Assembling India's Constitution - Rohit de
Assembling India's Constitution - Rohit de
Assembling India's Constitution - Rohit de
* For research assistance we thank Juhi Mendiratta. We are grateful to the Israel
Science Foundation (grant no. 1575/22), the MacMillan Center for International
and Area Studies at Yale University, and Sidney Sussex College, University of
Cambridge, for their support. We have presented versions of this article at the
‘Constitutions and Crises’ conference held at the University of Cambridge,
March 2022; the NALSAR Lecture Series on Constitutionalism, March 2022;
the ‘Democracy, Violence, and Constitutional Order in South Asia and Beyond’
conference held at Yale University, April 2022; ‘Beyond the Pale: Legal Histories
on the Edges of Empires’, the Third Legal Histories of Empire Conference, held at
Maynooth University, June–July 2022; and ‘Rebuilding: Tradition and Innovation’,
the Fiftieth Annual Conference on South Asia, held at the University of Wisconsin,
Madison, October 2022. We thank the organizers and participants for their
engagement. We would particularly like to thank Stephen Legg, Karuna Mantena,
Vatsal Naresh and Nandini Ramachandran.
1
‘Framers of India’s Constitution Meet: Proceedings Suffer from Lack of
Realism’, Times of India, 9 Dec. 1946. The number of Constituent Assembly
members who attended the first session is based on counting those who signed
the register on that day: see Constituent Assembly of India Debates (Proceedings)
(hereafter CAD), 9 Dec. 1946, <https://loksabha.nic.in/writereaddata/cadebatefiles/
C09121946.html> (accessed 4 Mar. 2023).
Past & Present, no. XX (2023) © The Author(s) 2023. Published by Oxford
University Press on behalf of The Past and Present Society, Oxford.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-
NonCommercial License (https://creativecommons.org/licenses/by-nc/4.0/), which permits non-commercial
re-use, distribution, and reproduction in any medium, provided the original work is properly cited. For
commercial re-use, please contact [email protected]
https://doi.org/10.1093/pastj/gtad009 Advance Access published on 2 May 2023.
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2 of 45 PAST AND PRESENT
2
‘India: Statement by the Cabinet Mission’, Hansard, 5th ser. (Lords), cxli, cols.
271–87 (16 May 1946), <https://api.parliament.uk/historic-hansard/lords/1946/
may/16/india-statement-by-the-cabinet-mission> (accessed 4 Mar. 2023).
3
The recent focus on global histories of constitutions has largely neglected
India’s postcolonial constitution-making: see, for example, Linda Colley, The
Gun, the Ship and the Pen:Warfare, Constitutions and the Making of the Modern World
(London, 2021); Christopher Thornhill, ‘The Sociology of Constitutions’, Annual
Review of Law and Social Science, xiii (2017).
4
H. Kumarasingham (ed.), Constitution-Making in Asia: Decolonisation and
State-Building in the Aftermath of the British Empire (London, 2016); Charles O. H.
Parkinson, Bills of Rights and Decolonization:The Emergence of Domestic Human Rights
Instruments in Britain’s Overseas Territories (Oxford, 2007).
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ASSEMBLING INDIA’S CONSTITUTION 3 of 45
constitution on a grand scale, unprecedented in terms of its
territory, population size, demographic complexity and the
number of autonomous political units it sought to integrate into
a single federal structure; and it enfranchised all its adults at a
stroke. India’s constitution-making was not limited to shaping
a new political structure, but was intended to transform the
social and economic life of the people.
The conventional understanding has been that the Indian
constitution was a product of elite consensual decision-making,
and that India’s constitution-makers endowed it from above; it
has been described as ‘a gift of a small set of India’s elites’.5 In
line with this view, studies of the making of the Indian constitu-
tion, both older and more recent, have focused their investiga-
tions on the three years of the Constituent Assembly debates in
the Constitution Hall, between December 1946 and November
1949. These voluminous debates, spread over 5,546 pages in a
set of five books, have formed their principal source for under-
standing the constitution-making process and its implications
for India’s democracy. In the main, these studies have examined
the transformative power of the ideas that were being advocated,
and the politics of crafting an elite consensus around the consti-
tution.6 They have understood the document as a pedagogical
5
Sunil Khilnani, Arguing Democracy: Intellectuals and Politics in Modern India,
Center for the Advanced Study of India Working Paper Series, no. 09-02 (Philadelphia,
2009). See also Sunil Khilnani, The Idea of India (London, 1997), 34–5.
6
On the elite consensus perspective, see, for example, Granville Austin, The
Indian Constitution: Cornerstone of a Nation, 1st edn (New Delhi, 1966); Madhav
Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy
(Cambridge, MA, 2020);Tarunabh Khaitan, ‘Directive Principles and the Expressive
Accommodation of Ideological Dissenters’, International Journal of Constitutional
Law, xvi, 2 (2018); Sarbani Sen, The Constitution of India: Popular Sovereignty and
Democratic Transformations, paperback edn (New Delhi, 2010). On the constitution’s
underlying ideas, see, for example, Rajeev Bhargava (ed.), Politics and Ethics of the
Indian Constitution (Delhi, 2009); Rochana Bajpai, ‘The Conceptual Vocabularies
of Secularism and Minority Rights in India’, Journal of Political Ideologies, vii, 2
(2002); Uday S. Mehta, ‘Indian Constitutionalism: Crisis, Unity, and History’,
in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford
Handbook of the Indian Constitution (Oxford, 2016). For scholarship on methods
of reading the Constituent Assembly debates, see Aditya Nigam, ‘A Text without
Author: Locating Constituent Assembly as Event’, Economic and Political Weekly,
xxxix, 21 (2004); Kalyani Ramnath, ‘ “We the People”: Seamless Webs and Social
Revolution in India’s Constituent Assembly Debates’, South Asia Research, xxxii, 1
(cont. on p. 4)
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4 of 45 PAST AND PRESENT
(n. 6 cont.)
(2012); Vatsal Naresh, ‘Pride and Prejudice in Austin’s Cornerstone: Passions in
the Constituent Assembly of India’, in Udit Bhatia (ed.), The Indian Constituent
Assembly: Deliberations on Democracy (London, 2017). An exception to these is
Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts
(New Delhi, 2019), which draws on a wide range of sources and materials from
the nineteenth century onwards, arguing for a need to move away from the narrow
frame of the formal constitution-making process.
7
This focus on elites and a corresponding absence of the general public in
constitution-making was in conformity with the historiographical and legal view
of this subject until the 1970s: see, for example, Todd A. Eisenstadt, A. Carl LeVan
and Tofigh Maboudi, Constituents before Assembly: Participation, Deliberation, and
Representation in the Crafting of New Constitutions (Cambridge, 2017).
8
Khilnani, Idea of India, 34.
9
For a few exceptions, see Ornit Shani, How India Became Democratic: Citizenship
and the Making of the Universal Franchise (Cambridge, 2018), which examines
public engagement with the draft constitution in the context of the preparation
of the electoral rolls on the basis of universal franchise; Ornit Shani, ‘The People
and the Making of India’s Constitution’, Historical Journal, lxv, 4 (2022), Saagar
Tewari, ‘Framing the Fifth Schedule: Tribal Agency and the Making of the Indian
Constitution (1937–1950)’, Modern Asian Studies, lvi, 5 (2022). A few scholars
have noted that there were numerous responses from the public to the drafting of
the constitution, but have not explored them: see Austin, Indian Constitution, 324;
Ramachandra Guha, India after Gandhi: A History of the World’s Largest Democracy
(London, 2007), 105, 789 n. 5; Rohit De, A People’s Constitution: The Everyday Life
of Law in the Indian Republic (Princeton, 2018), 2, 235 n. 5; Arvind Elangovan,
‘The Making of the Indian Constitution: A Case for a Non-Nationalist Approach’,
History Compass, xii, 1 (2014).
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ASSEMBLING INDIA’S CONSTITUTION 5 of 45
to engage the public directly with the process, which might, in
any event, have been both difficult and tokenistic in the condi-
tions of the time’.10
Focusing primarily on the Constituent Assembly debates as
it does, scholarship on the Indian constitution has relied sub-
stantially on the materials and terms of debate set by Granville
Austin’s seminal book The Indian Constitution: Cornerstone of a
Nation (1966). Drawing on this imagery of a cornerstone, schol-
ars have conceived the writing of the constitution as a founding
moment.11 Thinking through this notion of a founding moment
has meant that scholars examined what they saw as a moment
of origin, aiming to build something new, based on a com-
mon purpose. The result is often viewed as monumental, and,
like monuments, it was also fixed, or associated with a single
place and moment. This has further contributed to a focus on
the Constituent Assembly debates, narrowing the gaze to the
Constitution Hall in New Delhi, often with the assumption
that the key to understanding India’s constitution-making can
be sought in the thoughts and actions of a small group as they
finalized the text.12
It is noteworthy that Austin also conducted extensive inter-
views with surviving members of the Constituent Assembly and
consulted their private papers, although, perhaps relying on a
10
Saunders infers this from Khosla, India’s Founding Moment: Cheryl Saunders,
‘Democracy, Constitutionalism, Modernity, Globalisation’, Jus Cogens, iv, 1 (2022),
15. See also Donald L. Horowitz, Constitutional Processes and Democratic Commitment
(New Haven, 2021), 181–2.
11
For the most recent study, see Khosla, India’s Founding Moment. Consequently,
several recent studies on comparative constitutional law situate the Indian
constitution as part of a global conversation on the founding of constitutions.
12
See, for example, Rajeev Dhavan and Thomas Paul (eds.), Nehru and the
Constitution (Bombay, 1992); Aakash Singh Rathore, Ambedkar’s Preamble: A Secret
History of the Constitution of India (Gurgaon, 2020); Arvind Elangovan, Norms and
Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935–50
(Oxford, 2019); Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics
of the Framing of the Constitution (Cambridge, 2022); Shaunna Rodrigues, ‘Abul
Kalam Azad and the Right to an Islamic Justification of the Indian Constitution’, in
Anupama Roy and Michael Becker (eds.), Dimensions of Constitutional Democracy:
India and Germany (Singapore, 2020); Pooja Parmar, ‘Undoing Historical Wrongs:
Law and Indigeneity in India’, Osgoode Hall Law Journal, xlix, 3 (2012).
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13
Nehru Memorial Museum and Library, New Delhi (hereafter NMML), H. V.
R. Iyengar Oral History Transcript, no. 303, 129.
14
Vikram Raghavan, ‘Granville Austin and the Making of India’s Constitution’,
Centre for Law and Policy Research Occasional Talks, no. 11, 7 Aug. 2015, <https://
www.youtube.com/watch?v=GHPf6NIz60M> (accessed 4 Mar. 2023).
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ASSEMBLING INDIA’S CONSTITUTION 7 of 45
article suggests that the storeyed halls of the Assembly were only
one of multiple spaces where the Indian constitution was being
engaged with, debated, contested and produced. The mem-
bers of the Assembly, it shows, were not the sole participants
in the constitution-making process. The embryonic constitution
had vibrant life outside formal legal chambers, which was crit-
ical for its future reception and legitimacy. The 5,546 pages of
the Assembly debates represent a tiny sample compared with
the thousands of pages of wide-ranging deliberations around the
making of the constitution outside the Assembly.
It is suggested in this article that the making of the Indian
constitution entailed a process of fitting together (‘assembling’)
disparate but simultaneous constitution-making efforts across
the country. The Indian constitution emerged from competing
constitutionalisms at different places and orders of power that
involved large and distinct publics. It was not, as we have been
accustomed to think, simply or exclusively the product of the
Constituent Assembly. The notion of assembling better rep-
resents the making of the Indian constitution, driven by con-
testations rather than consensus.15 Various social groups and
state officials reconstituted themselves as constitutional actors,
seeking, in many ways, to make their history anew. This pro-
cess created a surge in democratic aspirations and a politics of
hope; it generated a sense of ownership in the constitution and
thus decolonized it; and it created an order of expectation from
it which meant that the process of its making and the politi-
cal energies it unleashed did not conclude with its mere formal
adoption. The resilience of the Indian constitution grew out of
the fever of expectations for it from across the subcontinent.
To clarify, this article is not suggesting that the making of the
constitution simply engendered public interest, or that it led to a
proliferation of engagements with constitutionalism well beyond
the Constituent Assembly in anticipation of the new constitu-
tion. Instead, it offers a fundamentally new perspective which
inverts the perceived sequence of events, arguing that it was
the proactive engagement with the issue among diverse publics
15
In thinking through the notion of assembling, we are drawing on Stephen
Legg’s analysis of assemblage: in particular, Stephen Legg, Prostitution and the Ends
of Empire: Scale, Governmentalities, and Interwar India (Durham, NC, 2014), 5–6;
Stephen Legg, ‘Assemblage/Apparatus: Using Deleuze and Foucault’, Area, xliii, 2
(2011).
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16
‘Text of Resolution Passed at Princes Meeting Held on 29 January 1947’,
CAD, 28 Apr. 1947, <https://loksabha.nic.in/Debates/cadebatefiles/C28041947.
html> (accessed 8 Mar. 2023). Earlier attempts to bring the princely states into an
Indian federal structure under the Government of India Act 1935, the last colonial
constitutional framework, ultimately failed.
17
Arthur Berriedale Keith, A Constitutional History of India, 1600–1935 (London,
1937).
18
See George H. Gadbois Jr, ‘The Federal Court of India, 1937–1950’, Journal of
the Indian Law Institute, vi, 2–3 (1964). On other state organs, see, for example, on
the army, Steven I. Wilkinson, Army and Nation: The Military and Indian Democracy
since Independence (Cambridge, MA, 2015); on the bureaucracy, William Gould,
Bureaucracy, Community and Influence in India: Society and the State, 1930s–1960s
(London, 2010); Arudra Burra, ‘The Indian Civil Service and the Nationalist
Movement: Neutrality, Politics and Continuity’, Commonwealth and Comparative
Politics, xlviii, 4 (2010).
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10 of 45 PAST AND PRESENT
I
COMPETING CONSTITUTIONALISM
19
‘Memorandum on the Adibasis of Jharkhand, Demanding Separation from
Bihar on a Constitutional Basis, Requesting Final Decision before June 1948’;
‘Memorandum on the Case of the Mizo’: both NMML, C. Rajagopalachari Papers,
Vth Instalment, F.37/2, 422–31 and 415–21.
20
‘Birth of India’s Freedom’, Times of India, 15 Aug. 1947, 1; Shahpura State
Constitution Act 1947: National Archives of India (hereafter NAI), Ministry of
States, F.13/4/PR/1947 (copies were sold for Re 1 each).
21
Shahpura State Constitution Act 1947, 1.
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ASSEMBLING INDIA’S CONSTITUTION 11 of 45
Delhi, only 410 kilometres away, were yet to be the bearers of
such rights. However, the inauguration of the Shahpura consti-
tution did not prevent the prince from signing, the next day, the
instrument of accession to the Dominion of India in the three
areas of defence, external affairs and communications, as many
other princely states did at the same time. The following month,
the state’s reforms towards responsible government gathered
further momentum as the post of dewan (chief administrator)
was abolished and an interim government headed by a prime
minister was formed.22
Shahpura was a very small state almost 320 years old, with an
area of 405 square miles and a population of only 61,173. Thus,
in the annals of India’s constitutionalism, its efforts to establish
a constitution might not seem significant. But it was just one
among numerous princely states that were engaged with con-
stitutional reforms and constitution-making processes which
challenged India’s constitution-making and the endeavour to
create a single union. Manipur, in the north-east, adopted a
constitution which, on 26 July 1947, provided for fundamental
rights and separation of powers, and recognized the maharaja
as its constitutional head.23 The maharaja of Patna declared the
setting up of a representative constitution-making body on 24
October 1947, just at the moment when the first draft of the
Indian constitution was ready. That same month, M. R. Jayakar,
until the previous May a member of the Constituent Assembly,
advised the Gwalior state Constitutional Reforms Committee
not to depart, in their proposed constitution, ‘from the model
now in vogue, for instance, at Mysore’.24 This pattern, of gen-
eral steps towards constitutions based on the principle of repre-
sentative government, was repeated in numerous other princely
states. These included Aundh, Banswara, Baoni, Baria, Baroda,
Barwani, Benares, Berar, Bhavnagar, Bhopal, Bhor, Bikaner,
22
Ibid.; secretary to the prime minister, Shahpura state, to deputy secretary, State
Department, New Delhi, 12 Nov. 1947.
23
Manipur State Constitution Act 1947, <https://www.satp.org/document/paper-
acts-and-oridinances/manipur-state-constitution-act-1947> (accessed 7 Mar.
2023).
24
M. R. Jayakar, ‘Gwalior Note’, 29 Oct. 1947: NAI, M. R. Jayakar Private
Papers, F.896.
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12 of 45 PAST AND PRESENT
25
On the Travancore constitution, see Sarath Pillai, ‘Fragmenting the Nation:
Divisible Sovereignty and Travancore’s Quest for Federal Independence’, Law and
History Review, xxxiv, 3 (2016).
26
Scholars mainly explored the constitutions of Travancore and of Jammu and
Kashmir in the context of India’s transition to independence, and largely saw
these two states as exceptions: see ibid., 771. For a recent discussion of Kashmir’s
constitution, see Shahla Hussain, Kashmir in the Aftermath of Partition (Cambridge,
2021), 41–65. Moreover, the question of constitutions and the princely states
has largely been seen as an inter-war phenomenon which became irrelevant with
independence.
27
See, for example, Robin Jeffrey (ed.), People, Princes and Paramount Power:
Society and Politics in the Indian Princely States (Delhi, 1978).
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ASSEMBLING INDIA’S CONSTITUTION 13 of 45
community, two years before Indians across the subcontinent
were granted such fundamental rights with the enactment
of the constitution. By the mid 1940s, constitution-making
within the princely states became the norm and occupied much
of the political agenda. This article argues that these multiple
constitution-making processes gradually transformed the nature
of princely sovereignty and the aspirations of subjects. These
developments within the princely states gave rise to widespread
constitutional dialogue between rulers and constitution-makers
within the states, and their engaged public. Constitutionalism
in the princely states was like an insistent refrain to India’s
constitution-making. In this iterative process, constitutionalism
became the standard discourse through which to think about and
act on political aspirations for democratic government. Moreover,
driven by similar popular expectations, the numerous parallel
constitution-making processes in the states produced compara-
ble constitutional templates that could ultimately be assembled
into the new Indian constitutional fold.
The case of the rather autocratic and underdeveloped Rewa
state, which was ‘bigger than Belgium and Holland’ and was the
largest of the Central India states in both territory and popula-
tion, provides evidence for this dynamic.28 On 16 October 1945,
on the first day of the Hindu holiday of Dussehra, Maharaja
Gulab Singh of Rewa announced his intention to grant respon-
sible government to the people of the state. He pledged to bring
in a system of administration based on ‘adult franchise, com-
mon electorates and no weightage or special representation’ that
would ‘provide for the protection of every religion and civiliza-
tion’.29 In the presence of 130,000 people, he stated that the
viceroy of British India
gave out that a constitution-making body should be formed for the
establishment of self-government in India, which body should include
representatives of the States . . . It is very essential that the Rewa
people should be able to take part in the work of constitution-making
for all-India. It is therefore proper that the people of Rewa should be
granted responsible government.30
28
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 9:
NMML, All India States Peoples’ Conference Papers, F.151, 1947.
29
‘Rough Translation of His Highness the Maharaja of Rewa’s Proclamation on
Dasera Day’, 1 Jan. 1946: British Library (hereafter BL), IOR/R/1/1/4236.
30
Ibid.
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38
Harol Lal Narmada Prasad Singh, president, Pawaidar Association, Rewa, to
T. C. S. Jayaratnam, prime minister, Rewa state, 27 June 1946 (copy); Shambhu
Nath Shukla, president, District Congress Committee, Baghelkhand, Rewa, to
Jayaratnam, 27 June 1946 (copy): both BL, IOR/R/1/1/4236.
39
Jayaratnam, memorandum, 28 June 1946 (copy); Jayaratnam to Campbell, 6
July 1946: both BL, IOR/R/1/1/4236.
40
Jayaratnam, memorandum, 28 June 1946 (copy).
41
Ibid.
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ASSEMBLING INDIA’S CONSTITUTION 17 of 45
his secretary’ would be a hindrance for non-English-speaking
witnesses before the committee, and might prejudice its work.42
In the face of public pressure to deliver on the maharaja’s
promise to appoint a Constitutional Reforms Committee, and
anxious that the committee should begin its work as early as pos-
sible, the Rewa government suggested an alternative chairman,
Sir Hari Singh Gour.43 He knew Hindi, and was familiar with
local conditions. The election of Sir Alladi to the Constituent
Assembly soon after provided a pretext for his dignified resig-
nation as chairman of the committee before it had even been
officially set up, and Sir Hari accepted the chairmanship on 26
August 1946.44 A month later, the Rewa government appointed
the Constitutional Reforms Committee, which was to recom-
mend ‘the form of constitution most suited to the needs of the
Rewa State’.45 It began its work on 2 October 1946, and con-
cluded its sittings after nearly eight months, on 25 May 1947.46
The committee contacted the people of the state for their views
on a future constitution, and, on 12 November 1946, published
a questionnaire addressed to the public in the Rewa Gazette
and in the weekly Prakash, both in Hindi and in English.47 The
committee ‘received 79 written replies bearing signatures of
hundreds of persons. Printed replies were received through the
Praja Mandal Offices [People’s Association] numbering 2,945
over the signatures or thumb impressions of different individ-
uals’.48 The chairman of the committee, Sir Hari, reported that
many people had
42
Jayaratnam to Campbell, 6 July 1946.
43
Ibid.
44
Ayyar to Corfield, New Delhi, 26 July 1946; Corfield to Ayyar, 19 July 1946:
both BL, IOR/R/2/442/161.
45
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 2.
46
Ibid. The committee met on twenty-three days in all.
47
The weekly Prakash was published between 1932 and 1949. Maharaja Gulab
Singh sanctioned a grant of Rs 4,000 a year for its publication. It was a literary
newspaper, but also covered news on policies of Rewa state. See A. U. Siddiqui,
Indian Freedom Movement in Princely States of Vindhya Pradesh (New Delhi, 2004), 60.
48
Chairman of the Constitutional Reforms Committee, Rewa, to maharaja of
Rewa, covering letter to ‘Report of the Rewa Constitutional Reforms Committee’.
The printed submissions bore hundreds of signatures.
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18 of 45 PAST AND PRESENT
received with great enthusiasm and courtesy from the people wherever
we went. Their statements were characterised with utmost frankness
which enabled us to appraise the true political situation in the State.49
49
Ibid., 1–2, 4.
50
President, State’s Muslim Association, Rewa, to the Honourable President,
Reforms Committee, Rewa, with two attached documents: ‘Memorandum of Behalf
of Muslims’ and ‘Caution in Goodfaith [sic]’, 30 May 1947: BL, IOR/R/2/442/161.
51
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 18.
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ASSEMBLING INDIA’S CONSTITUTION 19 of 45
groups, such as Muslims, Scheduled Tribes and Scheduled
Castes (formerly known as untouchables), are particularly tell-
ing. Rewa’s Muslim Association objected that as a minority they
would ‘not gain anything by the immediate introduction of full
responsible government. Their fate [would] be sealed, and their
miseries . . . perpetuated’.52 They thus preferred the gradual
implementation of a popular form of government in stages, and
requested that the maharaja should remain as ‘constitutional
sovereign’ because they were ‘more secure and safe in the hands
of the Ruler[s] . . . who have, without exception, invariably
followed the long established tradition of protecting . . . their
Muslim subjects’.53 They also asked for 25 per cent of seats in
the future legislature to be reserved for them.
The Raj Gonds tribal group was also sceptical about a full
responsible government, describing their exploitation by the
people of the northern districts of Rewa who were educationally
advanced and dominated the state’s services. They stated that ‘a
Constitution affecting His Highness’s powers will not be accept-
able to us’. They demanded reserved seats in the legislature, and
that ‘Special steps should be taken to educate us to the level of
other castes before we are asked to march along with them’.
They noted that the committee’s questionnaire was not ‘intel-
ligible’ to them, but they replied to the parts which they ‘have
been able to understand’. Representatives of Scheduled Castes
and ‘Depressed and Backward classes’ expressed similar con-
cerns about a ‘party Government’ under which, in their view,
the ‘socially and economically superior classes’ would have the
advantage and their position would worsen. They therefore also
favoured retaining the rule of the maharaja. In fact, maintain-
ing the maharaja as a constitutional head was the one thing the
diverse people of Rewa agreed upon. Even the Praja Mandal,
which demanded full responsible government, stated that the
‘Maharaja is the living embodiment of the individuality and of
the unity of the people of Rewa’.54
52
President, State’s Muslim Association, Rewa, to the Honourable President,
Reforms Committee, Rewa, 30 May 1947. The association was established in
September 1946.
53
Ibid.
54
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 32–6.
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20 of 45 PAST AND PRESENT
55
Among these were copies of the constitutions of Barwani, Hyderabad, Indore,
Jaipur, Jhabua, Orchha, Panna, Sailana, Sitamau and Udaipur.
56
‘Report of the Rewa Constitutional Reforms Committee’, May 1947, 39, 4,
42. It is noteworthy that there was disagreement among the committee’s members:
some wanted fuller democratic reforms; one didn’t want democratic reforms at all.
57
Maharaja of Rewa to H. M. Poulton, resident for Central India, 15 July 1947:
BL, IOR/R/2/442/161.
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ASSEMBLING INDIA’S CONSTITUTION 21 of 45
of the United State of Vindhya Pradesh, which was composed
of thirty-five covenanting princely states, on 4 April 1948.58 At
that point, a new process had begun, setting up a body to frame
a constitution for Vindhya Pradesh. Framing its own constitu-
tion was often a precondition for a state to enter into a union,
as well as a basic demand of its people. The Indian government,
through the Ministry of States, facilitated the formation of
unions of states out of contiguous princely states, seeing these
new sovereign entities as stages in the process towards their ulti-
mate merger with the Indian Union. The draft constitutions of
covenanting states defined more clearly the relations between
the unions of states and the Indian Union and dealt with the
potential constitutional discrepancies between the two.
Rewa’s constitution-making story was one example of similar
processes that took place at the time across the subcontinent.
Although many of the newly produced state constitutions were
short-lived, it was through these multiple overlapping processes
of constitution-making that princely polities and people adopted
constitutional language and used it to imagine their political
future. Their assembling was an essential part of the making of
the Indian Union. Moreover, the making of the Union hinged
on the state apparatuses of the nascent Indian state, aligning
with and transitioning into the new constitutional order. The
judiciary, for example, which in anticipation of democracy was
to become a separate, independent branch of the state, had a
particular stake in the making of the constitution. Thus, judges
across India, both as individuals and as a collective, engaged in
an unprecedented manner with the constitution-making process
and with the Constituent Assembly.
II
CONSTITUTION-MAKING AND JUDICIAL EXPECTATIONS
In June 1948, Sir Harilal Kania, the chief justice of the Federal
Court of India, presided over the inauguration of the Guwahati
High Court in the province of Assam and delivered a widely
58
Government of India, White Paper on Indian States (New Delhi, 1948), 99. The
rulers signed the covenanting agreement on 18 Mar. 1948. By an agreement dated
26 Dec. 1949, the rulers of the covenanting states of the United State of Vindhya
Pradesh ceded to India with effect from 1 Jan. 1950.
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22 of 45 PAST AND PRESENT
64
Kania, speech, 16.
65
See Alice Jacob, ‘Nehru and the Judiciary’, Journal of the Indian Law Institute,
xix, 2 (1977); Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi:
The Political Economy of the Indian State (Chicago, 1987), ch. 3.
66
Arghya Sengupta, Independence and Accountability of the Higher Indian Judiciary
(Cambridge, 2019), 14–18.
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24 of 45 PAST AND PRESENT
67
CAD, 29 July 1947, <https://loksabha.nic.in/writereaddata/cadebatefiles/
C29071947.html> (accessed 8 Mar. 2023).
68
The Ad Hoc Committee was headed by Justice S. Varadachariar (retired from
the Federal Court), Alladi Krishnaswamy Ayyar, B. L. Mitter, K. M. Munshi and B.
N. Rau: The Framing of India’s Constitution: A Study, ii (Bombay, 1967), appendix,
‘Report of the Ad Hoc Committee on Supreme Court’, 21 May 1947’, 587–91.
69
Chief Justice Sir Patrick Spens to Sir John Colville, 10 Dec. 1946: BL,
IOR/R/3/1/33.
70
Chief Justice Ram Lall to Jawaharlal Nehru, 1 Mar. 1948; Nehru to B. N. Rau,
1 Mar. 1948: both NAI, CA/21/Cons/48 I.
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ASSEMBLING INDIA’S CONSTITUTION 25 of 45
court. The comments ranged from terse paragraphs on a spe-
cific provision, to line-by-line commentary on the draft consti-
tution taking issue with ‘clerical errors’ and defective wording,
and extensive memorandums offering radically distinct visions
for the constitution.71
Chief Justice Bidhubhushan Malik of the Allahabad High
Court offered the most extensive memorandum, emphasizing
ways in which the postcolonial constitution needed to make
a break from the past. His first priority was a new provision
to restrict the practice of setting up special tribunals, which
removed jurisdiction from the courts, particularly in political
cases. These special tribunals were not to be bound by the pro-
cedural safeguards and rules of evidence that governed ordinary
courts. Chief Justice Malik quoted Article 70 of the Irish Free
State constitution, which stipulated that ‘No one shall be tried
save in due course of law and extraordinary courts shall not be
established’. He argued that the constitution should provide that
‘extraordinary courts’ should be convened only for the duration
of a presidentially proclaimed emergency.72 He criticized the
continuation of the colonial practice of special legislation and
ordinances that allowed for arrest or detention without trial, and
demanded that the constitution should guarantee all accused
the right to counsel.73
While Chief Justice Malik offered a vision of a new constitu-
tional order built on a break from the repressive legal practices
of the colonial era, his colleague Justice P. N. Sapru imag-
ined a new judicial architecture with a single supreme court
divided into a court of appeal and a high court which could sit
on benches across India. The provincial high courts would be
abolished and the higher judiciary would be transformed into a
single unified body supported by revenue from the Union gov-
ernment. Justice Sapru argued that such a scheme would pro-
vide a unified system of law and justice, avoid conflicts of law,
71
‘Note on the Draft Constitution of India, Chief Justice and Judges of the Patna
HC’, 16 Mar. 1948: NAI, CA/21/Cons/48 I.
72
Chief Justice Bidhubhushan Malik, Allahabad High Court, ‘Comments on the
Draft Constitution’, 24 Mar. 1948: NAI, CA/21/Cons/48 I.
73
The retention of preventive detention after independence despite having
been opposed by the nationalist parties for decades was the subject of both public
criticism and litigation: Charles Henry Alexandrowicz, ‘Personal Liberty and
Preventive Detention’, Journal of the Indian Law Institute, iii, 4 (1961).
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26 of 45 PAST AND PRESENT
74
Justice P. N. Sapru, memorandum, 21 Mar. 1948: NAI, CA/21/Cons/48 I.
75
Chief justice and judges, Calcutta High Court, memorandum, 19 Mar. 1948:
NAI, CA/21/Cons/48 I.
76
D. S. Mathur, registrar, Allahabad High Court, note, 23 Mar. 1948: NAI,
CA/21/Cons/48 I.
77
Ibid.
78
Registrar, Madras High Court, to constitutional adviser, 23 Mar. 1948: NAI,
CA/21/Cons/48 I.
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ASSEMBLING INDIA’S CONSTITUTION 27 of 45
Notes, a leading law reporter for the province of Bengal, was
unequivocal in condemning the draft constitution for giving
the ‘complete go-by to judicial independence’. As the editors
remarked in the words of the fable, ‘we asked for a king and we
got a stork’.79
The bulk of the criticism focused on what appeared to be
minor provisions regulating the conditions of service of judges,
which they argued had implications for their independence.
Chief Justice Lall noted that, unlike the Government of India
Act 1935, which laid down the age of retirement as 60, the draft
constitution left the power to raise the retirement age to the pro-
vincial legislature through ordinary legislation. While seemingly
innocuous, this could incentivize judges desiring an extension to
their service to canvass politicians and ‘strike at . . . the dignity
and independence of the court’. Similarly, provincial ministers
could weaponize the raising and lowering of the retirement age
for judges, effectively giving them the power to dismiss ‘inconve-
nient and independent judges’.80 The judges also painstakingly
pointed out the implications for the independence of the judi-
ciary of some of the provisions on qualifications, salaries and
limitations on post-retirement practice.81
Through sometimes caustic commentary, the judges offered
an expansive vision of judicial autonomy which should not be
compromised by a popularly elected executive. Justice T. I.
Sheode of the Nagpur High Court elaborated this distinction
lyrically, noting that the executive in a democratic state was
bound to be a fluctuating body, ‘like the clouds it may come and
go’, and therefore should not be allowed to exert its influence
over the judiciary by arrogating to itself the power to control it.82
Justice R. S. Pollock, also of the Nagpur High Court, expressed
a fear that there was ‘little enthusiasm’ for a strong and indepen-
dent judiciary within political circles in India.83
79
Extract from Calcutta Weekly Notes, liii, 18 (22 Mar. 1948): NAI, CA/21/
Cons/48 I.
80
Lall to Nehru, 1 Mar. 1948.
81
‘Comments of the Chief Justice and the Honourable Judges of the Nagpur
HC’, 17 Mar. 1948: NAI, CA/21/Cons/48 I.
82
Justice T. I. Sheode, Nagpur High Court, memorandum, 11 Mar. 1948: NAI,
CA/21/Cons/48 I.
83
Justice R. S. Pollock, Nagpur High Court, ‘Memorandum on the Draft
Constitution’, 15 Mar. 1948: NAI, CA/21/Cons/48 I.
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28 of 45 PAST AND PRESENT
84
‘Memorandum Representing the Views of the Federal Court and the Chief
Justices Representing All the Provincial High Courts in the Union of India’,
Comments on the Provisions of the Draft Constitution of India (New Delhi, 1948), 20–8.
85
Ibid.
86
Ibid., 21.
87
Ibid.
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ASSEMBLING INDIA’S CONSTITUTION 29 of 45
be nominated who were expected to co-operate with the govern-
ment, and, conversely, the judiciary was being used as a dump-
ing ground for inconvenient politicians. The chief justices were
aghast at being reduced to corresponding with junior bureau-
crats on appointments, and felt that they were being treated
as a minor government department. Thus, they unanimously
recommended that the draft constitution be amended to allow
the chief justice of a high court to forward recommendations
directly to the president, who would appoint the judge in con-
currence with the chief justice of India. This would allow a high
court to avoid having to justify its recommendations to the pro-
vincial government in question, and would immunize it from
local party and political considerations, giving the judiciary the
final say on its own composition.
These recommendations arose from the judges’ own experi-
ences with judicial appointments after independence. Under the
Government of India Act 1935, an elected provincial premier
had no say in judicial appointments; judges were appointed by
the secretary of state for India. However, on the eve of indepen-
dence the Home Ministry issued a memorandum of procedure
that required the provincial chief minister, the provincial home
minister and the Union home minister to be involved in the
selection of judges.88
The judges’ memorandum also offered a road map for insu-
lating the judiciary from both the executive and the legislature
by asking for a provision in the draft constitution according to
which no former minister could be appointed a judge. It also sug-
gested that members of the Indian Civil Service (ICS) should be
barred from becoming permanent judges. This was a particularly
audacious recommendation, given that a third of all high court
judges had been recruited from the ICS and selected through
the same appointment process as other high-ranking bureau-
crats. The cadre of ICS judges included B. N. Rau, the adviser
to the Constituent Assembly. By opposing the recruitment of
judges from the ICS, the higher judiciary was strengthening the
perception that ICS judges tended to favour the executive and
that an independent judiciary should be drawn from the Bar.
In a separate memorandum, Justice Sheode elaborated further,
88
Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the
Supreme Court of India, 1980–1989 (Delhi, 2018).
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30 of 45 PAST AND PRESENT
89
Justice Sheode, memorandum, 11 Mar. 1948.
90
Kailash Nath Katju, ‘Separation of the Executive and Judicial Functions’,
Address to the Bengal Chamber of Commerce, Calcutta, 12 Sept. 1948, Indian Law
Review, ii, 3–4 (1949).
91
Chief Justice Malik, ‘Comments on the Draft Constitution’, 24 Mar. 1948.
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ASSEMBLING INDIA’S CONSTITUTION 31 of 45
blood’ between the executive and the judiciary, and attempts
by the high court to circumvent provincial appointments. He
opposed granting the chief justice power of veto over appoint-
ments. Patel’s comments in themselves gave ample evidence of
the mistrust between the two branches as he attacked the judi-
ciary for the ‘fundamental misconception [that] they seem to
think that they alone are the custodians of what is right, what is
just’.92 While the judiciary made the case for checking political
self-interest, Patel was calling for safeguards against the preju-
dices of a chief justice.
Unsurprisingly, the one suggestion with which Patel was in
‘entire sympathy’ was the recommendation that judges’ condi-
tions of service should be regulated by central government to
create uniformity. Unlike colonial India, where each high court
was a largely autonomous entity, the political class envisaged
the transfer of judges between provinces, with some politicians
arguing for it to be the norm that judges should be appointed
from outside the province.93 While the Constituent Assembly
had emphasized centralized authority shaping provisions for
emergency powers, taxes, planning and federalism, it was the
judges who pushed for the centralization of the judiciary.
Generally, the drafting of a constitution is understood as a
linear process, with a draft being circulated for comments, sug-
gestions being incorporated and the revised draft being debated
and eventually promulgated by the constitution-making body.
However, the Indian judiciary was able to draw upon its embed-
dedness within the state structure and personal connections with
politicians to make repeated interventions for changes in the
draft constitution. Even a year after the Constituent Assembly
had debated constitutional provisions regarding the judiciary,
judges across the various high courts were writing to the home
minister demanding adjustments to salaries, the retirement age
and the right to practise after retirement.94 These repeated inter-
ventions, which included telephone conversations and lunches
92
NAI, Ministry of Home Affairs, F.11/3/48, 1948.
93
V. Shankar, memorandum, 24 Apr. 1948: NAI, Ministry of Home Affairs,
F.11/3/48, 1948.
94
Chief justice and judges of Allahabad High Court, memorandum, 18 July
1949; ‘Report of the Committee Appointed by the Judges of Calcutta HC, 1948’:
both NAI, Sardar Patel Papers, F.2/308.
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32 of 45 PAST AND PRESENT
III
TRIBALS AND THE MAKING OF THE CONSTITUTION
95
Chief Justice Malik to Shankar, 13 Nov. 1948: NAI, Sardar Patel Papers,
F.2/308.
96
B. R. Ambedkar to Sardar Patel, 24 Nov. 1948; Sir Trevor Harries to Patel, 7 July
1949: both NAI, Sardar Patel Papers, F.2/308; CAD, 27 May 1949, <https://loksabha.
nic.in/Debates/cadebatefiles/C27051949.html>; 30 July 1949, <https://loksabha.nic.
in/Debates/cadebatefiles/C30071949.html> (both accessed 8 Mar. 2023).
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ASSEMBLING INDIA’S CONSTITUTION 33 of 45
belong to Lahoul, a tract of area bounded on the North by Chamba
State, South Rohtang Pass and Kulu Sub Division, East Kashmir and
Jammu State and Tibet and West Chamba State and Bhangal . . . it is
situated at an elevation of 10 thousand feet above sea level.
97
Sri Swedev, Bazar Akhara Kallu, district of Kangra, to members of the Advisory
Committee of the Constituent Assembly, 14 Feb. 1947: NAI, CA/27/COM/47 I.
98
Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas:
Excluded and Partially Excluded Areas (New Delhi, 1947), 2, quoted from the Report
on Indian Constitutional Reforms of 1918. For an analysis of excluded areas under
the Government of India Act 1919, see Stephen Legg, ‘Dyarchy: Democracy,
Autocracy, and the Scalar Sovereignty of Interwar India’, Comparative Studies of
South Asia, Africa and the Middle East, xxxvi, 1 (2016).
99
Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas:
Excluded and Partially Excluded Areas, 3. The partially excluded areas, however,
were generally included in the electoral constituencies, and by independence had
representation in the provincial legislatures: ibid., 1.
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34 of 45 PAST AND PRESENT
100
Ultimately, the subcommittee for the North-West Frontier Province and
Baluchistan never functioned as these areas became part of Pakistan.
101
Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas:
Excluded and Partially Excluded Areas, 9, 69, 14.
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ASSEMBLING INDIA’S CONSTITUTION 35 of 45
people from India’s democratic transition. In a departure from
the original draft, the final provisions granted the governors, as
the direct administrators of these areas, increased powers. The
authority of the state legislatures, the tribe advisory councils
that were to be formed in defined ‘Scheduled Areas’, and the
district and regional councils in Assam was restricted. Assembly
member Gopinath Bardoloi, who chaired the subcommittee
on the North-East Frontier (Assam) tribal and excluded areas,
explained to the Assembly that ‘the time may come when they
may become fit to govern themselves’.102 The press was broadly
in agreement with the final provisions, suggesting that ‘there was
danger, particularly in some Scheduled Areas, of the initiative
allowed under the original Draft being misused . . . Moreover,
elected tribal representatives are likely to be of the sophisticated
type, out of touch with their more primitive fellows and suscep-
tible to political influences from outside’.103
Scholarship on the current dire conditions of India’s tribal
people and on the complications of administering the tribal
areas after independence largely traces the roots of the trou-
ble to the constitutional arrangements made in 1947. Nandini
Sundar, for example, argues that ‘many of today’s problems
may be traced back to the anti-democratic and authoritarian
impulses of some of the Constitution’s makers’, and also notes
the racist nature of the Assembly debates, especially in relation
to the Sixth Schedule, which lays down structures of gover-
nance for India’s north-eastern tribal regions.104 In exploring
how ‘past injustices were being written into the Constitution’,
scholars have analysed the constitutional debates, and the poli-
tics that surrounded them, specifically relating to the Congress
Party and its dynamics of marginalizing tribal leaders such as
102
CAD, 6 Sept. 1949, <https://loksabha.nic.in/Debates/cadebatefiles/C06091949.
html> (accessed 8 Mar. 2023).
103
‘Tribesmen in the Republic’, 12 Sept. 1949, newspaper cutting: NAI, Rajendra
Prasad Papers, F.10; ‘Tribal Areas’, Hindustan Times, 7 Sept. 1949, 2.
104
Nandini Sundar, Subalterns and Sovereigns: An Anthropological History of Bastar
(1854–2006), 2nd edn (New Delhi, 2008), 183–90; here, 188. See also, for example,
Ramachandra Guha, Savaging the Civilized: Verrier Elwin, his Tribals, and India
(1999), in The Ramachandra Guha Omnibus (New Delhi, 2005); Sanjib Baruah, In
the Name of the Nation: India and its Northeast (Palo Alto, 2020); Sangeeta Dasgupta,
‘Adivasi Studies: From a Historian’s Perspective’, History Compass, xvi, 10 (2018).
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36 of 45 PAST AND PRESENT
105
Parmar, ‘Undoing Historical Wrongs’, 491. For studies that focus on tribal
engagement with the making of the constitution, see Ornit Shani, ‘We the People’, in
Ravinder Kaur and Nayanika Mathur (eds.), The People of India: New Indian Politics
in the 21st Century (Delhi, 2022); Tewari, ‘Framing the Fifth Schedule’; Nandini
Sundar, ‘The Making of the Indian Constitution and Indigenous Rights’, unpubd
MS. In addition to Munda, scholars have also paid particular attention to Assembly
member J. J. M. Nichols Roy: P. R. Kyndiah, Rev. J. J. M. Nichols Roy: Architect of
District Council Autonomy (New Delhi, 2013).
106
Shaunna Rodrigues, ‘Excluded Areas as the Limit of the Political: The Murky
Boundaries of Scheduled Areas in India’, International Journal of Human Rights, xxv,
7 (2021), 1129, our emphasis.
107
This important facet of India’s constitution-making has barely been studied.
For a few exceptions, see Shani, How India Became Democratic, 212–21; Shani,
‘People and the Making of India’s Constitution’; Sundar, ‘Making of the Indian
Constitution and Indigenous Rights’; J. Zahluna, ‘Constituent Assembly and the
Sixth Schedule: With Special Reference to Mizoram’, Indian Journal of Political
Science, lxxi, 4 (2010), 1236–8; Rodrigues, ‘Excluded Areas as the Limit of the
Political’; Tewari, ‘Framing the Fifth Schedule’.
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ASSEMBLING INDIA’S CONSTITUTION 37 of 45
On 10 December 1946, a day after the Constituent Assembly
began its proceedings in Delhi, the Chittagong Hill Tracts
(CHT) People’s Association met in picturesque Rangamati,
in eastern India, to discuss their concerns about the proposed
constitutional changes. They had been ‘taken aback’ a day ear-
lier when the colonial district commissioner and the raja of the
Chakma tribes addressed a festival gathering on the subject of
their plans for the constitutional changes but invited only the
village headmen to attend a subsequent meeting at the raja’s
palace to discuss these provisions. Many people who ‘were
willing to give expression to their own opinions’ were left dis-
appointed, and protested against the district commissioner’s
limited attempts to gather public opinion, seeing the privileging
of clan and village headmen as a ‘sinister attempt to suppress
popular opinion’.108 The district commissioner was following
a long-established practice of soliciting the opinion of tribes
through traditional authorities like chiefs and headmen, but by
1946 it was increasingly clear that the assumption that these
traditional tribal authorities could speak for the people would
be strongly contested and that the dominant discourse was one
of democracy and popular representation.
Indeed, so powerful was the language of popular representation
that traditional chiefs sought to co-opt it. Within a month, the
Chakma raja’s relatives had formed the Chittagong Hill Tracts
Hillsmen Association and had begun to make representations
to the Constituent Assembly. The CHT People’s Association,
which had been established six years earlier, pointed out that
the Hillsmen Association consisted of merely twenty-one people
and had been created to suppress public opinion and to ele-
vate the raja’s authority in the future constitution.109 The CHT
People’s Association sent their own delegation to the Assembly,
asserting that the people of the region wanted democratic
self-government and not the autocratic form preferred by the
Chakma raja.110
108
‘Resolutions Adopted at the Annual Meeting of the CHT People’s Association
at Rangamati on 10th December, 1946’: NAI, CA/27/COM/47/I.
109
‘Resolution Adopted by Executive Meeting of CHT People’s Association at
Rangamati on 9th Feb. 1947’: NAI, CA/27/COM/47/I.
110
‘Delegation from CHT to Mr R. K. Ramdhyani, 27th February 1947’: NAI,
CA/27/COM/47/I.
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38 of 45 PAST AND PRESENT
111
‘Proposed Draft Constitution of the Khasi and Jaintia Hills by Hon’ble Rev. J. J.
M. Nichols Roy’, in Constituent Assembly of India, North-East Frontier (Assam) Tribal
and Excluded Areas Sub-Committee, 2 vols. (Delhi, 1947), ii, Evidence, pt ii, 183–90,
160, 162.
112
‘Memorandum on the Case of the Naga People for Selfdetermination and an
Appeal to H.M.G. and the Government of India’, in Constituent Assembly of India,
Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee, ii, Evidence, pt i,
248.
113
Meeting in the School Hall, Kohima, 19 May 1947, in Constituent Assembly
of India, Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee, ii,
Evidence, pt i, 181.
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ASSEMBLING INDIA’S CONSTITUTION 39 of 45
Indian Union after ten years. Thus, tribal groups across the
country, including the Lushai Hills, the Chittagong Hill Tracts
and the Chotanagpur areas, pressed for territorial autonomy.
Tribal women also demanded rights in the future constitution
and in contesting traditional tribal authorities. A thirty-member
women’s delegation led by Bonily Khongmen and L. Shullai met
the subcommittee in Shillong, protesting against the exclusion
of women from political life by the Khasi syiems on the grounds
of custom. They insisted that unless they were included, ‘there
[would] be a rebellion from among women’. They demanded
adult franchise and the right of women to vote for clan heads
and syiems. They also asked for reserved positions for women
in legislatures and in government employment, differentiat-
ing themselves from national women’s organizations, who had
rejected affirmative action.114
Similarly, while demanding universal franchise, the Mizo
Mcheichhe Tangrual (Mizo Women’s Union), in its meeting
with the subcommittee in Aizawl in the Lushai Hills, claimed
that mere elections would be insufficient to achieve equality.
While male Mizo leaders demanded that customary laws should
be preserved, Kwatin Khuma, the president of the Women’s
Union, argued that these laws should be radically changed, giv-
ing rights of inheritance to widows and daughters. She stated
that the Women’s Union was placing itself ‘in line with other
bodies who are struggling for liberty and freedom in its widest
sense’.115
Some tribal groups also worked at the national level to advance
their views on the constitution by setting up an office next to the
Constituent Assembly. Taking the lead, the All-India Excluded
Areas and Tribal Peoples Association opened an office in the
114
‘Witnesses Examined: Mrs B. Khongmen and 15 Others, Mrs L. Shullai and 15
Ladies’, Shillong, 12 June 1947, in Constituent Assembly of India: Northeast Frontier
(Assam) Tribal and Excluded Areas Sub-Committee, ii, Evidence, pt ii, 145, 146. Among
the other women’s organizations that met the subcommittee were the Adibasi
Mahila Sangh (Hazaribagh), the Mizo Women’s Union (Aizawl) and the Khasi
Women’s Association (Shillong), and independent women representatives such as
Miss Hansda (Santhal Parganas), Mavis Dunn Lyngdoh (Shillong) and Lalziki Sailo
(Aizawl).
115
‘The Aim and Object of “Mizo Hmeichhe Tangrual” ’, 18 Apr. 1947, in
Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas
Sub-Committee, ii, Evidence, pt i, 66.
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40 of 45 PAST AND PRESENT
Office of the All-India Excluded Areas and Tribal Peoples Association, New
116
IV
ASSEMBLING INDIA’S CONSTITUTION-MAKING
Harol Lal Narmada Prasad Singh to Jayaratnam, 27 June 1946 (copy): BL,
121
IOR/R/1/1/4236.
CAD, 4 Nov. 1948, <https://loksabha.nic.in/Debates/cadebatefiles/C04111948.
122
Rohit De
Yale University, New Haven, USA
Ornit Shani
University of Haifa, Israel
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ASSEMBLING INDIA’S CONSTITUTION 45 of 45
ABSTRACT
The framing of India’s constitution was a critical event in the
global history of both constitution-making and democracy.
Conventionally it has been analysed as a founding moment. Its
success against multiple odds has been explained as resulting
from a vision and consensus among the elite over what would
become a pedagogical text for an ‘ignorant’ and undemocratic
public. This focus among academics on political elites, and an
underlying assumption that constitutional details were beyond
the public’s imagination, limited the scope of investigations
largely to the Constituent Assembly debates. By directing the
inquiry away from these debates towards hitherto unstudied
documents, this article offers a paradigm shift in the method
of research and understanding of India’s constitution-making.
It explores the constitution as it emerged from beyond the
Constituent Assembly through engagement with its making
among diverse publics. In doing so, it shows that the Indian
constitution was not simply founded and granted from above,
but came about through many smaller acts of assembly away
from the Constitution Hall. It was the public who set nor-
mative expectations and tried to educate the members of the
Constituent Assembly, and this was critical for the constitu-
tion’s future reception and endurance.