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Public order along with the defence of the realm has always been the raison d’etre of the State throughout history.

Introduction:-

  • Maintenance of public order and the rule of law is a key sovereign function of the State, as important in its own way as defending the nation from external aggression or maintaining the unity and integrity of the nation State.
  • “wherever law ends, tyranny begins” -Locke
  • There comes a time when a nation has to achieve and ensure long term stability in order to carry out substantial economic and social transformation. India is poised for an economic upsurge that can potentially change the lives of its people, as it gears up to tap the demographic dividend available from its youthful and talented population. For the economic boom to be sustained, the country has to move not only to a trajectory of high and sustained growth but also to high levels of social stability and public tranquility. For this to happen, governance has to go beyond the daily dose of crisis management and administration has to rise above merely a “holding of the fort”
  • The incidence of crime and violence is a reasonably good index of the efficacy or otherwise of the rule of law. The conviction rate in IPC cases which was 64.8% in 1961, has dropped to 42.4% in 2005. Rampant crime accompanied by low conviction rates attest to our failure in enforcing the rule of law and as a result, we have the phenomenon of glorification of vigilantism in our popular culture as testified by the success of the film – Rang de Basanti.
  • Most of all, the mindset of negativism has to go. Police stations should become service centres rather than power centres. They have a role which is multi-dimensional, encompassing responsive policing, preventive policing, proactive policing and developmental policing.

Public Order  :-

  • Public order is largely a product of efficient general administration, effective policing and a robust criminal justice system.
  • Public order implies a harmonious state of society in which all events conform to the established law and is synonymous with peace,tranquility and the rule of law.

Public disorder:-

  • There are many causes of public disorder. Widely prevalent crime is a cause as well as an effect of public disorder. In a pluralistic democracy like ours, political polarisation sometimes throws up issues leading to conflicts which escalate into public disorder. Even demonstrations held on legitimate grounds can sometimes degenerate into public disorder.Given our historical inequities on the basis of caste  and other social factors, these can easily lead to conflicts that may degenerate into public disorder.
  • Similarly, divisive impulses based on ethnicity, religion, region, language and the sharing of natural resources can exacerbate tensions. With enhanced citizen awareness and assertion, failure in the delivery of services by the State often leads to frustration manifesting itself in public disorder.
  • This tendency is aggravated by increasing criminalisation of politics and persistent interference in the due process of law.
  • With increasing globalisation and the communications revolution, indigenous and transnational criminal organisations have acquired enormous resources and power with the capacity to cause serious breakdown of public order and even undermine the security of India. As opposed to organised crime, which is motivated by the prospect of illegitimate economic gains, terrorist groups are activated by real or imagined ideological motives.
  • They could be homegrown armed groups like Naxalites holding sway in some pockets, or foreign sponsored secessionist groups indulging in reckless violence and mayhem with the sole objective of spreading terror. The greatest danger to public order emanates from the conjunction of foreign sponsored secessionist terrorists with organized crime networks.

Why Public Order is sacrosanct: –

  1. First, peace and order are necessary preconditions for freedom of expression of individuals and for the resolution of conflicting interests in a democratic society.
  2. Second, violence and disorder necessarily undermine economic growth and development, perpetuating a vicious cycle of poverty, frustration and violence.
  3. Third, rapid urbanization, which is a necessary concomitant of modernisation, tends to promote impersonal lives and create alienation, thus reducing peer pressure and social control.
  4. Fourth, the State’s constitutional commitment to equitable growth and justice itself may unleash social tensions, as powerful oligarchies attempt to perpetuate the
    status quo.
  5. Fifth, rapid economic growth may sometimes aggravate disparities between individuals, groups and regions leading to escalation of tension and breaches of peace.
  6. Sixth,weak enforcement and failure of the criminal justice system create a culture of lawlessness posing a major threat to public order.
  7. Finally, organised crime, militancy and terrorism have devastating consequences on the morale of the public; such a situation may even lead to the unnecessary loss of life as well as serious economic and political dislocation in an interdependent economy and polity.

The Police , Judiciary and Public order:-

  • Among State agencies, police, by the very nature of their role, are the most visible arm of the government. The power of the State is expressed in its capacity to use force. As police are the agency to enforce the will of the State, the capacity of the police agencies to respond to a potential or real challenge to public order – rapidly, efficiently and justly – is of paramount importance.
  • It is equally important to ensure that this power is exercised in a democratic society within the bounds of the Constitution and the law. Ultimately, the manner in which the police functions is an index of society’s respect for civil liberty and the rule of law.
  • However just and efficient policing may be, security agencies alone cannot enforce the rule of law and maintain public order. An effective and impartial criminal justice system is a necessary precondition for order and harmony in society. Therefore, the preventive provisions for maintaining peace and order and matters relating to crime investigation, prosecution and trial need to be examined in detail.
  • A democratic society is necessarily characterised by public expression of dissent.Such dissent arises from a variety of socio-economic, political and cultural factors. In India,the situation is further compounded by factors such as caste, religion, poverty, illiteracy,demographic pressures, ethnic and linguistic diversity. The country has witnessed many disturbances – agrarian unrest, labour and student agitations, communal riots and caste related violence – which sometimes escalate into major disorders, especially when partisan politics come into play and where the administration fails to act early in resolving conflicts.Indeed, lack of good governance and poor implementation of laws are the major factors for public disorder.
  • Public order implies the absence of disturbance, riot, revolt, unruliness and lawlessness. Irrespective of the nature of a polity – democratic or autocratic, federal or unitary
    – maintenance of public order is universally recognised as the prime function of the State.Anarchy would result if the State failed to discharge this duty. Such persistent anarchy would lead to decay and destruction and the eventual disintegration of the State.

The concentric circles of  Security of state, Public order and Law and order by Justice Hidayatullah:-

  • It is quite vital to understand what takes primacy on what grounds and the necessary distinction between National Secuity, Public order and Law and order. More often one is interpreted as other and it not necessarily wrong, however the agency that enforce rule of law must be able to delineate one form other, so as to understand the situation better and application of force proportionately.
  • public order
  • Law and order represents the largest circle within which it is the next circle representing public order and the smallest circle represents the security of state.It is then easy to see that an act may affect law and order but not public order, just as an act may affect public order but not the security of state, as observed by Justice Hidayatullah (Ram Manohar Lohia v. State of Bihar)
  • Thus every situation in which the security of the State is threatened is a public order problem. Similarly, all situations which lead to public disorder, are necessarily law and order problems also. But all law and order problems are not public order problems. Thus, petty clashes between groups whose impact is limited to a small area are minor in nature with no impact on public order. But widespread violent clashes between two or more groups,such as communal riots, would pose grave threats to public order. A major terrorist activity could be classified as a public order problem impinging on the security of the State.
  • Restraint of State while exercising force:-While every violation of law should be seen as a challenge to public order, the State should not precipitate a crisis by treating every infraction as a public order crisis.
  • Superstitions and cultural attitudes, for example, take time, patience and education to change. India is an over-legislated country. The temptation to short circuit the process of modernisation by law and use of force should be resisted except when local opinion and prevailing societal norms are grossly violative of the core principles of the Constitution and democratic governance.

Public disorder and India :-

  • In the post-Independence era, India has faced several instances of large scale public disorder, starting with the communal conflagration during Partition. Even now communal riots pose a grave threat to peace and order. The 1950s witnessed violent linguistic riots in some parts of the country. There have been violent secessionist movements in the North-East, Punjab and Jammu and Kashmir. There are numerous instances of agrarian, labour and student unrest. The last decade has seen an upsurge of violence by the left wing extremists,who have extended their influence over large tribal areas.
  • Urbanisation has brought to the fore the shortcomings in the delivery of basic services, which at times, results in violent agitations. With improving awareness levels, conflicts over sharing of resources are increasing in rural and tribal areas. Organised groups, especially those concerned with the supply of essential services, have, on occasion, caused major public disorder by resorting to agitation,obstruction and violence.

Manifestations of Public disorder :-

  • Communal Riots:-
    • Communalism in a broad sense implies blind allegiance to one’s own communal group – religious, linguistic or ethnic – rather than to the larger society or to the nation as a whole. In its extreme form, communalism manifests itself in hatred towards groups perceived as hostile,ultimately leading to violent attacks on other communities.
    • Communalisim is a way of thinking -the result of perversions of religions and distortions of history.Today Communalism is made more bitter by a mixture of regionalism and parochialism.
  • Terrorism:-
    • Terrorism has been defined as the illegal use of force or violence against people to create a wave of terror with the intention of achieving certain political or sectarian objectives
    • The border State of Jammu and Kashmir and some parts of the North East have witnessed prolonged terrorist activities. Several acts of terror in recent years – hijacking of an aircraft(1999), attacks on the Parliament in New Delhi (2001), on Akshardham Temple in Gujarat(2002), and at the Indian Institute of Science, Bangalore (2005), bomb blasts in market places in Delhi (2005) and in Varanasi (2006), serial bomb blasts in Mumbai (2006) andMalegaon (2006), massacre of labourers in Upper Assam (2007) etc. – all demonstrate that terrorism is not confined to a few pockets and that almost every part of the country is vulnerable.
    • Even when the proximate cause of action or the political objective of the terror group is limited to a part of the country, the existence of sleeper cells, the spread of modern communications, an integrated economy and the increasing use of terror technology and tactics, have made it easy for the merchants of terror to spread their tentacles all over the country. As a result, terrorism is not merely a public order problem but has emerged as a grave threat to national security as well.
    • An analysis of some of the recent terrorist attacks indicates that terrorist organisations have used the existing organised crime networks. Terrorist groups and these crime syndicates have international links with similar organisations and are supported by foreign agencies inimical to our interests. Their activities are being financed through international money laundering and drug trafficking thus creating an intricate web of crime, terror and trafficking in arms and drugs.
  • Militancy in the North East –

    • The North East region has more than 200 ethnically diverse groups with distinct languages, dialects and socio-cultural identities. Some parts of this region have been suffering from militancy for several decades. Militancy in the region started with the Naga movement way back in the early 1950s and rose to serious levels in Manipur in the 1960s. Large scale immigration into Tripura gave birth to militancy there in the 1960s. Militancy in Assam,on the ‘foreigners issue’, has multiplied and spread to many new areas.
    • The numerous militant movements in the region have different objectives. A few movements seek outright secession from the Indian Union, some aspire for separate
      Statehood while others demand greater autonomy within the existing State. Extortion and abduction are frequently resorted to by some of the militant groups.
    • Corruption,economic deprivation and unemployment are driving segments of youth into the fold of militant organisations. Ad hoc solutions resulting in widely varying degrees of ‘autonomy’ to different bodies – sometimes within a single state – have led to competitive demands and when they are not met, to alienation and violence
    • Besides, the long porous international borders have facilitated the movement of these groups and the smuggling of arms
    • Another intractable problem has been created by migration from Bangladesh.Initially, this migration represented movement of peasants from the over populated eastern districts of Bengal to the sparsely populated and fertile and fallow Brahmaputra valley constituting Assam. The redrawing of national boundaries following Partition provided an impetus to migrants from East Pakistan for reasons of personal safety to settle in Assam, where their presence gave rise to ethnic and linguistic tensions. This was followed by fresh influx of all communities due to the agrarian crisis in East Pakistan. This migration has continued even after the emergence of Bangladesh. The fear among the local populace that this immigrant population would reduce them to a minority, as has in fact happened in some parts, has fueled militancy in the region
    • Currently, numerous militant groups are active in different North-Eastern states,particularly in Assam, Manipur, Meghalaya and Tripura. Some of these are: Assam –
      United Liberation Front of Assam (ULFA) and National Democratic Front of Bodoland (NDFB); Manipur – People’s Liberation Army (PLA), United Liberation Liberation Front (UNLF), People’s Revolutionary Party of Kangleipak (PREPAK), Kangleipak Communist Party, Kanglei Yaol Kanba Lup (KYKL), Manipur People’s Liberation Front(MPLF) and Revolutionary People’s Front (RPF); Meghalaya – Achik National Volunteer Council (ANVC) and Hynniewtrep National Liberation Council (HNLC ); Tripura – All Tripura Tiger Force (ATTF) and National Liberation Front of Tripura (NLFT); Nagaland- Nationalist Socialist Council of Nagaland (Isak Muivah)-[NSCN(IM)] and Nationalist Socialist Council of Nagaland (Khaplang)-[NSCN(K)].
  • Left-Wing Extremism –

    • Naxalism is the name given to radical, violent left wing extremism. This movement took birth in Naxalbari in West Bengal in the 1960s. Naxalites adopted a policy of
      annihilation of their ‘class enemies’. This localised movement was effectively dealt with by the Government. However, in recent years there has been a spread of the Naxalite influence in several states.  It has come down significantly in Andhra Pradesh in terms of both incidents and casualties but Chhattisgarh has seen higher levels of violence and casualties. It is also reported that Naxal groups have been trying to spread to Karnataka, Kerala, Tamil Nadu and Uttarakhand9. Apart from
      indulging in violence, Naxalites continue to hold Jan-Adalats, a mechanism to dispense crude and instant justice.
    • Naxalism has become an issue of major concern. Naxalites operate in the vacuum created by the inadequacy and ineffectiveness of the administrative machinery. It is a fact that the tribal hinterland of the country has emerged as the bastion of the Naxalite movement.The problems of poverty and alienation, the demand of territorial rights and displacement from traditional forest habitats have aggravated the problem. Besides, unequal sharing of benefits of exploitation of resources has also helped create a fertile breeding ground for the growth of this menace.

Causative Factors of Major Public Order Problems :-

  1. The classical school in criminology propounded the theory that every human being acts on a rational basis and would try to maximise his gains or minimise his pains. This was the basis of the theory of deterrence. As per this theory the State tries to prevent crimes by institutionalising a system of law enforcement, which would give adequate punishment to the offender to act as a deterrent.
  2. The neo-classical school supports the classical viewpoint but places emphasis on reform and rehabilitation of the offender. There have been several other theories of criminology which have added social, psychological and economic dimensions to the causes of crime.
  3. As postulated by modern theorists, controlling crime requires a multi-pronged approach involving socio-economic and psychological measures;this does not, however, invalidate the theory of deterrence. Hence the importance of a comprehensive and efficient system of criminal justice administration.
  4. Three broad categories of public violence can be discerned: violence of remonstrance, violence of confrontation, and violence of frustration. There are five broad causes of the types of violence mentioned above. These can be categorised as follows :-
    1. Social: In India, the historical social structures and ‘hierarchy’ has been a root cause for social unrest. Caste has been a fundamental divisive factor in our society
    2. Communal: Religious orthodoxy and blind adherence to extreme view points is another fundamental cause for unrest. In India, the existence of every religion
      side by side has been the matter of strength in our multi-cultural system but fringe elements often create unrest.
    3. Economic: Underdevelopment is arguably a cause of tension. The desire to improve one’s position in competition with others, itself creates stress and in India, with 250 million people below the poverty line, the strain is significant.
    4. Administrative: The administrative machinery is not always perceived by people to be objective and fair. Slackness in delivery of services, lethargy in enforcement of laws is at times a major reason for frustration in citizens. Corrupt and self seeking behavior of some officials compounds the problem further. One of the major causative factors for the eruption of public disorder is the inadequacy of the administration in enforcing the legitimate constitutional, statutory and traditional rights of citizens leading to serious discontentment among them.
    5. Political: In a vibrant democratic system, not a totalitarian regime, divergent political view points can lead to tension. More important, however, is the problem of political expediency where a section of the political leadership tries to use the administration for furthering its own political agenda. The increasing propensity to use public office for private gain, unwarranted interference in crime investigation and day to day functioning of police, short-term populism at the cost of durable solutions, complexities of a federal polity – all these make it difficult to address some of the growing threats to public order. Added to this is the relatively low importance attached to public order in our political discourse.All these contribute to breakdown of the public order fabric.
  5. Weaknesses of Legal and administrative system :-  • delays in the criminal justice system;
    • unresponsiveness of the administration;
    • lack of functional autonomy for law enforcement and investigation agencies;
    • lack of adequate and effective accountability mechanisms;
    • outdated and unprofessional interrogation and investigation techniques;
    • tendency to use unwarranted disproportionate force and abdication
    of duties under partisan pressures;
    • inadequate training and infrastructure for police;
    • lack of coordination between prosecution and investigation;
    • insufficiency of laws dealing with terrorism and organised crime;
    • people’s propensity to perjury; and
    • neglect of victim’s rights & lack of accountability

 

P.S. – This article enlists the issues related to public order, their various manifestations, concepts and problems.Next article will follow in detail analysis of weaknesses of the state’s apparatus to contain the public order.

 

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    • Context:-

    At the recently concluded Leaders’ Summit on Climate in April 2021, Lowering Emissions by Accelerating Forest Finance (LEAF) Coalition, a collective of the United States, United Kingdom and Norway governments, came up with a $1 billion fund plan that shall be offered to countries committed to arrest the decline of their tropical forests by 2030.

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    What is LEAF Coalition?

    • Lowering Emissions by Accelerating Forest Finance (LEAF) Coalition, a collective of the United States, United Kingdom and Norway governments, came up with a $1 billion fund.
    • LEAF is supported by transnational corporations (TNCs) like Unilever plc, Amazon.com, Inc, Nestle, Airbnb, Inc as well as Emergent, a US-based non-profit.

    Why LEAF Coalition?

    • The world lost more than 10 million hectares of primary tropical forest cover last year, an area roughly the size of Switzerland.
    • Ending tropical and subtropical forest loss by 2030 is a crucial part of meeting global climate, biodiversity and sustainable development goals. Protecting tropical forests offers one of the biggest opportunities for climate action in the coming decade.
    • Tropical forests are massive carbon sinks and by investing in their protection, public and private players are likely to stock up on their carbon credits.
    • The LEAF coalition initiative is a step towards concretising the aims and objectives of the Reducing Emissions from Deforestation and Forest Degradation (REDD+) mechanism.
    • REDD+ was created by the United Nations Framework Convention on Climate Change (UNFCCC). It monetised the value of carbon locked up in the tropical forests of most developing countries, thereby propelling these countries to help mitigate climate change.
    • It is a unique initiative as it seeks to help developing countries in battling the double-edged sword of development versus ecological commitment. 
    • The initiative comes at a crucial time. The tropics have lost close to 12.2 million hectares (mha) of tree cover last year according to global estimates released by Global Forest Watch.
    • Of this, a loss of 4.2 mha occurred within humid tropical primary forests alone. It should come as no surprise that most of these lost forests were located in the developing countries of Latin America, Africa and South Asia.
    • Brazil has fared dismally on the parameter of ‘annual primary forest loss’ among all countries. It has lost 1.7 mha of primary forests that are rich storehouse of carbon. India’s estimated loss in 2020 stands at 20.8 kilo hectares.

    Brazil & India 

    • Between 2002-2020, Brazil’s total area of humid primary forest reduced by 7.7 per cent while India’s reduced by 3.4 per cent.
    • Although the loss in India is not as drastic as in Brazil, its position is nevertheless precarious. For India, this loss is equivalent to 951 metric tonnes worth carbon dioxide emissions released in the atmosphere.
    • It is important to draw comparisons between Brazil and India as both countries have adopted a rather lackadaisical attitude towards deforestation-induced climate change. The Brazilian government hardly did anything to control the massive fires that gutted the Amazon rainforest in 2019.
    • It is mostly around May that forest fires peak in India. However, this year India, witnessed massive forest fires in early March in states like Odisha, Uttarakhand, Madhya Pradesh and Mizoram among others.
    • The European Union’s Copernicus Atmospheric Monitoring Service claimed that 0.2 metric tonnes of carbon was emitted in the Uttarakhand forest fires.

    According to the UN-REDD programme, after the energy sector, deforestation accounts for massive carbon emissions — close to 11 per cent — in the atmosphere. Rapid urbanisation and commercialisation of forest produce are the main causes behind rampant deforestation across tropical forests.

    Tribes, Forests and Government

    Disregarding climate change as a valid excuse for the fires, Indian government officials were quick to lay the blame for deforestation on activities of forest dwellers and even labelled them “mischievous elements” and “unwanted elements”.

    Policy makers around the world have emphasised the role of indigenous tribes and local communities in checking deforestation. These communities depend on forests for their survival as well as livelihood. Hence, they understand the need to protect forests. However, by posing legitimate environmental concerns as obstacles to real development, governments of developing countries swiftly avoid protection of forests and rights of forest dwellers.

    For instance, the Government of India has not been forthcoming in recognising the socio-economic, civil, political or even cultural rights of forest dwellers. According to data from the Union Ministry of Tribal Affairs in December, 2020 over 55 per cent of this population has still not been granted either individual or community ownership of their lands.  

    To make matters worse, the government has undertaken systematic and sustained measures to render the landmark Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ineffective in its implementation. The Act had sought to legitimise claims of forest dwellers on occupied forest land.

    Various government decisions have seriously undermined the position of indigenous people within India. These include proposing amendments to the obsolete Indian Forest Act, 1927 that give forest officials the power to take away forest dwellers’ rights and to even use firearms with impunity.

    There is also the Supreme Court’s order of February, 2019 directing state governments to evict illegal encroachers of forest land or millions of forest dwellers inhabiting forests since generations as a measure to conserve wildlife. Finally, there is the lack of data on novel coronavirus disease (COVID-19) deaths among the forest dwelling population;

    Tardy administration, insufficient supervision, apathetic attitude and a lack of political intent defeat the cause of forest dwelling populations in India, thereby directly affecting efforts at arresting deforestation.

    Way Forward

    • Implementation of the LEAF Coalition plan will help pump in fresh rigour among developing countries like India, that are reluctant to recognise the contributions of their forest dwelling populations in mitigating climate change.
    • With the deadline for proposal submission fast approaching, India needs to act swiftly on a revised strategy.
    • Although India has pledged to carry out its REDD+ commitments, it is impossible to do so without seeking knowledge from its forest dwelling population.

    Tuntiak Katan, a global indigenous leader from Ecuador and general coordinator of the Global Alliance of Territorial Communities, aptly indicated the next steps at the Climate Summit:

    “The first step is recognition of land rights. The second step is the recognition of the contributions of local communities and indigenous communities, meaning the contributions of indigenous peoples.We also need recognition of traditional knowledge practices in order to fight climate change”

    Perhaps India can begin by taking the first step.

    INTRODUCTION:-

    The Constitution of India was adopted on 26 November 1949, which means it was finalised by the Constituent Assembly on that day. But it became operative two months after its adoption, i.e., on 26 January 1950, which is also known as the date of its “commencement”.

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    However, some provisions of it, i.e., those relating to citizenship, elections, provisional Parliament, temporary and transitional provisions had become operative on 26 November 1949 itself. The reason for its commencement after two months of its adoption was to signify the January 26 as the original date of achievement of Independence.

    It was this day, i.e. 26th January, in 1930 which the Indian National Congress (INC) had first celebrated as the Independence Day of India. It is important to note that the Constitution of India is product of a longdrawn process and deliberations.

    EVOLUTION OF THE INDIAN CONSTITUTION 1858-1935

    The Constitution of India embodies provisions providing basic democratic rights of human beings including the persons who are not Indian citizens. It also embodies provisions for the availability of institutions for legislation, execution and jurisdiction for the fulfilment these rights.

    It presents a vision for social transformation and deepening of democracy in India. The process of evolution of democratic institutions and rights had started much before the Constituent Assembly really made the Constitution of India.

    It, however, must be underlined that the features of democratic institutions and values which were introduced during the colonial period were meant to serve the colonial interests in contrast to the purpose of the provisions of the Constitution made by the Constituent Assembly of India.

    Although the Indian Constitution was result of the deliberations (from December 9, 1947 to November 26, 1949) of the Constituent Assembly, some of its features had evolved over three quarters of a century through various Acts, i.e., from 1858 to 1935.

    The Government of India Act, 1935, and Other Acts

    With the transfer of power from the East India Company to the British Crown, the British Parliament got involved in managing affairs of India. For achieving this purpose, from 1858 till 1935, the colonial government introduced certain features of constitution or rules of governance through different Acts. The Government of India Act, 1935 was the most important among these Acts.

    First of these other Acts was Government of India Act, 1858. It provided for a combination of centralised and decetralised power structure to govern India. The centralised structure was introduced in the areas which were under the direct control of the Crown. These areas were known as British India provinces or provinces. The decentralized structure was introduced in the areas which were not under the direct control of the Crown. These areas were ruled by the Indian princes, and were known as princely states or states.

    Under this system, the princes had freedom to govern in all internal matters of their princely states, but they were subject to the British control. In the centralized structure of power which was introduced in the provinces, all powers to govern India vested in the Secretary of State for India (and through him in the Crown). He acted on behalf of the Crown.

    He was assisted by a fifteen-member council of ministers.There did not exist separation of executive, legislative and judicial functions of government; these all were concentrated in the hands of the Secretary of State for India. In British India, the Secretary of State of India was assisted by the Viceroy, who was assisted by an executive council.

    At the district level, the viceroy was assisted by a small number of British administrators. The provincial government did not have financial autonomy. In 1870 viceroy Lord Mayo ensured that all parts of provincial administration received due share of revenue to meet their needs.

    The scope of political institutions in the provinces was expanded a little further following the introduction of Council of India Act, 1909. This Act introduced for the first time a “representative element” in British India, which included elected non-official members.This Act also introduced separate representation to Muslim community.

    The Government of India Act 1919 devolved some authority to the provincial governments, retaining the control of the central government (unitary government) on them.It relaxed the control of the central government in a limited way. It divided the subjects for jurisdiction of administration and sources of revenue between centre and provinces.

    Under this arrangement, the provincial government was given control on resources of revenue such as land, irrigation and judicial stamps. The provincial subjects were divided into “transferred’ and “reserved” categories.

    The “transferred” subjects were governed by the governor, and “reserved” subjects were governed by the legislature. The governor (executive head) was not accountable to the legislature.

    The Government of India Act, 1935 was different from the earlier Government of India Acts. Unlike the earlier Acts, the Government of India Act, 1935 also provided for provincial government enjoying provincial autonomy. It provided “safeguards” for minorities.

    Such “safeguards” included provisions for separate representations to Muslims, Sikhs, the Europeans, Indian Christians and Anglo-Indians. This Act also provided for three lists of divisions of power between the federation (central government) and provinces: federal (central), concurrent and provincial.

    The Act also provided for establishment of a federal court to adjudicate disputes between federation and provinces. The executive head of the provincial government was Governor, who enjoyed special power. Under the special power the Governor could veto the decisions of the provincial legislature.

    He acted on behalf of the Crown, and was not a subordinate of the Governor-General (the changed designation of Viceroy). He enjoyed discretionary powers to exercise his “individual judgments” in certain matters. In such matters, he did not need to work under the advice of ministers: he was to act under the control of the Governor-General, and indeed the Secretary of the State.

    He was also not accountable to the legislature but he was required to act on the advice of ministers, who were accountable to the legislature.

    Government of India Act, 1935 also had provisions for setting up a central government consisting of representatives from the provinces(areas ruled by the British India government) and the states (the areas covered under princely states).Such government was supposed to be known as federal government because of composition with members both from provinces and the states.

    However, the federal government could not be formed because there was no unanimity among the princes to join the federation; consent of all princes was essential for the formation of federation. Thus, only the provincial governments could be formed as per this Act.

    And election to the provincial legislature as per the Government of India Act, 1935 was held in 1937. Following the election of 1937, provincial governments headed by the Indian National Congresswere formed in eight provinces. The Indian National Congress government resigned in 1937. Nevertheless, according to M. Govinda Rao and Nirvikar Singh (2005), the Government of India Act, 1935 provided a basis to the Constituent Assembly to make the Constitution.

    The Nehru Report(1928): First Indian Initiative to Draft Constitution

    As you have read above, attempts to introduce elements of constitution in British India through different Act since 1858 were made by the British rulers. Indians had no role in it.

    The first attempt by Indians themselves to prepare a Constitution of India was made in the Nehru Report(1928).Earlier, effort by Indians was made in the name of the swaraj (self-rule) by leaders of Indian national movement during the non-cooperation movement in 1921-22.

    The Nehru Report was known as such because it was named after the chairman of its drafting committee, Motilal Nehru. The decision to constitute the drafting committee was taken in the conference of the established All India parties. The principal among these parties included Indian National Congress, Swaraj Party and Muslim League. The Justice Party of Madras and Unionist Party of Punjab did not participate in this meeting.

    The Nehru Report demanded universal suffrage for adults and responsible government both in the centre and in the provinces. It, however, supported the Dominion Status, not complete independence for India.

    It meant that Indians would have freedom to legislate on certain limited matters under the control of the British India government. For this, the Nehru Report prepared list of central and provincial subjects, and fundamental rights. It also raised demands for universal suffrage for men and women adults.

    Indeed, it was in 1934, a few years after the preparation of the Nehru report, that the Indian National Congress officially demanded a constitution of Indian people, without the interference of outsiders.

    FORMATION OF THE CONSTITUENT ASSEMBLY

    The Cripps Mission

    Initially, the colonial authorities resisted the demand for creation of a Constitution of India. But with the change in the circumstances – the outbreak of the World War II and formation of the new Coalition (Labour-led) government in Britain, the British government was forced to acknowledge the urgency to solve the problem related to Constitution of Indians.

    In 1942, the British government sent its cabinet member – Sir Stafford Cripps with the draft declaration on proposals (regarding formation of constitution for Indians) to be implemented at the end of the WW II provided both the Muslim League and the Indian National Congress had agreed to accept them.

    The draft proposals of the Cripps Mission recommended the following:

    1. providing Dominion Status to India, i.e., equal partnership of the British Commonwealth of Nations;
    2. all Provinces (ruled by the British India government) and Indian States (ruled by Indian princes) should constitute one Indian Union by the British Constitution;
    3. the Constitution of India should be framed by an elected Constituent Assembly of Indian people but if any province (or Indian State) which was not prepared to accept the Constitution was to be free to retain its constitutional position which had existed at that time.
    4. Such provinces were to be free to enter separate constitutional arrangements.

    Both the Indian National Congress and the Muslim League did not accept the proposals of the Cripps Mission. The Muslim League demanded that India should be divided on the communal lines and some provinces should form an independent state of Pakistan; and, there should be two Constituent Assemblies, one for Pakistan and another for India.

    The Cabinet Mission

    The British Indian government made several attempts to bridge the differences between the Indian National Congress and the Muslim League. But it was unsuccessful.

    The British government sent another delegation of the Cabinet members, known as the Cabinet Delegation, which came to be known as the Cabinet Mission Plan. It consisted of three cabinet members – Lord Pathic Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander.

    The Cabinet Delegation also failed to bring the Indian National Congress and the Muslim League to an agreement. It, however, made its own proposal which was announced simultaneously on 16 May, 1946 in England as well as in India.

    The Cabinet delegation made the following recommendations:

    1. there should a Union of India consisting of British India and the States, which would have jurisdiction over subjects of Foreign Affairs, Defense and Communication;
    2. all residuary powers would belong to the Provinces and the States;
    3. the Union would have Executive and Legislature consisting of the representatives from the Provinces and the States but for decision relating to a major communal issue in the legislature a majority of representatives of two major communities would be present, and voting along with the majority of all members present and voting would be required;
    4. the provinces would be free to form Groups with executives and legislatures;
    5. and each group would be free to determine the Provincial Subjects which would be taken up by the Group organisation.

    Election to the Constituent Assembly

    Meanwhile, according to the proposals of the Cabinet Mission, the election to the Constituent Assembly was held in which members of both the Indian National Congress and the Muslim League were returned. The members of the Constituent Assembly were elected by the Provincial Legislative Assemblies.

    However, differences between the Indian National Congress and the Muslim League arose on interpretation of “Group Clauses” of the Cabinet Mission.

    The British government intervened at this stage and explained to the leaders in London that the contention of the Muslim League was correct. And on December 6, 1946, the British Government published a statement, which for the first time acknowledged the possibility of two Constituent Assemblies and two States.

    As a result, when the Constituent Assembly first met on December 9, 1946, it was boycotted by the Muslim League, and it functioned without the participation of the Muslim League.

    NATURE OF THE CONSTITUENT ASSEMBLY’S REPRESENTATION

    It is often argued that the Constituent Assembly of India did not represent the masses of India because its representatives were not elected through the universal adult franchise. Rather they were indirectly elected by the restricted adult franchise confined to the elite sections of society – the educated and tax payers.

    According to Granville Austin the reasons for the restricted franchise and indirect election to the Constituent Assembly members were spelled by the Cabinet Mission Plan. These were to avoid the cumbersome and slow progress in the process of Constitution making.

    The Cabinet Mission provided for the indirect election to the Constituent Assembly by the elected members of the provincial legislature. The Indian National Congress agreed to this proposal of the Cabinet Mission forsaking the claim of adult franchise to hold election to the Constituent Assembly.

    Despite having been elected through the restricted adult franchise, the Constituent Assembly represented different shades of opinions and religious communities of India. Austin observed that though there was a majority of the Indian National Congress in the Constituent Assembly, it had an “unwritten and unquestioned belief” that the Indian National Congress should represent social and ideological diversity.

    There was also its “deliberate policy” that the representatives of various minority communities and viewpoints should be represented in the Constituent Assembly. The Constituent Assembly consisted of members with different ideological orientations, and three religious communities -Sikhs, Muslims and General (Hindus and all other communities like the Anglo-Indians, Parsis, etc).

    In words of K. Santaram “There was hardly any shade of opinion not represented in the Assembly”. Majority of the Constituent Assembly members belonged to the Indian National Congress. It also included more than a dozen non-Indian National Congress members.

    Some of these were A.K. Ayyer, H.N. Kunjru, N.G. Ayyanger, S.P. Mukherjee and Dr. B.R. Ambedkar. S.P. Mookerji represented the Hindu Mahasabha.

    The Constituent Assembly included representatives from the Princely States as well. It needs to be underscored that Dr. Ambedkar was initially elected to the Constituent Assembly from Bengal as member of the Scheduled Caste Federation. But he lost this seat due to the partition of Bengal and was re-elected by the Bombay Indian National Congress (as a non-Indian National Congress candidate) at the request of the Indian National Congress High Command.

    The Constituent Assembly sought to address concerns of every person irrespective of their social and cultural orientations. Before incorporating a provision in the constitution, it held elaborate deliberations. Thus, the members of the Constituent Assembly could overcome the limitations of having been elected by the restricted franchise.

    The Constituent Assembly sought to accommodate universal values of democracy. The Constituent Assembly adopted several provisions from different constitutions of world and adapted them to the needs of India. In fact, Austin argues that while incorporating different provisions in the Constitution including those which were borrowed from other countries the Constituent Assembly adopted “two wholly Indian concepts” of resolving differences among its members, i.e., consensus and accommodation.

    Most members of the Constituent Assembly participated in its proceedings. But these were twenty individuals who played the most influential role in the Assembly.

    Some of them were Rajendra Prasad, Maulan Azad, Vallabhbhai Patel, Jawaharlal Nehru, Govind Ballabh Pant, P. Sitaramayya, A.K. Ayyar, N.G. Ayyangar, K.M. Munshi, Dr. B.R. Ambedkar and Satyanarayan Sinha. Though the Constituent Assembly was the sole forum where deliberations took place, yet the deliberations took place in coordination of three bodies – the Constituent Assembly, the Indian National Congress Party, and the interim government.

    Some members of the Constituent Assembly were also members of other bodies at the same time. Austin said that “an oligarchy” of four – Nehru, Patel, Prasad and Azad had enjoyed unquestioned honour and prestige in the Assembly. They dominated the proceedings of the Constituent Assembly.Some of these were simultaneously in the government, Indian National Congress Party and the Constituent Assembly.

    Prasad was President of Indian National Congress before becoming the President of the Constituent Assembly. Patel and Nehru were Prime Minister and Deputy Prime Minister respectively at the same time. They were part of the inner circles of the committees of the Constituent Assembly.

    The Constitution Drafting Committee meticulously incorporated in the draft constitution the decisions of the Constituent Assembly. Dr. B.R. Ambedkar, chairman of the Drafting Committee played the leading role in drafting of the Constitution.

    Acknowledging the pivotal role of Dr. Ambedkar, T.T. Krishnamachari, a member of the Drafting Committee, said in one of his speeches: “The House is perhaps aware that out of the seven members nominated by you, one had resigned from the house and was replaced. One had died and was not replaced. One was away in America and his place was not filled up, and another person was engaged in State Affairs, and there was a void to that extent. One or two people were far away from Delhi and perhaps reasons of health did not permit them to attend. So it happened ultimately that the burden of drafting this constitution fell upon Dr. Ambedkar and I have no doubt that we are grateful to him for having achieved this task in a manner which is undoubtedly commendable.”

    Dr. Ambedkar on his part “gave much of credit” to S.N. Mukerjee – B.N. Rau’s and Ambedkar’s assistant, the Drafting Officer of the Assembly, “for the careful wording of the Constitution”.

    THE ROLE OF THE CONSTITUENT ASSEMBLY IN THE MAKING OF INDIAN CONSTITUTION 1946-1949

    The inaugural session of the Constituent Assembly was held on 9 December 1946. It was supposed to be attended by all 296 members but only 207 members could attend it because the Muslim League members absented from it.

    As stated earlier, they had boycotted the Constituent Assembly. In this meeting, Acharya J.B. Kripalani requested Dr. Sachchidananda Sinha to be the temporary chairman of the House. The members passed a resolution on 10 December 1946 for election of a permanent chairman, and on 11 December 1946, Dr. Rajendra Prasad was elected as the permanent Chairman of the Constituent Assembly.

    The Constituent Assembly divided its work among different committees for its smooth functioning. Some of the important committees were:

    (a) Union Power Committee. It was chaired by Jawaharlal Nehru and had nine members;

    (b) Committee on Fundamental Rights and Minorities. It had 54 members and Sardar Ballabh bhai Patel was its chairman;

    (c) Steering Committee and its 3 members which included Dr. K.M. Munshi (chairman), Gopalaswami Iyangar and Bhagwan Das;

    (d) Provincial Constitution Committee. It had 25 members with Sardar Patel as its chairman;

    (e) Committee on Union Constitution. It had 15 members with Jawahalal Nehru as its chairman.

    After discussing the reports of these committees, the Constituent Assembly appointed a Drafting Committee on 29 August 1947 under the chairmanship of Dr. B.R. Ambedakar. The draft was prepared by Sir B.N. Rau, Advisor to the Constituent Assembly.

    A 7-member Committee was constituted to examine the draft. Dr. B.R. Ambedkar, who was Law Minister as well as chairman of the Drafting Committee piloted the draft in the Assembly. Dr. Ambedkar presented “Draft Constitution of India”. The “Draft Constitution” was published in February, 1948.

    It was discussed by the Constituent Assembly clause by in its several sessions and was completed by October 17, 1949. This discussion was known as the second reading. The Constituent Assembly again met on 14 November 1949 to discuss the draft further or to give it a third reading.

    It was finalised on 26 November 1949 after receiving the signature of the President of the Constituent Assembly. But it was January 26, 1950 which became the date of commencement of the Constitution.

    SALIENT FEATURES OF THE CONSTITUION

    The Indian Constitution has some salient features. These features give Indian Constitution a distinct identity. It is based on the features of different constitutions of the world. In the words of Dr. Ambedkar, The Indian constitution was prepared “after ransacking all the known Constitutions of the world”.

    The chapter on Fundamental Rights  is based on the American Constitution; the Parliamentary System has been adopted from the British Constitution; the Directive Principles of State Policy  have been adopted from the constitution of Ireland; the Emergency provisions  are based on the Constitution of Weimar (Germany) and Government of India Act, 1935.

    The features which have been borrowed from other Constitutions have been modified in the light of the needs of our country. It is the longest written constitution. At the time of its formation, the constitution of India had 395 Articles and 8 Schedules. It ensures both Justiciable and Non-Justiciable Rights: Fundamental Rights and the Directive Principles of the State Policy.The constituent makers preferred universal adult franchise over the separate electorates. 

    Universal Adult Suffrage and Abolition of the Separate Electorate

    After debating its draft list of Fundamental rights the Sub-Committee on Fundamental Rights did not recommend inclusion of all of them in the section III of the Constitution as the Fundamental Rights. Instead, it suggested that these should be incorporated in other places in the Constitution.

    One such example is that of the Universal suffrage, and Secrete and periodic elections. The sub Committee agreed unanimously in favour of the Universal suffrage but suggested that it should not be part of the Fundamental Rights.

    Accordingly, it was placed in the Article 326 of the Part XV on election.The word “universal”, however, is missing from the Article 326. But the fact that every adult citizen of the country is entitled to vote makes it practically a universal adult franchise.

    In fact, before Indians really got the right to universal adult franchise, the prominent leaders of the Indian National movement strove for the abolition of the separate electorate in favour of the joint electorate.

    The British had sought to continue separate electorate in India since the Morley-Minto reforms, 1909 till the Communal Award of 1932 in the Constitution.

    The Communal Award aimed to accord separate electorate for Muslims, Europeans, Sikhs, Indian Christians and Anglo-Indians. It also provided for seats for the Depressed Classes which were to be filled in elections from special constituencies. In such constituencies only the depressed classes could vote.

    In addition, the depressed classes were also entitled to vote in general constituencies. Gandhi opposed the recommendation of the notion of separate electorate for the depressed classes. In opposition to the proposal for separate electorate, he set on fast unto death in September 1932. Gandhi’s fast evoked opposition from Ambedkar. However, both Gandhi and Ambedkar reached compromise in Poona Pact.

    According to the Poona Pact, seats were reserved for the depressed classes in the general constituencies. This resulted in the abolition of the separate electorate.The abolition of separate electorate got reflected in the reservation of seats in the legislative bodies Constitution.

    CONCLUSION

    The making of Indian Constitution largely consisted of two phases – 1858 to 1935 and 1946 to 1949. With the transfer of power from the East India Company to the British Crown, the British government introduced different elements of governance through different Acts.

    These also included the elements of representation of Indians in the institutions of governance. The motive of the British to introduce them was to serve their colonial interests rather than to provide democratic rights to them. The provision for communal representation introduced through the Morley-Minto Reforms in 1909 and through the Communal Award in 1932 was opposed by the leaders of the Indian National Movement.

    Gandhi’s fast resulted in the Poona Pact abolishing the separate electorate and in giving the reservation to the depressed classes in the provincial legislature. After the Indian National Congress emphasized the need for making of a Constitution of India by their own Constitient Assembly, the changed political situation following the Second World War and change of government in Britain, the British reluctantly realized the urgency for establishment of the Constituent Assembly of India for Indians.

    The Constituent Assembly which was set up following the recommendations of the Cabinet Mission Plan was elected through the restricted adult franchise by the provincial assemblies. Despite having elected by the privileged sections of the society, the Constituent Assembly represented different shades of opinions and ideologies.

    It also represented different social groups of India. The Constituent Assembly discussed all issues thoroughly before reaching decision on them. The decision and suggestions of different sub-Committees of the Constituent Assembly were finally incorporated in the Constitution of India.

    The Constitution of India is a document which provides a vision for social change. The Constitution is an embodiment of principles of liberal democracy and secularism, with some elements of social democracy. It ensures protection of cultural, linguistic and religious rights of individuals and communities.