Indian Polity: Changes by the Indepence Act

Changes by the Independence Act 

1 1. The Report on the functions of the Constituent Assembly under the Indian Independence Act, 1947, submitted by the Committee appointed by the President in pursuance of the decisions of the Assembly on the 20th August 1947 made all together five recommendations.

2. Its first recommendation was that, it is open to the Constituent Assembly to function as Legislature and that it should function as such.

3. While functioning as Legislature it should adopt the rules of the Legislative Assembly as far as possible with necessary amendments.

4. The necessary amendments should be made under the orders of the Please dent of the Constituent Assembly.

5. The work of the Constituent Assembly as a Constitution-making body and as an ordinary legislature should be separated and should be conducted in separate sessions to be held on separate days.

6.The power of prorogation should vest in the President and not in the Governor-General as found in the Adaptation of the Government of India Act.

7. After having made these recommendations, the Committee considered whether there were any difficulties which would stand in the way of giving effect to their recommendations and found three which they had to resolve in order to give effect to their recommendations.

8. The first was whether one and the same person should preside over both the bodies, the Constituent Assembly and the Legislature. This difficulty arose because section 22 of the Government of India Act, which related to the office of the Speaker, had been dropped by the Adaptations which have been carried out under the Indian Independence Act with the result that the President was the one person who has to preside over both, the Constitution-making body as well as the Legislature. Ordinarily speaking, this should not have created any difficulty, but in the circumstance where for instance the President is a Minister of the State, this difficulty may arise.

        Consequently the Committee thought that either of two courses has to be adopted; either the President should cease to be a Minister, or, if he continues to be a Minister, the Assembly should elect another officer to be called the Speaker or Deputy President whose functions it would be to preside over the Constituent Assembly when it is in session for the purpose of making laws.

1.     The second difficulty which the Committee came across was with regard to the representatives of the States. The Constituent Assembly, when it would be meeting for the purposes of law making, would be operating upon the whole field which has been included in List No. 1 of the Seventh Schedule to the Government of India Act. The States had joined the Constituent Assembly on the basis of what is called the Instrument of Accession.The question that arose was whether a body of people, who are Members of the Constituent Assembly and who are bound by the Instrument of Accession and have responsibility for a shorter number of items, should be permitted to take part in motions and in debates relating to certain other subjects which were not included in the list contained in the Instrument of Accession. The Committee made the recommendation that notwithstanding the subjects contained in List No. 1 and the Instrument of Accession, the representatives of the Indian States should continue to take part in all motions that may relate to all subjects irrespective of the distinction between the two lists.

2.     The third question which the Committee felt they had to deal with was the position of the Ministers. The question arose for consideration whether the Ministers who were Members of the Constituent Assembly should take part in the proceeding of the Constituent Assembly and also in the Legislature. Under that, therefore, the Ministers who were not Members of the Costituent Assembly will be eligible to sit in the Constituent assembly when its functions as a Legislature, without ceasing, to be Minister of State.

3.     The question that remained was what was to happen with regard to their relationship to the Constituent Assembly. As they were not Members of the Constituent, Assembly, they were not entitled to participate in the work of the Constituent Assembly so far as it related to the making of the Constitution. The Committee came to the conclusion that it was necessary that their guarantee should be available to the Constituent Assembly in the matter of constitution-making and therefore just as Section 10 sub-clause (2) permits them to participate in the work of the Legislature so also the Constituent Assembly should make a provision which would permit Members of Government who are not Members of the Constituent Assembly also to participate in the work of the Constituent Assembly.

4.     There were two other matters about which the Committee had made no recommendation. The first matter was the question of double membership. There were certain Members of the Constituent Assembly who were also Members of the Provincial Legislature. So far there is no anomaly, because the Constituent Assembly is not a Legislature. But when the Constituent Assembly begins to function as a Legislative Body, this conflict due to double membership will undoubtedly arise.

5.     The second question about which the Committee had made no recommendation was related to the administrative- organization of the Assembly. As the administrative organization in the Assembly was a single unified organization, it was under the exclusive control of the President of the Constituent Assembly. So long as the Constituent Assembly had only this single and solitary function to perform, namely, to prepare the constitution, there was no difficulty, in this matter. But when the Constituent Assembly would function in its double capacity, once as the constitution-making body and another time as a law-making body with another person at the head of it, namely, the Speaker or the Deputy Speaker, questions with regard to the adjustment of the staff may arise. But the Committee thought that they were not entitled under the terms of reference to deal with this matter and therefore did not make any reference to it at all.

6.     The functions of the Assembly were:

7.     To continue and complete the work of Constitution-making which commenced on the 9th December, 1946, and

8.     To function as the Dominion Legislature until a Legislature under the new Constitution came into being.

9.     The business of the Assembly as a Constitution-making body would be clearly distinguished from its normal business as the Dominion Legislature, and different days or separate sittings on the same day would be set apart for the two kinds of business.

10.                        The members of the Assembly representing the Indian States were entitled to take part in the proceedings of the Assembly on all days get apart for the business of Constitution-making. They further had the right on days set apart for the functioning of the Assembly as the Dominion Legislature to participate in business, relating to subjects in respect of which the States have acceded to the Dominion.

Work

1.     When the Constituent Assembly first met on December 9, 1946 J.B. Kripalini, the then Congress President, proposed the name of Dr. Sachidananda for the post of the Provisional President. Later on December 11, Dr. Rajendra Prasad as elected as the President of the Constituent Assembly.

2.     The manner in which the Constituent Assembly arrived at decisions was that of consensus defined as manner of making decision by unanimity or near unanimity. An effort was made to smoothen differences and arrive at compromises and agreement.

3.     The objective was to overcome the biases and an element of overruling dissent, ingrained in decision by majority. Some constitutional experts believe that accommodation would be a better word than consensus to describe the procedure adopted in the Constituent Assembly as-most of the decisions were those of the Congress Party.

4.     Issues which raised some heat before, compromises were arrived at included the center-state-relations, Judiciary role in interpreting the constitution, the entire constitution of balancing personal rights and national integrity, personal rights and the needs of socio economic development and the matter of special rights for minorities and depressed class.

5.     It took almost three years (two years, eleven months and seventeen days to be precise) to complete its historic task of drafting the Constitution for Independent India.

6.     During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were spent on the consideration of the Draft Constitution. The eleventh session was held between 14 November to 26 November 1949.