The Constituent Assembly was not fully representative in form, but it became representative in substance.” Discuss.

Gandhi had famously remarked that the COI will not be a free gift of britishers. Yet the process through which the constituent assembly came into effect, raised certain credible questions.

Constituent Assembly was not fully representative in form:

Britain and hence the ‘gift of the British’.

• It was based on the Cabinet Mission plan approved by the parliament of
• Members of the constituent assembly were not directly elected; they were indirectly elected by the members of provincial legislative assemblies.
• In 1945-46, elections for the provincial assemblies took place, in the elections, there was no mandate that these persons will also be electing the members of the assembly.
• The entire assembly was not even indirectly elected. The members from the princely state were nominated.
• We should not forget that at that time only five percent of Indians had the right to vote.
• Unlike other countries e.g. France, the constitution of India was not put to referendum to know the will of the people.
• In terms of social representativeness, 80% of the members were from upper caste, 25% were Brahmins.
• In around 70 years of its existence, constitution has been amended for more than 100 times
  • (USA 27 times)

These observations gave rise to a serious doubt regarding the usage of the term “We the people” in the preamble of India. While elections could not be held at that moment in time because of lack of territorial integration, partition and ensuing communalism, other observations break down on deeper inspection.

• Elections could not be held at the time.

It became representative in substance.

• Congress as civilisational umbrella, not party: Though dominated by Congress, as suggested by ‘Granville Austin’ who is treated as the best authority on the Indian constitution – ‘Congress was India and India was Congress’.
  • Ex: Every identity (tribal- Jaipal Singh Munda 5th and 6th Schedule),

Women (Hansa Mehta)

• Ex: Every ideology (RIght wing, Socialist communist, Capitalist)
• Active co-option of opposition: as the members of other parties so that the constitution becomes a consensus document.
  • Ex: Ambedkar
• Consensus driven not majoritarian: Majority of the provisions were adopted by consensus rather than by majority.
• The Supreme Court in Keshavanand Bharati case has settled the matter with respect to the will of the people. According to the Supreme Court, there is no point examining the factual correctness of the phrase ‘we the people’. We have to accept it as correct.
• Democratic validation through 1951-52 elections: the makeup of the membership remained unchanged. This shows that even when elections had taken place, composition would not have been different.