History of constitutional convention:- We have already discussed in the previous edition that what is convention, what is constitutional convention and the whole procure relates to it. I have also mentioned how Constitutional Assembly and its idea was generated. A constituent assembly is a body of representatives which is composed for drafting a constitution. Mahatma Gandhi in 1922. wrote:-
“Swaraj will not be a free gift of the British Parliament. It will be a declaration of India’s full self-expression, expressed through an Act of Parliament. But it will be merely a courteous ratification of the declared wish of the people of India. The ratification will be a treaty to which Britain will be a party. The British Parliament when the settlement comes, will ratify the wishes of the people of India as expressed through the freely chosen representatives.”14
To tell the story of the constitutional convention of India I need to take help from the Constituent Assembly debate. This debate and all of its proceedings not only draw the constitution of newly independent nation, India; but also it framed the modern India with the experience of thousand old civilization and its basic foundation- that is tolerance and respect. For this reason I will quote some of the important arguments which was held at the then Constituent Assembly of India. Now lets go down to the history of the notable constitutional convention around the world and then we will come back to India.
If we can look towards other nations such as France, which is the only nation in Europe, where Constituent Assembly of which (called “The French National Assembly”) was first convoked in 1789. It is also a matter of fact, the French constitution-makers, who met in 1789 at the first Constituent Assembly of their country, which may be the world’s first constituent assembly meetings, were largely influenced by the historic Constitutional Convention held at Philadelphia in 1787. In this year of 1787 American constitution-makers, by joining this convention decided how their nation will be governed and prepared a constitution for their country. Though it was the primary aim of the convention to revise the Articles of Confederations, but it was soon felt that revising will not serve the purpose of the convention”
American Jurist, Joseph Story in his book “Commentaries on the Constitution of the United States”-
“Let the American youth never forget, that they possess (in their Constitution) a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully-guarded, of transmitting to their latest posterity all the substantial blessings of life, the peaceful enjoyment of liberty, property, religion, and independence. The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality if the work of man may justly aspire to such a title. It may, nevertheless, parish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are’ created-these are the words which I commend to you for your consideration-by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.”15
It is worthy to mention that the first to benefit by the American system was may be Canada. May be the American Convention of 1787 had a great impact on Canada for drawing up a self-governing constitution. In the year of 1864, at Quebec a conference was organized for the forming of new Canadian confederations. This Convention was attended by 33 delegates from the various regions of Canada. They all come together to drew up the Canadian Constitution, which was subsequently embodied in what is still on the Statute Book as the British North American Act, passed by the British Parliament in 1867.
The American constitutional system was more or less adopted in the schemes prepared for framing the Constitutions of Australia and South Africa, which shows that the results achieved by the American Convention held at Philadelphia in 1787, had been accepted by the world as a model for framing independent federal constitutions for various countries.
Viscount Bryce, in his book “The American Commonwealth”, writes on the substance of the fundamental principles of the American Constitution:-
“Its central or national- is not a mere league. for it does not wholly depend on the component communities which we call the States. It is itself a Commonwealth, as well as a union of Commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the States, mere sub-divisions of the Union, mere creatures of the National Government, like the counties of England, or the Departments of France. They have over their citizens an authority which is their own, and not delegated by the Central Government.”16
An idea for a Constituent Assembly of India was proposed in 1934 by M. N. Roy, who was a pioneer of the Communist movement in India. In May 1934 Swaraj Party formulated a scheme:-
“This Conference claims for India the right of self-determination, and the only method of applying that principle is to convene a Constituent Assembly, representative of all sections of the Indian people, to frame an acceptable constitution.”17
This gained the momentum towards making the Constitution of the new would be independent country. One year later in 1935 it became an official demand of the Indian National Congress. Though Government of India Act, 1935 was the basic principle of forming Indian Constitution and we all know our constitution derived many principles from the Government of India Act 1935. This Act of 1935 also paved the way for Cabinet Mission plain of 1946 and formation of the Constituent Assembly.
In November, 1939, the Congress Working Committee adopted a resolution which declared that-
“Recognition of India’s independence and the right of her people to frame their constitution through a Constituent Assembly is essential.”18
I want to quote Dr. Sachchidananda Sinha’s (who was temporary Chairman of the Constituent Assembly of India) inaugural speech of 9th December,1946 in Constitution Hall of Constituent Assembly of India-
“On this historic and memorable occasion, you will not grudge, I am sure, if I venture to address to You some observations on certain aspects of what is called a Constituent Assembly. This political method of devising a constitution for a country has not been known to our fellow-subjects in Britain, for the simple reason, that under the British Constitution, there is no such thing as a constituent law, it being a cherished privilege of the British Parliament, as the sole sovereign authority, to make and unmake all laws, including the Constitutional law of the country. As such, we have to look to countries other than Britain to be able to form a correct estimate of the position of a Constituent Assembly. In Europe, the oldest Republic, that of Switzerland, has not had a Constituent Law, in the ordinary sense of that term, for it came into existence, on a much smaller scale than it now exists, due to historic causes and accidents, several centuries back. “19
Jawaharlal Nehru said in the constituent assembly-
“The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. This is certainly a great task. Look at India today. We, are sitting here and there in despair in many places, and unrest in many cities. The atmosphere is surcharged with these quarrels and feuds which are called communal disturbances, and unfortunately we sometimes cannot avoid them. But at present the greatest and most important question in India is how to solve the problem of the poor and the starving. Wherever we turn, we are confronted with this problem. If we cannot solve this problem soon, all our paper constitutions will become useless and purposeless. Keeping this aspect in view, who could suggest to us to postpone and wait?” 20
Now you may question why I have put what they have said. The point is the statement made by notable personalities or leaders of the nation is not just a quote worth to share, but it carried the aspiration and hope of the millions of people. If you read it, you can find the dream of the constitution makers, in fact not only the dream of them but also the dream of the millions they are representing. There are so many articles which traced more on historical year and facts, but in this article I have tried different things. It will take you to that time when the foundation stone of todays modern India started laying in the Constituent Assembly. But you will go there not with the time machine, but with the every word spoken, unspoken by those stalwarts who were busy at that time sowing the sapling of newly independent nation. That India which was divided, which was going through the problem of refugee crisis, pandemic, hunger, illiteracy, unemployment and many more. It all started here and to be continued in next editions. Lets finish this second edition with Muhammad Iqbal’s Quote-
“यूनान-ओ-मिस्र-ओ-रोमा सब मित गए जहां से, अब तक मगर है बाकी नाम-ओ-निशान हमारा, कुछ बात है के हस्ती मिट्टी नहीं हमारी, सदियां रहा है दुश्मन दौर-ए-जमां हमारा।”
14)Mehrotra, S. R.., Mehrotra, S. R.. India and the Commonwealth 1885–1929. United Kingdom: Taylor & Francis, 2021.
15) Powell, H. Jefferson. Review of Joseph Story’s Commentaries on the Constitution: A Belated Review, by Joseph Story. The Yale Law Journal 94, no. 5 (1985): 1285–1314. https://doi.org/10.2307/796160.
16) Bryce, James. The American Commonwealth with an introduction by Gary L Mcdowell, Vol I, Liberty fund Indianapolis
17) For the proceedings of the Swaraj Party conferences and discussion on the resolution see Mitra, Indian annual register, Vol I, pp 271-281, retrieved from Singh, Gurmukh Nihal. “THE IDEA OF AN INDIAN CONSTITUENT ASSEMBLY.” The Indian Journal of Political Science 2, no. 3 (1941): p-258. http://www.jstor.org/stable/42742997.
Leave a Reply