Chapter 2: MAKING OF THE CONSTITUTION

    • The demand that India’s political destiny should be determined by the Indians themselves had been put forward by Mahatma Gandhi as early as in 1922

    • “Swara] will not be a free gift of the British Parllament; it will be a declaration of Indla’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.” – M. K. Gandhi

    • The failure of the Statutory Commission and the Round Table Conference which led to the enactment of the Govemment of India Act, 1935, to satisfy Indian aspirations accentuated demand for a Constitution made by the people of India without outside Interference, which was officlally asserted by the National Congress in 1935.

    • This demand was, however, resisted by the British Government until the outbreak of World War II when external circumstances forced them to realise the urgency of solving the Indian constitutional problem.

    • In 1940, the Coalition Government in England recognised the principle that Indians should themselves frame a new Constitution for autonomous India, and in March 1942, when the Japanese were at the doors of India, they sent Sir Stafford Cripps, a member of the Cabinet, with a draft declaration on the proposals of the British Govenrment which were to be adopted (at the end of the War) provided the two major political parties (Congress and the Muslim League) could come to an agreement to accept them :

    • This agreement included :

      1. that the Constitution of India was to be framed by an elected Constituent Assembly of the Indian people;

      1. that the Constitution should give India Dominion Status, equal partnership of the British Commonwealth of Nations;

      1. that there should be one Indian Union comprising all the Provinces and Indian States; but

      1. that any province or Indian State which was not prepared to accept the Constitution would be free to retain its constitutional position existing at that time and with such non-acceding Provinces the British Government could enter into separate constitutional arrangements.

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    • But the two parties failed to come to an agreement to accept the proposals. and the Muslim League urged-

      1. that India should be divided Into two autonomous States on communal lines, and that some or the Provinces, earmarked by Mr. Jinnah. should form an independent Muslim State to be known as Pakistan

      1. that Instead of one Constituent Assembly there should be two Constituent Assemblies, a separate Constituent Assembly for building Pakistan.

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    • After the rejection of the Cripps proposals (followed by the dynamic ‘Quit India’ campaign launched by the Congress), various attempts to reconcile the two parties were made including the Simla Conference held at the instance of the Governor-General, Lord Wavell. These having failed, the British Cabinet sent three of Its own members including Cripps himself to make another serious attempt. But the Cabinet Delegation, too, failed in making the two major parties come to any agreement and were accordingly obliged to put forward their own proposals, which were announced stmultaneously in India and in England on the 16th May, 1946.

    • The proposals of the Cabinet Delegation sought to effect a compromise between a Union of India and its division. While the Cabinet Delegation definitely rejected the claim for a separate Constituent Assembly and a separate state for the muslims,the scheme which they recommended involved a virtual acceptance of the principle underlying the Muslim League.

    • The broad features of the scheme were :-

      1. There would be a Union of India, comprising both British India and the States, and having jurisdiction over the subjects of Foreign Affairs, Defence and Communications. All residuary powers wouJd belong to the Provinces and the States.

      1. The Union would have an Executive and a Legislature consisting of representatives of the Provinces and States. But any question raising a major communal issue in the Legislature would require for its decision a majority of the representatives of the two major communities present and voting as well as a majority of all the members present and voting.

      1. The Provinces would be free to form Groups with executives and legislatures, and each Group would be competent to determine the provinclal subjects which would be taken up by the group organisation.

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    • The scheme laid down by the Cabinet Mission was, however, recommendatory, and it was contemplated_by the Mission that it would be adopted oy agreement between the two major parties. A curious situation, however, arose after an election election for forming the Constituent Assembly was held.

    • he Muslim League joined the election and its candidates were returned. But a difference of opinion had in the meantime arisen between the Congress and the League regarding the interpretation of the Group1ng- clauses of the proposals of the Cabinet Mission. The British Government intervened at this stage, and explained to the leaders in London that they upheld the contention of the League as correct.

    • For the first time, the british accepted the possibility of two separate states and two separate assemblies. The result was that on December 9, 1946 when the constituent assembly first met, the muslim league members did not attend and the constituent assembly functioned with its non muslim members.

    • The muslim league next urged the british government to dissolve the constituent assembly claiming it did not represent all sections of India. But the british in their statement on 20 Feb, 1947 declared that the british rule in India would end on June 1948 and power will be transferred to Indian hands. If the constituent assembly failed to work out a constitution in accordance with the cabinet missions plan then the british government would transfer power to the center or a provincial government or both as it may seem fit

    • However, the league refused to participate in the constituent assembly and continued to demand a separate assembly for a muslim state

    • The british replaced Lord Wavell with Lord Mountbatten to expediete the transfer of power to India.

    • “The Provincial LegiSlative Assemblies of Bengal and the Punjab (excluding European members) will, therefore, each be asked to meet In two parts, one representing the Muslim majority districts and the other the rest of the Province …. The members of the two parts of each Legislative Assembly sitting separately will be empowered to vote wbether or not the Province should be partitioned. If a simple majority of either Part decides in favour of Partition, division will take place and arrangements will be made accordingly. If partition were decided upon, each part of the Legislative Assembly would decide, on behalf of the areas it represented, whether it would join the existing or a new and separate Constituent Assembly.”

    • Thus, Mountabatten succeeded in giving the league a separate state for muslims. He advocated a referendum in the assemblies of Punjab and Bengal on different dates.

    • It was also proposed that there would be a referendum in the North Western Frontier Province and in the Muslim majority district of Sylhet as to Whether they would join India or Pakistan. The Statement further declared Britishs intention to introduce legislation during the current session for the transfer of power this year on’ a Dominion Status basis to one or two successor authorities according to decisions taken as a result of the announcement.

    • The result of the vote according to the above Plan was a foregone conclusion as the representatives of the Muslim majority areas of the Provinces (i.e., West Punjab and East Bengal) voted for partition and for joining a new Constituent Assembly. The referendum in the North Western Frontier and Sylhet was in favour of Pakistan.

    • On the 26th July 1947 the governor general announced setting up of a separate constituent assembly for Pakistan. The Plan of June 3, 1947, having been carried out, nothing stood in the way of effecting the transfer of power by enacting a statute of the British Parliament in accordance with the declaration.

    • It must be said to the credit of the British Parliament that in no time the Indian Independence Bill was drafted upon the basis of the above Plan and this Bill was passed and placed on the Statute Book, as the Indian Independence Act, 1947 with amazing speed. The Bill, which was introduced in Parliament on July 4:, received the Royal Assent on July 18 1947, and came into force from that date.

    • The most outstanding characteristics of the Indian Independence Act was that while other Acts of Parliament relating to the Government of India (such as the Government of India Acts from 1858 to 1935) sought to lay down a Constitution for the governance of India by the legislative will of the British Parliament, this Act of 1947 did not lay down any such constitution.

    • The Act provided that as from the 15th August, 1947 in the place of India as defined in the government of India Act, 1935; there would be setup two independent dominions India and Pakistan. Their constituent assemblies shall have unlimited power to frame and adopt any constitution and to repeal any Act of the British Parliament, including the Indian Independence A

    • Under the Act, the Dominion of India got the residuary territory of India excluding the Provinces of, Sind, Baluchistan, West Punjab, East Bengal, and the North Western Frontier Province and the district of Sylhet in Assam (which had voted in favour of Pakistan at a referendum, before the Act came into force).

    • The Constituent Assembly, which bad been elected for undivided India and held its first sitting on the 9th December, 1946, reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India.

    • It had been elected by indirect election by the members of the Provincial Legislative Assemblies (Lower House only), according to the scheme recommended by the Cabinet Delegation (Mission). The essentials of this scheme were as folJow :

      1. Each province and each Indian State or group of States were allotted the total number of seats proportional to their respective populations roughly in the ratio of one to a million. As a result, the Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats.

      1. The seats in each province had been divided amongst muslims, sikhs and general in accordance to their population. Members of each community elected their representatives by the method of proportional representation on the basis of a single transferable vote.

      1. The method of deciding the representatives of the princely states was to be decided by consultations.

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  • As a result of the partition under the 3rd june 1947 plan the strength of the constituent assembly fell and re-elections had to held in provinces of west bengal and east punjab. The members of the newly formed constituent assembly of pakistan ceased to be members of India.

Quiz

Score more than 80% marks and move ahead else stay back and read again!

Q1:Constituent Assembly was formed in accordance to plans of
1.Cripps proposal
2.August offer
3.Cabinet mission
4.Govt of India Act, 1935

Q2:Interim government was headed by
1.J Nehru
2.MK Gandhi
3.Rajendra Prasad
4.Sardar Patel

Q3:President and vice president of the Constituent Assembly.
1.Rajendra Prasad and HC Mukherjee
2.Sachinanand Sinha and HC Mukherjee
3.Rajendra Prasad and Sachinanad Sinha
4.none

Q4:Constitution was adopted on
1.26 November 1949
2.26 Jan 1950
3.15 August 1947
4.None

Q5:Who were not in drafting committee of the constitution
1.Saadullah
2.Madhav rau
3.KM Munshi
4.HC Mukherjee