On Constituent Assemblies

Ever since the publication of the White Paper containing the proposals for constitutional reform now embodied in the Government of India Act, 1935, the question of convening a Constituent Assembly in India–with authority to frame a popular and acceptable Constitution for the country–has been before the public. The idea took a definite form in the election manifesto put forward on behalf of Congress candidates to the elections to the Indian Legislative Assembly held in 1934. It was therein stated that the Congress legislators, as soon as they are elected, would take steps to summon a Constituent Assembly to settle the future Indian Constitution. It is to be regretted that this undertaking given by a great national organisation should have been disregarded. The advent of Pandit Jawaharlal Nehru as President of the Lucknow session of the Congress was, however, responsible for the reiteration of the proposal, which has now been brought within the sphere of practical politics by the resolution accepted by the Congress session at Faizpur, to have a preliminary Convention composed of Congress legislators, A.I.C.C. members, and others, with a view to implement the idea of a Constituent Assembly.

SOME PARALLELS.

Neither the expression ‘Constituent Assembly,’ nor the ideals underlying it are new. History affords frequent instances of assemblies being convoked or elected for the purpose of framing constitutions and passing laws on emergent occasions. The part played by the Constituent Assembly in Paris during the course of the French Revolution is well known to all students of history. The Convention which met at Philadelphia, and whose labours formed the basis of the present Constitution of the United States of America, is another instance. In the revolution which formed the prelude to the establishment of the Soviet Republic, there was an elected Constituent Assembly which functioned for sometime but was speedily superseded by the regular Soviet bodies. Examples may be multiplied of Constituent Assemblies convened in other countries which acted with varying degrees of success.

Here in India, it is obvious that a Constituent Assembly has its role to fulfill. We are faced with a Constitution, in-elastic in structure, entrenching behind it all the reactionary, medieval elements in the land. The only effective method of ignoring it is by educating and organising the country, so that an assembly elected on a wide suffrage can express the will of the nation, and enable it to devise an appropriate Constitution. Only through the medium of a Constituent Assembly, so devised as to represent the masses, can the problems which await solution be solved adequately or satisfactorily. An oft-stated objection to this proposal is that such an Assembly will degenerate into a mere All-Parties Conference. To those who are obsessed by percentages for communities in legislatures and public services, or by problems arising from the interaction of religious questions on the sphere of the State, such difficulties are real. The Constituent Assembly will however be concerned with questions affecting the welfare of the millions in the land. To redress social and economic inequalities, to ensure for our people a voice in the determination of their own affairs, to imbue them with a sense of self-respect, to regulate the rights of zemindars and capitalists, consistently with the interests of tenants and workmen, above all, to evolve a scheme of Government which will give full expression to the ideals of justice and fairplay,–these will be among the tasks of a Constituent Assembly. It is well, therefore, to consider how such assemblies have worked in some countries, to enable us to have a clear grasp of the problems confronting the proposed body here in India.

THE FRENCH ASSEMBLY

"Very strange Assemblies, Sanhedrims, Amphictyonics, Trades Unions, Ecumenic Councils, Parliaments, and Congresses have met together on this Planet and dispersed again: but a stranger Assembly than this august Constituent and with a stranger mission perhaps never met there. Twelve hundred human individuals with the Gospel of Jean Jacques Rousseau in their pocket congregating in the name of twenty-five millions with full assurance of faith to make the Constitution, such sight–the acme and main product of the eighteenth century, our world can witness only once."

Thus wrote Thomas Carlyle, about the French Constituent Assembly. The genesis of this body is an interesting piece of history. In January 1789, the States-General, an assembly composed of the nobles, the clergy, and the Commons was summoned by King Louis XVI of France. The last time this body had met, was in 1614. Over 175 years of absolute rule since then had landed the country in bankruptcy; and as a matter of mere necessity, Louis XVI called on the people to elect their nominees to the States-General. The franchise for the Commons was very liberally conceived; every male of twenty-five years and over had a vote, but election was by the indirect method. The States-General when it met was faced with serious difficulties. There were 621 Commoners, 285 nobles, and 308 clergymen. If the voting should take place by classes, the popular representatives will be in a minority of one. The latter would not agree to it and the King declared the States-General dissolved. The Deputies, however, ignored the order of dissolution, met at a tennis court and resolved not to disperse without framing a Constitution for France. On the 17th June, they formed themselves into a National Assembly, discarding the rights which the nobles and the clergy had claimed as the first two Estates of the realm. The French Constituent Assembly had an extraordinarily onerous task before it. Enemies from within and without were ready to destroy its work. The King had no love for it, and Marie Antoinette was secretly plotting against it. The nobles were hostile, while the clergy threw in their lot with the reactionary forces. Its procedure was hardly calculated to bring about speedy results: twelve hundred members form too large a number for an elected assembly to function successfully. Carlyle sneers at it as a body "fit for destroying. Which indeed is but a more decided exercise of its natural talent for doing nothing……It took the name Constituent as if its mission and function had been to construct or build; which also with its whole soul it endeavoured to do, yet in the nature of things, there lay for it, precisely of all functions the most opposite to that."

Despite this hostile verdict the work of the French Constituent Assembly was of a solid character. Side by side with prolonged discussions of abstract rights, and solemn affirmations regarding the Rights of Man, it attended to the work of devising a new social and political fabric. In one sitting, it abolished the feudal system itself, and all its incidents–titles seignorial dues, tax exemptions and all special privileges. In place of feudal courts, it established new courts of justice. It made drastic changes in the penal law, making it more human. It introduced revolutionary but beneficial changes in the Church system by bringing its property under State control and weeding out the idle elements. It made the Army democratic. The country was divided into eighty Departments and the administration thereof placed on a simple, smooth basis. It took away the authority of the Pope, by introducing the system of the election of priests. Some of what it did was possibly unwise, but it is well to remember that the representatives had little experience of the work of Government. An undoubtedly erroneous decision was the ban on its members, preventing them from holding executive posts. This is said to have been done in imitation of the U. S. A. Constitution, which had only very recently been devised, but the results were nevertheless disastrous.

In its task of evolving a stable Constitution, the Assembly was far less successful. The failure was largely due to the attitude of Louis XVI whose indiscretions brought about his own undoing. At the moment, however, it looked as if the constitutional edifice was complete. The King was given a limited power, but subject to it the popular will was supreme. The Constitution was duly presented to and accepted by Louis XVI. The event was celebrated by fireworks and illuminations throughout Paris; and President Thouret declared that as the Assembly had finished its work, it stood over dissolved. "Incorruptible Robespierre, virtuous Petion, are borne home on the shoulders of the people; with vivats heaven-high. The rest glide quietly to their respective places of abode. It is the last afternoon of September 1791; on the morrow morning the new legislature will begin." By a self-denying ordinance, members of the Constituent Assembly had excluded themselves from the new legislature.

In eleven months the Constitution carefully devised by the Assembly was smashed to pieces by the inexorable logic of events and the actions of Louis XVI, who swept himself from one disaster to another. This story, however, belongs to the province of history and has little place in a thesis on Constituent Assemblies. No fair-minded historian will deny that, despite errors, the French Constituent Assembly, in an epoch beset by powerful destructive forces, rescued France from attrition by the adoption of emergent measures to save the body politic and the attempt to lay the foundations of a stable, harmonious, enduring constitutional edifice.

THE AMERICAN ASSEMBLY

At Philadelphia, in the U.S.A., fifty-five persons met on the 14th May 1787, and resolved to embark on the task of evolving a Constitution for the thirteen States, then formed into a loose type of confederation. The confederation was a failure, for there was no effective central authority, and the feeling became strong and growing that a closer union was essential. After certain preliminary steps, the States sent their delegates with authority to find a way out of the impasse. These delegates sat continuously for five months, under the presidentship of George Washington and produced a draft Constitution which eventually became the framework of the U.S.A. Government.

It is well to note that though all the American Colonists spoke the same language, professed in the main the Protestant religion, and largely belonged to the same race, they were divided by centrifugal forces. The thirteen States were fiercely attached to their local interests and were suspicious of any external authority. Geographically too, they were separate, and communication between one another difficult to obtain. There were agricultural States, and manufacturing States, while a fresh element of trouble lay in the fact that some States owned slaves, as their chief item of wealth. Further, it was a time of peace, and there was no compelling pressure of external invasion or war, to face which all had to combine together. "The Convention had not only to create de novo, on the most slender basis of pre-existing national institutions, a national Government for a widely scattered people, but they had in doing so to respect the fears and jealousies, and apparently irreconcilable interests of thirteen separate Commonwealths, to all of whose Governments it was necessary to leave a sphere of action, wide enough to satisfy a deep-rooted local sentiment, yet not so wide as to imperil national unity……..The judgments of many must unite in the work; experience must guide their labour; time must bring it to perfection; and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments." (Hume)

This Constituent Assembly held its meetings within closed doors, but the proceedings since published show that, very frequently, they were near the breaking point. Ultimately, however, the draft was produced and signed by thirty-nine of the fifty-five members. Ratified by the majority of the States to whose Conventions it was submitted, the Constitution became law. It was essentially a sound compromise between Federal and State interests, and, except during the Civil War, has stood the test of time, since its inauguration. The United States of America furnish the most successful instance of a Constituent Assembly, in the history of the world.

OUR CHANCES OF SUCCESS

Ad nauseam, we have been told that such an Assembly can never function effectively in India, in view of our numerous divisions, communal, provincial, and linguistic. Also we are reminded that there are no sanctions behind it, and such a body, even if it meets, will shiver side by side with the gigantic reality of the legislatures under the Government of India Act. But students of politics have not forgotten that, not long ago, there was a Statute of the British Parliament conferring Home Rule on Ireland; that the people of Ireland so effectively ignored this piece of legislation that there was a later Conference, a new Treaty, and a new Constitution based thereon. Those who ask us to work India’s coming Constitution, in the remote hope that it will be productive of real benefit to the country, apparently do not realise the nature of the constitutional fabric they are dealing with. You do not grow grapes of thorns or figs of thistles; and it is unwise to forget that the gravest menace to India’s welfare is the Government of India Act, 1935.

A Constituent Assembly then is inevitable, to avert the danger of the new Constitution. While matters of detail must be left for the decision of the members of the Assembly, it is not difficult to visualise the broad outlines of the work to be done. The delegates will be authoritative spokesmen, being elected on the widest possible franchise,–adult suffrage. They will deal with the problems in a practical spirit, and not lose themselves in academic abstractions. Once they think in terms of real India, difficulties inherent in questions of representation of communities, Provinces, languages, are easy of adjustment. Meanwhile, the feeling in the country, expressed already at the elections of the delegates, will continue to reflect the general and spontaneous ratification of the labours of the constituent body, and in particular of the Constitution evolved by it.

Such an united and authoritative expression of popular will, as embodied in the work of accredited delegates, can scarcely be flouted with impunity. The English are reputed to be a sagacious, practical race, and one of their leading thinkers has advanced the claim that British statesmanship has not failed in any part of the world. It is difficult to believe that considerations of prestige will operate as a barrier to the recognition of the carefully devised, and effectively supported, National Demand embodied in the work of the Constituent Assembly.