MAKING...CONSTITUTION (CONSTITUENT ASSEMBLY)

MAKING...CONSTITUTION (CONSTITUENT ASSEMBLY)

Introduction

1. context of debate
1. argued that Indian constitution is not the will of the people neither the representation of all sections of society
2. indian constitution is 'congress constitution'
3. Churchill
   
   : An assembly of Brahmins
4. assembly neither elected by people nor people determined its structure and functioning
5. Ambedkar
   
   : he would be the first person to burn the constitution

Evolution of constituent assembly

1. 1922: Gandhi said that swaraj will be expression of Indian, not gift of british
2. 1934: CWC adopted resolution that constituent assembly will be elected on the basis of Universal Adult Franchise
3. in practice
1. constituent assembly was gift of Britishers
2. based on Cabinet Mission plan approved by parliament of British
3. members were elected indirectly from provincial legislative assembly
4. members from princely states were nominated
5. 5% had right to vote
6. constitution not put to referendum of people to know the will of people like in France
7. social representation: 80% were from upper caste, 25% were brahmins
8. lot of amendments, even in first year
4. conflict between right to equality and freedom of religion in case of UCC
5. right of individual often in conflict with right of community. E.g.- Sabrimala
6. lawyer's paradise is constitution

Counter 

1. above arguments are factually correct
2. still constitution represents will of people
1. time not conducive to hold elections
2. Keshwananda Bharti Case: We the people is correct
3. Granville Austin
   
   : Congress was india and India was congress
1. parties which didn't get any seat were also accommodated to represent all sections
2. majority of provisions were adopted by consensus rather than majority
4. after first general election, we can see that composition didn't change much
5. National Commission for Review of Constitution didn't recommend any far reaching changes, even when appointed by NDA
3. Granville Austin: 
1. constitution is 'cornerstone of nation'
2. Nation is existing because of constitution
4. Pratap Bhanu Mehta: Indian constitution is unique experiment in the field of constitutionalism
1. it is sacrosant
2. constitution is revolutionary, revolution started after independence
3. faith in constitution to transform highly traditional society into modern society
4. based on universalist values like liberty, fraternity, equality
5. situated at crossroad of global constitutional laws
6. like indian culture, it is syncretic and eclectic.