The Constituent Assembly: Objectives Resolution
With the Muslim League staying away, the Constituent Assembly began its task. Jawaharlal Nehru moved the eight-point Objectives resolution on December 13, 1946 which became, in fact, the basis of our Constitution. The Objectives resolution reads as follows:
The Constituent Assembly declares its firm and solemn resolve to proclaim India as an independent Sovereign Republic and to draw up for the future governance a Constitution; WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of India; and WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and there after according to the law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and WHEREIN all powers and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people, and
WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political: equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and WHEREIN shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and
This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
As stated, the resolution defined India as an “independent sovereign republic to be formed through a Union” of British India and Indian states in which all powers were to be derived from the people. The resolution, in clause 5, guaranteed and secured to all the people of India “Justice, social, economic and political: Equality of status, opportunity, and before the law, freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality”.
Clause 6 of the Objectives stated “adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes.” The resolution lays stress on civil rights, though its intentions too laid special emphasis on “social justice” with indications for the provisions of formative action for the unprivileged communities as also the minorities. Though the resolution does not use the word ‘democracy’, it does not mean that Nehru had deliberately avoided it. e fact is that the use of the term ‘Republic’ was itself proof that the independent India would be a democratic polity. It may be remembered that the word ‘democratic’ was incorporated in February, 1948. Besides, the resolution states that all sovereign powers would be “derived from the people” and this indicates Nehru’s commitment to democratic ethos. True, also, the words ‘universal adult franchise’ had no reference in the Objectives resolution, but such words had found place in Article 326 of the Constitution.
The Constituent Assembly: Evaluation
The Objectives resolution suffers, one may note by way of evaluation, from certain omissions and commissions. The ‘federal’ aspect presents one such example. The term ‘Union’ obviously refers to the union of the autonomous units which, as the resolution says, shall possess residuary subjects exercising all powers and functions of government and administration— save and except such powers and functions as are vested in or assigned to the Union.” is did not happen. The Union Constitution Committee, ultimately, decided on July 5, 1947 that the “Constitution should be federal, with a strong centre where, together with three ‘exhaustive’ legislative lists (Union, with 97 items, State, with 66 items and Concurrent, with 47 items), the residuary powers would be vested in the Centre. The term ‘secularism’ was not used, though it came to be included later through the 42nd amendment (1976). The right to freedom of religion (Articles 25 to 28) was, to at least some extent, an indirect admission of secularism in India, indicating the prohibition of any discrimination on grounds of religion and the State’s equal respect for all the religions.
The idea of a strong Centre was thought to be a necessity for maintaining the unity and integrity of the State. That was why the term ‘Union’ was used—‘India, that is Bharat, shall be a Union of States’ in Article 1 of the Constitution—instead of the word “Federation’. Moving the Draft Constitution for the consideration of the Constituent Assembly on November 4, 1948, Dr. Ambedkar had explained the expression Union : “What is important is that the use of the word “Union” is deliberate. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people is a single people living under a single imperium derived from a single source.” Structurally, India is, in form, federal but it is one with strong centralized tendencies; the spirit of the Constitution is unitary. That is what justified the use of the term ‘Union’ in the Constitution. The provision of the single citizenship was made to imbibe the needs of an integrated and unified nation for a society otherwise segregated culturally, ethnically, linguistically and racially. The framers of the Constitution were not creating India, they were seeking to build it.
During the debates on the Fundamental Rights, there had emerged two views on the types of rights:
- that the rights be justiciable, especially the negative rights (liberties against the possible onslaughts of the government), and (b) that the rights be non-justiciable, especially the positive rights (socio – economic rights), the former being assured by the government and protected by the judiciary while the latter being thought to be fundamental in the governance of the country. To accommodate both the views, the Sub-committee on the Fundamental Rights recommended two Parts in the Constitution : Part III, representing the justiciable rights and Part IV, representing the non-justiciable rights. Furthermore, though Dr. B.R. Ambedkar had described the position of the President of India as that of the king under the British Constitution, yet the Constituent Assembly wanted to give a greater role to the President than that of a nominal executive: his indirect election through the elected members of the Parliament and of the States’ legislative assemblies (Articles 54, 55) and the form of oath that the incumbent ams to “preserve, protect and defend” the Constitution (Article 60) clearly indicates the intentions of the Constituent Assembly to make the President as not merely the constitutional head of the State but also one who has to see that the Constitution rules the nation. Furthermore, though the Advisory Committee too endorsed the formula and the Draft Constitution of February 1948 too provided in article 289 for a Union and State election commissions, yet the Ambedkar proposal of June 15, 1949 proposed, ally, the integrated election commission, together with the regional commissioners, not working under the provincial governments. The provisions with regard to the directive principles were thought to be a golden compromise between the desires of the Congress to achieve “a social revolution” and the pressure of vested interests. The social policy content was deliberately kept even beyond the reach of the judiciary; the due process of law was intentionally replaced in favour of “procedure established by law”.
With regard to the position of the Supreme Court as the highest judicial organ of the integrated judiciary, the Union Constitution Committee accepted the recommendations of the Ad-hoc Committee on Supreme Court that the Supreme Court would have :
- the exclusive jurisdiction over the centre-units and the inter-units disputes;
- ultimate jurisdiction on matters arising out of the Union government’s treaties with foreign states;
- concurrent jurisdiction with High Courts on disputes relating to the fundamental rights;
- appellate jurisdiction similar to that of the Privy Council; and
- advisory jurisdiction while, on Ayyar’s resolution in the Constituent Assembly, giving the High Court powers to issue writs, as with the Supreme Court, on cases involving fundamental rights.
Eager as the framers of the Constitution were to make the Governor of a state as both the constitutional head of the province in normal times and as the President’s representative, they provided for his/her appointment (and not the election) by the President, and yet they did not favour an autocratic Governor while exercising his powers in discretion. e States Committee, in clause 9 of its report, therefore, suggested that the Governor would act in his discretion only in matters such as : (i) prevention of any grave menace to the peace and tranquility of the province or any part thereof; (ii) the summoning and dissolving of the provincial legislature; (iii) the superintendence, direction and control of election; and (iv) the appointment of the chairman and members of the Provincial State Commission and the Provincial Auditor General. The Draing Committee only replaced the word ‘Governor’s discretion’ by the word ‘Governor’s pleasure’.