For any student of the Indian Constitution, the Constituent Assembly Debates are both invaluable and indispensable. They are, however, difficult to read, as well as difficult to relate to the final constitutional text. This is not simply because of their volume, but because a significant part of the actual drafting took place outside the proceedings of the Assembly, and in Committees. A bare reading of the Debates, therefore, can often be confusing: the language of the draft articles changes, as does their numbering. The Debates frequently refer back to what happened in the Committees. Trying to understand the Debates without the Committee proceedings is bit like trying to swim with one arm and one leg.
Fortunately, the Committee proceedings are available in B. Shiva Rao’s six-volume edited collection titled The Framing of India’s Constitution: Select Documents. However, much like the Debates, the Select Documents cannot be read as self-contained volumes. This is because, as the Assembly drew on what was happening in Committee, the Committees discussed and revised the drafts that they received from the Assembly. A holistic understanding of the framing of India’s Constitution therefore depends on a (somewhat) careful exercise that involves reading together the debates and the committee proceedings. This process is equally important if you’re trying to trace the history of a particular clause or set of clauses. The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates – in Committee and in the Assembly – around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.
What follows is a brief guide to reading the Constituent Assembly Debates, taking the example of the Fundamental Rights chapter (the approach to other parts of the Constitution will be broadly similar).
Volume 1 of Shiva Rao’s collection contains various constitutional documents that Indian nationalists came up with through the course of the early 20th century, and the build-up to the Constituent Assembly (including its establishment). That is interesting enough in its own right, but for the purposes of this exercise, it can be ignored. The action really begins in December 1946 and January 1947, when the Constituent Assembly held its first set of sittings. Volumes I and II of the Constituent Assembly Debates (all volumes are available online) cover this period. Most of it pertains to administrative details, but the highlight is the Objectives Resolution (moved by Nehru on December 13, 1946), which was meant to be a blueprint for the Constitution. Those minded to do so can wade through the debates around the Resolution; Shiva Rao’s documents have the relevant portions of Nehru’s speech, and Radhakrishnan’s speech commending the Resolution to the Assembly (Volume 2, pages 3 to 18).
After 25th January 1947, the Assembly had a three-month recess, and reconvened on 28th April. In the meantime, in accordance with the Cabinet Mission Statement (under whose auspices the Assembly was Constituted), an Advisory Committee was set up to consider the questions of fundamental rights, minority rights, and the administration of certain frontier areas. Sardar Patel was elected the chairperson of the Advisory Committee, and the Advisory Committee was then further divided into Sub-Committees to consider, inter alia, the issue of fundamental rights (Shiva Rao, Volume 2, pages 56 – 63). The Fundamental Rights Sub-Committee then had three sittings during which drafts of fundamental rights were written, circulated, and debated. The Sub-Committee produced its report on April 16, 1947 (with notes of dissent), and it was this Report that went to the Advisory Committee. After further debate, the Advisory Committee submitted an (interim) report to the Constituent Assembly.
Therefore, in order to understand what it was that the Constituent Assembly discussed in its sessions from April 28 onwards, it is essential to first read the deliberations of the Fundamental Rights Sub-Committee, and the discussion of the Report in the Advisory Committee, between January and April 1947. These can be found in Shiva Rao, Volume 2, pages 21 – 176, and 210 – 292. These proceedings are somewhat complex in their own right: B.R. Ambedkar, K.M. Munshi, and Harnam Singh all produced draft bill of rights. K.T. Shah and B.N. Rau – the Constitutional Advisor – submitted notes on fundamental rights. In its three sittings in March 1947, the Fundamental Rights Sub-Committee took Munshi’s draft as its blueprint, while also discussing clauses from Ambedkar and Harnam Singh’s drafts from time to time, and referring to Rau and Shah’s work as well. At the end of its deliberations, the Sub-Committee produced an interim report on 3 April 1947, with a draft bill of rights. Members of the Sub-Committee then commented on the draft, and added notes of dissent. The Sub-Committee met on April 14 and 15, took these into account, and then produced a final report – to which the members added their final comments and notes of dissent.
This document was then forwarded to the Sub-Committee on Minorities, which was asked to comment on fundamental rights from the perspective of minorities (Shiva Rao, Volume 2, pages 199 – 209). Because of the paucity of time before the Advisory Committee met, the Sub-Committee on Minorities held a somewhat rushed set of meetings between April 17 to 19, and submitted an interim report. This report, along with the final report of the Sub-Committee on Fundamental Rights, was sent to the larger Advisory Committee (consisting of seventy-two members), which met on April 21 and 22, 1947 (Shiva Rao, Volume 2, pages 210 – 292).
The Advisory Committee debated the draft bill of rights extensively. Proceedings in the Advisory Committee naturally referred to Clauses by their number, so when you read the Advisory Committee proceedings, you have to keep turning the pages and referring back to the Sub-Committee’s final report (Shiva Rao, Volume 2, pages 169 – 176) to connect the debate with the text of the provision that is being debated. The Advisory Committee then came up with an Interim Report on April 23. Sardar Patel – the Chairperson of the Advisory Committee – forwarded this to the Constituent Assembly, along with the draft bill of rights hammered out in the Advisory Committee, for the sessions beginning on April 28, 1947.
As we can see, therefore, before the Constituent Assembly even met, three Committees, over a period of three months, had met, debated, and drafted a detailed bill of rights. In the interests of clarity, let us call this Committee Drafting: Phase One (February – April 1947). To sum up Phase One:
Constituent Assembly appoints Advisory Committee (seventy-odd members) —> Advisory Committee appoints Fundamental Rights Sub-Committee —-> Drafts and Notes on Fundamental Rights produced and sent to the Sub-Committee –> Sub-Committee deliberates and produces and Interim Report and Draft Bill of Rights —-> Comments and Notes of Dissent by Members —–> Fundamental Rights Sub-Committee Final Report —-> Comments and Notes of Dissent by Members —–> Final Report forwarded to Minorities Sub-Committee to examine from the perspective of Minorities —-> Interim Report of the Minorities Sub Committee —–> Both reports forwarded to the larger Advisory Committee —-> Advisory Committee deliberates —–> Advisory Committee produces an interim report and a modified draft bill of rights —–> Advisory Committee Interim Report and Draft Bill of Rights forwarded to the Constituent Assembly for consideration.
Many important things happened in the first phase. It was here that the enduring distinction between “justiciable” and “non-justiciable” rights (Directive Principles) was first mooted, much to the consternation of K.T. Shah. It was in the Sub-Committee that Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur argued strongly for a right to inter-religious marriages and to a uniform civil code (with Ambedkar’s support), but were voted down. It was in the Advisory Committee that the right to privacy (secrecy of correspondence and prohibition of unreasonable searches and seizures) was dropped from the draft bill of rights, as was the right to vote. Here you find Ambedkar’s eloquent arguments for the link between constitutional rights and the economic structure, and K.T. Shah’s radical proposals to make remuneration for housework a fundamental right. In short, endlessly fascinating stuff. The debates on citizenship – with the framers’ near-unanimous rejection of racial criteria for citizenship – are particularly relevant for the present times. And another interesting aspect of the debates is that they were conducted before Independence, Partition, and the integration of the princely states. So you have many instances where the framers refer to the possibility of the Muslim League “coming into the Assembly”, how to deal with princely states who may want to maintain a monarchical system of government, and how to frame a fundamental rights chapter in the shadow of the fact that the country for which it is being framed is not yet in existence, and nobody knows what it may look like.
Because of the paucity of time, the Advisory Committee finally submitted what it called an “Interim Report on Fundamental Rights”, along with a draft bill of rights, and requested the Constituent Assembly for an extension of time to submit a final report. This was granted. The Assembly then took up the draft Bill of Rights for discussion starting April 29, 1947 (Vol. III of the Constituent Assembly Debates, available online – use the “Complete HTML file” option to view day-to-day proceedings). The debates were lively: as Patel (the chairperson of the noted, more than 150 amendments were tabled).
The first set of debates spanned four full days – April 29 to May 2, 1947. A large part of the Advisory Committee’s draft Bill of Rights was accepted (for the draft bill of rights approved by the Constituent Assembly, see Shiva Rao, Vol. 2, pages 300 – 304), with various modifications. Some of the clauses that proved particularly contentious – or suffered from ambiguous drafting – were “remitted” back to the Committee (such as the clause prohibiting forced labour, where a dispute arose about whether it banned conscription as well, as well as the clause prohibiting fraudulent conversions and conversions of minors). The Advisory Committee considered these over the summer, and on August 25, it submitted a Supplementary Report to the Constituent Assembly, which contained two re-drafted clauses (primarily to do with religious instruction and admissions in schools), a recommendation to drop the prohibition on forced conversion from the list of fundamental rights, and finally, a list of non-justiciable rights, which would eventually go on to form part of the Directive Principles of State Policy (available online, bottom of page).
The Supplementary Report was taken up by the Constituent Assembly on August 30, 1947 (available online), and adopted. This ended the second phase, which we can call Constituent Assembly: Phase One (April – August 1947), and the draft bill of rights was forwarded to the Drafting Committee.
Constituent Assembly debates, modifies and adopts the Advisory Committee’s draft bill of rights – three clauses sent back to the Advisory Committee – Advisory Committee deliberates and produces a Final Report with redrafted clauses and a set of non-justiciable rights – Final Report forwarded to the Constituent Assembly – Constituent Assembly debates, modifies and adopts the Final Report – forwarded to the Drafting Committee.
The Constituent Assembly would not convene again until January 1948.
(To be Contd.)