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Who Drafted and How ‘Indian’ is the Indian Constitution

Few know that the first draft of the Constitution of India was prepared by Sir B N Rau in October 1947.

By Sanjeev Nayyar

  • What was the process of drafting the Indian Constitution?
  • Was the Constitution an original document? How relevant to India is a Constitution ie based on Western concepts?

The above got me curious and wanting to know how did the Indian Constitution come into being, who all were involved in drafting it and if the holy book was an original piece of work? Read on. 

The Constituent Assembly (CA) appointed a number of committees to consider and report on various important matters for which provision had to be made in the constitution. By August 1947, the broad principles as set out in the recommendations of these committees had been discussed in the CA.

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The Constitutional Advisor, Sir Benegal Narsing Rau, undertook the preparation of a draft embodying the various decisions of the Assembly based on the reports of its committees. It contained 240 clauses 13 schedules. 

Few know that the first draft of the Constitution of India was prepared by Sir B N Rau in October 1947. 

Almost every clause of the first draft had a marginal note giving references to the corresponding provisions in other constitutions or in the Government of India (GOI) Act 1935. Here are some examples. 

Clause 12 (1) Right to Equality: Equal opportunities for all citizens in the matter of employment under the State. (Cf. Government of India Act 1935, ss 275 and 298).

Clause 15 Right to Freedom: Liberty to exercise the following rights subject to public order and morality i.e. speech and expression, assemble peacefully without arms, to form associations or unions, move freely throughout the territories of the federation. (Cf. Irish Constitution, Art 40 (6). Constitution of Danzig, Art 75).

Clause 16 Protection of life and liberty and equality before law: No person shall be deprived of his life or personal liberty without due process of law, nor shall any person be denied equality before law within the territories of the Federation. (Cf U.S.A Constitution (1868), Art XIV, S. I, Irish Constitution Arts 40(1) and 40(4).

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Clause 20 – Rights relating to religion: Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (Cf. Irish Constitution, Art 44(2)1). 

Clause 55 – There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. (Cf. Government of India Act, 1935, s 10, and Irish Constitution, Art 28 (1). 

The source of what we call Central subjects today, called Federal Legislative List was in the first draft. (Cf. Government of India Act 1935, Seventh schedule, para 3).

In fact, it was the Provincial Legislative List, based on the 1935 Act that stated, agriculture and the right to tax agricultural income were State subjects. Eighty-five years later, India and her agricultural needs have changed but this rule remains. 

Clause 75 Definition of “Money Bills” 1935. (Cf. GOI Act 1935, s.37; Commonwealth of Australia Constitution Act, Ch 1, s.53, and Irish Constitution Arts 22 (1) 1and 2).

These are only a few examples of clauses drawn from other constitutions and the GOI Act, 1935. The said Act was passed by the British Parliament and was based on a report by a Joint Select Committee, led by Lord Linlithgow. 

Many of these clauses form part of our Constitution even though the exact wordings might have changed. In all subsequent deliberations of the committee, the first draft constituted the basic document and working paper.

Returning to the making of our constitution the Order of Business Committee, in its report dated July 9, 1947, recommended by the CA the appointment of a committee. Thus, the CA adopted a resolution dated August 29, 1947 that authorised the appointment of a Drafting Committee (DC) to scrutinise the draft of the constitution prepared by the Constitutional Advisor, Sir B N Rau.

The DC consisted of seven members – Alladi K Ayyar, N G Ayyangar, B R Ambedkar, K M Munshi, B.L. Mitter, D.P. Khaitan and Mohammad Saadulla. When Khaitan died T T Krishnamachari was nominated. N Madhava Rau replaced B L Mitter who resigned due to ill health. 

At its first meeting held on August 30, Dr Ambedkar was elected chairman of the DC. Thereafter, the DC met on 42 days starting October 27, 1947 and spent considerable time discussing each article of Rau’s first draft.

The DC submitted a Revised Draft Constitution to the President of the Constituent Assembly on February 21, 1948. It contained 315 articles and 8 schedules. In his covering letter, Ambedkar was gracious enough to place on record the DC’s gratitude to Sir B N Rau and Shri S N Mukherjee, Joint Secretary and Draftsman.

The DC was criticised by those who were looking for originality in the document. 

Whilst addressing the CA on 4 November 1948, Ambedkar said (excerpts), “It is said that there is nothing new in the draft Constitution, that half of it has been copied from the GOI Act of 1935 and the rest of it has been borrowed from the constitutions of other countries. One likes to ask whether there can be anything new in a constitution framed at his hour in the history of the world.” 

Responding to the accusation that the Draft Constitution has re-produced a good part of the GOI Act, 1935 Ambedkar added, “I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution.” Worshipping False Gods by Arun Shourie pg 575.

I must admire Dr Ambedkar for being forthright and honest.

The period from February 1948 to November 1949, when the Constitution was finally adopted by the Constituent Assembly is a vital part of the evolution of our Constitution because a number of historic events took place during that period which influenced the discussions on the provisions of the Constitution. For e.g. the integration of Indian States, abolish of special privileges of religious minorities whilst retaining privileges for backward and depressed sections like Scheduled Castes and Scheduled Tribes, Centre-State relations.

The Draft Constitution, as prepared by the DC was widely circulated. A Special Committee was formed on April 10 and 11, 1948 to review the draft esp. those provisions which departed from decisions taken by the earlier assembly.

The DC met again in October 1948, to review the whole position in light of the feedback by the Special Committee. Thereafter Ambedkar, as Chairman of the DC, made a fresh report to the President of the Assembly, indicating amendments which the Committee had selected for being moved in the Assembly.

The Draft Constitution was introduced in the Assembly on November 4, 1948. It was discussed for over a year before being adopted on November 26, 1949, when the President authenticated it. The Republic of India established by the Constitution came into being on January 26, 1950; and on that day the Constituent Assembly ceased to exist.

Constitution-making by the Assembly took nearly three years i.e. from December 9, 1946, to November 26, 1949. Sir Rau, Shri S N Mukherjee, members of various committees of the CA and the DC contributed to its making. 

It is easy to find fault with the Constitution today. To be fair, we must visualise the state of India in the aftermath of independence and partition and the challenges faced then.

Having said that, Viceroy Linlithgow made a valid point in August 1940, “The framing of the new constitution should originate from Indian conceptions of the social, economic and political structure of Indian life.” 

It appears the drafting committee missed his advice. An example is the September 2018 Apex Court order in the Sabarimala case, where the expression “religious denomination” was used to determine whether Ayyappa devotees, constituted a religious denomination under Article 26, had the freedom to manage their own affairs in matters of religion. 

Senior Advocate Arvind Datar wrote, “It is interesting to note that Article 26 is derived from Article 44 of the Irish Constitution, 1937. This Article 44, in turn, was based on Article 114 of the Constitution of Poland, 1921.” The concept of the religious denomination is of Judeo-Christian origin and used in the context of defined denominations that exist in Christianity yet we apply it to India, where followers of Dharma are in majority. 

Whilst acknowledging the stupendous work done in drafting a constitution, seventy years is a good time to ask. 

How Bharatiya is our constitution? How adapted is a Western system of justice and law to Indian culture, ethos, identity and practice? Is the Supreme Court motto, यतो धर्मस्ततो जयः Yato Dharmah Tato Jayah, Where there is Righteousness (Dharma), there is Victory (Jaya), reflected in the Constitution? 

These questions are worth pondering over, not only for those educated in Western jurisprudence but for every well-meaning Indian.

The author has liberally borrowed from ‘The Framing of India’s Constitution’ (Volume 3) Editor B. Shiva Rao and expresses deep gratitude to those who contributed to this amazing book of six volumes and does not claim originality for the above facts. These volumes are published by LexisNexis (A Division of Reed Elsevier India (Pvt) Ltd, Gurgaon 122002, Haryana, India.)

When praised Dr Ambedkar was gracious enough to, in his speech for Adoption of the Constitution by the Constitution Assembly made on November 25, 1949, acknowledge contributions to the Constitution-making process by Sir B.N. Rau, members of the Drafting Committee and Mr S.N. Mukherjee, the Chief Draftsman of the Constitution.

Author: Sanjeev Nayyar is a Corporate Trainer, Business Consultant, Chartered Accountant, Columnist since 2003, Committed Photographer & Ex HLL, Star TV.

Disclaimer: The article was first published on esamskriti.com, We have republished it with kind permission from the author. The author is solely responsible for the views expressed in this article. The opinions and facts are presented solely by him, and neither The Australia Today News nor its partners assume any responsibility for them.

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