Constituent Assembly Debates Research Articles

Islamophobia in India and the Racial State

This article focuses on the relationship between nation-making and the emergence of Islamophobia in India. Studies on anti-Muslim violence and Islamophobia in India either tend to dismiss the concept or limit its deployment by identifying it within the actions of Hindu nationalist groups situating their rise as an exception to India’s secular and multicultural trajectory. Premising on the idea that Islamophobia should be understood as the negation of Muslim political subjectivity this article argues that Hindutva is not an aberration. Rather, it is a continuation of the Indian nation-making project with the Muslim placed as the other of this project. Further, the article frames India as a racial state and this argument would include identifying its systemic nature by looking at the sections of the Indian constitutions and constituent assembly debates. Thus, the Indian state will be understood not as a mere facilitator but as an embodiment of Brahminical hegemony that generates racial conflict and divisions and attempts to exclude or eliminate Muslimness through homogenizing or marginalizing processes.

Critically Analysing Participation and Contribution of Women Representatives in the Making of the Constitution of India: Bouquets and Brickbats

The Sustainable Development Goals emphasise need for women’s political participation and leadership. While the sex ratio of India has improved drastically since Independence, however, the political representation of women is yet to be realised. This paper critically analyses an under-analysed issue of great importance to gender representation and participation in the making of the Constitution. Despite enthusiastic participation of women in various spheres of India’s freedom struggle, the political participation was limited owing to the qualifications of the electorate that disenfranchised many women from voting. Ultimately, 15 women members formed part of the 299 member Constituent Assembly that drafted the Constitution of India. The Constituent Assembly Debates, other reports and literature are referred in this paper which (i) discusses the participation of women, including the women representatives, in the Constitution Making Process (ii) examines the evolution of the Constitution as a result of women’s participation with emphasis on the fundamental rights, and (iii) critically analyses the contribution of women members including concerns that could have been addressed more deliberately. This critical analysis provides a feminist perspective of constitution making and sets out a basis for better understanding of importance of gender representation in the Constitution making, how it structures the Constitution, and contributes to making the Constitution more gender-representative, participative and inclusive.

Constitutions and their foundational discontents: Studying the process of constitution-making in Jammu and Kashmir

AbstractThis article studies the process of constitution-making in Jammu and Kashmir as a hegemonic process dominated by, and an ideological reflection of, the dominant political party of Jammu and Kashmir, the National Conference led by the popular leader Sheikh Abdullah. The Constitution of Jammu and Kashmir emerged as an outcome of their ideas. Though the process itself was punctuated by the exclusionary violence against diverse communities present in the state at that time, very little attention has been paid to the idea of a constitution as an exclusivist text that embeds ‘foundational violence’ within it, and that eliminates dissenting groups and prevents the inclusion of plural conceptions of politics by actualizing a monopolistic discourse in favour of the dominant party. This article locates the violence that went into constitution-making and further employs hermeneutical interpretation of the Constituent Assembly Debates of Jammu and Kashmir to locate the differing viewpoints that existed in the State Constituent Assembly. It also takes the surrounding political and ideological context into account. In doing so, it constructs an alternative and ‘unofficial’ version of the constitution-making process, which helps challenge the dominant historical narrative that the constitution-making in Jammu and Kashmir was a successful experiment in Indian federal democracy.

Exclusion of Pasmanda Muslims and Dalit Christians from the Scheduled Caste Quota

Based on a re-reading of the Indian Constituent Assembly Debates in light of subsequent developments, this article provides new insights about the extent to which the Indian constitution allows affirmative action for redressing historical disadvantages and empowering marginalised communities. Since the post-colonial Indian state introduced the criterion of religion in the lists of Scheduled Castes (SCs), this sparked suspicions of efforts to prevent conversions, further augmenting India’s Hindu majority. The article re-examines such claims in light of the Indian Constituent Assembly Debates and subsequent Government Orders for notifying/modifying SCs. It argues that the list of SCs was never envisioned as religion-neutral, so that the exclusion of Pasmanda Muslims and Dalit Christians from the SCs is not a communal afterthought, while religion has all along not been the only or main criterion for affirmative action policies.

Assembling India’s Constitution: Towards a New History

Abstract The framing of India’s constitution was a critical event in the global history of both constitution-making and democracy. Conventionally it has been analysed as a founding moment. Its success against multiple odds has been explained as resulting from a vision and consensus among the elite over what would become a pedagogical text for an ‘ignorant’ and undemocratic public. This focus among academics on political elites, and an underlying assumption that constitutional details were beyond the public’s imagination, limited the scope of investigations largely to the Constituent Assembly debates. By directing the inquiry away from these debates towards hitherto unstudied documents, this article offers a paradigm shift in the method of research and understanding of India’s constitution-making. It explores the constitution as it emerged from beyond the Constituent Assembly through engagement with its making among diverse publics. In doing so, it shows that the Indian constitution was not simply founded and granted from above, but came about through many smaller acts of assembly away from the Constitution Hall. It was the public who set normative expectations and tried to educate the members of the Constituent Assembly, and this was critical for the constitution’s future reception and endurance.

Equality for Women: The Constituent Assembly Debates and the Making of Equality Jurisprudence by and for Women

This article explores how 15 women members in the nearly all-male constitution-making process contributed to crafting of sex equality in India’s Constitution. Women members, opposed to positive discrimination and having faith in personal merit and ability to overcome odds, asserted their voice in India’s Constituent Assembly to redress women’s subordination caused by socio-religious androcentric practices, customs and laws. But the outcomes depended upon the religio-masculine complex which never permitted the issue of gender inequalities to take centrestage in the constitution-making process. However, for women members, as evident from this enquiry, the mere removal of sex as a constraint upon them was of paramount importance as merit, ability and competence could further help them achieve progress and equalisation. Second, what appears is that in the women's imagination, the guarantee of equality being crafted included an eradication of historical gender inequalities.

The Ideology of the Postcolonial State in Indian Constituent Assembly Debates (1946-50)

Abstract not available Dhaka University Law Journal, Vol. 32(1), 2021 P.266-276

Citizenship and Minorities in the Constituent Assembly Debates: Making Sense of the Present

The debate on citizenship in the Constituent Assembly was overshadowed by the partition of India, which created difficulties in making constitutional provision for citizenship on certain defined criteria. However, it was quite clear to most of the members of the Constituent Assembly that the criteria of citizenship could not be fixed beforehand, as it was not possible to anticipate future developments. Thus, the Constitution empowered the parliament to define citizenship from time to time in the light of changing conditions. Thus began the process of enactments revising the provisions for citizenship, which ultimately culminated into the violation of the Constitution through enactment.

Excluded Areas as the limit of the political: the murky boundaries of Scheduled Areas in India

ABSTRACT This paper outlines how entrenched ideas such as ‘state of nature’ and ‘traditional societies’, as outlined primarily in the political thought of liberal imperialists such as John Locke and Henry Maine, cause modern colonial and post-colonial states to enforce a ‘limit of the political’. It argues that such a limit of the political excludes from the political domain imaginaries of collective life shaped by communities that came to be categorised as tribal. By marking the influence of these categories on British parliamentary debates on Schedule VI of the Government of India Act, 1935, the arguments of Gopinath Bardoloi and his Sub-Committee Report on the ‘Excluded Areas’ of Assam, and on the Constituent Assembly Debates of India on 'Excluded Areas' and 'Partially Excluded Areas' in India, this paper demonstrates that a ‘limit of the political’ came to be enforced by the legal creation and maintenance of ‘murky boundaries’. It defines murky boundaries as non-dichotomous boundaries drawn between both people and areas to demarcate the gradated manner in which those the modern state categorises as tribes are included, partially excluded, and excluded altogether from the political. This paper argues that such murky boundaries were created so that the state could organise its standoffishness towards routine administration, standardisation, and legibility of its diverse tribal subjects.

Review Essay: A “Countertenor’s” polyphonic rendition of the Constituent Assembly Debates

The Indian Constituent Assembly Debates is a remarkable deliberative document to create the written constitution of the democratic republic of India based on an open society. By its very nature the text is polyphonic and had multifarious voices with a dominant and uniting trend to create a liberal constitutional state with Indian features suited to Indian conditions. The intention, and rightfully so, was not to bring about a “revolution” in the nature of a Russian, Chinese or even the French variant, soon slipping into dictatorships of either party or bureaucratic elites or charismatic individuals; but was to create a democratic polity based on liberal constitutional values drawing from India’s history and cultural conditions. This rich text running into few thousand pages is being explored in some of its aspects in the present work. Though, the tone and tenor of the present work is not representing the dominant voice of a soprano but that of a countertenor who is castrated to reach the higher octave.

The Constituent Assembly Debates on Property: Unravelling the Property Paradox

The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Indian Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished. The debate over property began early in the Constituent Assembly even while the terms of independence were being worked out and the controversy was more prolonged and acute than that over any subject, except that of official languages. In this paper, I outline key debates on the inclusion, content, and judicial enforcement of the right to property within the Assembly. My aim is to present a snapshot of the deliberative process that transmuted abstract policy goals of the founders into guaranteed fundamental of Indians, especially pertaining to the right to property. I show that there were two broad discourses underpinning the debates on the right to property. The first was the “rights” discourse, with its sub-discourses on “civil and political rights” and “social and economic rights”. The second was the “development” discourse with its concomitant focus on “land reform” and “industrialisation and capital formation”. Both were enabling discourses, but grounded in different premises. While the discourse was a utilitarian discourse premised on the philosophy of the “greatest good of the greatest number”, the rights discourse was a dignitarian discourse, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India. The contention over the inclusion of the right to property in the Constitution was a contention between the rights discourse that sought to empower the disempowered and respect individual rights, and the discourse which sought to give the state, as representatives of the people, power to take measures to bring about development according to a utilitarian calculus that fundamentally contradicted of individual citizens, including, but not limited to, the right to property. Existing scholarly literature has described the history of the fundamental right to property as a tussle between progressive legislatures, that were trying to bring about much needed land reform in India, and reactionary courts, that impeded such reform efforts by protecting the property of rich zamindars. I have argued elsewhere that this narrative is simplistic, and therefore somewhat misleading both as to the real issues at stake in the contentious history of the right to property, but also the learnings we can take from that history for political and constitutional reform in India and other constitutional democracies that are also developing countries. Through this paper, I hope to reveal that the final unwieldy draft of the provisions relating to constitutional property adopted by the Constituent Assembly reflected an uneasy compromise between competing interests represented within the Assembly. But this compromise failed to please any of the constituencies entirely and resolved nothing. At best, it postponed the resolution of these issues to a future time and foreshadowed the conflicts that emerged in the courts. It is clear that the Constituent Assembly expected resistance from traditional elites on the abolition of the zamindari system, but it seems to have either wilfully ignored or underestimated the extent of resistance it would face on the issue to reach a resolution that would enable the Assembly to have a fundamental chapter, or perhaps to even have a Constitution in the first place.

Franchise for All: The Constituent Assembly Debates on Universal Adult Suffrage

The recent 2019 general elections in India elected more than 500 representatives to the Parliament: one did not have to belong to a particular gender, race, class or caste to vote. All Indian citizens who are otherwise not disqualified can elect their representatives. With the Constitution coming into force in 1950, unlike other countries, at one stroke India provided for a universal adult franchise. Its instant arrival, according to Khosla was ‘arresting given democracy’s troubled history in the decades preceding the end of British rule’. Many observers of that time argued against throwing open voting rights to all. The British Prime Minister Clement Atlee was sceptical of the democratic arrangements that India was heading towards. He wrote to Nehru: “The Asiatic republics are few and of recent establishment. Their record is not very encouraging. They tend to degenerate into dictatorships or oligarchies. They offer a prize for the ambitious authoritarian individual”. Ivor Jennings, English lawyer and academic, noted: ‘it may be possible to minimize the risks by creating a limited franchise or by balancing representation…narrow franchise, indirect elections, tribal representation may all be colonial conditions…merely because they are regarded as primitive in the Conservation Party Headquarters or Transport House’. Jennings conception of independent, democratic India was not rooted in the universal adult franchise. Forceful voices against the universal adult franchise did not deter India’s will to enfranchise all. This essay revisits how universal adult franchise appeared and was finally adopted in Indian political and constitutional history: a measure that forged a new political and democratic path for an independent India. The first part focusses on a franchise under British rule and the demand for the universal adult franchise within the freedom movement. The second part examines the Constituent Assembly debates around the adult franchise. This essay does not look at the operationalisation of the universal adult franchise: an exercise that began even before the Constitution came into force. Ornit Shani’s work in How India Became Democratic gives an illustrative account of how democracy was institutionalised through universal adult franchise. She examines the practical measures undertaken by the Constituent Assembly Secretariat (CAS), between 1947 to 1950, to make the universal adult franchise a reality. After the Constituent Assembly, in 1947, signalled the adoption of universal adult franchise, the CAS began preparation of the electoral roll: 173 million citizens were enfranchised. Shani claims that ‘the first draft electoral roll on the basis of the universal franchise was ready just before the enactment of the constitution. Indians became voters before they were citizens’.

Citizenship and the Constitution

This article examines the vision of citizenship set out in Part II of the Indian Constitution, through a close reading of the Constituent Assembly Debates. I argue that through its specific provisions in Part II, the Constitution articulates a vision of Indian citizenship that is interwoven with Indian constitutional identity as a whole: secular, egalitarian, and non-discriminatory. Drawing upon universal humanist principles – and in specific and conscious contrast to the State of Pakistan – the Constituent Assembly crafted an idea of citizenship that rejected markers of identity, whether ethnic or religious. A careful reading of the Constituent Assembly Debates reveals, therefore, that while Parliament was free to legislate on citizenship, it was to be bound – always – by the defining features of the Indian polity. Parliament could not – and was not intended to – ever create conditions for entry into the polity (through citizenship laws) that were fundamentally at odds with its secular and civic-nationalist identity. This was meant to act as an “implied limitation” (a concept familiar to students of constitutional law) upon Parliament’s powers under Article 11. Under this Constitution, therefore, religion cannot become a basis for citizenship.

Constitutional Contestation of Religion in Sri Lanka

ABSTRACTSri Lanka’s constitutional policy regarding religion affords the ‘foremost place’ to Buddhism and obligates the state to protect and foster the Buddha Sasana, whilst assuring the rights and freedoms of the other religions. By explicitly creating a special status for Buddhism, the constitution has produced the category of the ‘Other’ that has the potential to discriminate against minorities in a pluralistic society and to undermine the fundamental principle of equality. The creation of this distinction generated contestation during constitutional reforms. By examining reform proposals on religion, interview material and comparing the debates of the Constitutional Assembly (October/November 2017) with the Constituent Assembly debates (1970–71), this study retraces the evolution of the Buddhism Chapter and identifies the present contestations and their role in deciding a constitutional arrangement for religion.

The Inclusion of Educational Institutions Under the Term Shopss? The Argument Made by Gautam Bhatia for the Inclusion

The object of Article 15 of the Constitution of India is the prohibition of discrimination. Article 15(2) prohibits the restriction of access to public places which have been given under the provision. Gautam Bhatia in his article titled, horizontal discrimination and article 15(2) of the Indian Constitution: A Transformative Approach has provided a unique argument pertaining to Article 15(2) of the Constitution of India which hasn’t been applied much till date. In this article Bhatia makes the argument that Article 15(2) should have be given a wide interpretation which covers private economic transactions as well where such goods and services offered are accessible to everyone. For this he looks at the transformative nature of the Constitution and the Constituent Assembly Debates. He first questions when validity and the judicial enforcement of exclusionary covenants. For this he criticizes the Zoroastrian Cooperative Housing Society case and looks at the IMA v. Union of India judgement and the interpretation of the term ‘shops’ which is given under Article 15(2). Through various sources, which include articles, books and cases, Bhatia concludes that Article 15 was worded as such to do away with traditional discriminatory practices that pervaded the private economic realm. While this argument sounds astonishing as it is rather fascinating to see educational institutions be included under the term ‘shops’, Bhatia has grounded his argument in credible sources and has made his point come across. In this paper the researcher has tried to validate and justify the stance taken by him by discussing how his arguments have been fashioned and on what materials such arguments have been made.

SECULAR QUESTS, NATIONAL OTHERS: REVISITING BANGLADESH’S CONSTITUENT ASSEMBLY DEBATES

How do we understand the 15th amendment of the Bangladeshi Constitution that restored the principle of secularism and simultaneously (re)inscribed certain populations as outside the cultural nation? I approach this question through a close reading of the Constituent Assembly debates of 1972. The precarious state of minorities, I contend, is not a symptom of an incomplete or failed secularism but a feature of the violence inherent to the nation-state form. The Bangladeshi example suggests not only that minority is a profoundly unstable category but that some minorities are visibly critical to national self-fashioning while others must be invisibilized as national others.

Collective Conservatism and the Constituent Assembly Debates: The Case of Free Speech in India

This article outlines the conceptual foundation of India’s free speech regime by focusing on the debates of the Constituent Assembly (1946–1949), and traces the development of the Article 19 of the constitution, which guarantees all citizens the right to free speech and expression, albeit certain ‘reasonable restrictions’. While offering a synoptic account of the conservative side of its development—as framers negotiated the discrepancies between their imagined ideal and the existing, often-conflicting reality—the idea here is not to uncover some grand master plan of Indian democracy from which it has faltered, but to explore ways in which it might lend a fissure to violent outbursts of ‘hurt sentiments’ in contemporary India, which impinges upon the idea and enjoyment of free speech in general, and freedom of artists in particular.

The Holy Cow: Unravelling the Mystery of its Holiness

This article aims at debunking the sanctity of the cow that has gained ground as a political vehicle in contemporary times, and exposing the selective reading of texts employed otherwise to further particular religious leanings. Through the course of this article, a wide array of evidence from religious scriptures, legal texts, archaeological materials, epics, commentaries, edicts, foreign travellers’ accounts, debates, statutes and judicial decisions have been resorted to, in order to enable a comprehensive understanding of the trajectory of the cow from sacrificial slaughter to prohibitory injunctions on beef consumption. This article, to begin with, traces the treatment of the cow to the earliest Vedic texts through an academic survey to demystify popular misconceptions regarding religious injunctions against cow slaughter and the inherent sacredness of the cow. It then explores an amalgamation of theories put forth to explicate the transition from cow killing to the present inviolability of the cow. Finally, this article examines the legal and juridical discourse on sanctifying the cow, by tracing Constituent Assembly debates and a series of judgements on cow slaughter under the colonial administration and post-Independence, to conclude that judicial intervention has failed to engage with the religious debate satisfactorily and has made a mockery of constitutional secularism in promoting and normalizing a single dominant-caste Hindu narrative.

Rights of Minorities to Establish and Administer Educational Institutions in India: Some Constitutional Reflections

Minority rights have been accepted into the cannons of both the international human rights law and the constitutional laws in most of the post-colonial nation States. Minorities world over – religious, linguistic and ethnic – have been constitutionally recognized as groups needing special protection and safeguards from the majoritarian attitudes or policies of discrimination towards their legitimate interests. Indian Constitutional law is one of the best in the world to provide a detailed catalogue of human rights to which every individual, including those belonging to religious and linguistic minorities, is entitled to enjoy without any discrimination. Besides this, every minority group enjoys religious, linguistic, cultural and educational rights. This paper deals with the rights of minorities to establish and administer educational institutions under the Constitution of India. It explores the Constituent Assembly debates and text of the Indian Constitution on Article 30, which grants minorities right to establish their own educational institutions. Further,the paper looks into the various Supreme Court decisions on the subject in order to better understand the jurisprudence of this fundamental right. The debate in the Constituent Assembly was full of containment as the draft articles on the minority educational institutions were criticized as being group rights and were argued as being against the concept of democracy, justice, and secularism. Also, it was feared by some that it might underpin the national unity. This is one of the reasons behind ambiguous nature of this provision. The biggest loophole of this provision is that it does not define the term “minority”. Despite these problems,the paper argues that Article 30 offers an important space to the minorities to shape their educational situation in accordance to their desires and should be encouraged as it helps the State in dealing with culture-specific factors behind their educational backwardness.

The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions.” Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.