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(Part I is available here.)

By the end of August 1947, the Constituent Assembly had debated a significant part of the proposed Constitution for independent India. The actual grant of independence (earlier than expected) and all that it entailed, meant that the Assembly would not hold sustained sittings for more than a year. The action, therefore, moved backstage. On the basis of the draft texts debated and adopted by the Constituent Assembly in its first round of substantive sittings, the Office of the Assembly, under the direction of the Constitutional Adviser B.N. Rau, was tasked with drafting the constitutional text. This was significant, because thus far, the Assembly had dealt with issues piecemeal, considering texts sent in by various committees on various subjects. Rau’s task was to pull this all together, and come up with a single constitutional text.

In its session on 29th August 1947, the Constituent Assembly then nominated a seven-member Drafting Committee. The Drafting Committee’s remit was to scrutinise B.N. Rau’s text – again on the basis of the debates in the Assembly – and finalise the draft. This draft, then, would come back to the Assembly for ratification.

B.N. Rau prepared the draft Constitution by October 1947 (Shiva Rao, Vol. 3, pp. 3 – 197). The draft contained marginal notes that specified the origins of various provisions (e.g., whether it had been borrowed from the American Constitution, or the Irish, or the Government of India Act, etc.). Provisions that had not yet been adopted by the Constituent Assembly were italicised, and at times, Rau made some additions (a particularly momentous insertion was that of the word “personal” before “liberty” in the “right to life and liberty”, which would become the foundation of the famous Gopalan-Maneka Gandhi debate). The draft Constitution, therefore, is best read as a culmination of the Constituent Assembly Debates that took place from May to August 1947. Rau appended a brief postscript, with explanatory notes to some of the clauses (Shiva Rao, Vol. 3, pp. 197 – 205) which reveal, among other things, how deeply American judicial history influenced some of the choices that he made. K.M. Munshi, Alladi Krishnaswamy Ayyar and D.P. Khaitan (all members of the drafting committee) also added written comments (Shiva Rao, Vol. 3, pp. 205 – 216).

The Drafting Committee, under the Chairmanship of B.R. Ambedkar, worked from October 27, 1947 to February 21, 1948. The minutes of its proceedings can be found in Shiva Rao, Vol. 3, pp. 315 – 506. To understand the proceedings of the Drafting Committee, and the nature of the choices they made, the minutes must be read alongside B.N. Rau’s constitutional text (which was what the Committee was considering). As we saw above, both sets of documents are conveniently available in Volume 3 of Shiva Rao, and therefore, the activity only requires a regular amount of page-turning. One major disadvantage of the Drafting Committee minutes – as opposed to the Minutes of the Sub-Committee – is their sketchy nature. With a few exceptions (such as the justification for adding “personal” to “liberty”), these minutes are, essentially, catalogues of the decisions taken by the Drafting Committee, but without any account of the discussions that went into them. For example, the fundamental freedoms clause was redrafted almost ten times in the Drafting Committee – clearly indicating the amount of care and thought the framers put into each word of the Constitution – but we are given no indication about what motivated these changes.

While the Drafting Committee was sitting, B.N. Rau traveled to USA, Canada, Ireland, and England, to consult with constitutional experts, and returned on December 2, 1947. His report and recommendations for further changes to the Constitution can be found in Shiva Rao, Vol. 3, pp. 217 – 234.

On 21 February 1948, the Drafting Committee submitted its Draft Constitution – consisting of 315 articles and 8 schedules – to the President of the Constituent Assembly (Shiva Rao, Vol. 3, pages 510 – 677).  As Ambedkar explained in his letter to the President, wherever the Drafting Committee had felt it necessary to depart from the decisions of the Constituent Assembly, it had underlined the relevant provision, and added a footnote. Ambedkar also summarised the significant changes that the Committee had elected to make (Ambedkar’s letter, pp. 509 – 517). In my view, therefore, the Drafting Committee’s draft Constitution is best read beside B.N. Rau’s text, which was the template from which it worked; the departures are cleanly visible (for example, the Preamble, the citizenship clauses, the entire Directive Principles chapter, and even specific words, such as replacing “particular” with “backward” as a qualifying description of “classes”, in the reservation provision (see p. 521). Perhaps the most significant departure, as far as fundamental rights are concerned, is the substitution of “due process” with “procedural established by law”, in the phrase “no person shall be deprived of his life or personal liberty without due process of law.” It is, of course, famously known that this came about as a result of B.N. Rau’s meeting with Felix Frankfurter, and the American judge’s strongly-worded advice that India avoid a due process clause in the Constitution.

The Draft Constitution was published on 26 February 1948, and opened up for suggestions and feedback from the Constituent Assembly, the provincial governments, as well as the general public. From March through October 1948, a large number of comments were sent in on every aspect of the Constitution. The range of commentators – from Constituent Assembly members to provincial legislatures, to bar associations, to private groups, and to individuals – is quite extensive.  Specific suggestions that were examined in some detail by the Drafting Committee are collated in Shiva Rao, Vol. 4, pp. 3 – 381. For each Article of the Constitution, first the proposals are set out, followed by the constitutional advisor’s written responses to them (“Note: ____“), the Drafting Committee’s response, and finally, the Drafting Committee’s decision. As the text that the amendments were responding to was the Drafting Committee’s text, this part needs to be read alongside the 26th February Draft Constitution, the text of which is found in Vol. 3 of Shiva Rao, as indicated above.

As with every other phase of the framing, here too are revealed some fascinating aspects of the framers’ thinking. For example, B. Pittabhi Sitaramayya and some other members of the Constituent Assembly wanted the fraternity clause of the Preamble to read as follows: “Fraternity assuring unity of the Nation and the dignity of the individual.” B.N. Rau’s response was that “the reason for putting the dignity of the individual first was that unless the dignity of the individual is assured, the nation cannot be united.” The draft clause was kept as it is – one among several instances where the framers’ commitment to placing the individual at the heart of the new constitutional order shines through. It also shows how certain recent judicial articulations of “fraternity” – as some kind of overarching collective obligation, as in the criminal defamation judgment – get things completely wrong.

This part of Shiva Rao, however, is not strictly chronological. The Drafting Committee held sessions on March 23, 24 and 27, 1948, to consider the suggestions they had received until then (Shiva Rao, Vol. 4, pp. 392 – 408). The President of the Constituent Assembly also constituted a larger “Special Committee” to look into the suggestions. This Committee met on April 10 and 11 (Shiva Rao, Vol. 4, pp. 408 – 415). Suggestions continued to come in until October, and it was on the basis of this complete record that the Drafting Committee took its final decisions on the wording of the Articles (this part of the record is not in Shiva Rao). However, these subsequent events all form part of Shiva Rao’s “Comments and Suggestions” section, indicated above. This phase of the framing, therefore, should be read keeping in mind that – for reasons of practicality – it has not been arranged chronologically.

By the end of October 1948, the Drafting Committee was ready to forward the Draft Constitution to the Constituent Assembly. As the Chairman of the Drafting Committee, Ambedkar wrote a letter to the President of the Constituent Assembly, dated October 26, 1948 (Shiva Rao, Vol. 4, pp. 415 – 416). Along with the letter, he enclosed a reprint of the Draft Constitution, with an added column at places where the Drafting Committee had accepted – and decided to sponsor – an amendment that has been submitted to it between February – October 1948.

This, then, was Episode III. Let us call it Committee Drafting: Phase Two (August 1947 – October 1948). This phase can be summed up as follows:

Appointment of Drafting Committee – B.N. Rau (Constitutional Advisor) prepares the first Draft Constitution on the basis of the Constituent Assembly’s “First Reading” – Drafting Committee scrutinises and modifies the Draft Constitution – Drafting Committee Publishes the Draft Constitution – Feedback, comments and amendments received from institutions and the public – Drafting Committee meets to consider feedback – President of the Constituent Assembly appoints a larger, Special Committee to also consider the issue – Special Committee submits suggestions and amendments – Drafting Committee, on the basis of the complete record, finalises the draft text, and decides to sponsor some amendments – Draft text along with sponsored amendments forwarded to the Constituent Assembly for a “Second Reading.”

(To be Contd.)