Constitutional history, drafting and the Constituent Assembly - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Why this topic is set. It is easy to treat this as a list of dates. The examiner is usually after something narrower: which colonial statute contributed which feature, and how the Assembly worked. Learn the statutes as contributions, not as a chronology.

1. The colonial statutes

The Indian Constitution did not begin in 1946. Its machinery was assembled over ninety years of British legislation, and several provisions in force today are recognisably inherited.

Regulating Act, 1773

The first attempt by Parliament to control the East India Company. It created the office of Governor-General of Bengal and established a Supreme Court at Calcutta. Significant as the moment the Company's affairs became a matter of British statute rather than charter alone.

Charter Act, 1833

Centralised legislative power in the Governor-General of India, ending the separate legislative powers of Bombay and Madras. The beginning of an all-India legislature.

Government of India Act, 1858

Passed after the revolt of 1857. Transferred government from the Company to the Crown, creating the Secretary of State for India. The Company's rule ends here.

Indian Councils Acts, 1861, 1892 and 1909

Introduced Indians into legislative councils in an advisory capacity and, by degrees, an elective element. The Act of 1909, the Morley–Minto Reforms, introduced separate electorates for Muslims — a device the Constituent Assembly would later decisively reject.

Government of India Act, 1919

The Montagu–Chelmsford Reforms. Introduced dyarchy in the provinces: subjects were divided into reserved and transferred, the latter administered by ministers responsible to the legislature. The first real experiment with responsible government.

Government of India Act, 1935

The most important ancestor of the present Constitution, and the one to name first in any answer. It provided for a federation, abolished dyarchy in the provinces and introduced provincial autonomy, established a Federal Court, and divided legislative power through three lists. A great deal of the 1935 Act survives in the Constitution — the structure of the Union and State lists, the office of Governor, emergency provisions, and the general administrative framework.

Indian Independence Act, 1947

Partitioned British India into two independent dominions and made the Constituent Assemblies of each sovereign bodies, free to frame their own Constitutions.

2. The Constituent Assembly

The Assembly was constituted under the Cabinet Mission Plan, 1946. Its members were not directly elected by the people; they were chosen by the members of the provincial legislative assemblies, themselves elected on a limited franchise. After Partition its strength reduced to about 299 members.

It first met on 9 December 1946, with Dr Sachchidananda Sinha as temporary chairman. Dr Rajendra Prasad was elected permanent President. On 13 December 1946 Jawaharlal Nehru moved the Objectives Resolution, which declared the Assembly's resolve to proclaim India an independent sovereign republic and set out the aims that would later be compressed into the Preamble. It was adopted on 22 January 1947.

The Drafting Committee was constituted on 29 August 1947 with Dr B.R. Ambedkar as chairman. The Constitution was adopted on 26 November 1949 and came into force on 26 January 1950, a date chosen because the Congress had observed 26 January 1930 as Purna Swaraj day. Some provisions, including those on citizenship and elections, commenced on adoption in 1949.

The Assembly sat for 2 years, 11 months and 18 days. That figure is worth remembering; it is a favourite of short-note questions.

3. The sources borrowed from

The framers borrowed deliberately and said so. Learn the pairings:

United Kingdom — parliamentary government, rule of law, single citizenship, the office of Speaker, legislative procedure.
United States — fundamental rights, judicial review, an independent judiciary, impeachment of the President, the office of Vice-President.
Ireland — directive principles of State policy, nomination of members to the Rajya Sabha, the method of electing the President.
Canada — a federation with a strong centre, residuary powers with the Union, appointment of Governors by the Centre.
Australia — the Concurrent List, freedom of trade and commerce, joint sitting of the two Houses.
Germany (Weimar) — suspension of fundamental rights during an emergency.
South Africa — the procedure for amendment, election of Rajya Sabha members.
Japan — the expression “procedure established by law” in Article 21.
USSR — fundamental duties, and the ideal of justice in the Preamble.

The standard criticism, and the answer. The Constitution is often called a “borrowed bag” or a “patchwork”. Ambedkar's reply in the Assembly was that after a century of constitutional development there was nothing new left to invent in the fundamentals of governance, and that what matters is whether the borrowed parts were adapted to Indian conditions. That adaptation is visible: parliamentary government was taken from Britain but written down and made justiciable; federalism was taken from Canada but bent towards a strong centre for a country facing partition and integration of princely States.

4. Why the debates still matter

The Constituent Assembly Debates are not merely historical. Courts use them as an aid to construction where a provision is ambiguous, and the reasoning in Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, draws on what the framers intended the amending power to be. The Assembly's rejection of separate electorates, and its decision to make fundamental rights justiciable while leaving directive principles unenforceable, are choices the rest of the paper keeps returning to.

How this is examined

Most often as a short note — on the Government of India Act 1935, on the Objectives Resolution, on the composition of the Constituent Assembly, or on the sources of the Constitution. As an essay, usually: trace the constitutional development of India, or discuss whether the Constitution is merely a borrowed document.

If the question is about borrowing, do not simply list sources. State the criticism, give the pairings as evidence, then answer it with the adaptation point. A list alone answers only half the question.

Now go and read the questions themselves: Constitutional Law I past question papers.