The Constituent Assembly of India that drafted the Constitution is sometimes characterized as illegitimate. A variety of arguments are offered in service of this claim ranging from questioning the indigeneity of the Assembly to attacking its representative credentials. In this series of posts, we take a close empirically informed look at the Assembly to make sense of its legitimacy. This first post in the series will look at the question: was the Constituent Assembly indigenous?
The demand for a Constituent Assembly to draft India’s constitution was a core strand of the freedom and anti-colonial movement. In 1946, the British Cabinet Mission Plan (Plan) created the Assembly which contained provisions on the Assembly’s functioning and composition. During the initial stages of constitution-making, at its 4th sitting on 13th November 1946, Nehru argued that while the British had a role in setting up the Assembly through the Plan, however
…[g]overnments do not come into being by State Papers. Governments are, in fact, the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole--shall wish us to go….
Popular political sovereignty of the people of India, not colonial authority was the source of Constituent Assembly, asserted Nehru and other Assembly members. This assertion of the indigeneity of a constitution/constitution-making body is known as constitutional autochthony. Assembly members, who were Indians elected (indirectly) by Indians, did not just leave it to speeches and statements in the house to assert constitutional autochthony.
The British authored Indian Independence Act 1947, which had recognized the Assembly, was the key legislation that legally severed the link between India and the Crown. In effect, this meant that Indian independence could be traced back to British legislation - something the Assembly members wanted to avoid. On 17th October 1949, Alladi Krishnaswamy Ayyar, a prominent Assembly member said:
Constitution which we are making or passing must not be traceable to section 7 of the Independence Act… Therefore, when once we pass a Constitution, use our own free will, independent of and without reference to any earlier Act, there is no need of mentioning that the independence Act will continue to be in force to any extent whatever.
The Assembly then adopted Article 395 into the Constitution that repealed the Indian Independence Act – a legally odd move: an Act was repealed by a body which did not pass it in the first place.
To top it off, the Assembly wrote up a preamble that began with ‘We the people..’. This unequivocally declared the Indian people as the source of the Constitution and by implication, also declared that the Constituent Assembly drafted the Constitution on behalf of the Indian people. This marked the political and legal confirmation of India’s constitutional autochthony.