Government and with its full approval, had, early in June 1947, advanced the date of the transfer of power from June 1948 to August 15, 1947. Once the transfer of power had taken place, the question of the British Parliament’s subsequent approval could not possibly arise. The sovereign character of the Constituent Assembly thus ^came automatic with the rapid march of events, without any controversy, >C. A. Deb., Vol. X. pp. 432-42. Hbid., pp. 45i-6, 132 FRAMING OF INDIA’S CONSTITUTION and the words in the Preamble “give to ourselves this Constitution” ibecame appropriate.- ' ' Hie: Preamble was adopted by the Assembly without any ; atteration. Subsequently, the words , and figure-. “tMs- twenty-sixth ■ day of November, 1949 ” were introduced in the last paragraph ; to indicate the dale: -on which the Constitution was finally adopted byvthe Constituent: Assembly.: :m! i; . yjjS't j,!,;... 5 THE UNION AND ITS TERRITORY The MAIN TASK before the Constituent Assembly was to devise a constitutional structure embracing the' vvhole of the sub-continent in an integrated ; framework. The variety and complexity of the, political arrangements which existed in the sub-continent of India under British rule made this task an extremely formidable one. Under the Government of India Act. 1935, the territories comprised in ‘India’ fell into three broad categories. Three-fifths of the sub-continent consisted of Governors’ Provinces and Chief Commissioners’ Provinces. These areas formed part of “His Majesty’s dominions”'and were, subject to the legislative and executive jurisdiction of the Central and Provincial Legislatures and Governments in India. The remaining two-fifths,, painted yellow on the Indian map, consisted of Indian States. There were over five hundred of these States, ruled by the Princes and Chiefs, exercising governmental powers in varying degrees. Some, like the Nizam of Hyderabad, or the Rulers of Mysore, Baroda, Gwalior, Travancore and Cochinj exercised full powers over their States; at the other end were small estate holders, whose dominions did not extend beyond a few square miles of territory and who were only allowed to exercise very limited revenue and magisterial powers. Big or small, aU the States: were subject to the paramountcy of the British Government exercised through the Grown Representative in India, who in practice was the same functionary as the Governor-Generar. ' - ■■ ; In addition there were small bits of territory, known as tribal areas, in Baluchistan, the North-West Frontier Province and on the north-east frontier. Theoretically these areas were not part of British India; and before the Government of India Act, 1935, came into force, they were governed under powers delegated by the British Government under “foreign jurisdiction”^ ThafAct recited these functions as arising out of “treaty, grant, usage, sufference dr otherwise” and contained an explicit provision enabling the Governmeiit of India to exercise them. The actual extent of the authority exercised in these areas varied from one area to another and depended on the arrangement made with the' tribes in each area. In some of these areas regular administration had been established, while in others the role of the Government consisted in ensuring thtJt the tribesmen kept the peace and 'did hot interfere with the safety of roads and other essential communications ^Government of India Act, 1935; also see' Chapter on Indian States. ■ ' : ’For a fuller description of foreign jurisdiction, see Cht^ter on' Indian States. 133 134 FRAMING OF INDU’S CONSTITUTION established by it whether for purposes of frontier defence or trade with neighbouring countries. The British Cabinet Mission’s statement of May 16, 1946, envisaged the setting up of a Union of India, embracing British India and the Indian States, but the constitutional arrangements contemplated were extremely complicated. So far as British India was concerned, the Union was to exercise functions in relation to defence, external affairs and communications. The accession of the States was to be a voluntary act on the part of each one of them, and no powers were to be exercised by the Union in any of the States except on matters in which jurisdiction had been ceded. As regards the future administration of tribal areas, the statement contemplated that a scheme for the administration of these areas would be drawn up by the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas’. The Indian National Congress had, throughout its long campaign for independence, continuously emphasized the unity and integrity of India with a strong Centre. The plan outlined in the statement of May 16 would have resulted in a weak Central Government with attenuated powers and functions. Nevertheless, the leaders had accepted this plan, though with hesitation and misgiving, in the hope that it would enable them to secure the cooperation of the Muslim League and thereby preserve the unity and integrity of the country. With the Muslim League’s insistent demand for partition and its refusal to participate in the work of the Constituent Assembly, and as a result of the British Government’s declaration that the Constitution framed by the Assembly could not be forced on unwilling parts of the country, the preservation of the unity of the country had become a matter of great uncertainty. But so long as the hope remained that India might be preserved as a united nation, the Congress, which had a massive majority in the Assembly, was anxious to do nothing that might prejudice the prospect of such unity. The Objectives Resolution contained a specific reference to the unity of India and declared the resolve of the Assembly to draw up a constitution for an independent sovereign republic Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them alll The memorandum on the Union Constitution drawn up by the Constitutional Adviser on May 30, 1947, was the first attempt at a definition of the principles on the basis of which Hhe new Constitution for India would be drawn up; and so far as the territories to be included in the Union of ^Select Documents I, 48{i), pp. 209 ff. 2C. v4. Dei., Vol. II, p. m THE UNION AND ITS TERRITORY 135 India were concerned, the memorandum reflected the prevailing uncertainties m the political atmosphere. The relevant clause as drafted read : The Union hereby established shall be a sovereign independent State known as the Union of India and shall embrace all the territories included in India under the Government of India Act, 1935: but save as otherwise provided by or under treaty or agreement, only the territories included for the time being in Schedule I shall be subject to the jurisdiction of the Union’. Schedule I as drafted by him mentioned all the Governors’ Provinces and the Chief Commissioners’ Provinces, but the question marks placed against some of them indicated the current doubts as to whether they would in fact form part of the Union. As regards the Indian States, they were mentioned under the generic description “acceding States”; but there was at the time no certainty at all as to which of them would accede. The note appended to the clause elaborated the doubts and difliculties inherent in the situation. The first part of the clause, he explained, proceeded on the basis of the Cabinet Mission plan : but the second part was necessitated by the subsequent modification of the plan, according to which the Constitution was not to be forced upon “unwilling parts of the country”. Schedule I in its tentative, initial form was therefore intended to specify only the “willing” parts at the date of the commencement of the Constitution. If any other territories subsequently elected to come within Union jurisdiction, the schedule was to be suitably modified. Thus there were four separate categories of territories to be provided for: the “willing” parts of British India, the other parts of British India whose willingness could not be taken for granted, the Indian States and the tribal areas. The clause, B. N. Rau added, could be compared with articles 2 and 3 of the Irish Constitution, which defined “national territory” as consisting of the whole island of Ireland, its islands and the territorial sea, but contented itself with laying down that “pending reintegration of the national territory” the extent of application of the laws of the Irish Parliament would be limited to what was previously the Irish Free State. The parts of India not specified in the schedule would be in the Union but not of it. The memorandum also included a clause providing that the authorities established by or under the Constitution would succeed to the jurisdiction and powers of the British Government in regard to the Provinces included in the schedule and to the jurisdiction and powers of the Rulers in regard to the Indian States to the extent to which they ceded theml This memorandum came up before the Union Constitution Committee for consideration in June 1947. During ’this period of a few days momentous changes had taken place in the political situation which affected the '^Select Documents II, 15(ii), p. 471. Hbid., clause 4, p. 472. 136 FRAMING : OF .INDIA’S' COMSTlTOtlON fujadaniental bases ■ of ■ ■ the , ■ proposed Constitution. With ■. the British Government’s statement of June 3, it. had become obvious that the territory of the proposed Union' of India could not embrace the whole of ''British India”;-' '"■The Union Constitution Committee' addressed itself to the following questions: ' (i) Was the future State of India to be described as a Union -or a Federation? '■ (ii)' Should it be called "India.” or by some other name? (hi) What territories were to be included in it? '■"'The committee preferred to describe the future State as the "Federation' of India” rather than the “Union of India”, as the structure proposed to be established by the Constitution was to be federal in character. As for the name of the State, the Committee explained that “India” had been chosen as being the shortest and the most comprehensive. Accordingly, in its report of July 4, 1947, the committee described the name and territory of the Federation as follows : The Federation hereby established shall be a sovereign independent Republic known as India. Save as otherwise provided by or under this Constitution or any treaty or agreement, the territories included for the time being in Schedule I shall ‘ be subject to the jurisdiction of the Federationh The territories mentioned in the schedule fell again into three categories — Governors’ Provinces, Chief Commissioners’ Provinces and Indian States. While the Governors’ Provinces and the Chief Commissioners’ Provinces were automatically to become subject to the jurisdiction of the Federation of India, the committee remarked that some procedure would have to be prescribed for detennming which of the Indian States were to be included initially in the schedule. No specific proposal was made at this stage. The committee hierely drew attention to the fact that under the Government of India Act, 1935, accession was to be evidenced by “Instruments of Accession” executed by the Rulers, and stated that if it was considered undesirable to use this term or to adopt this procedure, some other kind of ratification might have to be prescribed. Meanwhile the Indian Independence Act, 1947, settled all doubts about the British Indian portion of the territory to be included in India, but left the position of the States vague and uncertain. India was to comprise all the territories included in British India immediately before August 15, 1947, with the exception of the territories of East Bengal, West Punjab, Sind and British'', 'Baluchistan, which were inclifded in ; Pakistan.,. 'The ' North-West Frontier Province and the district of Sylhet in Assam were also included in Pakistan as a result of referenda held in those areas. The boundaries of ^Select Documents II, i8(i), p. 575. ' : fHB’ ::UN10N . AN0; ■ ITS tERElTORY 137 East' Punjab- and West Eengal-^the. two- Provinces" wMcli' were to- -be' b.arved out by the-' division ■ of- 'Punjab ■ --Md ^ Bengal -and' .■■the■'^bouildaries of the ■ Sylhef district- which - was • ^ to to Pakistan- -were -settled by a "B-oundary '■Conirnission,--- Provisional- boundaries ‘were '■ however laid 'down "in the''AcPi'' ■ ■- ' : Accordingly ^ the -Union ■Constitution "Gommittee-' included’- in -Itidia-^ the Governors’' Provinces of 'Ma’dras, ■■Bombay, West- Bengal, the United Provinces, East - Punjab, Bihar, the Central Provinces and Berar, Assam ''and OrissUl and the Chief Commissioners’' Provinces -of Delhi, ‘ Ajmer-Merwar'a, Codrg; the Andaman and Nicobar Islands and Panth Piploda. The position of the Indian States and of the tribal areas was still^iiot clear; the June 3 statement only referred to the tribes of the North-West Frdhtief and said that agfeenients with the tribes of this area would have to be negotiated by the -appro^iat^ successor authority. The Act went one step further; - it prdvided’'Tor the complete termination of ail jurisdiction in‘ all the tribal areas as ‘ well as the Indian States. Existing arrangements of aii administrative Character;' such as arrangements relating to customs, transit ahd comihunicatidns^^^^^^ telegraphs, or other like matters 'woul(3'' bbntiriue in force but' cou^^^^^^ be terminated at will by either party.’ '-' The future position of the States and the tribal areas in the Indian constitutional structure Was 'to be settled by negotiation. ' ‘ " ' " ' ’ These were the problems which the Cohkituent' Assenibly^ f^^^ at the time of partition. At this stage the issue’ was raised about the 'ihternatibnai status of the Indian Dominion consequent on partition. The Muslim League advanced the argument that ' the riecessai^^^ cohsequehce ’ 6f " the decision to partition India was' that the old territory of India would cease to exist as a separate entity with effect from' the appointed day--~August 15, /1947r“and two new States, new in every respect, Wbiild be created. The Congress, on the other hand, maintaihed that the effect of the" Indian independence Act would be to continue the old Britis^^ India as a political entity the climiniition of territory separated to form the hew State, namely ‘ the ^D of Pakistan. Commenting, on the issue B. N.‘ feau Held, that the Dominion of India would continue to possess the internatipnal personal% pre- partitioned India, retaining the territory that was not specifically included in Pakistan, and that, no proposal should be agreed to which .might throw doubt' bn this .position. .-...r'.". ' This matter was also raised s^puratdy^, with, reference , to th^^ issues of IndiaV mernbeo^^ United Nations and., of ..the.. pas.rin^ .of 4reat^ obligations as a consequence of the Indian .Independence Act, 1947, which created the two new Dominions of Ilidia and Pakistap.^ The following, is a summary of the discusrions in the United Nations : In 1947 the territory of India, a founder-member of the United Nations, was ^Select Documents I, 86, pp. 539-40. 138 framing of India’s constitution split into two— India and Pakistan. A transfer of sovereignty took place and the Secretariat was faced with deciding what consequences this had on the status of the member state and whether the new state, Pakistan, succeeded to the rights and duties of a member under the Charter. The Assistant Secretary-General in charge of the Legal Department offered the opinion that the partition of India was not a case of dismemberment ; rather part of the existing state had broken off and formed a new state. Consequently, the treaty obligations of India- remained the same. He was also of the opinion that the profound constitutional changes which India has undergone did not affect its treaty commitments. On this reasoning, Pakistan was therefore required to apply for membership, for that portion of the territory did not succeed to India’s treaty rights and obligations. That Pakistan should have to apply for membership was a view subjected to some criticism in the General Assembly ; as a result, the Sixth Committee was requested to draw up rules which might be applied to future cases, though they would have no application to the present case. After lengthy discussion, - the Sixth Committee informed the Assembly that as a general principle a member state did not cease to be a member simply because its constitution or its frontier had been subjected to change; before its rights and obligations could be said to have ceased to exist it was necessary to show its demise as a legal personality. Moreover, where a new state was born, even if it formed part of the territory of a member, it could not claim to have succeeded to right of membership, and a new application must be submitted. The Indian Independence (International Arrangements) Order of 1947 — res inter alios acta so far as the United Nations was concerned — provided that both India and Pakistan would succeed to rights and obligations under all treaties to which India had been a party, with the exception of member- ship in international organizations and agreements applying exclusively to the territory of only one of the dominions. Although it is generally agreed that essentially political treaties do not, under general international law, pass to a new state, the Secretariat showed no objection to Pakistan signing protocols providing for the suppression of Traffic in Women and Children of 1921, and the Convention on Obscene Publications in 1923. The implication is that the fact that these were economic and social treaties, rather than political treaties, was considered significant. The arrangements between India and Pakistan were probably not telling in this matter, for they were in no way binding upon the United Nations. Pakistan submitted a declaration wbicb stated that it considered itself a party to the conventions owing to the fact that India had been a party b^ore August 1947^ The Draft Constitution prepared by the Constitutional Adviser in October, ’Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations^ pp, 321-2. THE UNION AND ITS TERRITORY 139 1947 provided for the name and territory of the proposed Federation of India as follows ; (1) As from the date of commencement of this Constitution ‘India’ shall be a Federation. (2) The territories of the Federation shall consist of— (a) the Provinces, hereinafter called Governors’ Provinces, (b) the Provinces, hereinafter called Chief Commissioners’ Provinces, and (c) the Indian States for the time being included in the First Schedule to this Constitution, hereinafter called Federated States. (3) On and after such date as may be appointed in this behalf by Act of the Federal Parliament, each unit of the Federation shall be called a ‘State’’. The Sub-Committee on the North-East Frontier (Assam) Tribal and Excluded Areas had meanwhile reported that the tribal areas in Assam should be included in that Province, but that their administration should be carried on for the time being by the Central Government through the Assam Governor as its agent. Provision was accordingly made for this purpose in the Eighth Schedule in this draft. As a result of the partition, the tribal areas in the North-West Frontier and Baluchistan became the concern of Pakistan. Following the language of the preamble to the British North America Act, 1867, the Drafting Committee decided to use the term “Union” instead of “Federation”. The committee observed that nothing of real significance turned on the name; but it felt that there were advantages in describing India a.s a Union, although its Constitution might be federal jn structure. ITie territories of India were divided into three categories; (a) the territories of the States. (b) the Andaman and Nicobar Islands, (c) such other territories as might be acquired. The States were listed in Parts I, II and III of the First Schedule, comprising the Governors’ Provinces, the Chief Commissioners’ Provinces of Delhi, Ajmer-Merwara (including Panth Piploda) and Coorg, and the Indian States which were within the Dominion of India immediately before the commencement of the Constitution. With regard to the Indian States it was observed that it was not possible to enumerate each of these States separately, because owing to mergers of various kinds many of them might be absorbed into larger units. It would be necessary, however, to enumerate all of them by name before the Constitution was finally adoptedl When the Draft Constitution, as prepared by the Drafting Committee, was published and circulated for eliciting opinion, some representatives of the Indian States in the Constituent Assembly objected to the description of India as a “Union of States” and also to the provision regarding the territories 'Select Documents III, l(i), p. 4. ®Draft Constitution, para. 3 of Ambedkar’s forwarding letter, article I, and First Schedule. Select Documents 111, 6, pp. 510-1. 140 FR-AMlNa'-QF imiA^S CONSflT0'I'lON of States., '-being included; within' the. territoty^of-'- India;"::- Id-' 'a memorandum, V. T. Krishnamachari of Jaipur, B. H. Zaidi of Rampur* Sardar Singhji of Jaipur and Jaidev Singh ji of Patiala^argued that in wiew of the traditional polity of the States, their position in the constitutional set-up of India, and the fact that the rulers of the States would continue to be the heads of the States as constitutional monarchSi, it would be desirable to maintain' in the Constitution a distinction between the Indian States and the Provinces by a suitable differentiation in nomenclature : they pointed out further that since the States had acceded to the Union in respect' Of only certain specified subjects, it would not be a reflection of the correct position to describe their territories as part of the territory of India. ' Alladi Krishnaswami Ayyar, refuting these arguments, said in a note : : There is no substance in the objection that the territory of the Indian States Is not part of the territory of the Union. The territory of the Common-^ . wealth in Australia corresponds somewhat to clauses- (b) and (c); The ^ differences in the extent of power which is wielded by the Union in different areas do not determine the ‘ question whether it is part of the Union :! Territory or not\ Moving the Draft Constitution for the consideration of the Constituent Assembly on . November 4, 1948, Ambedkar explained the significance of the use of the expression “Union” instead of the expression '‘Federation”. - ' It is true that South Africa v/hich is a unitary State is described as a Union. But Canada which is a Federation is also called -a Union. Thus the description of India as a Union, though its constitution is federaiv does no violence to usage. But what is important is that the use of the word ‘Union’ is deliberate. I do not know why the word ‘Union’ was used in the Canadian Constitution. But I can ; tell you why the Drafting Committee has used if. The Drafting Committee wanted to make it clear that though . India waS; to be a federation, the federation was not the result of ah : agreement by the States to join in a federation, and that the federation not .. being the psult of an agreement, no State, has the right to secede from it. The tederation is a Union because it. is indestructible, Though the country . - and.the people may be divided into different States for convenience of administration, the country Is one integral whole, its people a single people living under a ; single : derived a single source. The Americans ihad to: wage ;a civiL war : to establish .that the States have . no right of ; secession - ; and that their federation ' Was r indestructible,. . The Drafting, Committee -thought was better to - make, it ^t the outset rather jthan ' to i: leave it to ’ speculation or to dispute, 1. . , ^ - .it,., ■ " V ■ The Drafting Committee clearly attached great importance to the use of Comments and Suggestions on the Draft Constitutioh, Select Ddcuments IV Ifi) pp. '21142,^27. :■ 'r-: C. A. Del?., Vol. VH p. 43.' ' ’■ ^ THE UNION AND ITS TERRITORY 141 the term “Unioa” as symbolic of the determination of the Assembly to maintain the unity of the country. This was evident from the discussions bn. draft article 1 in the Assembly on November 15, 1948. i . Several amendments :were moved mainly with a view to changing the name of the country from “India” to “Union of India”, : “Iharat”, “Bharatvarsha”, ‘^Hindustan” and so on . or to changing its description from “a Union of States” to “a Federation of StateS'^ or to substituting tihe word “State” by “Pradesh” or “Province”'. Discarding a suggestion that i India should be known as the “Union of India” Ambedkar said: ■ • This is unnecessary because we have all along meant that this country should be known as India, without giving any indication as to what are the relations of the component parts of the Indian Union in the very 'title of the name of the country. India has been known as India throughout history and throughout all these past years. As a member of the UN the narrie of the country is India and all agreements are signed as suchl . . An amendment moved by K. T. Shah sought to describe India as “a Secular Federal Socialist Union of States”. It was strongly opposed* by H. V. Kamath who observed that the tendency to disintegrate in India’s body politic had been so rampant in history that in order to curb it in future it was necessary not to use the word “federal”. Dealing with another, aspect of the- same amendment, Ambedkar pointed out that it was not proper to tie down the people to live in a particular form of social organization, . Social and economic policies were not matters to be laid down in the Constitution: they should be left to be decided by the future Legislatures according to lame and circumstances’. ’ H. V. Kamath, G. S. Gupta and L. K. Maitra were critical of the, use of the expression “States” to describe the constituent units. This conveyed an idea of sovereignty and might give rise to controversies at a later stage with the States contending that they were absolutely sovereign entities. Replying, Nehru said: “A State is just what you define it to be. You define in this. Constitution the exact powers of your units. It does not become something less if you call it a Pradesh or Province’’*. The debate on the article Continued on November 17, 1948, but was postponed in order to make an eflfort to obtain a measure of unanimity of opinion in regard to the name of the country. On September 17, 1949, Ambedkar suggested a revised draft of the first two clauses which read as follows-/ , (1) India, that is Bharat, shall be a Union, of States. ^ ^ (2) The States and their territories thereof shall be the States and territories for the time being specified in Pa»ts I, ll and III of the First Schedule; 'C. A. Deb., Vol. VII, pp. 398 ff. 2/Wd., p. 422. Hbid., pp. 399-403. 'Ibid., pp. 404-li. • 142 FRAMING OF INDIA’S CONSTITUTION Ambedkar did not give any detailed explanation for the change. The effort at securing unanimity did not apparently succeed, for there was considerable and animated discussion on the redraft. Hasrat Mohani strongly pleaded for calling India a Union of Indian Socialist Republics. H. V. Kamath, Govind Das and others pleaded for redrafting clause (1) to read “Bharat, or in the English language^ India” on the ground that it was a fact that from ancient times, the country was known as Bharat and that the name India came into use later when the Greeks came to India and named the Sindhu rivers as Indus. Govind Das pointed out that the name “Bharat” could be traced to the most ancient literature of India and was the only name befitting the history and culture of the country. All the amendments, except the one moved by Ambedkar, were negatived and draft article 1, as modified by him, was adopted to be added to the Constitution'. But voting on the name was fairly close, 38 being for Kamath’s amendment and 51 against it. At the revision stage, the four parts of the First Schedule were reclassified as Parts A, B, C, and D. On the question of the admission or the establishment of new States, B. N. Rau’s memorandum included a clause enabling the Parliament of the Union from time to time by an Act to include new territories in Schedule I upon such terms as it thought fit. This provision, which followed a similar provision in the Constitutions of Australia and the United States, was non- controversial and was adopted at the various stages with textual changes. The article as finally adopted (article 2) read: Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. B. N. Rau’s memorandum also contained provisions on the lines of section 290 of the Government of India Act of 1935, enabling Parliament to create new Provinces, increase or diminish the area of Provinces or to alter their boundaries: but the consent of the Legislature of every Province affected was necessary before Parliament could pass such a law. The Union Constitution Committee widened the scope of the provision to all units, so as to include Indian States also, and included the power to change the name of any unit". The substance of the provision was accepted by the Drafting Committee and in its Draft published in February 1948 it included an article embodying this power. In this article a proviso was included that no Bill for these purposes could be introduced in Parliament except by the Government of India. Some further conditions (recognized later as confusing) were also laid down: such a Bill could be introduced only if a representation was made by a majority of the representatives of the territory in the Legislature of the State from ‘C. A. Deb., Vol. IX, pp. 1669, 1673-91. ^Select Documents II,,15(ii) and 18(i), pp. 471-2, 575-6, THE UNION AND ITS TERRITORY 143 which it was to be separated or excluded; or if a resolution had been passed by the Legislature of the State whose boundaries or name would be , affected. It was also laid down that a Bill of this nature would require consultation with the Legislatures, of the units in the case of laws affecting Provinces and previous consent in the case of Indian States'. On the question of the previous consent of the units being obtained there was divergence of opinion. Sachchidananda Sinha was in favour of such consent being invariably obtained'. On the other hand, the. West Bengal Legislative Assembly was of the view that it was not desirable to place any such restriction on the introduction of such a Bill, because no State Legislature could be expected to agree to any proposal affecting its areas adverselyl After considering all these suggestions the Drafting Committee decided to redraft the proviso as follows: Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless — (a) where the proposal contained in the Bill affects the boundaries or name of any State or States for the time being specified in Part I of the First Schedule, the views of the Legislature of the State, or as the case may be, of each of the States both with respect to the proposal to introduce the Bill and with respect to the provisions thereof have been ascertained by the President ; and (b) where such proposal affects the boundaries or name of any State or States for the time being specified in Part III of the First Schedule, the previous consent of the State, or as the case may be, of each of the States to the proposal has been obtained'. The Constitutional Adviser pointed out : Under the revised draft of this article as proposed by the Drafting Committee, it will be necessary only to obtain the recommendation of the President before the introduction of a Bill and to ascertain the views of the Legislatures of the State or States whose boundaries or name are affected with respect to the proposal to introduce the Bill and with respect to the provisions thereof. The first condition has been imposed to prevent the introduction of frivolous Bills for any of the purposes mentioned in article 3. The second condition which is based on the existing provisions of section 290 of the Government of India Act, 1935, and which requires the views of the Legislatures of the States to be ascertained and placed before Parliament is necessary to enable Parliament to take into account ^Select Documents III, 6, p. 519. Comments and Suggestions on the Draft Constitution* Select Documents IV, l(i), p. 9. ^Drafting Committee Minutes, March 23, 1948; Special Committee Minutes, April II, 1947. Select Documents IV, i(ii), p. 393. 144 FRAMING OF INDIA’S CONSTITUTION .such views . before coming: : to any: decision. ^ It. would however be open i! ' to: Parliament either ito. accept, of reject the views expressed by such fiO:-!.;S£ates^:: -A yi :. i'.;. :■ Draft artide .3 :was taken up for consideration in the Constituent Assembly on November 17, 1948, when Ambedkar . moved this draft proviso as an amendment’. . Meanwhile,! K, ;T. Shah had moved, an amendment to the effect that any legislation affectingi the idrea,., boundaries or name of an existing State should originate ini the Legislature 1 of the Statercoocemed’. ■ Ambedkar pointed out that the proviso moved by him covered Shah’s point. He did mot 'have the least doubt that the method of consulting the States would beiifor: the. President .to. ask the Chief Minister or the Governor to have a resolution tabled which might be discussed in the particular State Legislature so that ultimately the initiation would be by . the local Legislature and not by Parliament. Explaining the other, changes proposed to be effected by his amendment, Ambedkar said that it sought to delete the provision giving the power to introduce a Bill exclusively to the Government of India; all that was required ■Was 'that' any Bill, whether sponsored by the Government or by a private fti'einbet, should have the recommendation of the President. This was being done in view of- the representations made to the Drafting Committee that the Original provision was somewhat severe and needlessly curtailed the rights of "private riiembers of Parliament; Secondly, under the proposed amendment all that was required for the purpose of the introduction of a Bill in so far a-s it affected the States in Part was consultation; in other words, no consent was necessary. Only in regard to the Indian States was the consent of the State concerned made a prerequisite. The distinction, Ambedkar explained, was based on the fact that under the position then existing Provinces were different from the Indian States. Since the former were not sovereign the Government was not bound to await their consent for changing their boundaries, while such consent was necessary in the case of the latter who ieraaihed sovereign*. ■ ’■" ' ' There was a lively and prolonged debate on the article and on Ambedkar’s aiiiehdment to redraft the pro-viso. The discussion centred round the question of the distinction sought to be made between the Provinces and the States. H. N! Kunzrumtloved ah- amendment seeking to place the Provinces and the Indian States on the same footing by providing that in the case of Indian States also' consent should not be necessary for any ' reorganization of their territories and that consultation should be sufficient, both in the case of the Provinces and the Indian States. In this connection Kunzru drew the attention m ^Comments and Suggestions on the Draft Constitution/ Select Dommenfs IV, l(i), ^ ' C. A. DeK VoL VII, p. 439. ' ' '' , ' . ' _ ^ ■ ■ , pp. 439-40. s THE UNION AND ITS TERRITORY' U5: of the Assembly to a number of provisions in the Draft Constitution which placed the Indian States in the same position as Provinces'. In his reply, Amhedkar dealt at some length with Kunzru’s points. He made it clear that Kunzru’s amendment had a great deal of his sympathy and it' was unfortunate that in the then existing circumstances it was not possible for him to accept it. He felt that the Assembly would he acting wisely by respecting the agreement arrived at by the Negotiating Committees until, by further agreement, and with goodwill, peace and honour to both sides, it was found possible to change the position. Ambedkar’s amendment and draft article 3, as amended thereby, were adoptedl As the process of constitution-making was reaching its final stage the position of the Indian States had radically changed. It was no longer necessary to place the Indian States on a different footing from the Provinces in the matter of their constitutional relationship with the Centre and their internal set-up. Several provisions of the Draft Constitution concerning the States were reviewed in the light of the changed position with a view to removing disparities between the States and the Provinces and to placing the two on a basis of complete equality. Discussion on article 3 was reopened in the Assembly on October 13, 1949, for the purpose of carrying out a consequential amendment which sought to redraft parts (a) and (b) of the proviso as follows : Where the proposal contained in the Bill affects the boundaries of any State or States for the time being specified in Part I or Part HI of the First Schedule, or the name or names of any such State or States, the views of the Legislature of the State or, as the case may be, of each of the States both with respect to the proposal to introduce the Bill and with respect to the provisions thereof have been ascertained by the President, This amendment sought to do away with the distinction between the States in Part III (Indian States) and the States in Part I (Provinces) in respect of terntorial readjustments. The amendment was moved by T. T. Krishnamachari on behalf of the Drafting Committee. Although even at that stage several dissenting voices were raised, the amendment was adopted by the Assembly\ and article 3 assumed the form in which it was finally placed in the' 'Constitution., Glauses 2 and 3(2) of the Draft Constitution prepared by the Constitutional Adviser in October 1947 provided that when any changes were made by Parliament by law for admitting any new territories, creating any new units or altering the ' boundaries, areas or names of any existing units, the First Schedule should be deemed to have stood amended thereby as from the date of eommencement of such law. The principle was accepted ' by ■ the Drafting A, Dek. VoL VI!, pp. 441-3. ' ' pp. 458-9, 461-2 and 465. X, pp. 161-S {Patel’s speech) and 210. V&/U,,pp.'2!0-5. ■I{ . ' ■ ■ ■ ■ 146 FRAMING OF INDIA’S CONSTITUTION Committee and incorporated in its February 1948 Draft Constitution as article 4: (1) Any law referred to in article 2 or article 3 of this Constitution shall contain such provisions for the amendment of the First Schedule as may be necessary to give effect to the provisions of the law and may also contain such incidental and consequential provisions as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 304\ Draft article 4 proved non-controversial and had a smooth passage through the: various stages. This article came up before the Assembly for discussion on November 18, 1948, and was adopted without any modification^ Subsequently, by way of clarification, clause (1) was amplified to include a reference to the amendment of the Fourth Schedule also along with the First Schedule and to lay down that the incidental and consequential provisions referred to in clause (1) would include provisions as to representation in Parliament and in the Legislatures of affected States. With these and a few other changes of a drafting nature article 4 assumed its present form. NOTE ON AMENDMENTS Article 1 1. The Constitution (Seventh Amendment) Act, 1956, in giving effect to the scheme of States’ reorganization, made fundamental changes both in the nomenclature and the description of the constituent units of India. Article 1(2) as passed in 1949 had laid down that the States and the territories of the States would be as described in Parts A, B, and C in the First Schedule; and according to article 1(3), the territory of India consisted of the territories of the States, the territories specified in Part D of the First Schedule (the Andaman and Nicobar Islands), and such other territories as might be acquired. This classification was abolished by the Act of 1956, which declared that the territory of India would comprise the territories of the States, the Union territories and such other territories as might be acquired. There was to be no longer any distinction between Part A States and Part B States; and Part C States were all classified as Union territories. Article 1 was amended to give effect to these changes. The Act also made important changes in the First Schedule. There were now to be fourteen States— Andhra PTadesh, Assam, Bihar, Bombay, Kerala, Madhya Pradesh, Madras, •Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, West Bengal, and Jammu and Kashmir — and six Union ^Select Documents III, 6, p. 519. K:. A. Deb., Vol. VI], pp. 465-9. THE UNION AND ITS TERRITORY 147 Territories — Delhi, Himachal Pradesh. Manipur, Tripura, the Andaman and Nicobar Islands and a group of small islands off the Malabar coast in South India called the Laccadive, Minicoy and Amindivi Islands. These amendments came into force on November 1, 1956. 2. The First Schedule was again amended by the Constitution (Ninth Amendment) Act, 1960. Certain Indo-Pakistan agreements made in 1958, 1959 and 1960 which settled some boundary disputes relating to the Assam. West Bengal, East Punjab and Tripura borders involved the transfer of some territories to Pakistan after demarcation. The Act provided for the necessary amendments to the First Schedule relating to the extent of the territories of the relevant States. These amendments were to come into force on dates to be notified by the Central Government after transfer of the respective territories to Pakistan had been effected. 3. Under the Bombay Reorganization Act, 1960, the State of Bombay was to be reorganized into two separate States — Gujarat and Maharashtra. The First Schedule was accordingly amended : the entry ‘Bombay’ was deleted and the names of the two new States of Gujarat and Maharashtra were inserted. This came into effect on May 1, 1960. 4. The State of Nagaland Act, 1962, created a new State of Nagaland. The necessary addition was made to the First Schedule. This came into effect on December 1, 1963. 5. The Constitution (Tenth Amendment) Act, 1961, included the territory of Dadra and Nagar Haveli (former Portuguese enclaves) in the First Schedule as the seventh Union Territory. This came into effect on August 11. 1962. 6. Under the Constitution (Twelfth Amendment) Act, 1962, the former Portuguese enclaves of Goa, Daman, Diu were included in the First Schedule as the eighth Union Territory, retrospectively with effect from December 20, 1961. 7. The Constitution (Fourteenth Amendment) Act, 1962, included the former French establishments of Pondicherry, Karikal, Mahe and Yanam as the ninth Union Territory, with effect from August 16, 1962. 8. The Punjab Reorganization Act, 1966, divided the Punjab State into three entities — two new States called Punjab and Haryana and a Union territory called Chandigarh. Thus there are now seventeen States and ten Union territories, as follows : States — Andhra Pradesh; Assam; Bihar; Gujarat; Kerala; Madhya Pradesh; Madras; Maharashtra; Mysore; Orissa; Punjab; Rajasthan; Uttar Pradesh; West Bengal; Jammu and Kashmir;*Nagaland; and Haryana. Union femrories— Delhi; Himachal Pradesh; Manipur; Tripura; The Andaman and Nicobar Islands; The Laccadive, Minicoy and Amindivi Islands; Dadra and Nagar Haveli; Goa, Daman and Diu; Pondicherry; and Chandigarh, 148 FRAMING OF INDIA’S CONSTITUTION Article 3 „ 1. Under the proviso to article 3 of the CoDstitution as passed by the Assembly in November, 1949, no Bill for the purpose of forming a new State, increasing or diminishing the area of any State, or altering the boundaries or name of any State, could be introduced in either House of Parliament unless, where the proposal affected a Part A or a Part B State, the views of the Legislature of the State had been ascertained by the President with respect both to the proposal to introduce the Bill and its provisions. It was considered desirable, when such a reference had been made to a State Legislature, to provide for a time-limit within which its view would be communicated. The proviso was accordingly amended as follows by the Constitution (Fifth Amendment) Act, 1953 : Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States specified in Part A or Part B of the First Schedule, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. The amendment came into force on December 24, 1955. 2. The words “specified in Part A or Part B of the First Schedule” were deleted from the proviso by the Constitution (Seventh Amendoient) Act, 1956. 3. The Constitution (Eighteenth Amendment) Act, 1966, added an explanation which made it clear that the word “State” in clauses (a) to (e) of article 3, but not in the proviso, included a Union Territory. The effect of this is that Parliament can by law form new Union Territories, increase or diminish the area of any Union Territory or alter its boundaries or name; and it is not incumbent on Parliament to consult the Legislature of the Union Territory concerned before doing so. 6 CITIZENSHIP The concept of Indian citizenship did not exist prior to November 26, 1949, when the Constituent Assembly adopted the Constitution of India, bringing into force at once the provisions relating to citizenship'. As “British^’ India was at that time under the Crown, its people were British subjects and their national status and rights of citizenship were governed by the British Nationality Acts passed by the Parliament of the United Kingdom from time to time. The fundamental principle governing the laws of British nationality was that every person born within any part of British territory became at and from birth a British subject. The Indian States did not form part of British territory, and their subjects were not “British subjects”. These States had no international personality and under international law their subjects enjoyed the status of British protected persons^ The British Nationality and Status of Aliens Act, first enacted in 1914 and subsequently elaborated in 1918, 1922, 1933 and 1943, did not prevent differential treatment being accorded to different classes of British subjects as to immigration or otherwise; and local nationality could be conferred by the authority of the Legislature of the British possession concerned. Thus, the Immigration into India Act, 1924, as well as its repealing Act, the Reciprocity Act, 1943, empowered the Government of India to regulate on the basis of reciprocity the entry and residence of British subjects domiciled in other British possessions. Local naturalization was regulated by the Indian Naturalization Act, 1926, which provided for the grant of naturalization to persons not being subjects of any State in Europe or America or of any State of which an Indian British subject was prevented by law from becoming a national by naturalization\ Nevertheless, the basic concept underlying the 1914 Act was that of a common British nationality for all subjects of the Crown throughout the Empire and the Commonwealth. The concept had grown out of and crystallized the common law ^Article 394 of the Constitution which prescribed the date of the commencement of the Constitution as the twentysixth day of January 1950 provided for the coming into force of some of the articles at once, Le, on November 26, and articles 5 to 9 were among 'these: , * ^Ciive Fa^rty, British Nationality and Citizenship Laws of the Commonwealth and ! reiand, pp, H4h2. '^.British", Nationality and Status of Aliens Act, 1914,. sec. 26(1) & (2); The Reciprocity '■■Act,. '■1943,^. sec. 3; and The Indian Naturalization Act, 1926, sec. 3(lXb). Also S. -The' '.Working Constitution in India, 150 ERAMING or INDIA’S CONSTITUTION doctrine of allegiance to the King. Separate nationality statutes — accepting and usually incorporating the United Kingdom legislation — enacted by the Dominions of Canada, Australia, New Zealand and South Africa were referred to as together constituting a common code, alterations in which could be made only by mutual consultation and agreement. Soon, however, divergences began to appear between . the laws of one Dominion and those of another ; and it became clear that a common code was irreconcilable with the complete legislative independence of the self-governing; members of the Commonwealth. Thus, even before India became a self-governing Dominion, the common code was becoming unworkable in practice and leading to complications in both the domestic and international spheres^ At the British Commonwealth Conference on Nationality and Citizenship held in February 1947,., the principles of the Canadian Act of 1946 were accepted for general application throughout the Commonwealth'. So far as India was concerned, the Government of India Act, 1935, placed it beyond the competence of the Legislatures in India to make any law affecting the law of British Nationality'. This position remained unchanged at the time of independence. The subject of citizenship was one of the first matters to engage the attention of the Constituent Assembly. The citizenship provisions took an exceptionally long time— nearly two years — to reach the stage of finality. A number of drafts were considered by several committees and sub-committees. As the Chairman of the Drafting Committee observed later, no other article in the Draft Constitution except one gave “such a headache” as the provision on citizenship. “I do not know,” said Ambedkar, “how many drafts were prepared and how many were destroyed as being inadequate to cover all cases which it was thought necessary and desirable to cover”h Of the several bodies that deliberated on the question of citizenship in the initial stages, the Sub-Committee on Fundamental Rights was the first. The drafts on fundamental rights submitted to the sub-committee by K. M. Munshi and B. N. Rau contained provisions relating to citizenship. These were examined by the sub-committee on March 24, 1947, and it was decided to adopt B. N. Rau’s draft in the following form ; Every person born or naturalized in the Union and subject to the jurisdiclioii thereof shall be a citizen of the Union. Further provisions governing the accrual, acquisition and termination of Union citizenship may be made by the law of the Union®. ^Halsbmfs Laws of England, VoL I, 3rd Edn., p. 528. ^O. Hood Phillips, The Constitutional Law of Great Britain and the Commonwealth, 1957, p. 463. ^Section 110, , 4. DeL, VoL IX, p. 347. 4M,unsM’s Draft article II; Minutes ,of the Sub-Committee on Fundamental Rights, March 24, 1947. Select Documents II, 4(ii)(b) and II (iii), pp. 74, 116. CITIZENSHIP 151 The sub-committee incorporated this provision in its draft report. K, T. Shah commented that the words ■ ‘‘the accrual, acquisition and termination of Union citizenship” used in the clause would not necessarily cover the retention of citizenship and might not, therefore, include the case of. a woman who, originally a citizen of the Union, married a non-citizen •but desired to retain her citizenship of .birth. Reconsidering the clause on April 14, the sub-committee decided to omit the references to ‘‘accrual, acquisition and termination” and, with this change, include the provision in its report submitted on April 16, to the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded ■.Areas\ The clause came up for discussion before the Advisory Committee on April 21. The discussion centred mainly round the question whether the units in the proposed Union should be entitled to provide for separate citizenship rights. Towards the end of an animated discussion, Alladi Krishnaswami Ayyar clinched the issue by affirming that while certain qualifications might be added to citizenship within a particular unit, there could be only one citizenship for the whole of the Indian Union. Redrafted Oil a suggestion by C. Rajagopalacharl, the clause was amended by the committee to read: Every person born in the Union or naturalized in the Union according to Its laws and subject to the jurisdiction thereof shall be a citizen of the Union. This short and simple definition of citizenship was incorporated in the Interim Report of the Advisory Committee submitted to the Constituent Assembly on April 23\ When the citizenship clause, as recommended by the Advisory Committee, came up for consideration before the Assembly on April 29, Alladi Krishnas^^^ami Ayyar explained that there were two different theories on which citizenship laws in various countries were based. In some of the European countries citizenship was determined by blood and race, regardless of the place of birth (lex sanguinis) while under the Anglo-American system citizenship was determined mainly on grounds of birth {lex soli). The ^Draft Report, Annexure I, clause 3. In his explanatory notes, B. N, Ran pointed out that while the first part of the clause had been adopted from Article XIV, sec. 1 of the U. S. Constitution, the second part was intended to cover the naturalization laws which might be passed by the Union or which might be adopted by the Constitution. He added that citizenship or nationality being part of the subject of foreign affairs, and as such an exclusively yni on subject, there could be no provincial citizenship as distinct from the citizenship of the Union. Draft Report, Annexure 11, Select Documents II, 4(iv) and (v)(c), pp. 138, 147-8. ^Sub-Committee Minutes, April 14, 1947, and Report of the Sub-Committee, Annexure, clause 3. Select Documents 11, 4(vii) and (viii), pp. 163, 171. ^Proceedings, April 21, 1947; and Interim Report of the Advisory Committee, Annexure, clause 3. Select Documents II, 6(iv) and 7(i), f5p. 217-8. 152 FRAMING OF. INDIANS CONStitUTiON Assembly had to make up its mind whether to follow the racial principle or the birth principle. The Advisory Committee had obviously chosen the latter inasmuch as the main idea underlying the existing clause was that a person born in India must get Indian citizenship even if his parents were foreigners. Both Alladi Krislinaswami Ayyar and K. M. Munshi emphasized that the clause intended merely to lay down the indispensable conditions for citizenship, as it was difficult to exhaust by enumeration in a Constitution Act the many exceptional cases that might arise: they could be taken care of by a separate Nationality Act to be enacted by the Union Parliament. Vallabhbhai Patel, commending the clause, referred to the struggle against racial discrimination in South Africa and in some other States and to the demand for nationality by the Indians settled there on the ground of their birth. He cautioned the members not to take a narrow view of the subject and introduce racial phraseology in the Constitution merely for the sake of covering a few cases which could otherwise be controlled by law. ‘It is important,” he said, “to remember that the provision about citizenship will be scrutinized all over the world.” The clause generally provoked some opposition and several members including President Rajendra Prasad had misgivings about its appropriateness. The apprehension was expressed that it was too widely worded and might confer citizenship on every person born in India, whether his parents were Indian citizens or not. As a citizen he would be entitled to all the rights and privileges of citizenship: at the same time, he might maintain the nationality of his parents and enjoy the privileges of that nationality. Under the clauses on fundamental rights he might acquire and hold property and the right of following any trade or profession in the country. All this, it was felt, would naturally conflict with the interests of the true citizens of India who had no other nationality. Finally, on a suggestion from Alladi Krishnaswami Ayyar, it was decided to refer the matter to a small committee of distinguished jurists for further examination and adviced On April 30, the President appointed an ad hoc committee on citizenship consisting of S. Varadachari, (a former judge of the Federal Court) as chairman and Bakshi Tek Chand, B. L. Mitter, Alladi Krishnaswaiiii Ayyar, K. N. Katju, K. M. Munshi and B. R. Ambedkar. Reporting on the following day, the committee submitted a redrafted clause : Every person bom in the Union and subject to its jurisdiction ; every person either of whose parents was, at the time of such person’s birth, a citizen of the Union ; and every person naturalized in the Union shall be a citizen : ■ 'of the Union.,, Further provision regarding the acquisition and termination of Union ^C. A. Deb., VoL III, pp. 399-409. These points were made in a letter from Rajendra Prasad dated April 30, 1947 (Not printed). CITIZENSHIP 153 . ' citizenship may be made by the law of the Union. Recommending the draft for adoption by the Assembly, the committee observed : ' The inclusion in the clause of children born in the Union even of non- citizens, provided they are subject to Union jurisdiction, is a well-marked feature of Anglo-American public law. This principle has been accepted in the Indian Naturalization Act, 1926. There is some authority for the view that the children of visiting foreigners are on the same footing as the children of foreign ambassadors and would as such be regarded as non- citizens even if born in the Union, because of the qualifying phrase “and subject to its jurisdiction.” In any event, such cases are likely to be so few and far between that it is unnecessary in our opinion to make a special exception to exclude them from citizenship. As regards the possibility of double nationality, this is a wellknown phenomenon, but it can be provided against by appropriate provisions in the Union Naturalization Law calling upon the person concerned to choose one or the other. For this purpose, the clause makes express provision for supplementary legislation terminating citizenship'. When the clause, as redrafted by the ad hoc committee was moved for consideration in the Assembly on May 2, K. Santhanam proposed an amendment seeking to provide that persons born or naturalized in India before the commencement of the Union and subject to its jurisdiction would be citizens of the Union. The redraft, as proposed by the ad hoc committee, he pointed out, covered only persons bom after the Union came into being; it did not cover those who were born earlier and would already be within the Jurisdiction of the Union at the time it came into existence. Santhanam's amendment received support from Rajagopalachari, Sidhva and Ambedkar. But Vallabhbhai Patel, Munshi and Alladi Krishiiaswami Ayyar considered it unnecessary at that stage to consider the question raised by Santhanam as it was still uncertain what would be the shape of the Union of India in the matter of territories and whether any part of India was going to be separated from the rest. When finality was reached in regard to these matters, the necessary adjustments between the parts — ^if there were to be parts—could be considered. Alladi Krishnaswami Ayyar conceded that the question raised by Santhanam had not been considered by the ad .hoc. committee and required careful examination. Finally the clause was held over for further consideration by the Advisory Committee*. While formulating, towards the end of May, the memorandum on the Union Constitution for the use of tfee members of the Union Constitution Committee,,the Constitutional , Adviser removed the .citizenship 'provisions 'Report of the ad hoc committee. May 1, 1947, Select .Documents p. 678. A. Deb,, VoL HI, pp. 52,2-8. ' - 154 FRAMING OF INDIA’S CONSTITUTION frcdni the list of fundamental rigi^ts and placed them in a separate Part- Part II of the memorandum — ^under the heading “Citizenship.” This Part contained three clauses. Clause 1 provided for citizenship at the date of the commencement of the Constitution; every person domiciled in the territories of the Union and subject to its jurisdiction, who had been ordinarily resident for not less than five years, or who or either of whose parents was born in the territories of the Union, would be a citizen of the Union. Clause 2 provided for citizenship after the commencement of the Constitution : every person who was born in the territory of the Union and was subject to its jurisdiction, or who was naturalized in accordance with Union law, or either of whose parents was at the time of his birth a citizen of the Union, would be a citizen of India. Clause 3 laid down that further provisions governing the acquisition and termination of citizenship might be made by Union law. B. N. Rau explained that clause 1 was largely based on article 3 of the 1922 Constitution of the Irish Free State, while clauses 2 and 3 followed the provisions suggested by the ad hoc committee on Citizenship. He suggested that clause 2 would not be absolutely necessary if the Union Constitution Committee could agree to leave the matter to be regulated by Union law under clause 3. The suggestion meant in effect that the Constitution might confine itself to specifying who would be citizens at the commencement of the Constitution, the rest being left to Union law\ With the decision to partition India as a result of the British Government’s announcement of June 3, 1947, a series of consequential changes and adjustments became necessary, both inside and outside the Constituent Assembly. A joint sub-committee of the Union and Provincial Constitution Committees decided on June 8 that the question of citizenship should be re-examined by the ad hoc committee as an inevitable sequel to the announcement. Some representations from individuals received by the Secretariat of the Assembly during the last week of June and suggesting the formulation of certain provisions in the light of the changed conditions that would follow the partition of the country were also referred to the ad hoc committee®. Among those who had sent such representations, the Government Solicitor, Dhiren Mitra, stressed the need for considering the important question of nationality in so far as it had a bearing on a man’s employment in public service and his status abroad. A member of the Constituent Assemby, and later also a member of the (Constitution) Drafting Committee, D. P. Khaitan, suggested that the definition of citizenship should cover the case of a woman ^Memorandum on the Union Constitution, Part II, clauses 1 to 3 and Note. Select Documents ll, 15(ii), pp. 472-3. ^Minutes, June 8, 1947, Select Documents 11, 20(1), p. 616. ^Notes received from Dhken Mitra, D. P. Khaitan and G. J. Shivdasani, Select Documents 11, 25(ii), pp. 628-82. CITIZENSHIP 155 who, on being married to a citizen of India, would automatically become an Indian citizen. A large number of marriages were likely to take place between the citizens of India and those of Pakistan, as also between the citizens of India and those of the Indian States. In the absence of such a provision, therefore, India would be “full of what would legally be foreign women”. A member of the Legislative Assembly of Sind, Glianashyam J. Shivdasani, pleaded for adequate provision being made for people of the seceding areas who desired to continue their ■ Indian citizenship. When the Constitutional Adviser’s memorandum came up before the Union Constitution Committee on June 30, consideration of the clauses relating to citizenship was deferred until after the ad hoc committee had made its recommendationsk In the report submitted to the Assembly on July 4, the Union Constitution Committee incorporated the citizenship provisions contained in the memorandum without any change, except that the word “Union” was replaced by the word “Federation” and explanations were added for the words “domicile” and “federal law”. The committee observed that the draft was meant merely as a basis for discussion and was subject to the decisions of the ad hoc committee. Nevertheless, it recognized the inappropriateness of inserting a rigid provision about citizenship and agreed with B. N. Rau’s view that the Constitution should confine itself to specifying citizenship at the commencement of the Constitution under clause 1 ; that clause 2 could be omitted; and that the question of citizenship after the commencement of the Constitution should be left to be regulated by law under clause 3. In this connection the committee quoted with approval the views of a Calcutta law journal : It is not possible to define exhaustively the conditions of nationality, whether by birth or naturalization, by the Constitution. If certain conditions are laid down by the Constitution, difficulties may arise regarding the interpretation of future legislation which may appear to be contrary to or to depart in any way from them. , . It would, in our opinion, therefore, be better to specify who would be citizens of the Indian Union at the date when the Constitution comes into force as in the Constitution of the Irish Free State and leave the law regarding nationality to be provided for by legislation by the Indian Union in accordance with the accepted principles of private international iaw^ Meeting on July 12, the ad hoc committee decided that for being a citizen at the eommencement of the Constitution it should not be necessary to have Mvfinutes, June 30, 1947. Select Documents II, 16, pp. 561-2. ^Report of the Union Constitution Committee, memorandum on the Indian Constitution, Part 11. The views quoted in the report were those of the Cn/cMijfn Weekly Notes, Voi. LI, No. 27, May 26, 1947. Select Documents II, 18(i) and (iv), pp. ' 577-8. FRAMING OF INDIANS CONStitUTlON 156 resided in the Union territory for a period of five years. Clause 1 of the memorandum was accordingly redrafted'. The redraft came up at a jomt meeting of the Union and Provincial Constitution Committees on July 18. Its consideration was postponed, presumably because this redraft was also found to be inadequate in certain respects and it was referred back to the ad hoc committee for further scrutiny^ While moving the report of the Union Constitution Committee for consideration in the Assembly on July 21. Nehru observed that the subject of citizenship was still under examination by the ad hoc committee. There was consequently no discussion in the Assembly at that stage on the citizenship clauses of the report. In the draft prepared by the Constitutional Adviser in October, 1947, there was provision, in addition to the incorporation of all the citizenship clauses as earlier recommended by the ad hoc committee, for the large number of displaced persons who had come or were still coming to India from Pakistan as a result of partition. As many as five clauses, viz., clauses 4, 5, 6, 6- A and 7 were devoted to the subject of citizenship. Clause 4 defined federal law as including “any existing law as in force”. Clause 5 defined citizenship at the commencement of the Constitution; its first sub-clause conferred citizenship upon every person who, or either of whose parents, or any of whose grandparents was born in the territories initially included within the Federation; the second provided that every person who, at the commencement of the Constitution, had his domicile in India, would be a citizen of the Federation. The latter was meant to cover the cases of persons who or whose parents and grandparents might have been born in Pakistan and who had been compelled by circumstances beyond their control to migrate to India. In a proviso, a particularly easy mode of acquiring domicile in India was provided for displaced persons from Pakistan. All that a displaced person had to do was to reside in India for a month and then to make and deposit in a prescribed office a written declaration of his desire to acquire domicile in India. This was without prejudice to any other procedure that would be legally available to him. Clause 6 dealt with the question of citizenship for persons born after the commencement of the Constitution'; clause 6-A laid down that foreign nationals would be disqualified for membership of the Federal Parliament or the Legislature of any unit". This was intended to discourage double citizenship and prevent divided loyalties. Clause 7 provided for the Federal Parliament making further provisions for regulating the acquisition and termination of citizenship t ' ^Minutes, July 12, 1941 , Select Documents 11^ 25(iii), pp. 682-3. “Minutes, July 18, 1947, II, 19, p. 613. Vol. IV, p. 730. Cf. British Nationality and Status of Aliens Act, 79M sec. 1(1). Commonwealth Australia Act, 1900, sec. 44(i}. CITIZENSHIP 157 and to make the provisions of clauses 5, 6 and 6- A subject to the provisions of .such federal law\ „ , - When the Drafting Committee was considering the Constitutional Advisef s Draft, S. Dutt, a senior - official of the Ministry of External Affairs and Commonwealth Relations, ' emphatically urged in his letter of December 5, that “the unfortunate brothers and sisters” who had ' to leave their homes in Eastern and Western Pakistan should not be refused citizenship simply because they were born in Pakistan. “The framers of the Constitution”, he said, “should look into the matter graciously, at the same time cautiously”. The Drafting Committee gave anxious and prolonged consideration to the question of devising a suitable draft. Noting that the point raised by Dutt had already been anticipated by the Constitutional Adviser, the Committee accepted the basic principles contained in clauses 5 and 7 of his Draft and decided (i) to omit clauses 4 and 6 — the former defining federal law and the latter providing for citizenship after the commencement of the Constitution ; and (ii) to transfer clause 6-A relating to the disqualification of foreign nationals for membership of the Legislature to the relevant Part dealing with the Legislature". Clauses 5 and 7 were redrafted and included as articles 5 and 6 in the Draft Constitution prepared by the Drafting Committee. These read as follows: 5. At the date of commencement of this Constitution — (a) every person who or either of whose parents or any of whose grand-parents was born in the territory of India as defined in this Constitution and who has not made his permanent abode in any foreign State after the first day of April, 1947 ; and (b) every person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), or in Burma, Ceylon or Malaya, and who has his domicile in the territory of India as defined in this Constitution ; shall be a citizen of India, provided that he has not acquired the citizenship of any foreign State before the date of commencement of this Constitution, Explanation ' For the purposes of clause (b) of this article, a person shall be deemed to have his domicile in the territory of India — (ij if he would have had his domicile in such territory under Part II of the Indian Succession Act, 1925, had the provisions of that Part been : -applicable to -him, or ' ^Draft Constitution prepared by the Constitutional Adviser, October, 1947, Part II; ■ and Constitutional Adviser’s notes on claques 5 to 7 of the Draft. 'Select Domments.''' III,\4(i)\and''''{i!),''pp. 4, ;i97-8. ^Before the February 1948 Draft Constitution was finalized by the Drafting Committee, citizenship provisions were discussed by it on October 30, 1947 and January 19 and February 4, 5 and 6, 1948 — see MlnuUs, Select Documents III, 5, PP. J25,, 406-7, 470, 472,' 474-5, 480-1. ■ 158 FRAMING OF INDIA’S CONSTITUTION (ii) if he has, before the date of commencement of this Constitution, deposited in the office of the District Magistrate a declaration in writing of his desire to acquire such domicile and has resided in the territory of India for at least one month before the date of the declaration. 6. Parliament may, by law, make further provision regarding the acquisition and termination of citizenship and all other matters relating thereto. The Drafting Committee made it clear that an easy mode of acquiring domicile was provided for in order to meet the special requirements of the large number of displaced persons from Pakistan; and that as a general rule, it was necessary under the article that in order to be a citizen of the Union at its inception, a person must have some kind of territorial connection with the Union, whether by birth or descent or domicile. The committee did not deem it advisable to entitle to Indian citizenship those persons who, without any such connection with the territory of India, might be prepared to swear allegiance to the Union; for if other States were to copy such a provision, the Union of India might have within it a larger number of persons who. though born and permanently resident therein, owed allegiance to a foreign State'. When the Draft Constitution was published and circulated for eliciting opinion, a number of comments and suggestions for amendment of draft articles 5 and 6 were received from members and others. From among the members, Pattabhi Sitaramayya and others proposed two amendments to article 5. The first sought to replace the words “permanent abode” in clause (a) by the word “domicile” and to change the date, “first day of April 1947” to “fifteenth day of February 1947”. The second proposed the removal of all restrictions like the depositing a declaration in the office of the District Magistrate envisaged in clause (ii) of the Explanation, and the entitlement to Indian domicile of every displaced person from Pakistan who migrated to India after the first day of April 1947. Commenting on these amendments, B, N. Rau pointed out that the term “permanent abode” had been used because the term “domicile” was vague and a foreign State might give it an artificial definition. The date, April 1, 1947, was chosen as the crucial date because, according to information available, the exodus from what later became Pakistan did not begin before that date. Dealing with the suggestion that every displaced person from Pakistan who migrated to India after April 1947 should automatically be entitled to Indian citizenship, he also pointed out that this proposal would allow every temporary migrant the right of citizenship. This would be unwisel ' ■ ■ , A member of the Madras Legislatife Assembly, K. Bhashyam, proposed ^Draft Constitution of India, February 1948, para 4 of forwarding letter and articles 5 and 6. Select Documents III, 6, p. 511. “Comments and Suggestions on the Draft Constitution. Select Documents IV, l(i), pp. 15-6. CITIZENSHIP 159 ' that' in^ the matter of citizenship rights. under clause 5(a), there should be a positive enactmeiit to the effect that a citizen should have either a perinaneiit abode or the intention to reside permanently in India. ■ The sponsor of the proposal obviously wanted to impose domiciliary qualification as a condition precedent to the acquisition of citizenship in every case. As B. N. Rau pointed out, if such a proposal was accepted in toto, those persons who, or, either of whose parents, or any of whose grand -parents, were born, in India and who were staying^ in any country outside India but had not acquired the citizenship of such country, would be left out\ The West Bengal Legislative Assembly proposed (1) the omission of reference to the Indian Succession Act in clause (i) of the Explanation and its substitution by the actual definition of domicile, viz*, ‘fixdd habitation’; and (2) the replacing of the reference to the District Magistrate in clause (ii) of the Explanation by a reference to an officer appointed in that behalf by the provincial government. The purpose of the proposed modification presumably was that the District Magistrate might not be easily approachable for depositing the declaration of domicile. Commenting on these suggestions, B. N. Rau pointed out that the object of referring to the Indian Succession Act was to apply all the provisions of Part II of the Act to the determination of the domicile of a person without reproducing them in extenso. Asi for the second suggestion, he felt that the object of the amendment would be met if in clause (ii) of the Explanation, after the words “District Magistrate”, the words “or of such officer as may be authorized in writing in that behalf by the District Magistrate” were insertedl The editor of the Indian Law Review and some members of the Calcutta Bar criticized the definition of citizenship in draft article 5 as narrow. The definition, they considered, did not include persons who were born or had a fixed habitation in Pakistan but had spent their life in India in the pursuit of their profession, calling or vocation, because domicile as defined in the Indian Succession Act excluded such persons. Commenting on this criticism B. N, Rau pointed out that the Drafting Committee was definitely of the opinion that persons who were born or had a fixed habitation in Pakistan could be treated as citizens of the Union of India at its inception only if they had some kind of territorial connection with the Union, If there was any doubt as to whether such persons had made their fixed habitation in India and thereby acquired a domicile under the Indian Succession Act, they could avail themselves of the easy mode of acquiring a domicile under clause '(ii) of the Explanation by making and depositing in the office of the District Magistrate a declaration of their desire to acquire such domicile^. ^Comments and Suggestions on the Draft Constitution. Select Domments , W . !(i), pp. 16-7. , . pp. ' 17-8. ,, ■ . . . : ' pp. 18-20. 160 FRAMING OF INDIA'S CONSTITUTION Certain comments on draft article 5 raised the point as to how that provision would accord with the principles of the British Commonwealth citizenship in the event of India remaining within the Commonwealth. Replying to the point, B. N. Rau admitted that the citizenship provisions had been “drafted without any reference to any British Commonwealth law of citizenship”: article 5 was not intended to be the entire law on Indian citizenship and further provisions under draft article 6 would have to be made by the Indian Parliament “as early as possible”'. Justice Meredith of the Patna High Court commented that draft article 5 left uncertain the position of Europeans in regard to the acquisition of Indian citizenship. Suggesting the insertion of some provision for naturalization, he contended that under the existing articles there was no constitutional protection for non-citizens permanently resident or having their domicile in the country: citizenship appeared to have been made an essential qualification for practically every appointment under the Union of Indian The All-Burma Indian Congress urged that every Indian resident in Burma who was an Indian before April 1, 1937, when that State was separated, should have the unqualified option of choosing the citizenship either of India or of Pakistan; and that this right should also be extended to those overseas Indians who were born in what subsequently became Pakistan territory. The Congress further desired that an easier process of reacquisition of citizenship might be prescribed for Indians resident in Burma who had taken Burmese citizenship but later wanted to reacquire Indian citizenshipl A memorandum on the Draft Constitution submitted by some representatives of the Indian States pleaded stron^y for a separate citizenship of a State in addition to federal citizenship. It suggested a proviso to be added to draft article 6 to preserve the right of the Legislature of a constituent State to deal with the question of citizenship for the local purposes of the State^ Disagreeing with this view, Alladi Krishnaswami Ayyar explained the position : The States had never a nationality law and it was merely a domicile law. In foreign countries, in British territories, Indian State subjects came under the category of British protected persons and the protection was afforded by reason of the fact that the States had no voice in the conduct of foreign affairs. Now, since foreign affairs is ceded by all acceding States, they have to be protected abroad by the Indian Government. Since they have conceded the right to the Indian Legislature to pass laws extending to their territory, there is nothing incongruous in there bemg a unified ^Comments and Suggestions on the Draft Constitution. .Bocummts IV, l(i),p.21. -Ibid. pp. 22-3, ^Ibid., p. 222. CITIZENSHIP 161 , citkens'tiip. Moreover any modification in this regard would affect the chapters relating to fundamental rights which have been passed with the assent of every one. Hen,ce, this objection should not be considered at alF. All the comments and suggestions for amendment were carefully considered, along with B. N. Rau’s notes thereon, by tlie Drafting CoiBmittee. B. N. Rau observed that there was a lacuna in clause (b) of article 5; it left out persons who we,re bom in Pondicherry, Goa, Chandranagore or other foreign territory in India or were born in South Africa, Fiji or other countries outside India, but were domiciled in the territory of India as defined in the Constitution. There was no goM reason why such persons should be less favourably treated than those bom in Pakistan or Burma. S. Dutt ■ had raised some points in a letter to B. N. Ran in regard to citizenship rights .for Indians who had migrated to Malaya. B. N. Rau replied to all these points. The first point was whether those Indians who had resided for a number of years and cultivated land in Malaya would be regarded as having made their permanent abode in Malaya. The answer really turned on their intention; if their intention was always to return to India ultimately, the courts would probably hold that they had not made their permanent abode in Malaya. Of course, intention can only be proved by some overt act ; if in a particular case, the only facts proved are residence and cultivation for a long period of time in Malaya and there is no other proof of intention, the courts may well infer an intention to make Malaya the permanent abode. The test is always of intention. Dutfs second point was whether acceptance of Malayan citizenship would be regarded as acquisition of citizenship of a foreign State. B. N, Rau*s reply was that an amendment substituting the word ‘"acquired” in article 5(b) by the words “voluntarily acquired” was already being considered; that would remove all ambiguity in the matter. If a person who was an Indian citizen by birth under article 5(a) became a citizen of the Malayan Federation by the automatic operation of Malayan law or became a British subject under the British nationality law, he would not be considered for the purposes of article 5(b) to have voluntarily acquired Malayan citizenship or British nationality. Besides, B. N. Rau said, it was also proposed to exclude Malaya and similar States from the definition of a “foreign state”. Lastly, Dutt had asked whether the Government of India would ’ undertake legislation before the commencement of the Constitution to enable persons residing' in Malaya to acquire Indian citizenship by declaring their iiitentidD in writing before India’s representative in Malaya. The intention of , the citizenship provisions, B. N. Rau obsewed, was clearly that no person should at the inception of the new Constitution be a citizen of India unless he was Comments .and Suggestions on the Draft Constitution. Select Documents IV, l(i), P. 25. ; 12 162 FRAMING OF INDIA’S CONSTITUTION connected with the territory of India by birth, descent' or dO'iiiiGile. It was not the intention that persons unconnected with the territory of India in one ■of these ways should by , merely making a statement before some authority outside India qualify for citizenship. If a person was not bom in India and was not born of parents or grandparents born in India, it would be necessary that he should stay in India for at least a month and make a declaration of his intention to acquire Indian dO'inicile. B. N. Rau suggested a redraft of article 5 incorporating the results of- his scrutiny of the various comments and suggestions that had been received : At the date of commencement of this Constitution— (a) every person who or either of whose parents or any of whose grand- parents was born in the territory of India and who has not made his permanent abode in any foreign country, after the first day of April 1947 ; and (b) every person who has his domicile in the territory of India, shall be a citizen of India, provided that he has not voluntarily acquired the citizenship of any foreign country. The Explanation to article 5 with its clauses (i) and (ii), and article 6 were retained without any change. B. N. Rau pointed out incidentally thai the redraft would also meet the criticism by Meredith, inasmuch as clause (b) would apply to foreigners who had made their habitation permanently in India. On the question of acquisition of domicile by displaced persons, he again clarified the position that a declaration before a magistrate was not indispensable for acquiring citizenship; it was only one of the modes of proving acquisition of domicile, merely intended to provide a specially easy mode for those who wished to avail themselves of it. The Drafting Committee accepted the redraft proposed by the Constitutional Adviser. The Special Committee (a body consisting mostly of certain members of the Union Constitution Committee, tlie Union Powers Committee and the Provincial Constitution Committee) suggested that the article should be divided into two parts: one dealing with cases of general application and the other dealing with persons who had left India with the intention of acquiring a fixed habitation in other countries or who had migrated to India from other counries for acquiring such habitation in India. The recommendations of the special Committee fomid favour with the Drafting Conimitteeh Accordingly, the October 1948 reprint of the Draft Constitution contained a fresh redraft of article 5 on these lines'. The citizenship '' provisions came up for discussion ' in the Assembly on November 18, 1948, but consideration was deferred as a large number of amendments had been tabled and was considered desirable to give an 'Select Documents IV, l(i), (ii), (iii), pp. 23-4, 393, 409; See also pp. 532-3. "Commeots and Suggestions on the Draft Constitution. Select Documents iV, l(i), p. 25. CITIZENSHIP 163 opportuaity to the proposers to exchange views with the members of the Drafting Committee and arrive^ if possible, at a consensus'. Meanwhile apprehensions had been expressed on behalf of iadians in Malaya that/if the federal citizenship provisions of the new Malayan Constitution came into force earlier than the Indian Constitution, under article 5(b) of the latter, many Indians, resident in Malaya would automatically be disqualified for Indian citizenshipl But, as S. Dutt later pointed out in a note on citizenship, these fears were based on the assumption that Malayan citizenship would be regarded as citizenship of a foreign State, Actually, so long as India remained in the Commonwealth, there was no question of Malaya being a foreign State. Persons of Indian origin by living abroad in a Commonwealth country would acquire the citizenship of India under article 5(a) even if they had already accepted the citizenship of their country of residence. Thus, a person resident in Malaya but having his origin in the territory of the Union of India would acquire Indian Citizenship even if in the meantime he had become a federal citizen of Malaya. The difficulty in the case of persons originating in what later became Pakistan territory and accepting Malayan citizenship could also, if necessary, be obviated by adding a proviso to article 5(b) to cover such cases. In a comprehensive note Dutt also examined in detail the general question of articles 5 and 6 of the Draft Constitution being adequate or otherwise for meeting the requirements of all persons originating in Indian territories before August 15, 1947, and living abroad on the date of the inception of the Constitution but anxious to acquire Indian citizenship. Dutt pointed out that most of such people would automatically become Indian citizens under article 5(a), for at least one of their parents or grand- parents must have been born in India. Regarding Indians in Fiji and Guyana (former British Guiana) whose connection with India was as remote as going back to great grand-parents, it was, after discussions with B. N, Ran, considered inadvisable to have any provision in the Constitution. The next and more difficult question concerned persons originating in territory included in Pakistan but living abroad, who had no iritention of returning to Pakistan and who wanted to make their permanent homes iii India— persons, for example, who originated in West Punjab, who were subsequently living in Burma, Egypt, Indonesia etc., and whose homes in the West Punjab had been destroyed and whose relations had moved to India. Under draft clause 5 as it stood, any such person had to return to India, submit a declaration of his intention to acquire Indian domicile and reside there for at least a month before th^ date of declaration. This requirement would have placed these persons in a difficult position. Dutt, who raised this ^C. Dek, VoL VII, pp. 470-1. ^Memorandum by R. Ramani, April 1949. Select Documents IV, 6(ii), pp. 520-5. 164 FRAMING OF INDIA’S" CONSTITUTION issue, pointed' out -that it would not be lair to compel these thousands of persons, who bad' no home left in Pakistan, to return to India immediately, leaving their business concerns behind, merely to qualify for Indian citizen- . ship. This matter -was taken up, by Prime Minister Nehru with the Constitutional Adviser and with Ambedkar, the Chairman -of the Drafting Committee. The latter thought that it -would not be impossible -to- allay the apprehensions of Indians by making appropriate ' changes in’ the 'Clauses regarding naturalization- in the Bill on Indian citizenship which was to be promoted in the - near future. The Ministry of External - Affairs was apparently : not satisfied with this solution; the" Ministry wanted" special- provision in the Constitution which would enable this class of Indians to qualify for citizenship at the commencement of the Constitution'. Consideration of the citizenship provisions was taken up in the Assembly on August 10, 1949.* President Rajendra Prasad suggested that in view of the large number of amendments, ‘about 140, a number of the emanating from the Drafting Committee, it would be better if the Chairman of the Drafting Committee moved the articles in the form in which he had finally framed them. Thereupon Ambedkar moved a consolidated amendment combining all the amendments proposed by the Drafting Committee. The consolidated amendment sought to replace articles 5 and 6 of the February 1948 Di‘aft Constitutioh, by six iiew articles, v/z., articles 5, 5-A, 5-AA, 5-B, 5-C and 6. These new articles Ambedkar explained conferred citizenship of the Union on five different categories of persons: (1) persons domiciled in India and born in India—these forming the bulk of the population of the Union of India; f 2) persons domiciled but not born in India, who resided in India e.g-, persons who were subjects of French or Portuguese settlements in India like Chandranagore, Pondicherry, Goa etc., or Iranians who had come from Persia and resided in India for a long time and undoubtedly had ilia intention of becoming citizens of India; (3) persons who were resident in India but who had migrated to Pakistan; (4) persons resident in Pakistan but who had migrated to India; and (5) persons who or whose parents were born in India but who were residing outside India. The provisions proposed were necessarily somewhat complicated since they had to- coyer a number of classes of persons, and a situation resulting ffoni a great upheaval in which a large scale exodus of population between India and 'Pakistan had taken -"place. The -clauses were lucidly explained by 'Ambedkar. ' 'The 'first category of persons were' those who were domiciled in India and who or whose- parents were bom in the territo^ry of Tndia.: These automatically becanie Indian citizens. ^ ^ - The second' category included ' persons who had resided^^ in ' India, though ^Note by S. Dutt, Additional Secretary, Ministry of External Affairs: also ' w Dotfs further note, June^ 16, 1949. Select Documents IV, 6(ii) and (iv), pp. 527“32. CITIZENSHIP 165 they were, not horn, in India. The condition imposed on these persons was, that they, should have, resided, in India for a period of 'not less than five years. ■ •„ ■ ' ■ ; , . ,;Tlien there -were,,, two categories of persons, tliose who were resident in India, and, had migrated to Pakistan, and those who were, resident in Pakistan and had migrated to India. The latter category waS' divided into two classes, those wfio had come to India -before July - 19, 1948, and those who hadcome after that date (on. this date -an. ordinance had -been passed -that no one could come, in unless he, had- a permit,; and there were three kinds of permits— temporary, permanent, and those for resettlement). , /Those who came before July 19, 1948, would automatically become citizens of India, but those who came later could acquire citizenship only, on following a procedure. They had to make an application to an officer appointed by the Government of India and had to be registered by. such officer on an application so made. As regards persons who had migrated to Pakistan but had returned to India, the position was that if a person who had migrated to Pakistan had, after going there, returned to India on the basis of a permit given to him, not merely to enter India but also to resettle, such person would become a citizen of India on the commencement of the Constitution. The last category of persons provided for in these articles were those residing abroad but who or whose parents were bom in India. Tliese were the persons for whom the Ministry of External Affairs had entered a strong plea. In their case the only limitation proposed was that they should make an application before the commencement of the Constitution to the Consular Officer or the Diplomatic Representative of the Government of India in the country in which they w^ere staying, and get themselves registered as citizens. This, Ambedkar explained, would be a simple matter. While commending the new articles for adoption by the Assembly, Ambedkar explained that their object was not to lay down a permanent or unalterable law of Indian citizenship, but only to decide for the time being the question as to who would be citizens on the date of commencement of the.' Goiistitution. The entire ' matter regarding citizenship , was otherwise being left to be determined by Parliament: and if there was any category of,"".peopl€ : who were left out of the provisions of the amendment, power had./ .been given , to , Parliament to make provision for -them. .Parliament could not only take: away citizenship from those, entitled to ■ it' , at the, commencement of the Constitution but also make a new law embodying new;principles\;' ■/.„. /,■ .During the' three days’ debate,, pcfhaps the strongest, critic of the new articles, was' P. ,S. Deshmukh who advised the Assembly to reject them outright as they ■ had discarded the earlier drafts; .the articles'; moved by A. Deb., Voi. IX, pp. 343-9. 166 FRAMING OF INDIA’S CONSTITUTION Ambedkar wO'Uld, he thought, make Indian citizenship “the cheapest on earth”'. The provision which came under the heaviest fire and evoked keen controversy was the one under which Muslims could return to India from Pakistan under a permit and acquire permanent citizenship rights. The return of Muslims from Pakistan, it was feared, might create complications in regard to' evacuee property in India, especially when there was no corresponding provision made by the Pakistan Government for Hindus to return and settle down in Pakistan. Several members, among them Thakurdas Bhargava, B. P. Jhunjhunwala and Rohini Kumar Chaudhiiry, drew attention to the influx of Muslims from East Pakistan into Assam with the sole object of increasing their population and disturbing the economy and communal harmony of that Province. Jaspat Roy Kapoor and Thakurdas Bhargava were emphatic that Indian citizenship should be denied to all those who had once left the country for Pakistan with the obvious inteiition of settling down there and becoming Pakistani citizens. Such persons should be able to acquire Indian citizenship only in accordance with the laws and rules, applicable to other foreigners. In regard to displaced persons from Pakistan, on the other hand, Bhargava felt that none of them should have any trouble in being a citizen of India as of rightl Intervening in the debate, Nehru pointed out that as a general rule in regard to the consequences of partition, India accepted without demur or enquiry the great wave of migration from Pakistan and it therefore became obligatory on her to accept as citizens all those who came in that wave, whether they were Hindus or Sikhs or Muslims. A system of enquiry, he said, had been instituted with regard to people who came to India after July 1948. The Muslims who came from Pakistan with permits for permanent settlement in India roughly numbered only 2,000 or 3,000. Before permits were issued each case was gone into thoroughly by the local officials and the local government concernedl Gopalaswami Ayyangar also endeavoured to allay the apprehensions of refugees by affirming that migration by itself would not extinguish their title to property which would continue to be valid until a final settlement was reached between the Governments of India and Pakistan. He admitted that while about three thousand Muslims had secured permits to return to India, the number of non-Muslims who wished to retura to Pakistan was negligible. Also, he could not say whether the treatment given on the other side to persons returning from India was in actual practice the same as that given in India to those returning from Pakistani , , . . In his reply to the debate, Ambedkar explained that the provision under which Muslims could return to India tender a permit and acquire citizenship tC. /i. ,0e^., VoL IX, pp. 351-6. "/£»iU/pp. 361-8, 378-86, 389-90 and 413-7. ^IbkL pp. 398-401. Htm pp. 417-21. . . CITIZENSHIP 167 rights was based on an undertaking given by the Government of India to allow people from Pakistan to return and settle down in India. However, there was nothing to bar the Assembly from bringing in a Bill to prevent the' Government from continuing the permit system, except that the ' Assembly would perhaps not be acting rightly or in accordance with the public interest if it decided to deny citizenship rights to the few people who came on the assurance of the Government to make their home in India. Answering the criticism in regard to 'East Bengal Muslims infiltrating into Assam, Ambedkar pointed out that in regard to those who had entered Assam after July 19, 1948, whether they were Muslims or others, the grant of Indian citizenship was not at all an ‘‘automatic business” since only those who entered Assam before that date were declared to be citizens. Efisagreeing with Deshmulch’s criticism that the proposed articles made India’s citizenship the “cheapest in the world,” Ambedkar said that if the laws and rules governing the law of citizenship in the various countries of the world were carefully studied, it would be found that citizenship of India was no cheaper than that of other countriesk The Assembly rejected all the other amendments adopting only Ambedkar’s consolidated amendment containing articles 5, 5-A, 5-AA, 5-B, 5-C and 6k Later, at the revision stage, the proviso to article 5, disqualifying a person for Indian citizenship if he had voluntarily acquired the citizenship of a foreign State, was separated and made into an independent article — present article 9 — and the existing articles 5, 5-A, 5-AA, 5-B, 5-C and 6 v/ere respectively renumbered as 5, 6, 7, 8, 10 and 11. With a few other modifications of a verbal nature, they w^ere finally incorporated in the Constitution adopted on November 26. 1949k Of these, articles 5 to 9 came into force on the adoption of the Constitution on November 26, i949k NOTE ON COMMONWEALTH CITIZENSHIP 'Ihe British Nationality Act, 1948, which came into force on January 1, 1949, repealed all earlier nationality laws and created a new status, that of “a citizen of the United Kingdom and Colonies” in addition to the status of “a British subject or a Commonwealth citizen”. A Britisli subject or a Commonwealth citizen— the two expressions were legally equated— could under the Act acquire the rights and privileges of a U. K. citizen by the simple process of registration and without any need for riatiiralization as VoL IX, pp. 422-4. ■ -Ibid., pp. 425-30. ^Draft Constitutioii as revised by the Drafting Committee, November 3, 1949. Select Documents IV IS hZ. :^See p.' 149. . ' 168 FRAxMlNG OF INDIANS ' CONSTITUTION applicable to aliens. A person, so registered became, from 'the date of registration, a citizen of the U,K/. Immediately after India decided to become a Republic, the . British Parliament enacted the India (Consequential Provisions) Act, 1949. The effect ^ of this measure was that notwithstanding India becoming a Republic, all previous British statutes which applied to India, including those which conferred privileges on India or her citizens in the U.K.. continued to be applicable in a British court ; and India and Indian citizens continued £0 be entitled to take advantage of a British statute in proceedings before a British court. In short, Indians retained their citizenship of the Commonwealthl Although the Constitution' of India did not make any reference 'to Commonwealth citizenship, under the Citizenship Act of 1955 every person who is, a citizen of a Commonwealth country acquires by virtue of that citizenship the status of a Com,monwealth citizen in India. The Act empowers the Central Government to make provisions, on the basis of reciprocity, for the conferment of all or any of the rights of Indian citizenship on the citizens of any of the specified Commonwealth countries or of the Republic of Ireland, It also provides for registration as a citizen of India of any person, of full age and capacity, who is a citizen of a Commonwealth country or of the Republic of Irelandl THE CITIZENSHIP ACT, 1955 The Constitution of India only laid down the law in regard to citizenship at the commencement of the Constitution. It did not provide for the acquisition and te,rmination of Indian citizenship. Article 11 left it to" Parliament to regulate the right of citizenship by law. An Act of Parliament providing for the acquisition and termination of Indian citizenship was passed in 1955 . The Act consisted of nineteen sections and three schedules — sections 3 to 7 for acquisition and sections 8 to 10 for termination. Under the Act, a person born in India after January 26, 1950, would, subject to certain exceptions, be a citizen of India by birth; and anyone boni outside India after that date would also be a citizen if liis father was a citizen at the time of birth, but this would be' subject to certain requirements being fulfilled (sections 3 and 4). Sections 5 and 6 prescribed the conditions under -which a person who was not ' ‘British Naiiomiity Act, 1948. Commission of India, Fifth Report^ p. 7. While recommending that the large majority of British statutes applicable to India should be repealed, the Law Commission felt , that it would be desirable to make a specific provision in the repealing enactment to 'save the operation of these statutes in so far as they conferred privileges on India or her citizens. ^The Citizenship Act, 1955, ss. 5, 11 and 12. CITIZENSHIP 169 already a citizen of India would acquire Indian citizeiisiiip. Section 7 laid down that if any territory became part of India, the Central Govermneiit might by order specify the persons who would be citizens by reason of their connection with that territory. Sections 8 to 10 provided for the termination of citizenship. The Act also provided that the citizen, of a Commonwealth country would have the status of a Commonwealth citizen of India. The Government of India has reserved to itself the power to make provision on the basis of reciprocity for the conferment of all or any of the rights of a citizen of India on the citizen of any Commonwealth country (Sections li and. 12)'. m ^For details see The Citizenship Act, 1955 (57 of ' 1955). , Also see' A. N. Smba, Law ■ of Citizenship and Aliens in hidm, ■ Chapter 'VI. ' ' 7 FUNDAMENTAL RIGHTS INTRODUCTORY The inclusion of a set of fundamental rights in India’s Constitution had its genesis in the forces that operated in the national straggle during British rale. With the resort by the British executive to such arbitrary acts as internments and deportations without trial and curbs on the liberty of the press in the early decades of this century, it became an article of faith with the leaders of the freedom movement. Some essential rights like personal freedom, protection of one’s life and limb and of one’s good name, derived from the common law and the principles of British iurisprudence. were well accepted and given at least in theory statutory recognition in India by various British Parliamentary enactments relating to the Government and the Constitution of Indiah A vital principle of English law stated by Professor Dicey was: The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution. In India, some fundamental rights had been conceded by the British Parliament or the Crown. Attention may be drawn in particular to section 298(1) of the Government of India Act, 1935, under which a subject of His Majesty could not be debarred from holding any ofSce under the Crown on grounds only of religion, place of birth, descent, colour or any of them. Similarly, in the Proclamation of Queen Victoria it was stated: We declare it to be our royal will and pleasure that none be in anywise favoured, none molested or disquieted, by reason of their religious faith or observances; but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with Tor example, section 87 of the Charter Act of 1833 laid down that “no native of the said territories (/.e., British India). shall by reason only of his religion, place of birth, descent, colour, or any of them, be disabled from lioiding any place, office, or employment under the Company”. The substance of this provision was reproduced in section 96 of the Government of India Act, 1915. The Government of India Act, 1935 while continuing this guarantee of non-discrimination, afforded protection in certain other respects also (see sections 275 and 298). FUNDAMENTAL RIGHTS 171 the religious belief or worship, of any of our subjects on pain of our highest displeasureh Nevertheless, in pre-Independence India there was no charter of fundamental rights of a justiciable nature, and even such safeguards as were contained in the various statutes could be taken away by the authority making that statute, whether it was the British Parliament or a legislative authority in India. Moreover, there were in existence laws which, by the setting up of special courts or by curtailing a subject’s rights and liberties, did vioience to the basic principle of fundamental rights. The position was summed up as follows by B. N. Rau in his report on Human Rights (December 1947) : With a few exceptions human rights in India today (December 31, 1947) are not guaranteed by the Constitution, but embodied in the ordinary law of the land. Legislative activity in this sphere received a great fillip at the end of World War I, when the League of Nations and the International Labour Organization came into being. India’s membership of these bodies and her participation in their periodical conferences had an immense educative effect on the Indian public. So too had Mahatma Gandhi’s powerful and persistent efforts to ameliorate the position of Harijans. Almost simultaneously came the introduction of responsible government in the Provinces, at first partially under the Government of India Act, 1919, and later almost completely under the Act of 1935. The Legislatures became more and more responsive to public opinion and this had the effect of facilitating, if not compelling, the translation of the new ideals into law. The process was further accelerated by World War II and the establishment, upon its close, of the United Nations^ As the freedom struggle gathered momentum after the end of the first world war, clashes with British authorities in India became increasingly frequent and sharp, and the harshness of the executive in operating its various repressive measures strengthened the demand for a constitutional guarantee of fundamental rights. As early as 1895 the Constitution of India Bill — Mrs. Annie Besant described it as the Home Rule Bill — liad envisaged for India a constitution guaranteeing to every one of her citizens freedom of expression, inviolability of one’s house, right to property, equality before the law and in regard to admission to public offices, light to present claims, petitions and complaints and right to personal libertyl Following the publication in 1918 of the Montagu-Chemsford Report, the Indian National Congress at its special session held in Bombay in August 1918 demanded that the new Government of India Act should include a ^See C. H. Philips, Documents on the History of India and Pakistan, Vol. IV, p. 11. , “Year Book of Human Rights for 1947 (United Nations). ^Clauses 16-21 and 23-4 of the Bill, Select Documents I, 2, p. 7. 172 FRAMING OF INDIA’S CONSTITUTION ‘'declaratioii of the rights of the people of ladia as British citizens”. ■ The proposed : declaration was . to include, among other things, guarantees in, regard'. to equality' before the law, protection in respect of liberty, life and ..property, freedom, of speech .and ..press, and right of association. - In the -same 'year, at its Delhi- session' in December, the Congress passed' another rgsolht-iQii^.-demanding' ‘‘the immediate repeal of all laws, regulations ..and ordinances restricting the free discussion of -political questions and conferring O'li'.the executive .the power to arrest, detain, intern, extern or imprison, any British subject in India , outside the processes of ordinary- civil- or criminal law, and the assim-ilation ' of the law of sedition , , to that of England”^ Tlie inclusion of a list of fundamental rights in the Constitution of-' the Irish Free State in 1921 also exe.rcised a decisive influence on-, the Indian leaders. The Commonwealth' of India Bill finalized by the National Convention in 1925 embodied a specific ‘‘declaration of rights” visualizing for every person, in terms practically identical with the relevant provisions of the Irish Constitution, the following rights as fundamental : (a) Liberty of person and security of his dwelling and property ; (b) freedom of conscience and the free profession and practice of .religion ; (c) free expression of opinion and the right of assembly peaceably and without arms and of forming associations or unions ; (d) free elementary education; (e) use of roads, public places, courts of justice and the like; (f) equality before the law, irrespective of considerations of nationality; and (g) equality of the sexes'^ The problem of minorities in India further strengthened the general argument in favour of the inclusion of fundamental rights in the Indian Constitution. A resolution passed at the Madras session of the Indian National Congress in 1927 categorically laid down that the basis of the future Constitution of India must be a declaration of fundamental rights^ ' , ■ • ' The 'Nehru Committee appointed by the All-Parties Conference in its report (1928) incorporated a provision for the enumeration of such rights. Recommending their adoption as part of the future Constitution of .India,, the committee referred to the Constitution of the Irish Free State and observed that Ireland was the only cou.ntr>^ where the conditions obtaiiii'iig before the treaty approximated broadly to those prevailing in India; and the'' first concern of the people of Ireland, as of the people of India, . was to secure fundamental rights hitherto denied to them. 'The Co.mmittee added: ' 'B. Pattabhi Sitaramayya, The History of the Indian National "Congress (1885- 1935), Vol. I, pp. ,153-4; Satya- Pal and Prabodh Chandra, . Congress, pp. 213-4. ^Select Documents I, 11, p. 44. ^For text of the resoiution, see Nehru Report, p. 19. FUNDAMENTAL RIGHTS 173 'It 'is obvious 'that' our -first care should be to have our fundameutal' rights guaranteed in ■ a ■ manner which ^wUL not permit their withdrawal under any circumstances.’" ' Some of the more important rights recommended -by the- Nehru Committee may be. summed up as follows:, (!) Personal liberty and Inviolability of dwelling ' place and property; (ii) freedom ■ of conscience and of .profession and practice' of religion ^ subject to' public order or morality; (iii) right' of free expression of opinion and to assemble peaceably and without arms, and to form associations or unions, subject to public order or morality; (iv) right to free elementary education without distinction of caste or creed in the matter of admission into any educational mstitutions, maintained or aided by the State; (v) equality for all citizens before the law and in civic rights ; (vi) right of every citizen to writ oi habeas corpus ; (vii) protection In respect of punishment under ex. post facto laws; (viii) non- , discrimiaation against any person on grounds of religion, caste or creed in the matter of public employment, office of power or honour and in the exercise of any trade or calling; (ix) equality of the right to all citizens in the matter of access to, and use of, public roads, public wells and all other places of public resort ; (x) freedom of combination and association for the maintenance and improvement of labour and economic conditions ; (xi) the right to keep and bear arms in accordance with regulations; and (xii) equality of rights to men and women as ' cltizensb The. Indian Statutory Commission (popularly known as the Simon Commission) did not support the genera! demand for the enumeration and guaranteeing of fundamental rights in a Constitution Act on the ground that abstract declarations of such rights were useless unless there existed ‘'the will and the means to make them effective”\ The Indian National Congress at its session at Karachi in March 1931 reiterated its resolve to regard a written guarantee of fundamental rights as essential in any future constitutional set-up in India\ The demand for a declaration of fundamental rights in a constitutional document was again emphasized by several Indian leaders at' the Round Table Conference' held in London in the early thirties, A", .memorandum circulated by Gandhi at the second session of the' conference, inter alia, demanded that the new constitution should "include a' guarantee to the communities concerned of the protection of their cultures, languages, scripts, education, profession and practice of religion and religious endowments” and protect personal laws, and . that the protection of political and other " rights of minority communities should.be the'eoncern ' of ' /the ''N.ehrw Report : Select Documents I, 16, pp. 59-60. ■- - meport (1930), Vol. TI, para 36.' '■ ' . ' ■ . PattabM Sitaramayya, The History of the Indian National ' Congress (1885- 1935), VoL I, '.pp.': '463-4.,.". 174 FRAMING OF INDIANS CONSTITUTION Federal Govemment\ The Joint Select Committee of the British Parliament on the Government of India Bill of 1934 did not view with favour the demand for a constitutional guarantee of fundamental rights to British subjects in India,' Expressing its agreement with the views of the Simon Commission,' the committee observed,; . , . there are also strong practical arguments against the proposal which may be pat in the form of a dilemma : for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind, or its legal effect will be to impose an embarrassing restriction on the powers of the Legislature and to create a grave risk that a large number of laws may be declared invalid by the courts as being inconsistent with one or other of the rights so declared . . . There is this further objection that the States have made it abundantly clear that no declaration of fundamental rights is to apply in State territories ; and it would be altogether anomalous if such a declaration had legal force in part only of the area of the federation’. The committee conceded that there were some legal principles which could appropriately be incorporated in the new Constitution. Accordingly, sections 275 and 297 to 300 of the Government of India Act, 1935, conferred certain rights and forms of protection on British subjects in India. The sections inter alia provided: (1) No person shall be disqualified by sex for being appointed to any civil service of, or civil post under, the Crown in India except a service or post specified by order made by the Governor-General, Governor or Secretary of State (section 275), (2) No British subject domiciled in India shall be ineligible for office under the Crown in India or be prohibited from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India on grounds only of religion, place of birth, descent, colour or any of them (section 298), (3) No person shall be deprived of his property in British India save by the authority of law (section 299), But it is worth noting that on the recommendation of the committee certain vested interests were also safeguarded : among these were grants of land or tenure of land free of land revenue or subject to remissions of land revenue like talukdaris, inamdaris and jagirdaris [section 299(3)]. The subject of fundamental rights figured prominently in the deliberations of the Conciliation Committee (also known as the Sapru Gommittee) appointed by an All-Parties’ Conference (1944-45). The committee was of ^Another memorandum on the subject was put forward jointly by the representatives of the minorities. For the texts of the memoranda see the Proceedings of the Federd Structure Committee and Minorities Committee. Indian Round Table Conference (Second Session), VoL III, Appendices I and III. ^Report (1934% para 366. FUNDAMENTAL RIGHTS 175 the opinion, that however inconsistent with British law it might, be, in the ''peculiar circumstances of India” fundamental rights' were necessary not only as ‘‘assurances and guarantees to the minorities but also for prescribing a standard of conduct for. the legislatures, governments and the courts”. The committee felt that it was for the constitution-making body, to settle first the list of fundamental rights and then to undertake their division into justiciable and non-justiciable rights and provide suitable .machinery for their enforcementh The British Cabinet Mission in 1946 recognized the need for a written guarantee of fundamental rights in the Constitution of India. In paragraphs 19 and 20 of its statement of May 16, 1946. envisaging a Constituent Assembly for framing the Constitution of India, it recommended the setting up of an advisoi 7 committee for reporting inter alia on f imdamental rightsl By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly pledged itself to draw up for India’s future governance a constitution 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” and wherein adequate safeguards would be provided for minorities, backward and tribal areas and depressed and other classes^ Two days after the adoption of the Resolution, the Assembly elected an Advisory Committee for reporting on minorities, fundamental rights and on the tribal and excluded areas^ The Advisory Committee in turn constituted on February 27, 1947, five sub-committees one of which was to deal with fundamental rights^ The Sub-Committee on Fundamental Rights, at its first meeting on February 27, 1947, had before it the proposals drafted earlier by the Constitutional Adviser, B. N. Rau, to divide fundamental rights into two classes, justiciable and non-justiciable. Although the initial reaction of several members of the sub-committee appeared to be adverse to B. N Rau’s proposal, eventually the sub-committee accepted the scheme of embodying in the Constitution fundamental rights classified into justiciable and non-justiciable rights^ '^Constitutional Proposals of the Sapni Committee (Bombay, 1945), pp. 256-7. '“^Select Documents I, 48{i), pp. 214-6. ^Select Documents ll, 1, p. 4. yl. i>£'^.,'VoL n, pp. '325-7. ■ ^The Sub -Committee on Fundamental g^ights consisted of: J. B. Kripaiani, M. R. Masani, K. T. Shah, Rajkumari Amrit Kaur, Alladi Krishnaswami Ayyar, Sardar Harman Singh, Maulana Abul Kalam Azad, B. R. Ambedkar, Jairamdas Daiilatram and K. M. Munshi. The President of Constituent Assembly was authorized to nominate additional members. "^See also Chapter on Directive Principles of State Policy. 176 FRAMING OF INDIA’S CONSTiTUTION ■ Ab' important question, ■ that ■ faced' the .sub-committee waS' that, of the propriety of distributing such rights between' the Provincial, the Group and the Union Constitutions. Such a possibility had been ' contemplated in paragraph 20 ,of the Cabinet Mission’s statement. In the early stages of its deliberations the sub-committee also proceeded on the assumption of this distribution and adopted certain rights as having reference only to the Union andxertain others as having reference both to the Union and the constituent units. However, the volume of opinion against such a distribution grew both outside and inside, the sub-committee and proved decisive. If they differed from group to group or from unit to unit or were for that reason not uniformly enforceable, it was felt, ‘‘the fundamental rights of the citizens of the Union would have no value”. Accordingly, while recognizing that certain basic human rights must be guaranteed to every resident and the rights incidental to citizenship limited in application to the citizens of the Union, the sub-committee recommended that all the rights incorporated in the Constitution should be uniformly “binding upon all authorities, whether of the Union or the . units”. This was sought to be achieved by providing' by definition in the first clause on the subject of fundamental rights that unless the context otherwise required, the expression “the State” included the Legislatures and the Goveraments of the Union and the units and all local or other authorities within the territories of the Union, that “the Union” meant the Union of India and that “the law of the Union” included any law made by the Union Legislature and any existing Indian law as in force within the Union or any part thereof. Clause 2 provided: Ail existing laws or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right*. Before formulating its list of fundamental rights the sub-committee fully discussed the various drafts submitted by its members and others; the notes and memoranda — apart, from those circulated by B. N. Rau^ — that received particular attention ' were those 'submitted by Alladi Krishnaswami Ayyar, K. M. Munshi and B. R. Ambedkar. Referring to the ■ chapter on The ’siiggestion was m'ade by- B. N. Rau and accepted by the sub-committee. “Sub-Committee on Fundamental Rights: Minutes and Report. Seieci : Documenis. If, 4 (vii) and (vlii), pp. 138, 163, 171. The annexure to the report contained the list: of the proposed clauses — clause 1 dealing with definitions, clauses 2 to 32 under Part I . covering ■ justiciable rights and closes 33 to 45 under Fart il covering non-justiciable rights. . , v^Glause 2 was .based on article 1(4)' in Munshi’^s draft Seleci Documeim Ih 4(iiX p. 73.' . . , • '^Select Documents If, 2, pp. 21-36. Hbid., pp. 67-114. FUNDAMENTAL RIGHTS 177 fundamental rights in his draft, Ambedkar observed that it required no justification in so far as the necessity for fundamental rights was recognized in all constitutions — old and new. The rights incorporated in his draft, he pointed out, were borrowed particularly from the constitutions of countries where the conditions were more or less analogous to those existing in India". The draft report of the sub-committee completed on April 3, 1947, was circulated to its members with the explanatory notes on the various clauses prepared by B. N. Rau. The clauses contained in the draft report were thereafter discussed in the sub-committee in the light of the comments offered by the members and the final report was submitted to the Chairman of the Advisory Committee on April 16, 1947. Three days later the Sub-Committee on Minorities examined the draft clauses prepared by the Fundamental Rights Sub-Committee and reported on the subject of such rights from the point of view of the minoritiesl The Advisory Committee deliberated on the recommendations made by the two sub-committees and accepted tbe recommendations for (i) classification of rights into justiciable and non-justiciable rights, (ii) certain rights being guaranteed to all persons and certain others only to citizens and (iii) all such rights being made uniformly applicable to the Union and the units. The committee also accepted the drafts of clauses 1 and 2 — the former providing for the definition of “the State”, “the Union” and “the law of the Union” and the latter for laws or usages inconsistent with the fundamental rights being void — in the form recommended by the sub-committee. In clause 2, however, the words “notifications, regulations, customs” were added between the words “existing Jaws” and “or usages” and the word “Constitution” was replaced by the words “this part of the Constitution”. The Advisory Committee incorporated these recommendations in its Interim Report to the Constituent Assembly submitted on April 23, 1947. The interim report dealt only with justiciable rights i.e., fundamental rights strictly so-called. Later, on August 25, 1947. the Advisory Co m mittee submitted a supplementary report mainly dealing with non-justiciable rights i.e., the Directive Principles! of State Policy or the “Fundamental Principles of Governance”"'. The Advisory Committee’s recommendations regarding justiciable fundamental rights were discussed by the Constituent Assembly at its meetings held in April, May and August 1947 and adopted with certain modifications; it was made clear that in the light of the decisions taken by the Assembly on principles, the necessary provisions would be drafted and included in the draft Constitution, which would again be placed before the ^Select Documents II, 2, p. 97. "See Interim Report of the Sub-Committee on Minorities, April 19, 1947. Select Documents ll, 5, pp. 207-9. ^For the texts of the reports Select Documents II, 7^ pp. 294-9, 304-6, 13 178 FRAMING OF INDIA’S CONSTITUTION Assembly for its consideration*. The various stages through which the clauses on fundamental rights passed thereafter were similar to those in regard to other parts of the Constitution. First, the Constitutional Adviser prepared a Draft embodying the decisions of the Constituent Assembly. This Draft was considered exhaustively and in detail by the Drafting Committee, which prepared a revised Draft and published it in February 1948. The revised Draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the Drafting Committee and in the light of these the committee proposed certain amendments. Discussions in the Constituent Assembly of the draft provisions took place in November and December, 1948 and August, September and October 1949. During these meetings the Assembly considered the various suggestions for amendment made on behalf of the Drafting Committee as well as those proposed by individual members of the Assembly. The provisions as passed by the Assembly were again scrutinized by the Drafting Committee and incorporated with drafting changes wherever necessary in the revised Draft Constitution. This revised Draft was again placed before the Assembly at its final session held in November 1949. Clauses 1 and 2. as reported by the Advisory Committee, were considered and adopted by the Constituent Assembly on April 29, 1947^ the only substantial change made therein by the Assembly being an addition at the end of clause 2 to the effect that no fundamental right could be taken away or abridged “except by an amendment of the Constitution”\ Although even thereafter the two clauses underwent some further revision and redrafting at the hands of the Constitutional Adviser and the Drafting Committee, the alterations were mainly verbal. The principles and the substance of the clauses remained the same through all the stages. In the Draft Constitution‘ prepared by the Drafting Committee and published in February 1948 the committee included a proviso to the effect that while the State was debarred from making any law which took away or abridged any of the fundamental rights, this would not prevent the “State from making any law for the removal of any inequality, disparity or discrimination arising out of any existing law”. The committee explained that this proviso had been added in order to enable the State to make laws removing existing discrimination; such laws would necessarily be discriminatory in a sense because they would operate against those who hitherto had enjoyed an undue privilege and the committee thought that laws of this character should not be prohibited. These provisions were discu^ed in the Constituent Assembly on November 25, 26 and 29, 1948. These m. A, Deb,, Yol III, pp. 379-421,, 431-57, 465-530, • and' Vol. V, pp. 361-402' nbid„ pp. 391-9. ®Tlie ameiidment was ' 'moved by K. Santhanam and accepted by ■ Vallabtibbai Patel, III, 6, pp. 520-1; article 8(2), proviso, FUNDAMENTAL RIGHTS 179 discussions did not reveal any important difference of opinion. On an amendment moved by L. K. Maitra, the proviso mentioned above was deleted on November 29. Otherwise the articles were adopted by the Assembly and incorporated as articles 12 and 13 in substantially the same form in which they now stand part of the Constitution’. After discussing the subject of fundamental rights — described by Ambedkar as “the most criticized part” of the Constitution — ^for as many as thirty-eight days— Jleven days in the sub-committee, two in the Advisory Committee and twenty-five in the Constituent Assembly — the Assembly ultimately adopted the comprehensive and impressive array of fundamental rights spread over twenty-two articles and divided broadly into seven categories of rights viz., (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property and (vii) right to constitutional remedies. RIGHT TO EQUALITY Articles 14-18 Equality before law {Article 14 ) The principle of guaranteeing to every person equality before the law and the equal protection of the laws was first included in the drafts submitted to the Sub-Committee on Fundamental Rights by Munshi and Ambedkar®. After considering the drafts for two days — March 24 and 29, 1947 — the sub-committee adopted Munshi’s draft modified as follows : All persons within the Union shall be equal before the law. No person shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sexl The sub-committee also approved the addition of a specific provision from Ambedkar’s draft laying down that any existing enactment, regulation, judgment, order, custom, or interpretation of law by which any penalty, disadvantage or disability was imposed upon or any discrimination made against any citizen would cease to have effect’. The sub-committee’s decision was that all persons in India (not merely citizens) should be equal before the law. The clause need not, the sub-committee felt, contain any definition of the expression “equal before the law” and left this expression to be interpreted by the courts in the light of precedents. IC. A. Deb., VoL VII, pp. 607-12, 640-2, 644-6. ^Miinshi’s draft, article III(l) and (10); Ambedkar’s draft, article II(1)(3). Select Documents II, 4(ii), pp. 74-5, 86. '^Minutes, March 24, 1947. Select Documents II, 4(iii), pp. 116-8, March 29, 1947, p. 132, , " ■ ^ ^ m FRAMING OF. INDIA’S CONSTITUTION .. The draft report of the sub-committee contained a somewhat eomprehensive provision in clause 5. The main clause read : All persons within the Union shall be equal before the law. No person shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sex. Besides, the clause also provided for (i) prohibition of discrimination against any person on any of the above grounds particularly in regard to the use of public wells, tanks, roads, schools and places of public resort ; (ii) equality of opportunity for all citizens in the matter of public employment or in the exercise or carrying on of any occupation, trade, business or profession : and for prohibition of discrimination against any citizen in the matter of appointment to public office or of acquiring, holding or disposing of property or of carrying on any occupation, trade, business or profession within the union. The clause also declared that all-pre-existing discrimina- tory laws, regulations, etc., would cease to have effect with the commencement of the Constitution'. In an explanatory note^ B. N. Rau pointed out that the first part of the main clause — equality before the law — was adapted from the Weimar Constitution^ but widened so as to be applicable to all persons and not merely to citizens; and that the second part — equal protection of the laws—was based on the Fourteenth Amendment of the U. S. Constitution^ In his note on the draft report, Alladi Krishnaswami Ayyar observed that the clause as drafted might be open to the construction that no discrimination of any sort could be made between a citizen and a non-citizen even in matters like the exercise of trade, calling or profession. All that the sub-committee had intended, he said, was that in such matters as trials before courts of law and the exercise of normal human rights there should be no distinction between man and man, the feeling being that in India one should take a broader view in this regard and not restrict all fundamental rights to citizens only, as was done in some European Constitutions'. In a ^Draft Report, Annexure, Clause 5. Select Documents II, 4(iv), pp. 138-9. 2/^/d, II, 4(v)(c), p. 148. ^Article 109, para. 1 of the Weimar Constitution provided: “Ail Germans are equal before the law.” ^The Fourteenth Amendment, Section 1, of the U.S. Constitution inter alia provides: “No State shall... deny to any person within its jurisdiction the equal protection of the laws.” ^The constitutions of several European States which guaranteed legal equality restricted it to citizens only: for example Czechoslovak Constitution [article 128 (1)], Weimar Constitution (article 109 ), Yugoslav Constitution (article 4), Danzig Constitution (article 73), Irish Constitution [article 40(1)] and USSR Constitution (article 123). See Comments on the Draft Report of the Sub-Committee on Fundamental Rights, note by Alladi Krishnaswami Ayyar, April 14, 1947. .Select Documents II, 4(v)(g), p. 158. FUNDAMENTAL RIGHTS i8i subsequent note he suggested the deletion of the first part of the main clause and the formulation of a clause confined tO' the ^'eqiial protectiofi of laws®^' in such a way as to bring it in line with the Fourteenth Amendment of the U. S. Constitution and to separate it from the non-discrimination clause\ The sub-committee, accepting this view, decided to transfer the first sentence of the clause dealing with ‘'equality before the law” to the section on lion-justiciable rights, the rest being redrafted and transferred from the “right to equality” section to the “right to freedom” section, to become clause 12 in the report submitted to the Advisory Committee on April 16, 19471 The clause read as follows : No person shall be deprived of his life, liberty or property without due process of law nor shall any person be denied the equal treatment of the laws within the territories of the Union : Provided that nothing herein contained shall prevent the Union Legislature from legislating in respect of foreigners^ On April 20, 1947, Alladi Krishnaswami Ayyar submitted another note wherein he justified the omission of the phrase “equality before the law” and said that transforming the British common law maxim' of “equality before the law” into a constitutional guarantee would be beset with difficulties in so far as the State might have to distinguish between adults and infants, between men and women and above all between citizens and non-citizens'. The Advisory Committee after some discussion" adopted the clause® with the omission of the words “or property” since it would be preferable to deal with property separately. Wlien the clause came up for consideration before the Constituent Assembly on April 30, 1947, the Assembly adopted without any discussion two amendments moved by Munshi, one replacing the words “the equal treatment of the laws” by the words “equality before the law” and the other deleting the proviso attached to the clause'. The Constitutional Adviser’s draft of the Constitution reproduced the clause as so amended'. The Drafting Committee was of the opinion that the phrase “equal protection of the laws” should also be restored and inserted ^Select Documents II, 4(v)(g), p. 160. “Minutes of the sub-committee, April 14 and 15, 1947. Select Documents II, 4(vii), pp. 164, 167. ^Report of the sub-committee, Annexure, clause 12. Select Documents II, 4(viii), p. 173. ^Select Documents II, 6(ii), p. 212. ®The discussion in the Advisory Committee centred round the words “due process of law” and the word “property”. The latter was omitted. See Advisory Committee Proceedings, April 21, 1947. Select Documents II, 6(iv), p. 248. Also see under Article 31— Right to property, ^Interim Report of the Advisory Committee, Annexure, clause 9. Select Documents 11, p. 291, X. A , Deb,, Yol, HI, p, 451, ^Select Documents HI, l(i), clause 16, p. 9. 182 framing OF India's constitution after' the phrase '"'equality before the law” as in section 1 of the Fourteenth Amendment of the U.S. Constitution. ■ The committee also gave its reason for qualifying the word "liberty” by the word "personal”;, otherwise it might be construed so widely as to include the freedoms dealt with in article 13. Draft article 15 therefore read : No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India^ When, at the stage of clause-by-clause consideration of the Draft Constitution the Assembly discussed draft article 15", there was no debate on the second part of the article dealing with equality before the law and the equal protection of the laws and the debate in the Assembly was entirely devoted to the first parf . The draft article as proposed by the committee was accepted by the Assembly without any changed At the revision stage the committee split this article into two separate provisions, and in the Constitution as finally adopted, article 14 in the section relating to right to equality provides : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 21 in the section relating to right to freedom provides : No person shall be deprived of his life or personal liberty except according to procedure established by law^ Prohibition of discrimination {Article 15) The fundamental right guaranteeing that there would be no discrimination against any one on grounds of religion, race, colour, caste or sex, was embodied in the drafts submitted by Munshi and Ambedkar. According to Munshf s draft : All persons irrespective of religion, race, colour, caste, language or sex are equal before the law and are entitled to the same rights and are subject to the same duties®. # $ ^Draft Constitution prepared by the Drafting Committee (Feb. 1948), ariicie 15 and the footnote thereto. Also see Minutes of the Drafting Committee, October 31, 1947. Select Documents III, 6 and 5, pp. 523, 329. VoL VII, pp. 797-8, 842-5r, 859, 999-1001. ^See under Article 21. "Draft Constitution as revised by the Drafting Committee, November 1949. Documents IV, 18, pp. 754, 756. "Art. III(l). Select Documents 11, 4(ii)(b), pp. 74-5. FUNDAMENTAL RIGHTS 183 Women citizens are the equal of "men citizens in all spheres of political, economic, social and cultural life and are entitled to the same civil rights and are subject to the same civil duties unless where exception is made ill such rights or duties by the law- of the Union on account of sex\ Ail persons shall have the right to the enjoyment of equal facilities in public places subject only to such laws as impose limitations on all persons, irrespective of religion, race, colour, caste or language^ Ambedkar expressed the same principle in his draft: Whoever denies to any person, except for reasons by law applicable to persons of all classes and regardless of their social status, the full enjoyment of any of the accommodations, advantages, facilities, privileges of inns, educational institutions, roads, paths, streets, tanks, wells, and other watering places, public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience, where they are dedicated to or maintained or licensed for the use of the public, shall be guilty of an offence^ All citizens shall have equal access to all institutions, conveniences and amenities maintained by or for the public^ In the explanatory notes appended to his draft, Ambedkar observed that discrimination was a menace to be guarded against if the fundamental rights were to be real In a country like India, he said, where it was possible for discrimination to be practised on a vast scale and in a relentless manner, fundamental rights could have no meaning unless provision was made for protection against discrimination on the ground of race or creed or social status^ After discussing" the alternative drafts, the Sub-Committee on Fundamental Rights formulated a non-discrimination provision as part of clause 5 — the legal equality clause — in its draft report. The provision read : (1) All persons within the Union shall be equal before the law. No person shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sex. In particular — (a) there shall be no discrimination against any person on any of the grounds aforesaid in regard to the use of wells, tanks, roads, schools and ^Art. ni(3). Domments 11, 4(ii)(;b), pp. 74-5. mi, article III (4)(b). ^Art. II(I) (4). Select Documents ll, 4(ii)(d), p. 86. Hbid,, article 11 (I) 5, p. 86, Appendix I, Explanatory Notes, Note on art. 11(11) (3), pp. 98-9. ^See Minutes, March 24 and 29, 1947. Select Documents ll, 4(ii), pp. 117, 131. 184 FRAMING OF INDIANS CONSTITUTION places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public*. ^ In his explanatory note, B. N. Ran mentioned that the above provision, for the most part, followed the drafts in the Nehru Report (1928) and the Congress Declaration of 1933. He pointed out, however, that the clause as drafted would prejudicially affect the institution of separate schools, hospitals, etc. for womenl Commenting on the draft, Alladi Krishnaswami Ayyar suggested inter alia that the provision forbidding discrimination might be made an independent clause and the word “language” omitted. He considered the omission of the word “language” to be all the more necessary because the grounds referred to were not designed to disqualify a citizen from holding a public appointment. The Sub-Committee on Fundamental Rights, accepting his suggestion, incorporated in its report to the Advisory Committee the non-discrimination provision as an independent clause. The text remained unchanged except that the word “person” in the first part was substituted by the word “citizen”". The Minorities Sub-Committee, after considering the clause as proposed by the Fundamental Rights Sub-Committee, recommended (1) that there should be an addition made in the clause providing against discrimination on the ground of religion, race, caste, language or sex in trading establishments, hotels and restaurants; (2) that schools should be omitted from the purview of the clause as drafted by the Fundamental Rights Sub-Committee and treated separately; and (3) the second sentence of the clause should be redrafted as a separate clause as follows : There shall be no discrimination against any person on any ground of religion, race or caste in regard to the use of wells, tanks, roads and places of public resort maintained wholly or partly out of the public funds or dedicated to use of the general public^ The Advisory Committee discussed the recommendations of the two sub-committees on April 21 and 22, 1947. These discussions showed that the drafting of a clause which would prevent discrimination and at the same time would serve practical social ends was somewhat complicated. This was particularly relevant where the question of discrimination by reason of language or sex was involved. As Munshi pointed out, a difficulty first arose Draft report, Annexure, clause 5. Select Documents II, 4(iv), p. 138. ^Select Documents II, 4(v)(c), p. 148. r ^Select Documents llj 4(v)(g), p. 160. Note, April 15, 1947. Mnutes, April 14-15, 1947 and Report, Annexure, clause 4, Select'Documents II , 4(vii) and (viii), pp. 164, 167, 171-2. Tnterim Report of the Sub-Committee on Minorities, Annexure. Select Documents ll, 5(ii), p. 208. FUNDAMENTAL RIGHTS !85 about language becausc^ it was found ■ that there were a number of '‘denominatioiiar’ schools for which provision had to be made for the grant of aid from the State. The general clause forbidding discrimination in State-aided schools would prevent the continuance of aid to such schools. Therefore, schools were removed from the scope of the clause and a separate provision was made for them. Similarly, when the Minorities Sub-Committee began to examine in detail the question of prohibition of discrimination at places of public resort, tanks, wells, etc., it realized that it might he necessary for the law to permit separate provision being made for women and children : likewise in public employment it was found necessary that reservation might have to be made for minorities. In short, as Munshi said, ‘'the first sweeping generalization is practically inapplicable to the whole clause”. He suggested that this group of amendments should be examined by a small sub-committee or by the whole committee with these considerations in mind. The members of the committee were, however, generally of the opinion that while this difficulty undoubtedly existed, the basic principle that there should be no discrimination should be embodied in the chapter on fundamental rights. A sub-committee consisting of Munshi, Rajagopalachari, Panikkar and Amfaedkar was requested to go into this matter and to redraft the clause. This sub-committee made a general provision that “the State shall make no discrimination against any citizen on grounds of religion, race, caste or sex”. But in regard to access to trading establishments, public restaurants and hotels and the use of weUs, tanks and places of public resort, discrimination was prohibited only on the ground of religion, race or caste and not on the ground of sex. Several members, particularly Rajkumari Amrit Kaur, opposed this on the ground that it went against the basic principle of social equality. What was required was a general statement of principle pro-hibiting discrimination and at the same time a clause to- enable the provision of separate amenities exclusively for women and children. With this object in view the committee redrafted the clause as follows: (1) The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex. (2) There shall be no discrimination against any citizen on any ground of religion, race, caste or sex in regard to — (a) access to trading establishments including public restaurants and hotels; (b) the use of wells, tanks, roads and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public : Provided that nothing contained •in this clause shall prevent separate provision being made for women and cbildrenh ^Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the Advisory Committee, Annexure. Select Documents H, 6(iv) and 7(i), pp. 221, 253, 254-5, 296. , . . 186 FRAMING OF INDIA’S CONSTITUTION Ths clause came up for consideration before the Constituent Assembly on April 29, 1947. Three amendments moved by Munshi and accepted by Vallabhbhai Patel, the mover of the clause, were adopted by the Assembly. They provided : (i) for the substitution of the words “not discriminate” for the words “make no discrimination” in sub-clause (1); (ii) for the addition of the words “and places of public entertainment” after the word “hotels” in sub-clause (2) (a); and (iii) for the substitution of the words “State funds” for the words “public funds”. The first was merely of a verbal nature. The second was meant to meet the doubt raised by some regarding places of entertainment being covered by the expression “trading establishments”. The third amendment was necessary, as otherwise “public funds” could be construed as including even funds raised for specific purposes by public subscription'. Several other amendments were also moved. P. S. Deshmukh considered that it would be “improper to burden the clause v/ith a detailed list of places which should be accessible to all”; it would be sufficient merely to provide “that the State shall not make nor permit any discrimination against any citizen, on mere grounds of religion, race, caste, or sex”. Somnath Lahiri sought the addition of the words “political creed” after the words “grounds of” in sub-clause (1) and the word “creed” after the word “caste” in sub-clause (2). H. V. Kamath disagreed with Lahiri’s suggestion regarding “political creed” as he felt “that times may arise when we may have to discriminate against persons who hold a creed which seeks to subvert the State by violence or similar objectionable methods”. However, Kamath favoured the addition of the words “colour, creed” after the word “caste” in sub-clauses (1) and (2). “Creed”, he said, had a connotation different from that of “political creed” and “religion”. Rohini Kumar Chaudhury suggested that the words “or dress worn by any nationality” be added in sub-clause (2) after the word “sex”. He referred to European-owned or European-managed hotels in India which had hitherto disallowed entry to people dressed in Indian style and thought that if his amendment was not accepted, in independent India as “a reprisal or in revenge” people in European dress might not be allowed to enter certain hotels. Rejecting all the amendments, except those moved by Munshi and already accepted by him, Vallabhbhai Patel observed that it was “an absurd idea to provide for non-discrimination as regards a political creed”. 'Ihere might be some political creeds actually “deserving of suppression altogether”. Regarding “colour”, he said that there were “different kinds of colours among Indians themselves”. Allaying the apprehension in regard to dress, Patel pointed out that discrimination on grounds of dress was already a thing of the past and also that “such things as dress” could “not be put in the fundamental rights”. The Assembly adopted the clause as amended by ^C. A. Deb: Vol. Ill, pp. 410-1. FUNDAMENTAL RIGHTS 187 Munshi’s amendments, all other amendments being negatived^-. Subsequently the clause was further modified by the Constitutional Adviser and appeared as clause 1 1' in the Draft Constitution of October 1947 : 11. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them. Ill particular, ' no citizen shall '' on- grounds only of religion, race, caste, sex or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or , (b) the use of wells, tanks, roads and places of public resort maintained wholly or partly out of the revenues of the State or dedicated to the use of the general public. (2) Nothing in this section shall prevent the State from making any special provisions for women and childrens Later, during his discussions in Washington with Justice Frankfurter of the United States Supreme Court, the Constitutional Adviser found support for the exception in clause (2) above; Justice Frankfurter emphasized that legal provision might occasionally have to be made for v/omen, e.g., to prohibit employment for a certain period before and after child-birthl The Drafting Committee considered the clause on October 30, 1947, accepted it without any change, and incorporated it in the Draft Constitution as article 9. When the Draft Constitution was circulated for eliciting opinion, a number of amendments to article 9 were proposed by members of the Assembly and others. Some of the more important ones suggested by members of the Assembly are dealt with below. The first amendment, sponsored by the Drafting Committee, proposed the substitution of the words “State funds” for the words “revenues of the State” in clause (1) (b). The Constitutionar Adviser favoured the amendment since the words “revenues”, he said, could hardly be used in relation to the funds of local or other authorities which also were, by definition, included in the expression “the State”. Pattabhi Sitaramayya and others proposed the deletion of the word “only’' wherever it occurred in the draft article. B. N. Rau gave cogent reasons in favour of the retention of the word. If, for example, he said, India decided to discriminate against South African nationals in India in retaliation against South Africa’s policy of racial discrimination towards Indians, it would be on grounds of race but not only of race and would, therefore, be permissible if the word "'only” was retained but not otherwise. t ^C. Ded., VoL pp. 411-8. .'■■^Select Documents III, l(i), pp. 7-8. The italicized portions represent the alterations /additions made by the Constitutional Adviser in the text as approved by the Assembly earlier. ®Note on discussions with Justice Frankfurter (Not published). 188 FRAMING OF INDIA’S CONSTITUTION R. K. Sidhva wanted an explanation to be added to clause (1) of the draft article clarifying the meaning of the word "‘public”; he feared that the word might be construed in the restricted meaning as in section 12 of the Indian Penal Code (the word “public” is defined as including any class of the public or any community). Rau pointed out that “public” meant “all classes of the public” and that in the absence of any definition in the article itself the word would have its ordinary dictionary meaning. Tajamul Husain suggested that public places of worship, Dharamshalas and Musafirkhanas (public buildings intended for the temporary stay of travellers) should be specifically mentioned in clause (1) (a). Rau explained that the reference to “public places of worship” could not be included in the clause, unless the word “public” had a restricted meaning, namely, a section of the public for obviously it would be open to objection to throw open Hindu temples of a public character to Muslims or Christians and Muslim mosques of a public character to non-Muslims. Rights in respect of access to such places, Rau observed, had been dealt with in article 19 of the Draft Constitution. “Place of public resort”, he felt, covered Dharamshalas and other similar amenities. By another amendment Tajamul Husain sought the deletion of clause (2) of the draft article. Rau remarked that the clause needed to be retained as obviously some special provisions in regard to the employment ot women and children in factories, mines, etc. would be necessary. Mrs. Purnima Banerji proposed the addition of “schools and educational institutions” in clause (1) (b). Rau considered that this was not necessary since the question of discrimination in regard to admission into educational institutions had been dealt with in another article (article 23)\ Guptaoath Singh wanted the addition of “bathing ghats, kimds'' in clause (l)(b) of the draft article'. Rau said that the amendment could be accepted if bathing ghats (bathing places on a riverside) and kunds (ponds ordinarily used for bathing) were considered important enough to merit special mention. From amongst the non-members, Jaya Prakash Narayan suggested an amendment which sought to add to draft article 9 (1) a sub-clause which read : (c) possession of property, exercising or carrying on of any occupation, trade, business or profession within the Republic. The amendment was considered by the Constitutional Adviser; it could not be recommended for acceptance since, firstly, the right to property and to practise any profession, etc., had already been embodied in draft article 13^; and secondly, certain restri<stions imposed in the interests of the ^Corresponding provision in the Constitution : article 29. ‘Comments and suggestions on the Draft Constitution, Select Documents ' W, l(i), p. 28. ''Corresponding provision in the Constitution: article 19. FUNDAMENTAL RIGHTS 189 general public or of aboriginal' tribes or under Hindu law on the possession of property might be held to^ be discriminatory on grounds of racev,. caste or sexh The Drafting Committee, after considering all the amendments proposed by the members and others, along with the explanatory notes and comments of the Constitutional Adviser, reached the conclusion that the only amendment that should find acceptance was the one which was suggested by the committee itself, to substitute the words ‘‘State funds” for the words “revenues of the State”l When on November 29, 1948, the Assembly took up the consideration of draft article 9, it had before it about four dozen amendments of which notice had been given by members. Most of them were either not moved, or were disallowed as being merely verbal. Among those disallowed was an amendment seeking the deletion of the word “only” jointly moved by Mahavir Tyagi, Pattabhi Sitaramayya, (Mrs.) G. Diirgabai, Thakurdas Bhargava, T. T. Krishnamachari, K. Santhanam, Ananthasayanam Ayyangar and others. Of the amendments that were actually moved, one by C. Subramaniam suggested that the second paragraph of clause (1) should be renumbered as a new clause (la) and that the words “in particular” should be deletedl Subramaniam pointed out that the first portion of the clause said that the State could not discriminate against any citizen, and it went on to say that, in particular, np citizen would be discriminated against in the matter of access to shops etc., thereby implying that it was the State which would discriminate in this matter. This, he pointed out, would not be the case; in shops, places of entertainment etc. it would be the management who would be in a position to practise discrimination and not the State. This was the reason for his suggestion that the prohibition of discrimination in the matter of access to shops, public restaurants, hotels etc. should be embodied in an independent clauseh Another amendment, moved by Syed Abdur Rouf, suggested the insertion of the words “place of birth” after the word “sex” wherever it occurred in the draft article. Attempts might otherwise be made, he warned, to make discrimination against citizens on the ground of place of birth under the guise of local patriotism'. Guptanatli Singh, by his amendment, urged the acceptance of his suggestion that the words “bathing ghats'' be included after the words “wells, tanks”\ Ambedkar moved, on behalf of the Drafting Committee, for the substitution of the words “revenues of the State” by the words “State funds”. He said the ^Comments and Suggestions on the Draft Constitution, Select Documents P-'29. ' '■ ■ • 'pp..'29-30. , . ^C. A. DeK Yoi, VII, p. 650. : miA ■' ■ ■ ■ , . ^ - ■ ^Ihid.^ VP^ 650-1. • ■ ; . nbM., p, 653. ■ ' 190 FRAMING OF INDIA’S CONSTITUTION term "‘revenues” did not cover in Indian administrative parlance the funds of local or district boards and other authorities; and since the fundamental rights were made obligatory on all such authorities also, it was necessary to use a wider phraseology\ ■ Two amendments moved by K. T. Shah proposed - (i) the addition of the words “or for Scheduled Castes or backward tribes, for their advantage, safeguard or betterment” at the end of clause (2) of the draft article, and (ii) the substitution of clause (1), sub-clauses (a) and (b) by a more detailed provision which listed a number of institutions and places of public use or resort. The intention of the second of these two amendments was to make all places wholly or partially maintained out of public funds or in any way encouraged, supported or protected by the State, accessible to all citizens irrespective of caste, sex, birth, etc. He argued : In a constitution founded upon the democratic equality of ail citizens ... it would be absurd, it would be wholly out of place, to allow any such discrimination being made. He felt that places of such utility as schools, hospitals, asylums, libraries, temples etc., should all be included in the clause and no such institution should be allowed to be reserved for members of any given sect or communityl Mohamed Tahir desired a penal provision to be added to clause (1) (b) to the effect that the contravention of the provision would be an offence punishable in accordance with the law. Tahir made a particular mention of the position of the untouchables and their difficulties in sharing equally the privileges enjoyed by othersl During the general discussion on the article that followed, S. Nagappa suggested the omission of the words “maintained wholly or partly out of the revenues of the State” in clause (l)(b) and asked whether “shop” included places where labour or services were sold, e.g., laundries, shaving saloons, etc., and whether places of public resort covered burial or cremation grounds. Bhupinder Singh Mann felt that fundamental rights would remain incomplete unless places of worship were included in the draft article. Mohamed Tahir pressed his suggestion for the addition of the words ''dharamshalas, musaftrkhams*' after the word “hotels” in clause (IXa). Shibban La! Saxena vehemently opposed the article for the form in which it had been framed. He said that only the first portion should remain and the rest of the draft article omitted. By adding the sub-clause, he said, they were "‘really subtracting from the generality of the first clause”. Saxena felt that the clause about the use of wells, tanks, roads, etc., was not worthy of finding a place in the' Constitution as, firstly, such disabilities as existed were merely transitory and would vanish with time ; and secetidly, if these detailed provisions were C, A D^&., VoL vn, pp. 653-4, ■ WJ., pp. 651-2, 655-6. mid., pp. .654-5. ,, FUNDAMENTAL RIGHTS m ''permancBtly incorporated in the- Constitution, people in other parts of the world would despise us for the existence of such discrimination in the past”. He said that clause (l)(a) was particularly unnecessary in view of draft article IT which categorically abolished, untouchability and prohibited its practice in any form. Clause (l)(a), he added, could be retained, if at all, as.. a directive principle of State policy. ■ R. K. Sidhva pressed for -the definition of the word '‘‘public” which, he felt, was likely to be interpreted in a restricted sense as defined in the Indian Penal Code^ Ambedkar, who replied to the debate, accepted the amendments moved by C. Subramaniam, Rouf and Guptanath Singh. Commenting on the amendments that were not acceptable to him, Ambedkar made the following points : Mohamed Tahir’s amendment was not necessary, since its purpose was served by draft article 11 which specifically dealt with untouchability ; K. T. Shah’s amendment seeking to add Scheduled Castes and Scheduled Tribes to women and children in clause (2) of the draft article might have ‘‘just the opposite effect” because if these words were added, separate schools might be opened by the State for Scheduled Castes and Tribes under the pretext of special provisions being made for them. The word “shop” had been used in the draft article in a generic sense and meant any “place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service”; it included a laundry, a shaving saloon and an office of a doctor and of a lawyer. The phrase “place of public resort” included a burial ground or cremation ground if it was maintained wholly or partly out of public funds. “Tank” was a wide term and included ponds. Wells, rivers, streams and canals would not come under draft article 9 but would certainly be covered by the provisions of article 11 relating to the abolition of untouchability. The word “public” was used in the draft article in a special sense. A place was a place of public resort provided it was maintained wholly or partly out of State funds. The definition of the word “public” in the Indian Penal Code would not applyl The amendments accepted by Ambedkar and the one moved by him were adopted, all others being either withdrawn or negatived'. With consequential and necessary alterations in regard to numbering, the amended draft article 9 became article 15 of the Constitution as finally passed by the Constituent Assembly on November 26, 1949 . NOTE ON AMENDMENT Certain judicial decisions laid down that it would not be within the power of the State to give preferential treatment to backward communities in the ^Corresponding provision in the Constitution: article 17. . "C. .4, VI!, pp. 656-60, , . m/d., pp. 660-2. m/d,, pp. 663.-4 192 FRAMING OF INDIA’S CONSTITUTION matter of admission to educational institutions, as this would be contrary to article 15 (prohibition of discrimination) and article 29(2), which provided that no citizen shall be denied admission to any State educational institution on grounds of religion, race, caste, language or any one of them. It was felt that the special responsibility of the State for improving the condition of backward classes required that the State should have such power. The Constitution (First Amendment) Act, 1951, added a new clause to article 15, which made it expressly clear that nothing in that article or in article 29 would prevent the State from making any special provision for the advancement of any “socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”. Equality of Employment Opportunity {Article 16) The principle of equality of opportunity and prohibition of discrimination on grounds of religion, race, colour, caste or language, in the matter of public employment, was contained in similar terms in the drafts submitted by Munshi and Ambedkar\ K. T. Shah and Harnam Singh also incorporated this basic principle in clauses 2 and 8 of their respective drafts". When the Sub-Committee on Fundamental Rights discussed the subject on March 24, 1947, Shah pressed his view that the Constitution should guarantee non-discrimination, not only in “public employment” but also in “employment in any enterprise aided or assisted by the State”’l The sub-committee rejected the suggestion and its draft report contained a provision on equality of opportunity in public employment in sub-clause (1) (b) of clause 5'. In his explanatory notes on the draft clauses, B. N. Rau pointed out that sub-clause (1) (b) was actually adapted from section 298 of the Government of India Act, 1935^ When the sub-clause was considered by the sub-committee on April 14 and 15, 1947, Alladi Krishnaswami Ayyar referred to enactments like the Hindu Religious Endowments Act, which restricted certain appointments to Hindus, and suggested that it would be necessary to protect such provisions. This suggestion was accepted and the provision was redrafted as an independent clause and appeared in the report of the sub-committee as clause 5 : There shall be equality of opportunity for all citizens — (i) in matters of public employment; IMunshi’s draft, article III (5) and Ambedkar’s draft, article 11(1) (6). Select Documents II, 4(ii)(b) and (d), pp. 74, 86. "Select Documents II, 2(ii) and II, 4(ii) (c), pp. 49, 81. AMinutes. Select Documents II, 4(iii), p. 117. "^Draft Report, Annexure, clause 5, Select Documents II, 4(iv), p. 138. ^Select Documents II, 4(v) (c), p. 148. Section 298(1) of the Government of India Act, 1935, provided: ‘‘No subject of His Majesty domiciled in India shall on grounds only of religion, place of birth, descent, colour or any of them be ineligible for office under the Crown in India,..” FUNDAMENTAL RIGHTS 193 (ii) in the exercise or carrying on of any occupation, trade, business or profession; and no citizen shall on any of the grounds mentioned in the preceding section be ineligible for' public office or be prohibited from acquiring, holding or disposing oi ■ property or exercising oT' carrying on any occupation, trade, business or profession' within the Union. Nothing herein contained shall prevent- a law being made prescribing that the incumbent of an office to manage, administer or superintend the affairs of a religious or denominational -institution shall, be, a member of a particular religion, persuasion or d©nomination\ The Sub-Committee on Minorities recommended the addition of u proviso to clause 5 in order to meet the claims of minorities to special representation in the servicesl The Advisory Committee first discussed the draft clause along with the recommendations of the Minorities Sub-Committee on April 21, 1947. At the outset Alladi Krishnaswami Ayyar objected to the affirmative assertion in the first part of the clause on the ground that the claims of minorities could be adequately met without an additional sub-clause if the affirmative expression v/as changed into a negative one as in section 298 of the 1935 Actl Munslii, on the other hand, stressed the view of the sub-committee that the general principle regarding equality of opportunity to all must be asserted in the affirmative; and if any exception was to be provided in favour of backward communities, that should be done by incorporating a separate sub-clause to that effect, Munshi added : The sub-committee feel that we must put the positive side first and then put in the negative clause, otherwise it will be a dead letter. Disagreeing with Alladi Krishnaswami Ayyar, Ambedkar pointed out that even between the members of the same minority, guaranteeing of equality of opportunity might become essential. He favoured the addition of a proviso enabling the Government to reserve for the minorities a certain proportion of posts in the public services. K. M. Panikkar was against an unqualified declaration of equality of opportunity in the matter of public employment. In many of the Indian States and most of the Provinces there was a well-established policy of giving preference to the people of the State or Province in the matter of public employment; and in some Provinces conditions existed where local people had but an inadequate share in the employment provided by the State, and special preference to such people might even be a necessity. The clause as drafted -declared all such preferences illegal in respect of employment not O'nly in the Union but also in The imits. Panikkar thought that ''to provide that there shall be equality of opportuoity in the matter of public employment ivhether in the unit or in the Union ^Minutes and Report, Annexure, clause 5, Select Documents II, 4(vii) and (viii), pp. 164, 171-2. interim Report, Annexure, clause 5, Select Documents II, 5(ii), p. 208. ^See f.n. 5, p. 192 supra, 14,' ■ " - 194 FRAMING OF INDIA’S CONSTITUTION without reference to local conditions is utterly impracticable”'. Rajagopala- chari.observed that the clause would rouse all-round resentment if it was going. to mean that there would be no reservation made in favour of the people' of any particular unit. Ambedkar felt that the clause as it stood did ■ not prevent any unit from prescribing additional conditions for. employment. It was, finally decided, to refer, the clause for redrafting to the ad hoa committee appointed earlier" for considering clause 4*. .. -When the clause as redrafted came before the Advisory Committee on April 22, 1947, discussion centred round ' the respective . merits of certain phrases used in the exception clause which, as recommended by the ad hoc committee, read : Nothing herein contained shall prevent the State from making provision for reservations in favour of classes not adequately represented in the public services. Ambedkar suggested the deletion of all the words after the word “reservations” and in their place the insertion of the words “in public services in favour of classes as may be prescribed by the State”. If the words “not adequately represented” were retained, he felt, any reservation made by the State would be open to challenge in a court of law on the ground that the classes in whose favour reservation was made happened to be in fact already adequately represented. Ambedkar was opposed to this matter being the subject of judicial interpretation. In an attempt to meet Ambedkar’s argument and at the same time to retain the spirit of the draft provision as recommended by the ad hoc committee, Munshi suggested the use of the words; “classes which in the opinion of the State are not adequately represented”. The modification was accepted by Ambedkar. A fear was expressed by Ujjal Singh that the words “not adequately represented” in the clause might be interpreted to mean that no minority community would be given representation in the services on a scale higher than what it would get on a population basis. He pointed out that this would be unfair to the Sikhs for whom 20 per cent of public appointments were at the time reserved in the Punjab though they formed only 13 per cent of the population. Rajagopalachari, among others, considered that there were no genuine grounds for Ujjal Singh’s apprehensions. He said : The Chairman may assure Sardar Ujjal Singh that this clause will not prevent the State from giving a greater proportion. He is under the impression that reservation is limited to the proportion of population. Other expressions on the respective merits of which considerable discussion <1 : ^Also see Report of the Sub-Committee on Fundamental Rights, Panikkar’s note of dmonXe Select Documents II, 4(ix), p. 186. ^See under Article 15. ’Advisory Committee Proceedings, April 21, 1947, Select Documents 11, 6(iv), pp. 223-6. FUNDAMENTAL RIGHTS 195 took place were '‘minorities”, “minorities and classes”, “minorities and backward classes”, and “classes including minorities” suggested by various members of the committee as alternatives to the expression “classes” used by the ad hoc committee. Claiming in the committee that actually he was the person responsible for the change to- “classes” from “minorities”, Panikkar observed that “minorities” in India had come to have a specific meaning, /.e., to denote religious or political minorities — ^Muslims, Sikhs, etc. “There may be”, he said, “among- the majority, among the Hindus, for., example, many classes who have not adequate representation in the services”. The cases he had in mind were those of small communities like the Namboodiris in the south and Garhwalis in the north. The Chairman also intervened to clarify that “classes” included “minorities” and that the draft as it stood was satisfactory'. The entire provision as accepted by the Advisory Committee appeared as clause 5 in its interim report to the Constituent Assembly and was discussed in the Assembly on April 30, 1947. On an amendment moved by Munshi and accepted by the mover of the clause, Vallabhbhai Patel, certain formal changes were made at this stage : in particular, the provision regarding “equality of opportunity and non-discrimination in matters of occupation, trade, business or profession and acquiring, holding or disposing of property” v/as separated from that prescribing “equality of employment opportunity” and transferred to another clause — clause 8. Clause 5 was thus restricted to the principle of equality of opportunity in matters of public employment. Mahavir Tyagi made a suggestion that it should be recognized that a unit would have the right to give preference in the matter of public employment to its residents; on this point Patel explained that the clause did not deprive the Provinces of their right to legislate ill matters of public employment ; it simply removed the ineligibility of a citizenl The clause as accepted by the Constituent Assembly was reproduced in the Constitutional Adviser’s Draft Constitution of October 1947 as clause 12 without any substantial alterations and appeared as article 10 of the Draft Constitution prepared by the Drafting Committee with one important modification : instead of the words “in favour of any particular class of citizens” the words “in favour of any backward class of citizens” were inserted. Draft article 10 read as follows : (1) There shall be equality of opportunity for all citizens in matters of employment under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or any of them, be Ineligible for any office under the State. ^Advisory Committee Proceedings, April 22, 1947, Select Documents !I, 6(iv), pp. 25S-63. .- ^Select Documents II, pp, 296-7; a A. Deb,, VoL III, pp 431-8. 19.5 FRAMING OF- INDIA’S- CONSTITUTION : (3) Nothing in this article shall prevent the State from making any ^ : provision for the reservation -of appointments or posts in favour of any’ . backward class of citizens , who, , in the opinion of the State, are not adequately represented in the services under the State* ’ (4) Nothing in this article shall affect the operation of any law which provides that the , incumbent of an office in connection with the affairs- , of any religious or denominational institution or any member of the .governing body thereof shall be a person professing' a particular religion or belonging to a particular denominationk 'When the Draft Constitution was circulated for eliciting opinion, a number of amendments were received. ■ From amongst the members, Pattabhi Sitaramayya and others suggested the omission of the word ‘‘only” wherever it occurred in the draft article and the insertion of the words “or discriminated against” after the word “ineligible” in sub-clause (2); R. R. Diwakar and S. V. Krishnamoorthy Rao proposed the addition of the words “economically or culturally” before the word “backward” in clause (3); T. A. Ramalingam Chettiar suggested the deletion of the word “backward” from clause (3); Tajamul Husain proposed the deletion of clause (3) altogether; Upendraiiatli Barman proposed that in clause (3) before the word “backward” the words “the Scheduled Castes or” be inserted ; and Mrs. Purnima Banerji suggested the addition at the end of clause (4) of the words “provided that such a religious or denominational institution is aided or ran by the State”. In his notes on the amendments, B. N. Rau commented that while there could be no great objection to the amendment proposing the addition of the words “economically or culturally”, it was unnecessary. As for the omission of the word “backward” from clause (3), he said, it would in that case be open to a State to reserve posts in favour of any class of citizens who were not adequately represented in the services and would thus extend the scope of the clause. The Madras Legislative Council also supported the omission of the word “backward”, while an advocate from Calcutta suggested limiting reservation to a period of fifteen years in order to avoid the growth of a vested interest in backwardnessl The article came up for consideration before the Assembly on November 30, 1948, Several amendments were moved. Mohamed Tahir’s amendment to article 10 as modified by Ananthasayanam Ayyangar sought to provide — (i) that in clause (1), for the words “in the matters of employment”, the words “in matters relating to employment or appointment to office” be : substituted ; (ii) that in clause (2), after the wprds “ineligible for any” the words “employment or” be inserted. in, l(i) and 6, pp. 8 and 521-2. "Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i), pp. 31-2. FUNDAMENTAL RIGHTS 197 Both Tahir and Ayyangar considered their amendments to be quite simple but necessary for making the provision clearer and more comprehensive. Jaspat Roy Kapoor moved that in clause 2. after the word “birth” the words “or residence” be inserted. Explaining the purpose of his amendment Kapoor observed that the existence of one citizenship for the whole country must carry with it an unfettered privilege of employment in any part of the country. He had no objection to knowledge of a provincial language and local conditions being prescribed as prerequisites for employment in any region, but he strongly resented the condition of long residence laid down by certain Provinces. He referred to the case of a Province in which there was said to be, a rule that one should have resided in the Province for 52 years to become eligible for employment. The object of his amendment was to remedy such a state of affairs. Kapoor’s amendment, however, brought in another amendment moved by Alladi Krishnaswami Ayyar. It sought to add a fresh clause after clause (2) to enable Parliament to make any law prescribing, in regard to a class or classes of employment or appointment to an ofBce under any State for the time being specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment. The mover explained that it might be necessary to provide residence within the State as a necessary qualification in the case of certain posts; but instead of leaving it to individual States to make any rule they liked in regard to residence, it v/ould be much better if Parliament laid down a general rule applicable to all States alike, especially for the reason that in any matter concerning fundamental rights it must be Parliament which had the power to legislate and not the difierent units in Indiak Kamath raised the point whether the words “any State for the time being specified in the First Schedule” mentioned by Alladi Krishnaswami Ayyar applied to ail the four parts of the Schedule — the States in Parts I, II and III and the Territories in Part IV — or only to States in the fimt three parts. He suggested that depending upon whether the former or the latter was the intention, the language should be modified either to “under any State or territory in the four Parts I, II, III and IV of the First Schedule” or to “under any State specified in Parts I, 11, and III of the First Schedule”. Ambedkar, Munshi and Alladi Krishnaswami Ayyar explained that the clause as drafted was sufficiently clear and that the reference therein was obviously intended to cover only the States in Parts I, II, and III and not territones in Part IV^ i.e. the Andaman and Nicobar Islands. Apart from the point raised by Kamath, Kapoor’s amendment and the ■C. ,4. i>e6., Vol. VII, pp. 672-7. VWd., pp. 678, 695-6. 198 FRAMING OF INDIA’S CONSTITUTION addition suggested by Alladi Krishnaswami Ayyar led to a keen debate in the Assembly. While Munshi announced the support of the Drafting Committee for both the amendments, T. T. Krishnamachari suggested that instead of creating a rule by one amendment and taking away its effect by another, it would be better to drop both. He considered Kapoor’s amendment not at all necessary and Alladi Krishnaswami Ayyar’s amendment to be “beautifully vague”*. Anantfaasayanam Ayyangar moved another amendment which sought the insertion of the words “or discriminated against” after the word “ineligible” in clause (2). Stressing its need, he pointed out that discrimination could take place not only at the time of an initial appointment but also later in the matte