Making of the Indian Constitution The Constituent Assembly

A constituent assembly is a body extraordinaire: summoned for one purpose, to draw up a constitution, and dissolved when that purpose is served. India’s sat for nearly three years, under partition, doubling as the country’s legislature, and produced the longest constitution in the world. How it was constituted, who sat in it, how it worked, and whether it had the authority to bind a nation of three hundred and forty million people are the questions that make this topic contested rather than merely historical.

What a constituent assembly is, and when one appears

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• The formation of a constituent assembly is an acknowledgement of sovereignty and of a people’s right to self-determination.
  • This is precisely why colonial powers resist conceding one and nationalist movements insist on nothing less: the body’s existence concedes the claim before it writes a word.
  • Sir Ivor Jennings identified the situations in which such a body appears — when a nation throws off a foreign yoke, and when a nation is created by the fusion of smaller political units.
  • India’s Assembly belongs to both categories at once, since it wrote for a territory that had to be assembled from British provinces and princely states while it was writing.
• The great modern revolutions supplied the template, and the Indian demand explicitly invoked them.
  • The American, French and Russian upheavals were each followed by a constitution framed by representatives of the citizens rather than granted by a sovereign.
  • The claim embedded in the demand was therefore not merely procedural: a constitution given by Parliament at Westminster could never be a constitution made by Indians.
• The Indian Assembly nonetheless differed from all three in one crucial respect.
  • Elsewhere the constituent body followed a revolution that had already destroyed the old order.
  • In India it followed a negotiated transfer of power, so the colonial administrative structure was still standing, still functioning, and still available to be adopted rather than replaced.

Indian constitutional antecedents: the non-official tradition

The claim that the 1950 Constitution is simply the terminus of a chain of British statutes ignores a parallel Indian tradition of constitution-drafting that ran for half a century. Mridula Mukherjee rejects the idea that responsible constitutional government in India was initiated solely by British rulers, and the documents below are the evidence for that rejection.

The Constitution of India Bill, 1895

• Also called the Swaraj Bill, it is generally associated with Bal Gangadhar Tilak and was drafted at Annie Besant’s suggestion, though its precise authorship remains disputed.
  • It was written in a legal style and ran to 110 articles, covering individual rights, the structures of government and the separation of powers.
  • Its rights catalogue is the striking feature — freedom of expression, equality before the law, inviolability of one’s home, the right to property and free state education — asserted decades before any British statute conceded a rights chapter.
• Its standing in the scholarship is high.
  • S. P. Sathe calls it the first non-official attempt at drafting a constitution for India.
  • Rohit De describes it as the first articulation of a constitutional imagination by Indians — a formulation that shifts the emphasis from the document’s legal effect, which was nil, to what it proves about political consciousness in 1895.

The Commonwealth of India Bill, 1925

• The joint work of Annie Besant, Tej Bahadur Sapru and V. S. Srinivasa Shastri, and the most fully worked out of the early drafts.
  • Its features were a federal structure, representation for Indians, a schedule of fundamental rights, judicial reform and financial autonomy.
  • It was introduced in the British Parliament by the Labour Party in December 1925 and did not survive the first reading, because Labour had lost office.
• Its significance is the point at which Indian constitutional drafting moved from aspiration to legislative form, put before the imperial legislature as an actual bill rather than a memorandum.

The Nehru Report, 1928

• Prepared by a committee of the All Parties Conference chaired by Motilal Nehru, with Jawaharlal Nehru as secretary.
  • It was drafted in direct answer to Lord Birkenhead’s taunt that Indians could not produce an agreed constitution, and to the appointment of the all-white Simon Commission.
  • It proposed dominion status, a federal government, a bill of rights, constitutional supremacy, a secular state, and the reorganisation of provinces on a linguistic basis.
• Granville Austin records that its fundamental rights section was “a close precursor of the Fundamental Rights of the Constitution”, with certain clauses reappearing materially unchanged in 1950.
• It failed politically for two opposite reasons, and both mattered more than the document did.
  • The younger radicals — Jawaharlal Nehru, Subhas Chandra Bose, Satyamurthi — rejected dominion status and demanded complete independence, a demand carried at Lahore in 1929.
  • The Muslim League rejected it because it abandoned separate electorates, reserving seats for Muslims at the centre and in minority provinces but not where they held a majority — which produced Jinnah’s Fourteen Points in reply.
• The report is therefore the moment at which the Indian constitutional consensus broke on the communal question, and it never re-formed.

The Karachi Resolution, 1931

• The Congress session at Karachi, presided over by Vallabhbhai Patel and drafted substantially by Jawaharlal Nehru with Gandhi’s endorsement, adopted resolutions on Fundamental Rights and Economic Policy.
  • It is the first Indian document to fuse rights with a socio-economic programme: free primary education, a living wage, protection for women workers, the right to form unions, state ownership of key industries, and religious neutrality alongside civil liberties.
  • The structure of Parts III and IV — justiciable civil liberties plus a directive socio-economic programme — is visible here nearly two decades early.

The Sapru Committee Report, 1945

• The Non-Party Conference committee under Tej Bahadur Sapru produced the last major pre-Assembly attempt at a settlement.
  • It proposed parity between Hindus and Muslims in the executive, a joint electorate with reserved seats, and a Supreme Court empowered to enforce fundamental rights.
  • It was overtaken by events, but it fixed the vocabulary in which the Assembly’s minority debates were later conducted.

What the antecedents establish

• The Indian constitutional tradition was continuous, not reactive. Indians were drafting constitutions for fifty years before they were permitted to enact one.
• Much of the 1950 document was settled in substance before the Assembly met — on rights, on federalism, and on the socio-economic role of the state.
• What the Assembly actually had to decide was the residue the earlier drafts had failed on: minority representation, the strength of the centre, language, and the place of property.

The Constituent Assembly did not invent India’s constitutional ideas; it adjudicated between them.

The demand for a Constituent Assembly

• The August Offer’s fatal defect was that it never specified how the proposed body was to be formed.
  • It also conceded the Muslim League an effective veto on any settlement, which made it unacceptable to the Congress.
  • Rejected by both, it was followed by individual civil disobedience rather than by negotiation.
• The Cripps Mission failed on the same fault line, from opposite directions.
  • Cripps made clear that Indians would write their own constitution, but offered no immediate self-government during the war — which Gandhi dismissed as “a post-dated cheque drawn on a crashing bank.”
  • The League rejected it too, since it did not concede the right of self-determination in the form the League by then required.
  • The provincial opt-out clause conceded, in principle, the possibility of partition — which is why the Mission is a turning point regardless of its failure.
• British policy across this whole period was caught between “Churchillian negativism and Crippsian constructiveness” — an obstruction that made the eventual Indian constituent assembly slower and more grudging than the Labour Party’s own stated position had promised.

The Cabinet Mission Plan and the Assembly’s composition

• The Cabinet Mission — Lord Pethick-Lawrence, Sir Stafford Cripps and A. V. Alexander — arrived with two tasks.
  • An interim government commanding the widest possible agreement among Indian parties.
  • Machinery through which Indians could frame a constitution — and the Mission stated explicitly that it was not laying down the future constitution itself.
  • Its own scheme proposed a three-tier structure with provinces grouped into sections, a weak centre confined to defence, foreign affairs and communications, and the residue with the provinces — a design intended to accommodate the League without conceding Pakistan.
• The franchise question was decided against direct election.
  • An election on adult franchise would have caused “a wholly unacceptable delay”, since no electoral roll existed anywhere in India.
  • Indirect election by the newly elected provincial legislatures was chosen instead, described at the time as the “fairest and most practicable plan” in the circumstances.

• The franchise beneath the Assembly was narrow.
  • The provincial elections of early 1946 were held under the Sixth Schedule of the 1935 Act, which limited the vote by property, tax payment and education.
  • Austin records that only about 28 per cent could vote in those elections — roughly a seventh of the adult population.
  • Economically and socially depressed sections of the population were, in his phrase, virtually disenfranchised by the terms of the Act, which is the factual core of every representativeness criticism that followed.
• The princely states came in late and unevenly.
  • Their nominees stayed away initially, and by August 1947 almost all states had sent representatives.
  • The negotiation of accession ran alongside the drafting, so the Assembly was writing a constitution for a territory whose boundaries were still being settled.
• The Muslim League boycotted from the first day.
  • It later constituted a separate assembly for Pakistan, so the country’s principal political disagreement was, from the outset, not represented in the room.
  • This is the single most consequential fact about the Assembly’s composition, and it cuts both ways: it weakened the claim to represent all of India, and it removed the obstruction that had defeated every previous constitutional negotiation since 1928.

The Assembly at work

• The first sitting was on 9 December 1946 in the Constitution Hall, now the Central Hall of Parliament House.
  • Sachchidananda Sinha, the oldest member, presided as temporary chairman on the French precedent.
  • Dr Rajendra Prasad was elected President on 11 December, with H. C. Mookherjee as Vice-President.
• Two officials did most of the technical work, and neither was a member.
  • B. N. Rau as Constitutional Adviser prepared the initial draft and toured foreign jurisdictions to study their constitutions and consult their judges.
  • S. N. Mukherjee was chief draftsman, and Ambedkar singled out his ability to put the most intricate proposals in the simplest legal form.
• The Assembly’s status changed on 15 August 1947.
  • Until then it was a body created by British authority under the Cabinet Mission Plan, and its critics made much of that fact.
  • The Indian Independence Act made it fully sovereign, free to alter or reject any part of the plan under which it had been constituted — which it promptly did, abandoning the grouping scheme and the weak centre.
  • It also wore two hats: as a constituent body it framed the Constitution, and as a legislature it functioned as the Dominion Parliament, alternating between the two roles under different chairmanships.

The committees

• The Drafting Committee was appointed on 29 August 1947 with seven members.
  • Ambedkar, Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, K. M. Munshi, Saiyid Mohammad Saadulla, B. L. Mitter — who resigned and was replaced by N. Madhava Rau — and D. P. Khaitan, who died and was replaced by T. T. Krishnamachari.
  • It elected Ambedkar as its chairman, which he later said surprised him more than his appointment to the Committee had.
• Its formal mandate was narrower than its reputation suggests.
  • It was asked to scrutinise the draft prepared in the Assembly’s office on the basis of decisions already taken, not to originate policy.
  • Ambedkar himself said the Committee had faithfully carried out the directions given to it, which is a precise description of a drafting body and a poor description of an author.
• Power in the Assembly ran through a handful of members. Austin’s account identifies an oligarchy at the centre of the process — Nehru, Patel, Prasad and Azad — whose agreement effectively settled a question before it reached the floor.

The stages of drafting

• The Assembly sat for 11 sessions across 165 days, of which about 114 days went on the Draft Constitution itself, over a span of two years, eleven months and eighteen days.
• The commencement date was chosen, not convenient.
  • 26 January was the anniversary of the Purna Swaraj pledge of 1930.
  • The republic therefore dated itself from the movement’s own declaration of independence rather than from the transfer of power on 15 August — a deliberate act of self-authorisation.
• The document as adopted carried 395 articles, 8 schedules and 22 parts, and the whole exercise cost about ₹6.4 crore.
  • The signed copy was calligraphed by Prem Behari Narain Raizada and illustrated by Nandalal Bose and his students at Santiniketan — a choice that placed an Indian artistic idiom around a text critics called Western.
• The process was participatory beyond the membership in one respect often overlooked.
  • The Draft was published and circulated for eight months, and comments, criticisms and suggestions from the public and from professional bodies were considered by a Special Committee before the first reading began.

The interim government alongside

• An interim government took office in September 1946 under the Cabinet Mission’s other limb, with Nehru as Vice-President of the Viceroy’s Executive Council — in effect a prime minister without the title.
  • The League joined in October 1946 while continuing to boycott the Assembly, and used its position to obstruct from within rather than to negotiate.
  • The result was that from late 1946 the Congress was simultaneously running the administration and writing the constitution, which shaped the document in a direction its critics notice: men in charge of a collapsing law-and-order situation are unlikely to design a weak state.

The federal turn: how partition rewrote the design

• The Assembly’s federal intentions in December 1946 were the opposite of what it enacted.
  • The Objectives Resolution placed residuary powers with the units, and the Cabinet Mission scheme envisaged a centre confined to defence, foreign affairs and communications.
  • This was a concession designed to keep the Muslim League inside a united India, and every early federal formula was shaped by that objective.
• Partition removed the reason for the concession, and the Assembly reversed itself explicitly.
  • The Union Powers Committee under Nehru reported that the arguments for a weak centre no longer applied, and that a centre strong enough to plan and to hold the country together was now both possible and necessary.
  • Residuary powers moved to the Union; the Union List became the longest of the three; and the emergency provisions were retained rather than trimmed.
• This is the single clearest case of circumstance dictating constitutional design, and it explains a paradox the critics often present as hypocrisy.
  • The same leadership that had spent two decades demanding provincial autonomy from the Raj built a centre stronger than the Raj’s own.
  • The explanation is not inconsistency but a change in the problem: autonomy had been a defence against an alien centre, and after 1947 the centre was their own, facing partition violence, princely integration and a refugee crisis simultaneously.
• The framers were candid about the reversal. Ambedkar told the House he wanted a strong and united centre, stronger than the centre created under the Government of India Act 1935, and K. M. Munshi argued for a federation with a centre as strong as it could be made.

The impact of the national movement on the Constitution

The Assembly did not appear from nowhere. Almost everything distinctive in the Constitution can be traced to a commitment the national movement had already made, which is why the document reads as a movement’s programme rather than a lawyer’s compromise.

• The movement also supplied the Assembly’s personnel and its authority. The men and women in the room had spent decades in jail, in provincial ministries or in Congress committees, and their standing did not derive from the narrow franchise that formally elected them.
• The limits of the inheritance are as instructive as its content.
  • The Gandhian vision of a polity built upward from village republics was carried by the movement and not carried into the text, surviving only in the non-justiciable Article 40.
  • The movement’s technique of extra-constitutional agitation was left outside the document altogether, and Ambedkar closed the Assembly by asking that it now be abandoned.
  • The communal settlement the movement failed to reach was not solved by the Assembly either; it was removed by partition, which is a different thing.

Ambedkar’s role, assessed

• Ambedkar came to the Assembly on his own account to safeguard the interests of the Scheduled Castes, was surprised to be put on the Drafting Committee, and, by his own testimony, “more than surprised” to be elected its chairman.
• His formal contribution was to steer and defend rather than to originate.
  • The Fundamental Rights articles that reached the Drafting Committee were based largely on the proposals of K. M. Munshi and B. N. Rau rather than on Ambedkar’s own lengthy and detailed list.
  • On the floor he was often torn between his personal conviction — his faith in due process of law, for instance — and his official duty to defend decisions the Committee had taken, and he frequently left questions to the House to decide as it liked.
• He lost on several questions he cared about most.
  • His memorandum States and Minorities proposed a time-bound programme of social reconstruction including nationalisation of land, industry and insurance, which the Assembly declined on the ground that such matters were better settled by legislation.
  • He wanted at least the Directive Principles to carry a more rigorous and justiciable programme, on the argument that one man, one vote was only a mechanism unless it was geared to economic democracy.
  • He opposed giving village panchayats any place in the Constitution, and an amendment carried against him became Article 40 — and, as always, he yielded to the majority.
• On reservation his position was more nuanced than either his critics or his admirers allow.
  • Speaking on the article reserving seats for Scheduled Castes and Tribes, he made only the cryptic remark that it reproduced the Advisory Committee’s decision and needed no explanation from him.
  • He would personally have preferred a period somewhat longer than ten years, but opposed Parliament having power to extend it indefinitely, and was clearly against reservation in perpetuity — holding that caste distinctions were a stigma that everything possible should be done to end.
  • Presenting the Draft, he flagged three propositions on minorities: that the Drafting Committee took no responsibility for the minority articles; that minorities and majorities must eventually merge into a united people; and that the concept of a minority would vanish once the majority gave up the tendency to dominate.
• The question worth holding is whether he should be identified so closely with the document.
  • He is rightly remembered as the chief architect for steering the Draft through the House with great skill, and the tributes paid to him at the time were genuine.
  • Yet his own vision was in several respects substantially at variance with the majority of the Assembly and with the leadership represented by Nehru and Patel.
  • This is why his 1953 remark in the Rajya Sabha that he would be the first to burn the Constitution is neither a contradiction nor a repudiation, but the frustration of a man defending a settlement he had not been permitted to write.

The Objectives Resolution

• Moved by Nehru on 13 December 1946 and adopted unanimously on 22 January 1947, it was the Assembly’s statement of purpose and the direct ancestor of the Preamble.
• Nehru presented it as a pledge rather than a legal draft — in his words, “something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication.”

Its substantive commitments:

• An independent sovereign republic, with a constitution framed by the Assembly itself.
• A Union of the British Indian territories, the princely states and other willing territories.
• Residuary powers with the units, except as vested in or assigned to the Union — a formula the Assembly later reversed under the pressure of partition.
• All power and authority derived from the people.
• Guarantees of justice — social, economic and political — with equality of status and opportunity, and freedom of thought, expression, belief, faith and worship, vocation, association and action, subject to law and public morality.
• Adequate safeguards for minorities, backward and tribal areas, and depressed and other backward classes.
• Maintenance of the integrity of the territory and its sovereign rights on land, sea and air, according to justice and the law of civilised nations.
• A willing contribution to world peace and the welfare of mankind.
• Its political function was to hold the Assembly together.
  • Adopted while the League boycott and the partition question were unresolved, it committed members to shared ends while leaving the structural quarrels — federalism above all — for later.
  • The residuary-powers clause is the clearest evidence of that deferral, since it conceded to the units precisely what the Assembly would take back once partition made a strong centre uncontroversial.
• D. D. Basu treats it as supplying the backdrop to the Constitution’s philosophy, inspiring the shaping of the document through all its subsequent stages.
• Its legal afterlife is substantial.
  • The Supreme Court has used it as an aid to interpretation, and in Kesavananda Bharati (1973) the Court drew on it in identifying the Constitution’s fundamental features.
  • Treating it as a mere first draft of the Preamble understates it: it settled the republic question and the source of authority three years before either appeared in the text.

Austin’s account of how the Assembly worked

Granville Austin identifies three principles in the Assembly’s method, and argues that the first two are India’s original contribution to the process of constitution-making.

• Consensus was a method of proceeding, not unanimity of opinion.
  • Contested provisions were referred back, redrafted and renegotiated until near-unanimity was possible.
  • This is why the Assembly took three years, and why so few provisions were carried by contested division.
• Accommodation is the more distinctive claim.
  • It is the habit of refusing the either-or — a federation that behaves unitarily in emergency, a republic inside the Commonwealth, a secularism that protects religious personal law.
  • It is simultaneously the source of the Constitution’s durability and the source of the internal contradictions its critics attack, and the two cannot be separated.
• The comparison Austin draws is with constitutions made by majority. A document carried by a bare majority binds only until the majority changes; a document arrived at by accommodation has, in principle, no constituency with an interest in tearing it up.
• Austin’s larger thesis about purpose is that the Assembly aimed at a seamless web of three commitments — national unity and integrity, democratic institutions, and a social revolution — pursued together, on the view that none could be secured while the others were sacrificed.

Who was in the room

• S. K. Chaube groups the membership into four categories.
  • Representatives of the Congress, overwhelmingly the largest bloc.
  • A few independents elected on Congress tickets.
  • Independents representing non-Congress provincial legislators.
  • The Muslim League members who chose to remain in India.
• Advocates formed a clear majority over any other occupational group, and steered the process — the source of the recurring criticism that the document is over-legalistic.
• The non-Congress opposition argued mainly for greater provincial autonomy, and did not get it.
  • The Akalis and the League were the main dissenting blocs on the federal question.
  • Chaube’s judgment is that though the opposition was vocal it remained ineffective, because it had no common perspective to organise around.
• The Congress itself was not one thing.
  • It contained Hindu traditionalists, Nehruvian socialists, Gandhians and liberals, so ideological argument occurred inside it rather than between parties.
  • Austin’s point is that the Congress Assembly Party functioned as the unofficial private forum where every provision was debated and in most cases decided before it reached the floor of the House.
• Independent-minded members shaped the record even when they lost.
  • H. V. Kamath, K. T. Shah, Naziruddin Ahmad, Somnath Lahiri, B. Pocker Bahadur and Z. H. Lari dissented frequently and are all over the debates.
  • The published proceedings preserve their objections as fully as the majority’s answers, which is why the Assembly’s own record is the best source for criticising it.
• The women members numbered fifteen.
  • Among them Sarojini Naidu, Hansa Mehta, Rajkumari Amrit Kaur, Durgabai Deshmukh, Renuka Ray, Begum Aizaz Rasul, Sucheta Kripalani, Ammu Swaminathan and Dakshayani Velayudhan, the only Dalit woman in the Assembly.
  • Their contribution ran well beyond numbers: Hansa Mehta pressed the case against reserved seats for women and for a uniform civil code, and Amrit Kaur and Mehta both served on the Fundamental Rights sub-committee.

The making of the electoral roll

• The Assembly’s most radical decision was executed outside the Assembly.
  • While members debated, the Constituent Assembly Secretariat, guided by B. N. Rau, was preparing the first electoral roll on the basis of universal adult franchise — before the Constitution that authorised it had been adopted.
• The scale was without precedent anywhere.
  • The exercise enrolled an electorate of over 173 million, of whom roughly 85 per cent had never voted before, and the great majority were poor and illiterate.
  • It was done amid partition’s displacement of some 18 million people, with the question of who counted as a citizen unsettled, and with princely accession running simultaneously.
• Ornit Shani’s argument is that this bureaucratic exercise is where Indian democracy actually became real.
  • Ordinary Indians, civic bodies and local administrators argued with the Secretariat about inclusion, eligibility and equality — petitioning and complaining in the language of rights before those rights existed in law.
  • On this reading the Constitution was not a gift from an enlightened few; the population was engaging with constitutional principles while the document was still being drafted.
• This bears directly on the legitimacy question. The charge against the Assembly is that it was chosen by a seventh of adults; the answer is that its central act was to abolish the franchise that produced it, and that it began implementing that abolition before it had finished drafting.

An assembly of the propertied gave the vote to everyone — which is not what an unrepresentative body normally does.

Criticism of the Constituent Assembly

The charge is that the Constitution is neither the product of the will of the people nor representative of all sections of society — that it is, in the standard phrase, a Congress constitution. Churchill dismissed the Assembly as representing only one major community, and a jibe of the period called it an assembly of Brahmins.

• No direct elections were held.
  • Members were indirectly elected by provincial legislatures or nominated by princes.
  • Those provincial legislatures themselves rested on a franchise of roughly 28 per cent of adults.
• Congress dominance was overwhelming.
  • Of 299 members, 245 — about 82 per cent — belonged to the Congress.
  • The dominance increased after the League’s withdrawal, removing the only bloc capable of forcing a genuine negotiation.
• The membership came from a very narrow social stratum.
  • It was drawn largely from British-educated lawyers, the product of the colonial education system.
  • They made the Constitution more legalistic than it needed to be, and the document is said to suffer from an overdose of legalism.
• Social representation was skewed.
  • Around 80 per cent of members came from the upper castes, roughly a quarter of them Brahmins.
  • The people whose lives the Constitution would most transform — agricultural labourers, women, Dalits outside the reserved seats — were largely absent from the room.
  • Women were 15 of 299, about five per cent.
• Rajeev Dhavan, in The Constitution of India: Miracle, Surrender, Hope, contends that the Indian people had limited input into the process, since they had no alternative but to accept what emerged.
• The frequency of amendment is offered as corroboration.
  • The Constitution has been amended more than a hundred times in seventy-five years, against 27 amendments to the United States Constitution since the eighteenth century.
  • The first amendment came within the republic’s first year, which critics read as evidence that the original settlement did not fit the country it was made for.
• A deeper version of the criticism concerns the Assembly’s origins rather than its composition: it was created under a British plan, by a colonial statute, and only became sovereign in August 1947 — so its authority, on this reading, was derived rather than original.

The defence

• The timing objection generalises into an impossibility.
  • No constituent assembly anywhere has been elected on universal suffrage before a constitution existed to define the franchise.
  • In India the alternative — waiting to build a roll — would have delayed independence itself, and the Assembly’s answer was to build the roll while it drafted.
• The Supreme Court has settled the “we the people” question as a matter of law. In Kesavananda Bharati the Court held that there is no purpose in examining the factual correctness of the phrase; it is to be accepted as correct.
• Congress dominance meant something different in 1946 than it would today.
  • Austin’s formulation is the standard one: “The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India.”
  • At independence the Congress was less a party than an umbrella, containing the full ideological range from Hindu traditionalists to socialists.
  • Its rivals won essentially nothing in the provincial elections that produced the Assembly: neither the Hindu Mahasabha nor Ambedkar’s Scheduled Castes Federation secured a meaningful presence.
• The Congress deliberately co-opted talent from outside itself.
  • Ambedkar had been elected from Bengal on a Scheduled Castes Federation ticket, lost his seat to partition, and was returned from Bombay with Congress support — and then chaired the Drafting Committee and joined Nehru’s first cabinet.
  • The pattern extended to Syama Prasad Mookerjee of the Hindu Mahasabha and to non-party jurists like Alladi Krishnaswami Ayyar, so that the document became a consensus rather than a party text.
• The process was public and participatory beyond the membership.
  • The Draft was published and circulated, submissions were invited from the public at large, and the debates were published in full.
  • That is a form of accountability universal suffrage alone does not supply, and it is why the Assembly’s critics can quote its own proceedings against it.
• Most provisions were adopted by consensus rather than by majority, after extended debate on almost every feature — a contrast the Assembly’s defenders draw with constitutions carried by bare majorities elsewhere.
• The first general election supplies a natural experiment. The composition of the legislature elected in 1952 under universal franchise did not differ dramatically from the Assembly’s, which suggests a directly elected constituent body would not have produced a very different document.
• The strongest defence is by output rather than input.
  • A body of propertied, upper-caste, English-educated lawyers gave the country universal adult suffrage at once, abolished untouchability, provided for reservation, and wrote a justiciable bill of rights.
  • It legislated against the interest of its own class, which is the fact the compositional critique cannot accommodate.
• The verdict of a body set up to review the Constitution is itself evidence. The National Commission to Review the Working of the Constitution, appointed in 2000 by a non-Congress government and reporting in 2002, recommended numerous amendments but no far-reaching structural change and no new constituent assembly.

What the Assembly did not foresee

Austin treats these as small oversights rather than failures, but they are the specific points at which the design proved incomplete.

• The conflict between Fundamental Rights and Directive Principles was not anticipated.
  • The resulting tussle between legislature and judiciary began almost immediately with the First Amendment (1951).
  • It ran through Champakam Dorairajan, Golak Nath, Kesavananda Bharati and Minerva Mills before settling as a doctrine of balance.
• The abuse of President’s Rule under Article 356 was not considered; Ambedkar told the House he hoped the article would remain a dead letter, and it was invoked well over a hundred times instead.
• Adult franchise was revolutionary but its consequences were unmapped. The framers could not foresee how hierarchical relations would reorganise themselves an electoral system rather than dissolve in it.
• The decline of the Congress was unimaginable in 1949, so the document assumed a dominant national party — an assumption that coalition politics, anti-defection law and the rise of regional parties later falsified.
• The space of constitutional convention was left unwritten, and what convention was expected to discipline — the Governor’s discretion, the President’s role, the Speaker’s neutrality — later became the arena of manipulation through amendment and practice.

The Assembly’s afterlife

• The debates have become a working legal source.
  • The twelve volumes of Constituent Assembly Debates are digitised and freely available, and the Supreme Court cites them regularly as an aid to interpretation.
  • Recent instances include the Article 370 judgment of 2023 and the 2024 ruling on the words socialist and secular in the Preamble.
• The seventy-fifth anniversary of adoption fell on 26 November 2024.
  • It was marked by a year-long commemoration and by two-day special debates in both Houses in December 2024 — the first sustained parliamentary debate on the Constitution as such in decades.
  • Constitution Day was itself instituted in 2015, replacing what had been observed as Law Day, which is a reminder that the founding is actively curated rather than passively inherited.
• The scholarship has shifted from the Assembly to the country.
  • Where Austin wrote the Assembly’s history from Congress sources, Rohit De reconstructs how ordinary litigants — butchers, vendors, prostitutes — used the new Constitution in its first decade.
  • Ornit Shani does the same for the electoral roll, and Madhav Khosla reads the founding as a deliberate experiment in teaching democratic citizenship through constitutional form.
  • The founding is now studied from below as well as from the floor of the House, which has strengthened rather than weakened the Assembly’s standing.
• Zoya Hasan’s description of the result is the one that has stuck: a living Constitution, amenable to amendment with the exigencies of the times, and therefore dynamic rather than fixed.

Conclusion

The Constituent Assembly was formally deficient and substantively remarkable, and an honest verdict has to hold both halves at once. It was indirectly elected on a narrow franchise, dominated by one party, drawn from a thin social stratum, and it worked without the participation of the political force whose demand had just divided the country. Every element of that indictment is true.

What it produced was nonetheless a document that enfranchised everyone, made rights justiciable, ended untouchability in law, and has since survived an Emergency, coalition and single-party government, insurgency and eighteen general elections.

The most useful question is therefore not the one the critics ask about composition but the one Ambedkar asked on the Assembly’s last working day: a constitution, however good, is only as good as those who are called to work it. The Assembly settled its own legitimacy by what it wrote. Whether that settlement holds has been, since 1950, somebody else’s responsibility.