Category: Blog 2 – Forgotten Histories of Constitution-making

by Vineeth Krishna E

By August 1947, the Indian Constituent Assembly had been nine months into drafting India’s Constitution. Initial drafts of key provisions prepared by the Assembly’s Committees were presented for debate in the plenary Assembly. On 30 August 1947, during a debate around an early draft of the Directive Principles of State Policy, P.S. Deshmukh launched the following attack:   

‘…Our problems are huge, our population is big and we cannot merely sit and take portions from here and from there and especially from an Irish constitution. After all, what is this Constitution? We have parts of the Irish Constitution copied out and we have three-fourths of the Government of India Act of 1935 copied out…’

Given that this statement was made a mere fifteen days after India gained independence, Deshmukh’s accusation of thoughtless adoption of Ireland’s constitutional provisions and the notorious British imperial legislation might have been received by some with a mixture of irony and apprehension. In fact, a month earlier, B. Das, in an impassioned intervention, told the Assembly that he was ‘sick of hearing…that in certain respects we are following the Government of India Act’ and that he was ‘ashamed’ and ‘humiliated’. 

As constitution-making chugged along, and the plenary Assembly was served with more and more provisions for its consideration, comments on the borrowed nature of various provisions continued to punctuate the proceedings. This peaked in November 1948 when Dr BR Ambedkar presented the Draft Constitution 1948 – the first consolidated draft of the Constitution of India 1950.

The document had been submitted to the President of the Constituent Assembly in February 1948 and had been in public circulation since then. Now, Ambedkar was formally presenting the document to the larger plenary Assembly for its consideration. He anticipated that members of the Assembly would challenge him on the issue of borrowing. He came prepared:

‘It is said that there is nothing new in the Draft Constitution, that about half of it has been copied

 from the Government of India Act of 1935 and that the rest of it has been borrowed from the Constitutions of other countries. Very little of it can claim originality. One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar.’

Having acknowledged and justified borrowing, Ambedkar then proceeded to persuade members that it was unfair to view the document as entirely borrowed: 

‘The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution. I have shown what is new in the Draft Constitution and I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee in performing its duty has not been guilty of such blind and slavish imitation as it is represented to be.’

In recent years, the borrowed nature of the Constitution has resurfaced in public discourse across academic and popular political forums, making grand assertions about India’s constitutional founding. One recent work even goes so far as to label India’s founding document as a Colonial Constitution. What’s striking in these debates is the complete absence of quantitative rigor in substantiating these claims. A quantitative analysis of foreign borrowing in the Constitution would allow us to accurately assess claims made in the Constituent Assembly and contemporary debates. This is precisely the objective of one of the academic papers that the PACT team will produce this year, employing tools from natural language processing to analyze the Constitution of India 1950.

by Vineeth Krishna E

This is a special International Women’s Day post by our project partner lead based at the Centre for Law and Policy Research, India.

Unlike the American constitutional founding, which was exclusively led by men, the Indian Constituent Assembly included women. Until recently, the contributions and even the presence of these women were overlooked in public memory. However, what about the period before the formal constitution-making process?

The Indian Constitution was not solely the result of the deliberations of the Constituent Assembly; it was also deeply influenced by the constitutional imagination that existed before 1946. While we acknowledge that women played a crucial role in the independence movement, engaging in Satyagraha, civil disobedience, and more, did they also articulate a constitutional vision for India?

In 1917, influential social and political activists, including Margaret Cousins, Kamaladevi Chattopadhyay, Annie Besant, Muthulakshmi Reddy, and others, established the Women’s Indian Association (WIA) in Adyar, Madras. WIA rapidly grew into one of the largest women’s organizations in India, with a pan-Indian presence and played a pivotal role in addressing social issues like child marriage and the Devadasi system. Interestingly, it also advanced a constitutional vision for India and actively participated in constitutional negotiations with the British.

In the same year that WIA was established, the Montague Chelmsford Commission toured India in preparation for drafting constitutional reforms. WIA, as part of a 14-member all-women delegation, met the Commission and demanded franchise for women. Although the Commission rejected the demand, WIA persisted and made equal voting rights a central focus of political work in months to come.

Throughout 1917, WIA intensely lobbied and cultivated relationships with major political groups in India regarding women’s voting rights. This effort bore fruit as the Indian National Congress, during its annual sessions, regularly passed resolutions to remove disqualifications for women voting, as did its various committees. The Muslim League too, followed suit.

This marked a significant achievement for WIA. The support from major political parties on the issue of women’s voting rights had far-reaching consequences, as these parties, particularly the Congress, later incorporated these women’s rights into their formal constitutional demands directed at the British.

In 1918, the Southborough Commission visited India to review the question of franchise, among other things. This time, WIA, in collaboration with other women’s organizations, went all out, leveraging its cross country organizational machinery. Forty-five branches of WIA and other women’s organizations passed resolutions and submitted them to the Committee.

The Southborough Committee, in its report, acknowledged the overall aims of the petitions for equal voting rights for women. However, it felt that the social conditions of India were not yet ripe to extend the vote to women and dismissed WIA’s demands. Margaret Cousins, the General Secretary of WIA, responded to the Commission’s decision in a letter to the editor of The Hindu:

“On behalf of the members of the 46 Branches of the Women’s Indian Association, all of which have signed requisitions in favour of women suffrage, I protest vigorously against the decision of the Southborough Committee that the franchisee shall not be extended to women because, forsooth, “the social conditions of India make it premature”. Is this handful of men better able to judge of these conditions than were the thousands of Indian delegates to the Bombay and Delhi Congresses? These latter were the fathers, husbands, brothers, and sons of the women concerned and knowing at first hand their social conditions, with full understanding of what the necessary steps to women’s voting would be…Are the considered opinions of these representative bodies of Indian men and women to be flouted by these few Committee members, some of the Englishmen already known to be opposed to the grant of the vote even to their own Englishwomen and who are thus dated as behind the times?”

This was a powerfully articulated critique of British policy on the franchise for women and laid bare British hypocrisy. Despite another setback, the WIA persisted with its demand for equal voting rights.

In the early 1920s, Indian leaders began asserting that only a Constitution crafted by Indians would be acceptable. Concurrently, the womens’ movement in India expanded its demands from specific rights such as voting to encompass a more comprehensive constitutional vision. Annie Besant, the President of WIA, conveyed to British authorities that India would never accept a Constitution crafted in Westminster.

Taking the initiative, she established a ‘National Convention’ comprising 255 members, primarily Indian legislators. The Convention’s mandate was to draft a Constitution for India. Two WIA colleagues also participated, resulting in the Commonwealth of India Bill 1925 – a comprehensive document reflecting the constitutional visions of Annie Besant and other Indian leaders.

The document included a Bill of Rights encompassing freedoms such as expression and non-discrimination. Importantly, it featured a fundamental right addressing sex discrimination: ‘There shall be no disqualification or disability based on sex.’

Besant aimed to secure passage of the Bill through the British Parliament with the support of senior Labour Party leader Mr. George Lansbury. However, due to the Labour Party’s electoral loss, the Bill was stalled and not passed, thwarting Besant’s plan. Nevertheless, the Bill played a profoundly influential role in Indian constitutional thought. As highlighted by Niraja Jayal in Citizenship and its Discontents, provisions from the Bill were verbatim repeated in the Nehru Report 1928, influencing the final Constitution of India in 1950.

In the late 1920s and early 1930s, a constitutional and political churn occurred in negotiations between Indians and the British. The British, who had previously been indifferent to Indian constitutional demands, initiated steps to frame a new constitutional framework for India, later becoming the Government of India Act 1935.

The WIA actively participated in these negotiations, sending representatives to round table conferences and the Lothian Committee on Franchise. During this period, the WIA began making demands explicitly tied to India’s constitutional future, often expressed in its in-house publication Stri-Dharma, initiated in 1918 to be the voice of the Indian women’s movement.

In a 1931 issue, Stri-Dharma published an article titled ‘Women’s Place in the Future Constitution of India‘ outlining goals and principles for a future constitution:

1.     That woman should be free to contest seats in the general constituencies subject to the same qualifications to apply as men.

2.     In addition to any seats thus secured by women, a certain number or proportion of seats—say five percent as suggested by the Nair Committee— should be reserved for women in each provincial council, at least for a trial period of three general elections.

3.     Reservation should be filled by any suitable way that may be determined by the next Round Table Conference.

4.     That full adult franchise is secured for both men and women.

5.     That any woman—married or unmarried—possessing any one of the general qualifications for the franchise would have the vote.

6.     That for admission into the public services no woman shall be under any disability because of her sex.

7.     Again we believe India will gain in power for good if it develops a woman’s side to its activities.

Equal voting rights, reservations in legislatures, the de-linking of women’s franchise from their marital status and a non-discrimination clause. For the time, these were rather remarkable and bold articulations of constitutional arrangements that were intended to protect and promote the rights of Indian women.

This article began by asking if women had a constitutional vision for India before the formal constitution making process of 1946 – 50? Evidently, they did. And so when we celebrate the women members of the Constituent Assembly, we must also pay attention to the women who were thinking constitutionally, much before the Constituent Assembly was a glimmer on the horizon.

by Manas Raturi

On 9 February 1947, advocate B. Bhima Rao, a former member of the Madras Legislative Council, wrote a letter of appeal to Dr. Rajendra Prasad, the President of the Constituent Assembly of India. Titled ‘An Appeal to the National Government of India,’ the letter carried signatures of over 150 people who had assembled for a public meeting at Davangere (situated in present day Karnataka). Rao’s writing was piercingly emotive, seeking amends from the government of Madras Presidency for “the unfortunate attitude of the Congress government towards Varnashrama duties and the formalities of religions.”[1] Rao and his co-signatories called themselves “Hindu Sanatanists” and in the letter wrote fervently against allowing temple entry to Dalits and inter-caste marriages, pledging to take direct action against the government as the last resort.

Rao’s letter made two broad points. First, it resisted an attack on their sacred scriptures to prevent societal disorder (“Irreligion begs immorality and produces social chaos,” declared Rao at the end of his first paragraph). Second, the Sanatanists argued that religion is a private affair and should thus be “immune from state-interference.” But Rao and others made another crucial point, that orthodox Hindus in India were a minority – “a very insignificant minority, the most harmless minority”, they wrote, whose religious rights were being trampled by a “spiritually blind majority.” Indeed, it was on this basis that Rao likened the alleged persecution of Sanatanists with that of the Jews under fascist Germany and Roman Catholics under protestant Europe.

Reading into this sense of ill-treatment felt by the Sanatanists provides an entry point into a broader pattern found in representations made by orthodox Hindu groups to the Constituent Assembly – the idea that the interests of upper-caste Hindus were absent from constitutional discussions. There were reservations consistently expressed by groups that the Constituent Assembly does not adequately represent orthodox Hindus, and thus lacks the legitimacy to write a constitution for an essentially Hindu India. For instance, on 13 February 1947, the All-India Varnasharam Swarajya Sangh wrote to the Negotiating Committee criticising the way in which the rights and interests of “Sanatani Hindus” were not considered by the Constituent Assembly. It further argued that the constitution should be “in consonance with the principles of Hindu political science for free India” and since the Constituent Assembly was “an offspring of the Imperialistic British Government” it thus “lacks in every respect the essential qualities for preparing such a constitution.”[2] Similarly, on 23 May 1947, the Sri Vaishnava Sidhantha Sabha’s Delhi branch wrote to the Constituent Assembly asking for “representation of the orthodox point of view” in the Advisory Committee, Fundamental Rights Sub-Committee and Minorities Sub-Committee.[3] On 4 June 1947, the All-India Dharma Sangh wrote to the Constitution Assembly declaring that by way of being led by the Congress party, the former “does not represent the Orthodox Hindus, who go unrepresented…” Established in 1940 by Swami Karpatri Maharaj, a monk from the Dashnami Sannyasa tradition and a prominent figure in the Hindutva movement, the Dharma Sangh not only proposed the names of its own members but also those affiliated with the All-India Varnasharam Swarajya Sangh and Bharat Dharma Mahamandal to be considered as representatives in the Constituent Assembly.[4]

More importantly, the representations made by orthodox Hindu groups housed an interesting contradiction. While the Sanatanists sought protection against state interference in their religious practices on the basis of being a ‘minority’ – both within Hinduism and the Constituent Assembly – they also propagated the imagery of a pan-Hindu India, of which they were intrinsic stakeholders, and the constitution for which, in actuality, was being written by a starkly upper-caste Hindu dominated body. As James Chiriyankandath shows, Brahmins making up about 5% of the Indian population constituted about 1/4^th of the 407 members serving the Constituent Assembly between 1946 and 1949. Further, within the 94% Hindu members of the Constituent Assembly, many of the top leaders of the Congress party, such as Dr. Rajendra Prasad, Sardar Vallabhbhai Patel and K.M. Munshi “were sensitive, if not openly sympathetic” to the Hindu nationalist arguments made themselves by many Congress members in the proceedings.[5] Christophe Jaffrelot resolves this contradiction by identifying the orthodox group with Hindu nationalists and Congress leaders sympathetic to the so-called Hindu cause as Hindu traditionalists.[6] Yet as we dig deeper into such representations, the term ‘Hindu nationalist’ itself appears to be situated on a precarious terrain – one that effectively conceals how the imagery of India as a ‘Hindu nation’ is intricately intertwined with the preservation of the varna system.

Further, the Sanatanist claim of being a minority portended a contemporary moment in Hindutva politics, what Hilal Ahmed calls a central feature of ‘Hindutva constitutionalism.’ Ahmed takes Partha Chatterjee’s conceptualisation of inner and outer domains – wherein anticolonial nationalist movements divided the social world between the inner spiritual realm and the outside material realm. The world of faith, religion and culture fell in the inner domain in which the colonial state was not allowed to enter (even with intentions of social reform). Ahmed uses this framework to analyse how, while the Hindutva movement restricted issues of Babri Masjid and Sabarimala temple within the inner domain, the outer domain was selectively left open for constitutional and judicial discourse, such as through a Public Interest Litigation filed by a BJP leader in 2017 to seek minority status for Hindus in nine states and union territories.[7] Looking back at the archives, the strategic use of these two imagined domains is what marks a continuity between the historical and the contemporary in Hindutva politics.

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[1] Letter of appeal from B. Bhima Rao and others to Dr. Rajendra Prasad, 9 February 1947, Ministry of Law Justice and Company Affairs, f. CA/34/Com/47 (Collection I), National Archives of India, New Delhi

[2] Letter from All-India Varnashram Swarajya Sangh to Secretary, Constituent Assembly, 13 February 1947, Ibid.

[3] Letter from Sri Vaishnava Sidhantha Sabha to Dr. Rajendra Prasad, 23 May 1947, Ministry of Law Justice and Company Affairs, f. CA/10/Com/47 (Collection IV), National Archives of India, New Delhi

[4] Letter from the All-India Dharma Sangh to the Constituent Assembly, 4 June 1947, Ibid.

[5] https://www.india-seminar.com/1999/484/484%20chiriyankandath.htm

[6] https://carnegieendowment.org/2019/04/04/fate-of-secularism-in-india-pub-78689

[7] https://www.csds.in/uploads/custom_files/1604640763_DigiPaper%2003%20Hilal.pdf

CLPR Editorial Team

As we celebrate this 75th anniversary of Indian independence, let’s take a step back and ask ourselves: what exactly are we celebrating?

When most of us celebrate Independence Day we think about the fact of independence—that we were liberated from British colonial rule and are not under the rule of any foreign land. We think about how India can determine its own political, social, and economic destinies, and how she takes independent positions on world matters.

However, there is an aspect of Independence that we seldom meaningfully invoke or recall—the Independence Movement that brought us freedom as we know it. Sure, our social studies and civics classes communicated to us a sense of the valour and sacrifice that our freedom fighters embodied, and laid down the sequence of events that led to 15 August 1947. But do we fully appreciate and understand what made the Indian independence so special and unique?

First, rarely in world history has non-violence and mass action been deployed together. Violence has always accompanied mass mobilization towards a political outcome, as collateral or as a deliberate strategy. While there was certainly a strand of India’s Independence Movement that was convinced that violence was the primary tool to achieve independence, this idea did not have purchase among India’s political mainstream. The genius of our Movement was that it combined non-violence with mass action.

Second, the Indian Independence Movement was not limited to asking the British to leave. It made the socio-economic transformation of India a crucial component of its agenda. ‘Quit India’ was not directed only at the British, but also at Indian practices of caste, gender and economic discrimination. We see this in Historical Constitutions like the 1931 Karachi Resolution that called for an Independent constitutional republic, and envisioned an India that gave to its people the rights to equality, non-discrimination and economic welfare.

And lastly, it was in the political churning of the Independence Movement that the Constitution of India was primarily forged. It was informed by the Movement’s values and political practices. The leaders of the Movement, many of whom became members of the Constituent Assembly, used their experiences and learnings to design our constitutional republic. When these leaders were arbitrarily arrested, imprisoned and denied basic civil liberties by the British colonial government, the Constitution’s provisions for the protection of freedom and civil liberties were taking shape in their minds.

Universal adult franchise—a rather novel constitutional choice for countries at the time—is intimately linked to the ‘mass’ nature of India’s Independence Movement where all Indians were encouraged to engage in nonviolent political action against the British. The fight for freedom was by all, and so, the people who would govern in an independent India would be selected by all as well.

Thus, an appreciation of the Indian Independence Movement as more than just an anti-colonial movement gives us a lot more to celebrate this Independence Day. It starkly reminds us that the Movement’s aim to transform India’s oppressive social and economic structures remains spectacularly unfinished.

While we possess a broad comprehension of the connections between the ideas of the freedom movement and the Indian Constitution, there is much more that needs to be unearthed regarding this relationship at a more detailed level. For instance, it remains to be explored how the ideas stemming from the freedom movement played a pivotal role in the negotiations of the various constituent Assembly committees. Although we are aware that numerous members of the freedom movement also held positions within the Constituent Assembly, the exact count eludes us.

Were there specific methodologies employed by members who were part of the freedom movement to engage in the negotiation processes within the assembly? Furthermore, did members of the freedom movement harbor distinct agendas while participating in the drafting of India’s constitution? Can discernible patterns be identified in the constitution-making process in the vicinity of Independence Day? Additionally, are there discernible trends in how the constitution-making process functioned both procedurally and substantively before and after gaining independence?

These represent a multitude of inquiries that the PACT Project seeks to address through our ongoing efforts involving the exploration of new archives and the modelling and analysis of constitutional documents related to the crafting of India’s constitution.

To commemorate International Women’s Day, we focus on the life and contributions of one extraordinary woman, Dakshayani Velayudhan, the sole female Dalit member of the Constituent Assembly, as well as one of its youngest.

Velayudhan was born on 15 July 1912 in Mulavukad, a small island in present-day Ernakulam district. She belonged to the Pulaya community,  at the bottom of the rigorously oppressive caste system. Pulayas were mostly engaged as lowly-paid agricultural labourers, and subjected to a range of humiliations including being barred from using public roads, maintaining a certain distance from upper caste persons, with women prohibited from covering their upper bodies with any garment. 

By the time of her birth, anti-caste reformers such as Ayyankali had laid the grounds for greater assertion by the Pulayas. An epochal event was held in Kochi in 1913, in the form of the Kayal Sammelanam. Hundreds of Pulayas, including Velayudhan’s family members, came together and met on small boats in Kerala’s backwaters, as they were prohibited from assembling on land. The event clearly had a significant impact on Dakshayani’s life, who is said to have requested that her biography be titled ‘The Sea has no Caste.’

Velayudhan went on to become one of the first women from her community to earn a university degree in the form of a B.Sc in Chemistry from Maharaja’s College. Attracted to Gandhian philosophy, she spent a considerable amount of time in the Wardha Ashram, where she got married to Raman Velayudhan in 1940.   

In the 1940s, as Achyut Chetan’s new book highlights, Velayudhan emerged as a fierce critic of Congress politics, writing strongly against them in the All India Scheduled Castes Federation’s (AISCF) weekly journal, Jai Bheem.  At the same time, she was also critical of the AISCF and B.R. Ambedkar’s politics, specifically their demand for separate electorates for the Scheduled Castes.    

Fierce often sexist attacks, from both Congress and AISCF followed. Fervent petitions were addressed to the Congress high command opposing her nomination to the Constituent Assembly. In spite of these, she was elected to the body in 1946.  

In the Assembly, Velayudhan emerged as a strong, independent voice, unafraid to go against popular opinion. Velayudhan made her inaugural intervention during the Assembly’s response to Nehru’s Objective Resolution.  She emphasised that the Indian Constitution had a more substantial task than simply mediating the relationship between state and society; it had to overhaul society itself.  

She believed/ stated that ‘..Only an Independent Socialist Indian Republic can give freedom and equality of status to the Harijans.’ Urging members from the minority communities in the Assembly to not push for political safeguards, she further suggested that ‘It is the moral safeguard that gives real protection.’  

Velayudhan’s criticism of political safeguards was articulated again almost a year later, when she took on B.R Ambedkar and  S Nagappa on an amendment that would have required a reserved seat candidate to secure a minimum proportion of votes from Scheduled Caste voters. She stated that there was ‘no meaning demanding either separate electorates or joint electorates or any other kind of electorates’ if Harijans continued to be ‘economic slaves of other people’. This emphasis on the underlying economic exploitation and landlessness as factors causing social backwardness was once again seen in a debate around an early version of Article 23 of the Constitution, in which she called for an ‘an economic revolution in the fascist social structure existing in India.’ 

Velayudhan’s interventions extended beyond social and economic questions, as she also held strong views on the type of federalism that India should adopt. Her critique of the Draft Constitution of India 1948 focused on the lack of decentralisation and the potential for a strong central government to dominate over state governments. She specifically highlighted the method of appointing Governors of states, which she argued would further centralise power, a prescient observation

Velayudhan’s interventions in the years leading up to the Constituent Assembly, and later as its member, are examples of certain strands of constitutional thought expressed by marginalised communities which have not received adequate attention in Indian constitutional and political history. The PACT project aims to bring these histories to life, by drawing on previously neglected archives and using innovative digital tools to trace the development and influence of these ideas on Indian Constitution-making.

(This piece was authored by Research Associate Siddharth Jha and edited by Senior Research Associate Vineeth Krishna E from the ConstitutionofIndia.net team at the Centre for Law and Policy Research)