CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

TOPIC: CONSTITUTION OF CONSTITUENT ASSEMBLY AND
THEIR CONTRIBUTION TOWARDS INDIAN CONSTITUTION.
SUBMITTED TO: Mr. MANI PRATAP
SUBMITTED BY:
AMAN RAJ(CUSB1813125012)
ANUPAMA VATS(CUSB1813125018)
ARPANA KOMAL(CUSB1813125020)
ASHISH RANJAN(CUSB1813125022)
B.A.LL.B (3RD SEMESTER)
SESSION: 2018-2023.

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 ACKNOWLEDGMENT
Writing a project after a research is never an easy task to perform. It is one of the
most significant academic challenges. Though this project is presented by us yet
there are various other persons who remain in veil and gave all the possible
support to complete this project. This project is a result of hard work incorporated
by immense dedication and moral support. We, hereby, would like to first thanks
to our professor MR. MANI PRATAP SIR who given us an opportunity to work
on this specified project. Due to his support only, we have successfully completed
this project. Secondly, we would like to add a vote of thanks to my friends with
whom we discussed the problem and got to understand the right methodology to
be adopted to accomplish the task. Moreover, there have also been various other
factors that helped us to complete this project. We also ask for sorry if there have
been any mistakes in the project. At the same time, we would also like to ask the
same to those whose name has not been mentioned hereby in the
acknowledgement. But we, wholeheartedly thank all those who have stood there
for us every time and supported us.

Last but not the least, we would like to express thanks to our parent for their
constant support and guidance without which we would not be able to complete
this project on time.

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 CHAPTERISATION

• INTRODUCTION…………………………………………………….04
• HISTORICAL BACKGROUND…………………………………….05
• COMPOSITION OF CONSTITUENT ASSEMBLY………………06
➢ Membership of Constituent Assembly…………………...…..07
• CONTRIBUTION IN THE MAKING OF CONSTITUTION……..08
• REVELANT CASE LAWS……………………………………………10
➢ State of Madras vs. Smt. Champakam Dorairanjan……...…10
➢ M R Balaji v Mysore………………………………………......10
➢ Indira Sawhney & Ors v. Union of India………………….....10
➢ Ashoka Kumar Thakur vs. Union of India………………..…10
➢ I.R. Coelho (Dead) by LRS. Vs. State of Tamil Nadu……….11
• CONCLUSION…………………………………………………….…..12
• BIBLIOGRAPHY……………………………………………………...13

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 INTRODUCTION
The Constitution that we have today is not the result of some disjointed, episodic exercises by
some individuals. It has been, in fact, drafted and created by a body of learned people from
different walks of life, specially consulted' and convened for the explicit purpose of formulating
free India's Constitution. This body was the constituent assembly. The constituent assembly
was headed by Dr Rajendra Prasad elected on became India's first President Jawaharlal Nehru
who become the first prime minister of free India was possibly the most prominent figure of
the Assembly. Among the other famous names’ assembly, comprised luminaries like Dr. BR
Ambedkar, Sardar Vallabhbhai Patel, Pattabhi Sitaramayya and JB Kripalani. A good number
of members had strong legal backgrounds which most definitely facilitated the task of
constitution making. The total strength of assembly was 381. The membership of the Assembly
was drawn from different political parties, most important of which were the Congress and the
Muslim league. In addition, independent members representatives from the governor’s
provinces and princely states were also present. The core of the constituent assembly was the
drafting committee which was chaired by Dr BR Ambedkar. It should therefore not surprise
anyone that Ambedkar is often described as a father of India's depressed classes. He had an
eminent professional background and the legal expertise and was thus, well-equipped to pilot
the constitutions framing process and to deal with the various complexities inevitable in the
Herculean task Ambedkar’s influence can be particularly, seen in the special provision for
schedule caste and tribes that the constitution came to incorporate. The various provisions of
the constitutions were debated at length in the several committees that were formed for the
proposal. After extensive debates, and discussions, these provisions were presented to the
Assembly for the due consideration. Based on the deliberations in assembly, the drafting
committee prepared the draft text of the constitution. The final document, after, amendment
was signed on November 26, 1949 and came into force two months later. The constituent
assembly was a body of accomplished people which laboured assiduously to give to free India
a Constitution that Indians should be proud of still the Assembly has been subjected to some
criticisms. The main criticism against the Assembly spearheaded essentially by the Muslim
league was that it was a Congress/Hindu dominated body. Because of this believe and
convictions the league never participated enthusiastically in the deliberation of the assembly
and eventually stayed away. The constituent assembly took almost three years whereas several
other countries took more year and for this the whole credit goes to its members.

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 HISTORICAL BACKGROUND
The idea of a Constituent Assembly to frame a constitution for a country was alien to the British
imperial practice1. The suggestions of the Cabinet Mission, 1946, were adopted in the setting
up of the Constituent Assembly which was elected in July-August 19462. The Constituent
Assembly met for the first time in New Delhi on 9 December, 1946 in the Constitution Hall
which is now known as the Central Hall of Parliament House. Decorated elegantly for the
occasion, the Chamber wore a new look on that day with a constellation of bright lamps
hanging from the high ceilings and also from the brackets on its walls. Overwhelmed and
jubilant as they were, the hon'ble members sat in semi-circular rows facing the Presidential
dias3. The desks which could be warmed electrically were placed on sloping green-carpeted
terraces. Those who adorned the front row were Pandit Jawaharlal Nehru, Maulana Abul Kalam
Azad, Sardar Vallabhbhai Patel, Acharya J.B. Kripalani, Dr. Rajendra Prasad, Smt. Sarojini
Naidu, Shri Hare-Krushna Mahatab, Pandit Govind Ballabh Pant, Dr. B.R. Ambedkar, Shri
Sarat Chandra Bose, Shri C. Rajagopalachari and Shri M. Asaf Ali. Two hundred and seven
representatives, including nine women were present. The inaugural session began at 11 a.m.
with the introduction of Dr. Sachchidananda Sinha, the temporary Chairman of the Assembly,
by Acharya Kripalani. While welcoming Dr. Sinha and others, Acharyaji said: "As we begin
every work with Divine blessings, we request Dr. Sinha to invoke these blessings so that our
work may proceed smoothly. Now, I once more, on your behalf, call upon Dr. Sinha to take
the Chair. "Occupying the Chair amidst acclamation, Dr. Sinha read out the goodwill messages
received from different countries. After the Chairman's inaugural address and the nomination
of a Deputy Chairman, the members were formally requested to present their credentials. The
First Day's proceedings ended after all the 207 members present submitted their credentials and
signed the Register. Seated in the galleries, some thirty feet above the floor of the Chamber,
the representatives of the Press and the visitors witnessed this memorable event. The All India
Radio, Delhi broadcast a composite sound picture of the entire proceedings. The Constituent
Assembly reassembled on 14th August, 1947, as the sovereign Constituent Assembly for the
Dominion of India. As to its composition, it had been elected through an indirect election by
the members of the Provincial Legislative Assemblies (Lower House only) according to the

1
Your article library, Negi Mohita
2
cabinet mission‘s plan, may 16, 1946 text, Doc 48
3
B.Shiva Rao―The Framing of India‘s constitution select documents Vol 1, universalaw publishing Co, Pvt, Ltd

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scheme recommended by the Cabinet Delegation. As a result of the Partition under the Plan of
June 3, 1947 that was known as the ‘Mountbatten Plan’, a separate Constituent Assembly was
set up for Pakistan. The representatives of Bengal, Punjab, Sind, North Western Frontier
Province, Baluchistan and the Sylhet district of Assam (which had joined Pakistan by a
referendum) ceased to be the members of the Constituent Assembly of India, and there was a
fresh election in the new Provinces of West Bengal and East Punjab4. Consequently, when the
Constituent Assembly reassembled on 31st October, 1947, the membership of the House was
reduced to 299. Of these, 284 were actually present on 26th November 1949, to append their
signatures to the Constitution as finally passed5.

The Drafting Committee, under the Chairmanship of Dr. Ambedkar, embodied the decision of
the Assembly with alternative and additional proposals in the form of a ‘Draft Constitution of
India’ which was published in February, 1948.

COMPOSITION OF CONSTITUENT ASSEMBLY

When a country decides to establish a constituent assembly, it has also to make a number of
specific decisions about its functions, membership and rules of decision making. It is very
likely that these specific decisions will have more impact on the conduct and outcome of the
process than for example, the choice between a constituent assembly and the parliament. The
members of the Constituent Assembly were chosen by indirect election by members of the
Provincial Legislative Assemblies, according to the scheme recommended by the Cabinet
Mission. Elections to elect members from British India were held in July-August 1946. The
Congress won 199 out of 210 general categories of seats. For these elections to the Constituent
Assembly, only the Sikhs and the Muslims were reorganized as minorities and elections for the
Constituent Assembly was not held on the basis of universal adult franchise. The arrangement
was: 292 members were elected through the Provincial Legislative Assemblies.93 members
represented the Indian Princely States. 4 members represented the Chief Commissioners’
Provinces The total membership of the Assembly thus was to be 389.It was also decided that
out of that strength, 296 were to be from the British provinces and 93 to be from the princely
Indian states. The Congress also won three seats out of four Sikh seats from the Punjab, and
three out of 78 seats reserved for Muslims and three seats from Coorg, Ajmer, Mewar and

4
Justice Sachar committee report, chairman justice sachar, New Delhi,Government of India.

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Delhi. The totality of the Congress was 208 and the Muslim League won 73 out of 78 Muslim
seats. The Indian Muslim League tried its best to put hurdles in the smooth functioning of the
Constituent Assembly, despite the best efforts of Nehru’s conciliatory gestures6.In this
backdrop, the deliberations of the Constituent Assembly began on 9 December, 1946.Before
the commencement of deliberations of the Constituent Assembly, Nehru announced, “the first
task of this Assembly is to free India through a constitution, to feed the starving people, and to
clothe the naked masses, and to give every Indian the fullest opportunity to develop himself
according to his capacity”. The oldest member, Dr Sachchidanand Sinha was made the
Provisional President of the Assembly but, the invitations were dispatched by the secretary of
the assembly and not by the Viceroy, though he desired to do so. The first session was attended
by 207 members. The Muslim League stayed away from the deliberations and the Congress
Muslims attended the session. On 11 December, Dr Rajendra Prasad was chosen by election
as the first permanent Chairman of the Assembly. Nehru moved the famous objectives
resolution on 13 December and it was discussed for a week and they postponed the adoption
of the objective resolution as the members of the Muslim League were absent and the princely
states were to join the Assembly. However, as a result of the partition under the Mountbatten
Plan of 3 June, 1947, a separate Constituent Assembly was set up for Pakistan and
representatives of some Provinces ceased to be members of the Assembly. As a result, the
membership of the Assembly was reduced to 299.The strength of the Indian provinces was thus
reduced to 229 from 296 and of those of the princely states from 70 to 93.Of these 284 were
actually present on the 26th Nov, 1949 and appended their signatures to the constitution when
it was finally passed. However, as a result of the partition under the Mountbatten Plan of 3
June, 1947, a separate Constituent Assembly was set up for Pakistan and representatives of
some Provinces ceased to be members of the Assembly. As a result, the membership of the
Assembly was reduced to 299.On 13 December, 1946, Pandit Jawaharlal Nehru moved the
Objectives Resolution.

Membership of constituent assembly

Although a constituent assembly is popularly thought of a representing the entire nation, many
constituent assemblies have not been directly elected and have represented specific interests,
such as regions or states (the US (1787), India (1946),Germany (1948), Australia (1891); the

6
mitrasias.com/composition-and-working-of-the-constituent-assembly

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French Assembly of 1789 was partially elected)7. Two of the most well-known (and widely
researched) constituent assemblies, the US and the French, closely connected in time, ideology
and friendships, had fundamentally different composition. In the Philadelphia Convention
representation was extremely restricted. The delegates were nominated by legislatures of the
states, which themselves were composed on the basis of extremely limited franchise (women,
Indians and slaves excluded, and those not owning property). The 55delegates were selected
from a very small circle of social and economic classes. They had a common background and
for the most part common interests (the only really contentious issue concerned slavery—
northern states supported abolition, while the southern wanted to keep it, an issue was left
unresolved and was concluded only with the civil war a good part of a century later). These
factors greatly facilitated an agreement, despite several issues on which there were different
preferences. An advantage of a constituent assembly over parliament is that it can truly be the
gathering of the nation. The strength and the legitimacy of the constituent assembly will lie in
its inclusiveness. While parties would play a major role, membership should also be provided
for other groups and interests (women, the disabled, minorities, trade unions, business, civil
society and social movements). To some extent these groups and interests would be represented
by parties, but there is value in their having direct representation also. It is clear that all these
forms of representation have an impact on the process and its outcome. This will open prospects
of reconciling communities who feel marginalised by the existing political system, as for
example in Nepal now, and ensure social justice for all. The Constituent Assembly as well as
the Congress Working Committee thoroughly discussed all the points. This was made clear by
Austin as follows: “The Congress Assembly Party was the unofficial, private forum that
debated every provision of the constitution and in most cases decided the fate before it reached
the floor of the House. Every one elected to the Assembly on the Congress ticket could attend
the meetings whether or not he was a member of the party or even close to it”. In the
constitution-making process, both Nehru and Sardar Patel played a very important role by their
keen involvement. It was Nehru who spelt out the philosophy and basic features of the
constitution and Sardar Patel played the decisive role in bringing in the representatives of the
erstwhile princely states into the Constituent Assembly, in seeing to it that separate electorates
were eliminated and in scotching any move for reservation of seats for religious minorities.

7
Role of constituent assemblies in constitution making, Yash Gai.

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 CONTRIBUTION IN THE MAKING OF CONSTITUTION
Distinguishing a constituent assembly from other constitution making mechanisms might
suggest that it is a distinct species (with its generally accepted characteristics). But the fact is
that between constituent assemblies there can be (and have been) enormous differences in the
composition, functions and modes of operation. These differences have a major impact on the
manner in which the process of making a constitution is conducted as well as its orientation
and outcome. The project reviews these various possibilities, drawing on the experiences of
many countries’ constitution making processes, from the American Convention and the French
Assembly of the1790s to the Kenyan National Constitutional Conference 2001-4 and the
Transitional National Assembly of Iraq 2005.In the session which took place between January
20 and 22, 1947, the objectives resolution was passed. The third session of the Assembly took
place from 28 April to 2 May 1947, and on 3rd June the Mountbatten Plan was announced
despite the absence of the Muslim League. The Mountbatten Plan clearly made the partition of
India as India and Pakistan certain. After the declaration of Independence on 15 August, 1947,
the Constituent Assembly became a sovereign body and also doubled as the legislature for the
new state. It served as a constitution-making body as well as law-making organ. A number of
committees were created and of such committees, one was headed by B.N. Rao and the other
to draft the constitution was headed by Dr B.R. Ambedkar. In July 1946 itself a committee
consisting of Nehru as the Chairman and Asaf Ali, K.T. Shah, D.R. Gadgil, K.M. Munshi,
Humayun Kabir, R. Santhanam and N. Gopalaswamy Ayyangar as members was constituted
to prepare material and proposals for the constitution8. The Constituent Assembly as well as
the Congress Working Committee thoroughly discussed all the points. This was made clear by
Austin as follows: “The Congress Assembly Party was the unofficial, private forum that
debated every provision of the constitution and in most cases decided the fate before it reached
the floor of the House. Every one elected to the Assembly on the Congress ticket could attend
the meetings whether or not he was a member of the party or even close to it”. In the
constitution-making process, both Nehru and Sardar Patel played a very important role by their
keen involvement. It was Nehru who spelt out the philosophy and basic features of the
constitution and Sardar Patel played the decisive role in bringing in the representatives of the
erstwhile princely states into the Constituent Assembly, in seeing to it that separate electorates
were eliminated and in scotching any move for reservation of seats for religious minorities.

8
Justice Ranganath Misha Commission report: Chairman RanganathMishra, New Delhi, Government of India

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 RELEVANT CASE LAW
Though, Constituent assembly has drafted constitution with all possible precautions yet there
were some loopholes which was later on added through amendments. Some of the cases are
listed below:

State of Madras vs. Smt. Champakam Dorairanjan9

1st constitutional amendment (Art. 15 (4)) introduced to make judgement invalid. Court
pronounced that caste-based reservations as per communal award violates Article 15(1).

M R Balaji v Mysore10

Court put 50% cap on reservations. Almost all states except Tamil Nadu (69%, Under 9th
schedule) and Rajasthan (68% quota including 14% for forward castes, post gujjar violence
2008) has not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried
to exceed limit in 2005 which was again stalled by high court.

Indira Sawhney & Ors v. Union of India11

In this case judgement was implemented by supreme court. Separate reservation for other
backward classes in central government jobs was held by the Supreme Court.

Ashoka Kumar Thakur vs. Union of India12

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure"
of the Constitution so far as it relates to the state-maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would
be constitutionally valid or not so far as "private unaided" educational institutions are
concerned, is left open to be decided in an appropriate case. "Creamy Layer " principle is one
of the parameters to identify backward classes. Therefore, principally, the "Creamy layer"
principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves.
Preferably there should be a review after ten years to take note of the change of circumstances.
A mere graduation (not technical graduation) or professional deemed to be educationally
forward. Principle of exclusion of Creamy layer applicable to OBC's. The Central Government

9
AIR 1951 SC 226
10
AIR 1963 SC 649
11
AIR 1993 SC 477: 1992 Supp (3) SCC 217
12
2005 AIR(SC) 3226

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shall examine as to the desirability of fixing a cut off marks in respect of the candidates
belonging to the Other Backward Classes (OBCs) to balance reservation with other societal
interests and to maintain standards of excellence. This would ensure quality and merit would
not suffer. If any seats remain vacant after adopting such norms they shall be filled up by
candidates from general categories. So far as determination of backward classes is concerned,
a Notification should be issued by the Union of India. This can be done only after exclusion of
the creamy layer for which necessary data must be obtained by the Central Government from
the State Governments and Union Territories. Such Notification is open to challenge on the
ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar
features in different States and Union Territories. There has to be proper identification of Other
Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant
to the directions of this Court in Indra Sawhney has to work more effectively and not merely
decide applications for inclusion or exclusion of castes. The Parliament should fix a deadline
by which time free and compulsory education will have reached every child. This must be done
within six months, as the right to free and compulsory education is perhaps the most important
of all the fundamental rights (Art.21 A). For without education, it becomes extremely difficult
to exercise other fundamental rights. If material is shown to the Central Government that the
Institution deserves to be included in the Schedule (institutes which are excluded from
reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006
(No. 5 of 2007), the Central Government must take an appropriate decision on the basis of
materials placed and on examining the concerned issues as to whether Institution deserves to
be included in the Schedule of the said act as provided in Sec 4 of the said act. Held that the
determination of SEBCs is done not solely based on caste and hence, the identification of
SEBCs is not violative of Article 15(1) of the Constitution.

I.R. Coelho (Dead) by LRS. Vs. State of Tamil Nadu13

In this it was held that if a law held to be violative of any rights in Part III is subsequently
incorporated in the Ninth Schedule after 24 April 1973, such a violation/infraction shall be
open to challenge on the ground that it destroys or damages the basic structure as indicated in
Article 21 read with Article 14, Article 19 and the principles underlying thereunder. Action
taken and the transactions finalized as a result of the impugned Acts shall not be open to
challenge.

13
2007 (2) SCC 1: 2007 AIR(SC) 861

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 CONCLUSION
The constituent assembly debates spanned for of period of 2 years, 11months and 18 days. It
began on 9th December 1946 and ended on November 26, 1949 it was concluded by adopting
few provisions of the constitution on the same day. Those provisions of the constitution which
came to force immediately are Article 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 391, 392 &393.
Rest of the provision come into force from January 26, 1950 as mark of remembrance of poorna
swaraj day. Though we have already talked about all the factors which played an important
role in the making of the constitution still we have left one very important factor which may be
said to be the most important of all. It is the willingness and ability of the political and social
leaders to provide guidance, encouragement and support for the process. The need for
leadership is the greater the more participatory the process. During the making of the
constitution assembly sat as also legislature of India and considered various legislations
simultaneously. The discussions in the assembly took place in calm atmosphere, assembly had
very tolerant view toward the arguments of the minorities Demand and tried to accommodate
them to greater extent as long as they were not against the basic principles of the nationalist
view. The constitution has many loose ends, it is based on lofty ideals of great men who fought
for freedom of this nation and dreamt of a utopian India. Where all Indians lived happily on
basis of brotherhood. But the reality is far different and the process of living that dreams is still
farther ahead. It’s in the inculcation of these ideas of constitutions in each citizen of India that
will make this dream possible.

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 BIBLIOGRAPHY

ACTS
• Constitution of India, Bare Act, Publish by Government of India, 1950.
• Government of India Act 1935, www.parliment of Britan.com
• National commission for minorities (Amended) Act 1992.
• The Government of India Act 1919 and Government Reports 1920, Edit by
H.N.MITRA, published by N.N.MITTER, Annual Register Office,Sibpur, Calcutta
1921.

REPORTS
• CABINET MISSION‘S PLAN may 16, 1946 text, Doc 48.
• B.Shiva Rao―The Framing of India‘s constitution select documents Vol 1,
universalaw publishing Co, Pvt, Ltd.
• First backward class commission report – chairman kaka kalekar, 1953Government of
India 1956.
• Justice Ranganath Misha Commission report: Chairman RanganathMishra, New Delhi,
Government of India
• Justice Sachar committee report, chairman justice sachar, New Delhi,Government of
India.

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