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How the Constitutional Assembly Debated on Crucial Socio-Legal Issues?

The historic task of framing the constitution was completed in almost three years by the Constituent Assembly. The assembly initially comprised 389 members, the number reduced to 299 after the acceptance of the Mountbatten Plan, which led to the creation of Pakistan. The members of the Constituent Assembly were renowned jurists, political veterans, freedom fighters who came from all walks of life, including religious, caste and linguistic minorities, varying in ideology, hailing from every corner of India.

Though the domination of the Congress Party (having 82 per cent of seats), its election is not based on universal adult franchise, low representation of women, acceptance of British provisions, etc are some grounds on which the Constituent Assembly is criticised.

The assembly which sat for 114 days, discussed and debated over what the constitution should contain and what laws should be included. 22 committees were appointed to aid the constitution-making, the committees dwell upon the work related to drafting, union power, provinces, fundamental rights, minorities, tribal areas, language, working of the assembly and finance among others subjects.

Some of the most crucial debates were on the abolition of untouchability, federal structure, uniform civil code, reservation for backwards classes, powers of major offices and the preamble. The knowledge and political expertise of our founding fathers did justice to the various issues that were tabled during the debates and it resulted in a refined and forward-looking constitution.

Historical Background
To address the many aspects of the Constitution-drafting process, the Council has appointed a number of committees. The Constitutional Committee of the Union, the Coalition Committee, the Basic Committees on Human Rights and Minorities, and so on. Nehru and Patel led some of these committees and were honoured by the President of the Legislature for their contributions to the Constitution's foundations. Committees have worked hard for a corporation like this in several aspects and produced major reports.

Between the third and sixth sessions, the Summit looked at the results of the Committee on Fundamental Rights, the Union's Constitution, the Alliance's Strength, the Provincial Constitution, the Convention, and the Ordinary and Organized Nations. Following that, the Writing Committee looked into the proposals of other committees.

In October 1947, the Conference Council's Advisory Branch Office, chaired by Sir B.N. Rau amended the Indian Constitution's initial drafting. Prior to the compilation of this text, a large amount of foundational material was gathered and distributed to Forum members in a three-part series called Constitutional Precedents, which featured key passages from the majority nations' constitutions. A gathering of electors elected the Drafting A drafting review committee provided by the Indian Constitution, written by B.N. Rau, an efficient Constitutional Adviser on Consolidation options, on August 29, 1947. During the inaugural meeting of the Planning Committee, B.R. Ambedkar was elected as its chairman.

The Writing Committee presented the proposed Indian Constitution to the President of the Conference on February 21, 1948. A large number of proposed amendments to the Draft Constitution, as well as a number of comments, critiques, and suggestions, were authorised. The Writing Committee took all of this into consideration. Experts' Committee It has been able to pass on the recommendations of the Writing Program Committee in this regard.

The recommendations of the Special Committee, as well as particular amendments, have been accepted for inclusion. To make it easier to refer to those revisions, the Planning Committee has agreed to publish the Framework constitution that was given to the Executive President on October 26, 1948.

The members of the Electoral Commission eventually sign the Constitution on January 24, 1950. The Constitution's forefathers failed to achieve remarkable success in transforming an acceptable Constitution on all levels, including the scope of this vast and populous world and the power to save and strengthen the threads of national unity between the many religions, races, languages, and all diversity. Our founding forebears were among the least known and most brilliant in terms of legislation, patriotic leaders, and independence struggles.

It is impossible to imagine the best or most representative outcomes at that time, whether the Constituent Assembly is directly elected by the people on the basis of a broad adult franchise or not.

Significant Topics Of Debate

Untouchability:

Untouchability was a malady that afflicted the country and exacerbated inequality and injustice. Untouchability was outlawed under draft article 11, and the assembly had a lively discussion on the subject. Mr Naziruddin Ahmad addressed the assembly, stressing that no one, regardless of caste, race, or religion, should be considered or labelled as untouchable and that its observance in any form may be made illegal. He went on to say that the term "untouchable" has no legal definition and might lead to misunderstandings in legal language.

Abolition of untouchability, according to Shri V. I. Muniswamy Pillai, will go a long way in assisting unfortunate communities in finding consolation from the injustice they have experienced. The removal of untouchability will benefit and be welcomed by a vast portion of the population. He went on to say that the approval of Article 11 will raise the scheduled class men in society and allow them to carve out a niche for themselves.

Untouchability, according to Dr. Mono Mohan Das, must be removed as a fundamental right. He stressed that the lowest castes must be spared from their everlasting slavery, misery, and humiliation, but that they should not be given any particular rights or protections. He spoke on how the custom of untouchability has driven millions of Indians into a dark pit of melancholy and despair, as well as harmed India's vitality. He said that untouchability should be made illegal and that November 29th will be remembered as a remarkable day for the untouchables, as they say of deliverance, and as the day of resurrection for many Indians living in this nation.

Shri Santanu Kumar Das believed that social inequity, stigma, and impairments should all be eliminated from society. He added that discussing such an issue is pointless and requested that laws be enacted to end untouchability.

Professor K.T. Shah provided a different viewpoint. He asserted that the term "untouchability" isn't defined anywhere. As a result, its meaning and application, as well as the effect it will have, are unclear. According to him, a diseased or quarantined individual may be considered an untouchable, and hence the usage of such a term is unlawful. He encouraged the assembly to use different phrases to portray the use of untouchability in different scenarios since the word untouchability is used differently in different contexts.

Based on all of the speakers' points of view, we can infer that everyone was, for the most part, on the same page when it came to abolishing untouchability. As a consequence, under Article 17 of the constitution, the practise of untouchability was outlawed (draft article 11). The article says, "Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with the law.

Uniform Civil Code

The Constituent Assembly did one of the most heated and memorable debates on the idea of the Uniform Civil Code. As India was to be made a secular state, many members of the Constituent Assembly proposed the idea of having a common code for governing personal laws. Both K.M. Munshi's and B.R. Ambedkar's drafts articles on justifiable rights from March 1947 had language alluding implicitly to a Uniform Civil Code. Munshi's proposal stated:
"No civil or criminal court shall, in adjudicating any matter or executing any order recognise any custom or usage imposing any civil disability on any religion, race or language".

Similarly, Ambedkar wrote that "the subjects of the Indian state shall have the right to claim full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom based on religion and be subject to like punishment pains and penalties and to none other."

Minoo Masani, a Parsi, Rajkumari Amrit Kaur, a Christian, and Hansa Mehta, a Hindu, were all supporters of this proposal for social reform and women's equality. They wished for UCC to be recognised as a fundamental right. They stated their views in a strongly written message, citing personal laws as one of the most important causes in keeping society divided and impeding the nation's progress.

At the other end of the spectrum were Mohamed Ismail Saheb and other Muslim leaders; all men, who shared the opposing view. They wanted to include the right to one's personal laws as a fundamental right to religion. When this demand could not be met, they insisted to make the UCC a Directive Principle. Mahboob Ali Baig Bahadur stated that having a common civil law is not required for a secular state and that in a secular society, individuals of various religions must have the right to follow their faith under their own personal laws.

Finally, an intermediate stance was established, stating that the construction of the Uniform Civil Code must be done gradually. As a result, the subcommittee on Fundamental Rights wished to introduce the uniform civil code as one of the Directive Principle of State Policy, and it was included in clause 39 of the draft DPSP.

Preamble

The preamble is a declaration released by the legislature with the objective of passing the act, and it is helpful in reading any statute. It encompasses all parts of a person's life that are required for them to function in society with dignity and repute. The Indian Constitution's principles are decided by the Constituent Assembly's several committees. Following extensive debates and deliberations during the previous session, members of the constituent assembly created the preamble, which is one of the most essential elements of our constitution.

Professor K.T. Shah argued that the words "Secular, Federal, and Socialist" should be included in the Preamble. According to him, including these phrases in the preamble will aid in administering the Constitution's ideals. The term "federal" refers to an agreement amongst the states that make up the Federation on equal footing. He said that the addition of the word "secular" will provide comfort to the general public in problems relating to the country's administration, particularly in cases of injustice or inequity among residents. According to him, "socialist" refers to a state in which everyone obtains equal justice and equal opportunity by putting up their best effort, brains, and work. People can expect a respectable standard of living in exchange.

Prof. K.T. Shah's suggestion was rejected by Dr B.R. Ambedkar, who stated that "we cannot make India a socialist country since a country's social and economic policies are to be established by the people alone according to the time and circumstances." If it is incorporated in the preamble, the essence of democracy and liberty will be lost since individuals will no longer be free to choose what they want.

Professor Shah's amendment received a standing ovation from Mr H.V. Kamath. Given the House's refusal to accept the qualifying term 'federal' for the phrase Union, he feels it is critical that they explain the standing of the States. Provinces, states, or chief commissioners' provinces are not all created equal, as Mr Shah pointed out. As a result, for the purpose of clarity, truth, and precision in constitutional terms, we must explain the States' link or position as amongst themselves. He also suggested that the Preamble begins with the phrase "In the name of God, We, the people of India..."

Thirumala Rao said that the change should not be presented to a vote in a House of 300 persons, regardless of whether India wants God or not. He also stated that God should be addressed in the Oath, but that individuals who do not believe in God have an alternative; nonetheless, there is no way to reach a compromise that meets all parts of the Preamble.

Some members of the legislature, like Shibban Lal Saksena and Govind Malviya, argued that language related to M.K. Gandhi should be included. Brijeshwar Prasad rebutted such claims, claiming that our constitution is not Gandhian, but rather based on Supreme Court of the United States of America judgements and the Government of India Act, 1935.

Before studying the Draft Constitution article by clause, BR Ambedkar presented the Preamble and urged the Constituent Assembly to deliberate on the following three sets of phrases to be included in the Preamble. Sovereign Democratic Republic, Sovereign Democratic State, Sovereign Democratic Republic." After great deliberation, the name "Sovereign Democratic Republic" was chosen. "We, the people of India, have solemnly determined to establish India as an independent, democratic republic," it said. In this debate, B.R. Ambedkar has the ultimate say. On November 15, 1948, the Constituent Assembly amended the Constitution to incorporate the phrases secular and socialist. He sneered at the suggestion, dismissing it as pointless.

Reservation

On 13th December 1946, Pandit Jawaharlal Nehru moved the Objectives Resolution before the Constituent Assembly. Para 6 of such resolution said that :

"(6) WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes;"
Para 6, constitutes one of the fundamentals of the Resolution. It highlights the intent of the Assembly to protect the vulnerable.

On 29th April 1947, the Interim Report on the subject of Fundamental Rights prepared by the Advisory Committee was presented in the Constituent Assembly by Sardar Vallabhbhai Patel.

The main aim of the Framers was to ensure that all people had equal access to opportunities. On the other hand, the Assembly was well aware that not everyone is created equal. Treating the equal and unequal on an equal footing will not achieve equality. As a result, there will be Paper Equality. To avert this, the Assembly decided that arrangements should be established to aid those who are unequal in order to bring the unequal and equal on a level playing field. Only when the unequal and equals stand shoulder to shoulder will equality be improved.

However, there was still a lot of uncertainty among the members of the Constituent Assembly about the scope and extent of the Reservation.

When Sardar Vallabhbhai Patel submitted the issues in the Report's Appendix on August 27, 1947, Shri. B. Pocker Sahib Bahadur wished to add a change to the appendix's very first item, ensuring that Muslims had their own electorate. The Assembly, however, rejected this viewpoint. Shri S. Nagappa offered a similar but somewhat different argument, in which he provided a formula for creating a separate electorate for Scheduled Castes.

The founders desired a balanced representation of individuals from all walks of life, regardless of social, political, or economic restrictions. They intended the Joint Electorates to constitute the foundation, with a number of seats set aside for backward populations. And the founders held this viewpoint because they were aware that reservation may lead to animosity amongst groups.

Shri Somnath Lahiri suggested the idea of proportional reservation with adult suffrage

Regarding reservation in services, Sardar Vallabhbhai Patel said that "…Then comes representation in the services. The general standard that we have accepted is that ordinarily competitive posts must go by merit and if we are to depart from this, the general administration would suffer immensely. It is well-known that since this departure has been introduced in the matter of services our administration has suffered considerably. Now that we begin anew, we must see that where we have to fill some administrative posts of a higher level, these posts have to be filled by competition, i.e., by competitive examination and competitive tests. We have made some concessions in the matter of certain communities which require a little help."

However, a considerable number of members opposed the reservation system being implemented. Reservation, according to Shri. H. C. Mookherjee, would not serve the national interest, hence he desired that the larger national interest not be sacrificed for the sake of a particular group's benefit. Rev. Jerome D'Souza was a vocal opponent of the reserve, claiming that it is a compromise with an element of illogic. Reservation, he claimed, is anti-democratic.

As a result, after months of discussion, the Assembly decided to implement reservations based on caste societal disadvantage.

Scheduled Castes, Scheduled Tribes, and Socially Backward Classes gained reservation in government offices, educational institutions, and the province and Union legislatures when the Constitution was adopted on January 26, 1950. The reservation was sought to ensure that India's different communities were properly represented. It wasn't supposed to go on indefinitely.

Fundamental Rights

The committee began its deliberations by referring to the Irish and American constitutions. The most pressing issue was the division of rights into justiciable and non-justiciable categories, which was eventually addressed by the Constituent Assembly. Rights that can be enforced in a court of law are known as justiciable rights. These rights were thought to apply not only to the current situation but also to a position that the country as a whole aspires to. The Advisory Committee overwhelmingly acknowledged the first few rights of property, mobility, and profession throughout the country.

With respect to equality of law, the word 'citizen' was changed to 'person' to emphasise the importance of each and every phrase in the constitution. The logic was straightforward: a court of law cannot make distinctions between people based on their country or citizenship.

The importance of the Right to Freedom was emphasised while reflecting on the callousness of the British government. To this, Diwan Bahadur explained that the independence of a nation entails the independence of society from nefarious actions and that even a notion as important as freedom must be subjected to certain limitations in order to protect society's well being. However, the idea of 'illegal imprisonment' was established to guarantee that this clause does not interfere with an individual's right to livelihood.

The goal of the Advisory Committee was to provide individuals as much independence as feasible given the circumstances of the country. They did so by restricting a few privileges to some extent. The right to freedom of expression, for example, was one of the most contentious rights due to its broad scope. To guarantee its positive application, Dr Ambedkar emphasised specifically that any publishing or utterance of slanderous, seditious, obscene, or defamatory content should be against the law, with the Right issuing no defence.

The significance of these clauses may be shown by the fact that some of them were technically against the law at the time, but the basis of Fundamental Rights is so strong that laws were amended to guarantee that individuals' Fundamental Rights are protected.

These suggestions were debated in the Constituent Assembly after debates in the Advisory Committee. The committee's largest challenge was establishing the line between justiciable and non-justiciable basic rights, and the most contentious among them were economic rights like freedom of commerce, which were suggested to be included as a justiciable fundamental right. The constituent assembly wanted the major and fundamental industries to be nationalised.

Later, the committee came to the conclusion that free trade had a direct impact on the ability of individual provinces to establish legislation. Every rule requires certain safeguards, and complete freedom is not acceptable. Reasonable limits, as may be required in the public interest, must be applied.

Another point of contention was freedom of movement. Despite the fact that this was provided as a basic right, a clause was introduced that permitted reasonable limits on mobility in the public good. Many provincial delegates argued that each Indian province (state) was a mini-nation in its own right and that each leader should be able to prioritise the welfare of his or her own people over that of others.

The rights against discrimination were created to ensure that minorities are treated fairly. Religion, education, and special awards were among the absolute rights granted to minorities.

Dr Ambedkar stated that the legislature's role is not only to guarantee basic rights but also, and perhaps more crucially, to protect them.

It's possible that the idea behind these rights was to distinguish between India's administration under British rule and its governance as an independent nation-state. Somnath Lahiri held an unusual viewpoint. He stated that these rights appeared to be more from the perspective of police officers than from the perspective of the general public.

Fundamental rights are certainly necessary for the individual's and nation's growth and development. Following that, the Constituent and Advisory Committees outdid themselves by putting together a package of rights that enhances every other right conferred by the constitution in some manner. These rights have served as a safeguard for justice, equality, and civil liberties. Fundamental rights, in a larger sense, are the foundation upon which civil society is built.

Criticism Of Constituent Assembly Debates
Though the Constituent Assembly did a commendable job in the framing of the Constitution, the assembly is criticized for many valid reasons.

The biggest criticism faced by the assembly is that it was not a representative body as its members were not elected directly by the people of India on the basis of universal adult franchise. The members were elected indirectly, hence it is argued that those who were making the constitution were not chosen by the people for whom the constitution was being made. On the same grounds, it is said that the general public was not given a choice but to accept the constitution, hence, as the critics put it, the constitution was 'imposed' upon the people of India.

The assembly is also criticised on the grounds that it was not a sovereign body. The constituent assembly was formed by the proposal of the British government. Furthermore, the sessions of the assembly were held after taking the permission of the British government.

Though, as compared to the many other constitutions, including that of Pakistan, the constitution of India was drafted in the right amount of time. But, when we compare it to the constitutions such as that of the United States of America, which took only four months, the time consumed by Indians, which is almost three years, seems to be unduly long.

One of the biggest arguments put forth against the constituent assembly is that it was highly dominated by Congress. The Congress party had secured the majority of 82%, hence, it is argued that the Constituent Assembly was a one-party body in a one-party country.

Conclusion
Framing of the constitution, debating for almost three years, revisiting the procedures and many more such tasks done by the Constituent Assembly was indeed not easy. It was the effort of those leaders that today we cherish one of the world's refined constitutions. The success of the constituent assembly was based on the spirit of debating.

Such spirit must be seen as a legacy to the Parliament of India, bestowed by the forefathers. The constituent assembly debates established the roots of democracy in India, and parliamentary debates have to carry on that path and make sure that the rule of law is upheld.

Bibliography:
  • Constituent Assembly Membership, Rajya Sabha https://rajyasabha.nic.in/rsnew/constituent_assembly/constituent_assembly_mem.asp
  • Sarojini Reddy, Judicial Review of Fundamental Rights: New Delhi: National Publishing House: 1976, PP.8-9
  • Constituent Assembly Debates
  • The Constitution of India
  • B Shiva Rao, The Framing of India's Constitution: Select Documents - Government of India Press, Nasik, 1968, p. 79
  • Vanaik, Achin. "Does the Constitution deliver on its promises?". The Caravan
  • Subhash C. Kashyap, Our Constitution, 5th Edition, 2018

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