The Argumentative Constituent Assembly: How the Constitution was framed

Amartya Sen's The Argumentative Indian locates the argumentative tradition as early as emperor Ashoka. He argues how the deliberative tendency that began in the distant past has enabled India to emerge as a pluralist and liberal nation. Historian Ramachandra Guha, in his review of Sen’s books, points out to the lack of reference to the immediate past and to the Constitution that has had a strong bearing on the Indian argumentative proclivity. While Sen digs out distant historical figures and episodes to illustrate the argumentative disposition of Indians, it is more useful to adopt Guha’s framework.

The late nineteenth and twentieth-century India cemented a secure foundation for the argumentative tradition. The Indian National Congress was founded in 1885 as a debate club and aimed to influence policymaking. It was only years later that it transformed into a political party seeking political ends.

With the beginning of the independence struggle came diverse constitutional imaginations through ‘Historical Constitutions.’ The Nehru Report of 1928, one such constitution, was a response to the British challenge to Indians to draft a constitution. Hailed as “the Magna Carta of our liberty,” this report inspired the fundamental rights chapter in the Indian Constitution.

As freedom seemed imminent, the Constituent Assembly was formed in 1946. The Assembly was the formal constitution-making body. Its members came from diverse political, religious, geographical, educational and professional backgrounds. For example, Minoo Masani, KT Shah were socialists while KM Munshi, Seth Govind Das were from the Hindu right. The Assembly had lawyers, statesmen, businessmen, farmers, landlords, professors, economists among others. This diversity in the composition of the Assembly facilitated and propelled debates and made the Assembly a platform for myriad perspectives. Most of the Articles in the Constitution were subject to intense discussions and the members moved a total of 2,473 amendments.

The constitution-making mechanism took place through committees and plenary sessions (debates in the Constituent Assembly). The Assembly appointed 30 committees that would prepare briefs, reports and drafts. The members of the committee even recorded their dissent on any given issue. When the Sub-Committee on Fundamental Rights was discussing the Uniform Civil Code, Hansa Mehta, Rajkumari Amrit Kaur and Minoo Masani argued for making it a fundamental right rather than a directive principle of state policy. When the Committee decided otherwise, they recorded their dissent, highlighting that personal laws based on religion would prevent India from advancing.

The Assembly sat in Parliament Hall for the first time on December 9, 1946. For three years the Assembly members were busy crafting the Constitution. The plenary sessions, where the Assembly sat for 166 days, witnessed the members discuss, debate and argue the reports and adopt the final text of the Constitution. The Constitution in its final form had 395 articles in 22 parts and eight schedules.

Our constitution-makers invested far more time discussing, debating, arguing and settling our constitutional future. To give a comparative perspective, Japan’s constitution was prepared by Americans (mostly military officials) within a week, in the aftermath of Japan’s defeat and surrender in the Second World War. The American constitution itself was ready within four months. In the backdrop of several decades of freedom struggle, our constitution-makers wanted to work towards a secure constitutional future without rushing or taking for granted the values that they fought for.

One such topic that was intensely debated was citizenship. When the Assembly decided to take up discussion of citizenship articles, Rajendra Prasad, the president of the Constituent Assembly, remarked that there was a “veritable jungle of amendments.”

A strand of debate around Article 5 of the Constitution illustrates the deliberative exercise that the Assembly undertook. Article 5 establishes the basic principles of citizenship. This article was debated for three days in the backdrop of the partition of India and Pakistan: August 10, 1949, August 11, 1949 and August 12, 1949.

PS Deshmukh, a lawyer who later became the Minister of Agriculture in independent India, tabled an amendment which sought to insert this clause in Article 5: “that every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.”

Through his amendment, he wanted to provide a residuary clause which would allow any Hindu or Sikh, irrespective of their residence, to claim Indian citizenship. He asked: “If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs have India as their home?” He further insisted that his claim was not “non-secular or sectarian or communal.”

Jawaharlal Nehru was not keen on linking religion to citizenship. He was in favour of the Draft Articles and amendments as moved by the Drafting Committee. He noted: “You cannot in any such provision lay down more or less whom you like and whom you dislike; you have to lay down certain principles, but any principles that you may lay down is likely not to fit in with a number of cases...You cannot have rules for Hindus, for Muslims or for Christians only.”

Nehru further argued that the principles governing citizenship must be informed by justice and equity and not extraneous factors like religion. In the end, after much debate, the members voted against Deshmukh’s proposal and decided not to link religion and citizenship.

The Citizenship Amendment Act, 2019, overturns the Constituent Assembly’s stance on religion and citizenship. Our constitution-framers engaged in a deliberative process without shunning or silencing perspectives. Instead, they heard and responded to diverse voices. The rich constitutional and historical heritage cannot be taken for granted. In light of our nation’s growing aversion to debate and, more importantly, to accepting dissent, we must remember that the Constituent Assembly founded the Indian Constitution and the nation on an argumentative tradition.

(The writer is an associate editor for Constitutional and Civic Citizenship at the Centre for Law and Policy Research, Bengaluru)