Context

• On November 26, 1949, the Constituent Assembly of India adopted our Constitution. Hence, every year we celebrate this day as Constitution or Law Day. India’s Constitution has now endured for almost 73 years.

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Did you know?

• The original constitution of India was handwritten by Prem Behari Narain Raizada in a flowing italic style with beautiful calligraphy.
• 2,000 Amendments were made to the 1^st draft of the Constitution before it was finalized.

Circumstances during the making of the constitution

• Era of constitutional democracies: Constitution-making itself is a relatively unexceptional endeavor. Ginsburg, Elkins and Blount note that in the period from 1789–2005, 806 national constitutions were promulgated.
• Shadow of partition: It was written under extraordinarily difficult conditions, The partition of India which resulted in the displacement of millions of people on both sides of the border.
• Mass death and refugee crisis: Partition was accompanied by mass deaths, devastation, violence, and brutality. Amid all this, as refugees flowed into Delhi, our dual-purpose assembly, a parliament by morning and a constituent body in the afternoon drafted our enduring founding instrument. One that would remain relevant not just for the turbulence of that present, but also would be meaningful for future generations to come.
• A lengthy process: Of the 148 cases, which were randomly chosen from 806, on average, the constitution-making process took 16 months. India’s constitution-making project took about three years from 1946 to 1949.

Legitimacy of the constitution

• Constitution narrates the story of people: It’s not only the text, but also the story crafted of the birth of a constitution that is critical in the internalization of a constitutional order by a people.
• Legitimacy of constitution makers: The drafters deployed the considerable political goodwill enjoyed by key national leaders who were members of the assembly to give legitimacy to the Constitution.
• Egalitarian foundation for decent nation: The Constitution reflects the will of the people, and how its egalitarian foundation would create a better, more decent nation.

Influence of freedom movements on the crafting of the Constitution

• Rise of constitutionalism: The freedom movement and resistance to colonial power was also good training for constitution-crafting. Dietmar Rothmund highlights the unique evolution of Indian constitutionalism, each set of reforms introduced by the British coloniser, while being designed to fulfil certain demands, leads to inspiring new agitations.
• Tilak’s Swaraj Bill of 1895: As the legal historian Rohit De writes, the Constitution, had its inspiration in sources like Tilak’s Swaraj Bill of 1895 (which included rights to free speech, free press, equality before law) and the Declaration of Rights of 1918 (where the Indian National Congress demanded that civil and political rights to include the right to life and liberty, freedom of press and association and for all this to be included in the Government of India Act 1919).
• Resolution of Fundamental Rights and Economic Changes:
• Constitutional development that drew from the Resolution of Fundamental Rights and Economic Changes at the Karachi Session of the Congress in 1931. This resolution argues that “in order to end exploitation of the masses, political freedom must include economic freedom”.
• Along with fundamental rights, it provided for ending of bonded and child labour, free primary education, expansion of labour welfare, regime protection labour unions, women workers, providing for redistribution of resources through state control over key industries and national resources, recognizing the communal problem and laying out protection of minority rights.

Consensus based approach

• It was also the consensus-oriented method that found favor with the Constituent Assembly that has helped our Constitution endure.
• The framers appreciated the link between consensus in adoption and the legitimacy of the Constitution. For instance, when debating the adoption of Hindi as a national language, Rajendra Prasad, president of the Constituent Assembly, said that the choice of national language would have to be “carried out by the whole country”.
• Even if a majority of the Assembly made a choice that was not approved by a section of the people, then, implementation of the Constitution would be rendered perilous. Hence, Hindi was made “the official language of the Union”, while English was retained to be used for all “official purposes”.

Conclusion

• India’s drafters and the methodologies they adopted to craft their glorious product, hold lessons for contemporary politicians and law makers. Consensus, craft and vision are invaluable while making an instrument to endure.

Mains Question

Q. Explain the impact of colonial legacy and freedom movement on drafting of constitution? What were the extra ordinary circumstances during the partition of India?

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