Gtad 009

ASSEMBLING INDIA’S CONSTITUTION:

TOWARDS A NEW HISTORY*

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As the clock struck eleven on 9 December 1946, the Constituent
Assembly convened for the first time in the Constitution Hall, New
Delhi, to begin its prodigious task of framing a constitution for the
soon-to-be-independent India. It was far from inevitable that the
205 Assembly members, among them ten women, who met that
morning in what was described as ‘an atmosphere charged on the
one hand, with enthusiasm, and on the other, with uncertainty’,
would ultimately succeed in producing a constitution for India.1
The legitimacy of the Constituent Assembly was not unques-
tioned at that point, and neither was the underlying scheme for
* For research assistance we thank Juhi Mendiratta. We are grateful to the Israel
Science Foundation (grant no. 1575/22), the MacMillan Center for International and
Area Studies at Yale University, and Sidney Sussex College, University of Cambridge,
for their support. We have presented versions of this article at the ‘Constitutions and
Crises’ conference held at the University of Cambridge, March 2022; the NALSAR
Lecture Series on Constitutionalism, March 2022; the ‘Democracy, Violence, and
Constitutional Order in South Asia and Beyond’ conference held at Yale University,
April 2022; ‘Beyond the Pale: Legal Histories on the Edges of Empires’, the Third
Legal Histories of Empire Conference, held at Maynooth University, June–July
2022; and ‘Rebuilding: Tradition and Innovation’, the Fiftieth Annual Conference on
South Asia, held at the University of Wisconsin, Madison, October 2022. We thank
the organizers and participants for their engagement. We would particularly like to
thank Stephen Legg, Karuna Mantena, Vatsal Naresh and Nandini Ramachandran.
1
‘Framers of India’s Constitution Meet: Proceedings Suffer from Lack of
Realism’, Times of India, 9 Dec. 1946. The number of Constituent Assembly
members who attended the first session is based on counting those who signed
the register on that day: see Constituent Assembly of India Debates (Proceedings)
(hereafter CAD), 9 Dec. 1946, <https://loksabha.nic.in/writereaddata/cadebatefiles/
C09121946.html> (accessed 4 Mar. 2023).
Past & Present, no. 263 (May 2024) © The Author(s) 2023. Published by Oxford
University Press on behalf of The Past and Present Society, Oxford.
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https://doi.org/10.1093/pastj/gtad009 Advance Access published on 2 May 2023
206 PAST AND PRESENT
its establishment and terms of reference, which had been set a

few months earlier by the British Cabinet Mission.2 The legisla-
tive assemblies of the provinces of British India chose the mem-
bers of the Indian Constituent Assembly. These had themselves
been voted into office in the 1946 elections on a very limited
franchise that was structured along religious, community and

professional lines according to the Government of India Act
1935, the last colonial constitutional framework for India, to
which Indian leaders and political parties were fiercely resistant.
In the face of the imminent transfer of power, the political
future of India, its people and territory remained uncertain. The
partition of the subcontinent would be declared only six months
later, when grievous violence between Hindus and Muslims
was already on the rise across the country and even outside the
Constitution Hall itself. Wide-scale illiteracy and poverty, and
profound social divisions, made the task of framing a consti-
tution for a democratic state in India whose authority would
reside in the people all the more complicated.
The making of the Indian constitution was a critical event and
a unique experience in the global history of constitution-making
and democracy.3 Unlike in so many other Asian and African
countries, where constitutions at the time of decolonization
were largely a ‘parting gift’ of the colonial rulers, Indians wrote
their constitution for themselves.4 Most postcolonial democ-
racies and their constitutions were short-lived, but while the
Indian constitution failed to live up to many of its promises,
over seventy years and against many odds it has played a key
role in sustaining the biggest democracy in the world. Moreover,
India set itself apart from Western democracies by writing its
2
‘India: Statement by the Cabinet Mission’, Hansard, 5th ser. (Lords), cxli, cols.
271–87 (16 May 1946), <https://api.parliament.uk/historic-hansard/lords/1946/
may/16/india-statement-by-the-cabinet-mission> (accessed 4 Mar. 2023).
3
The recent focus on global histories of constitutions has largely neglected
India’s postcolonial constitution-making: see, for example, Linda Colley, The
Gun, the Ship and the Pen:Warfare, Constitutions and the Making of the Modern World
(London, 2021); Christopher Thornhill, ‘The Sociology of Constitutions’, Annual
Review of Law and Social Science, xiii (2017).
4
H. Kumarasingham (ed.), Constitution-Making in Asia: Decolonisation and
State-Building in the Aftermath of the British Empire (London, 2016); Charles O. H.
Parkinson, Bills of Rights and Decolonization:The Emergence of Domestic Human Rights
Instruments in Britain’s Overseas Territories (Oxford, 2007).
ASSEMBLING INDIA’S CONSTITUTION 207
constitution on a grand scale, unprecedented in terms of its
territory, population size, demographic complexity and the
number of autonomous political units it sought to integrate into
a single federal structure; and it enfranchised all its adults at a
stroke. India’s constitution-making was not limited to shaping
a new political structure, but was intended to transform the

social and economic life of the people.
The conventional understanding has been that the Indian
constitution was a product of elite consensual decision-making,
and that India’s constitution-makers endowed it from above; it
has been described as ‘a gift of a small set of India’s elites’.5 In
line with this view, studies of the making of the Indian constitu-
tion, both older and more recent, have focused their investiga-
tions on the three years of the Constituent Assembly debates in
the Constitution Hall, between December 1946 and November
1949. These voluminous debates, spread over 5,546 pages in a
set of five books, have formed their principal source for under-
standing the constitution-making process and its implications
for India’s democracy. In the main, these studies have examined
the transformative power of the ideas that were being advocated,
and the politics of crafting an elite consensus around the consti-
tution.6 They have understood the document as a pedagogical
5
Sunil Khilnani, Arguing Democracy: Intellectuals and Politics in Modern India,
Center for the Advanced Study of India Working Paper Series, no. 09-02 (Philadelphia,
2009). See also Sunil Khilnani, The Idea of India (London, 1997), 34–5.
6
On the elite consensus perspective, see, for example, Granville Austin, The
Indian Constitution: Cornerstone of a Nation, 1st edn (New Delhi, 1966); Madhav
Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy
(Cambridge, MA, 2020);Tarunabh Khaitan, ‘Directive Principles and the Expressive
Accommodation of Ideological Dissenters’, International Journal of Constitutional
Law, xvi, 2 (2018); Sarbani Sen, The Constitution of India: Popular Sovereignty and
Democratic Transformations, paperback edn (New Delhi, 2010). On the constitution’s
underlying ideas, see, for example, Rajeev Bhargava (ed.), Politics and Ethics of the
Indian Constitution (Delhi, 2009); Rochana Bajpai, ‘The Conceptual Vocabularies
of Secularism and Minority Rights in India’, Journal of Political Ideologies, vii, 2
(2002); Uday S. Mehta, ‘Indian Constitutionalism: Crisis, Unity, and History’,
in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford
Handbook of the Indian Constitution (Oxford, 2016). For scholarship on methods
of reading the Constituent Assembly debates, see Aditya Nigam, ‘A Text without
Author: Locating Constituent Assembly as Event’, Economic and Political Weekly,
xxxix, 21 (2004); Kalyani Ramnath, ‘ “We the People”: Seamless Webs and Social
Revolution in India’s Constituent Assembly Debates’, South Asia Research, xxxii, 1
(cont. on p. 208)
text aiming to educate an ‘ignorant’ and undemocratic public.

Indeed, scholars have largely assumed that constitutional pol-
itics and its details were beyond the imagination, interest or
capacity of the Indian people, and that the constitution-making
process did not occupy their concerns.7 As a leading work on
Indian democracy put it, ‘Most people in India had no idea of

what exactly they had been given’.8
Thus, most scholars have continued to work, albeit implicitly,
on the assumption that the participation of the Indian public
during the process of constitution-making was limited.9 It is
not surprising, therefore, that the Indian experience is seen as
having little relevance for recent debates about the centrality of
public participation in constitution-making. Reviewing recent
scholarship on India’s constitution, Cheryl Saunders concludes
that ‘there does not appear to have been any systematic attempt
(n. 6 cont.)
(2012); Vatsal Naresh, ‘Pride and Prejudice in Austin’s Cornerstone: Passions in
the Constituent Assembly of India’, in Udit Bhatia (ed.), The Indian Constituent
Assembly: Deliberations on Democracy (London, 2017). An exception to these is
Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts
(New Delhi, 2019), which draws on a wide range of sources and materials from
the nineteenth century onwards, arguing for a need to move away from the narrow
frame of the formal constitution-making process.
7
This focus on elites and a corresponding absence of the general public in
constitution-making was in conformity with the historiographical and legal view
of this subject until the 1970s: see, for example, Todd A. Eisenstadt, A. Carl LeVan
and Tofigh Maboudi, Constituents before Assembly: Participation, Deliberation, and
Representation in the Crafting of New Constitutions (Cambridge, 2017).
8
Khilnani, Idea of India, 34.
9
For a few exceptions, see Ornit Shani, How India Became Democratic: Citizenship
and the Making of the Universal Franchise (Cambridge, 2018), which examines
public engagement with the draft constitution in the context of the preparation
of the electoral rolls on the basis of universal franchise; Ornit Shani, ‘The People
and the Making of India’s Constitution’, Historical Journal, lxv, 4 (2022), Saagar
Tewari, ‘Framing the Fifth Schedule: Tribal Agency and the Making of the Indian
Constitution (1937–1950)’, Modern Asian Studies, lvi, 5 (2022). A few scholars
have noted that there were numerous responses from the public to the drafting of
the constitution, but have not explored them: see Austin, Indian Constitution, 324;
Ramachandra Guha, India after Gandhi: A History of the World’s Largest Democracy
(London, 2007), 105, 789 n. 5; Rohit De, A People’s Constitution: The Everyday Life
of Law in the Indian Republic (Princeton, 2018), 2, 235 n. 5; Arvind Elangovan,
‘The Making of the Indian Constitution: A Case for a Non-Nationalist Approach’,
History Compass, xii, 1 (2014).
to engage the public directly with the process, which might, in
any event, have been both difficult and tokenistic in the condi-
tions of the time’.10
Focusing primarily on the Constituent Assembly debates as
it does, scholarship on the Indian constitution has relied sub-
stantially on the materials and terms of debate set by Granville

Austin’s seminal book The Indian Constitution: Cornerstone of a
Nation (1966). Drawing on this imagery of a cornerstone, schol-
ars have conceived the writing of the constitution as a founding
moment.11 Thinking through this notion of a founding moment
has meant that scholars examined what they saw as a moment
of origin, aiming to build something new, based on a com-
mon purpose. The result is often viewed as monumental, and,
like monuments, it was also fixed, or associated with a single
place and moment. This has further contributed to a focus on
the Constituent Assembly debates, narrowing the gaze to the
Constitution Hall in New Delhi, often with the assumption
that the key to understanding India’s constitution-making can
be sought in the thoughts and actions of a small group as they
finalized the text.12
It is noteworthy that Austin also conducted extensive inter-
views with surviving members of the Constituent Assembly and
consulted their private papers, although, perhaps relying on a
10
Saunders infers this from Khosla, India’s Founding Moment: Cheryl Saunders,
‘Democracy, Constitutionalism, Modernity, Globalisation’, Jus Cogens, iv, 1 (2022),
15. See also Donald L. Horowitz, Constitutional Processes and Democratic Commitment
(New Haven, 2021), 181–2.
11
For the most recent study, see Khosla, India’s Founding Moment. Consequently,
several recent studies on comparative constitutional law situate the Indian
constitution as part of a global conversation on the founding of constitutions.
12
See, for example, Rajeev Dhavan and Thomas Paul (eds.), Nehru and the
Constitution (Bombay, 1992); Aakash Singh Rathore, Ambedkar’s Preamble: A Secret
History of the Constitution of India (Gurgaon, 2020); Arvind Elangovan, Norms and
Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935–50
(Oxford, 2019); Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics
of the Framing of the Constitution (Cambridge, 2022); Shaunna Rodrigues, ‘Abul
Kalam Azad and the Right to an Islamic Justification of the Indian Constitution’, in
Anupama Roy and Michael Becker (eds.), Dimensions of Constitutional Democracy:
India and Germany (Singapore, 2020); Pooja Parmar, ‘Undoing Historical Wrongs:
Law and Indigeneity in India’, Osgoode Hall Law Journal, xlix, 3 (2012).
statement made by the secretary of the Assembly, H.V. R. Iyengar,

he observed that much of the work of constitution-making
happened outside the Assembly, in informal conversations and
private chats.13 However, as Vikram Raghavan has pointed out,
despite this insight Austin’s text itself ‘is a lot more dependent
on [the Assembly debates] rather than his piercing into so-called

informal spaces of Indian Constitution making’.14
Furthermore, there were other formal and critical spaces of
constitution-making at the time which remained obscured by
scholars’ focus on the notion of founding and on the Constituent
Assembly debates. When the Assembly embarked on the
constitution-making process, two-thirds of India’s future ter-
ritory lay outside its legal jurisdiction. At that time, spread
throughout the subcontinent were more than 550 princely states
that covered about 45 per cent of its territory, with a population
of nearly ninety-three million. Many of the states were in the
process of framing their own constitutions, and the Assembly
had no powers of framing any constitution for this territory. The
making of the Indian constitution thus entailed assembling the
constitutions of each of the princely states into a future consti-
tutional order. In fact, diverse publics across the country read
and deliberated on the anticipated constitution in a range of
sites, including durbars (princely courts), in judges’ chambers
and in tribal villages in deep forests. These facets of India’s
constitution-making have been ignored.
By turning the focus of inquiry away from the Constituent
Assembly debates, this article offers a paradigm shift in the
method of research and understanding of the making of India’s
constitution. On the basis of a new and broad range of archival
and other materials, the article offers the first historical inquiry
into the making of the Indian constitution as it emerged beyond
the Constitution Hall, through ceaseless dialogues and dispa-
rate interactions between princes and subjects, important repre-
sentatives of state institutions and members of the public, many
from the social margins, and the Constituent Assembly. This
13
Nehru Memorial Museum and Library, New Delhi (hereafter NMML), H. V.
R. Iyengar Oral History Transcript, no. 303, 129.
14
Vikram Raghavan, ‘Granville Austin and the Making of India’s Constitution’,
Centre for Law and Policy Research Occasional Talks, no. 11, 7 Aug. 2015, <https://
www.youtube.com/watch?v=GHPf6NIz60M> (accessed 4 Mar. 2023).
article suggests that the storeyed halls of the Assembly were only
one of multiple spaces where the Indian constitution was being
engaged with, debated, contested and produced. The mem-
bers of the Assembly, it shows, were not the sole participants
in the constitution-making process. The embryonic constitution
had vibrant life outside formal legal chambers, which was crit-

ical for its future reception and legitimacy. The 5,546 pages of
the Assembly debates represent a tiny sample compared with
the thousands of pages of wide-ranging deliberations around the
making of the constitution outside the Assembly.
It is suggested in this article that the making of the Indian
constitution entailed a process of fitting together (‘assembling’)
disparate but simultaneous constitution-making efforts across
the country. The Indian constitution emerged from competing
constitutionalisms at different places and orders of power that
involved large and distinct publics. It was not, as we have been
accustomed to think, simply or exclusively the product of the
Constituent Assembly. The notion of assembling better rep-
resents the making of the Indian constitution, driven by con-
testations rather than consensus.15 Various social groups and
state officials reconstituted themselves as constitutional actors,
seeking, in many ways, to make their history anew. This pro-
cess created a surge in democratic aspirations and a politics of
hope; it generated a sense of ownership in the constitution and
thus decolonized it; and it created an order of expectation from
it which meant that the process of its making and the politi-
cal energies it unleashed did not conclude with its mere formal
adoption. The resilience of the Indian constitution grew out of
the fever of expectations for it from across the subcontinent.
To clarify, this article is not suggesting that the making of the
constitution simply engendered public interest, or that it led to a
proliferation of engagements with constitutionalism well beyond
the Constituent Assembly in anticipation of the new constitu-
tion. Instead, it offers a fundamentally new perspective which
inverts the perceived sequence of events, arguing that it was
the proactive engagement with the issue among diverse publics
15
In thinking through the notion of assembling, we are drawing on Stephen
Legg’s analysis of assemblage: in particular, Stephen Legg, Prostitution and the Ends
of Empire: Scale, Governmentalities, and Interwar India (Durham, NC, 2014), 5–6;
Stephen Legg, ‘Assemblage/Apparatus: Using Deleuze and Foucault’, Area, xliii, 2
(2011).
from mid 1946 onwards that led to the burgeoning of consti-

tutionalism and turned the making of the constitution into an
open site of politics.
It was the public who set the normative expectations for the
constitution, and who tried to engage and educate the mem-
bers of the Constituent Assembly regarding their aspirations

for it. Even though many of their ambitions for the constitution
failed, this process prevailed in significant ways over the text
and was key to its success. Exploring how diverse publics made
purposeful efforts to insert themselves into the making of the
constitution, and sometimes even to take charge of it, helps us to
understand the constitution’s socio-political and cultural mean-
ing, its early acceptance and use, and its endurance. Abstract
constitutional ideas could not in themselves have guaranteed a
successful transition into a new constitutional structure, which
the notion of founding, focusing on the making of the text, can-
not capture.
While the public’s initial engagement with the Constituent
Assembly contributed in some instances to the shaping of the
text before its enactment in January 1950, a focus on these early
influences obscures the significance of their efforts. The public
deliberations on the constitution created a sense of ownership
of it by the people, and legitimized it. The constitution-making
thus did not end at the moment of its founding, but remained
an active site of public assembling in pursuit of their claims and
aspirations. Prioritizing these processes of public engagement
over those of the production of the constitutional text, this arti-
cle explores how three sets of actors beyond the Constituent
Assembly, among many others, engaged with it at the time of
its making.
Section I explores constitution-making in the princely states.
The princely (or Indian) states, which were not part of British
India, retained varying degrees of sovereignty under the para-
mountcy of the British Crown. But with the imminent attain-
ment of independence, all the rights that had been surrendered
by the states to the British Crown were to return to them. At
the beginning of the Constituent Assembly debates, the princes
declared that ‘The entry of the States into the Union of India . . .
shall be on no other basis than that of negotiation, and the final
decision shall rest with each State’, and that the ‘Constitution
of each State, its territorial integrity, and the succession of its
reigning dynasty in accordance with the custom, law and usage
of the State, shall not be interfered with by the Union’.16 Thus,
constitutionalism in the princely states posed a challenge to the
making of the Indian Union, and these processes within the
states often outpaced the making of the constitution in Delhi.
Section II focuses on the engagement of judges with the draft

constitution as they were reimagining and attempting to shape
an independent postcolonial judiciary. The success of the future
constitution demanded a smooth transition of the organs of
the colonial state to the postcolonial order. The state apparatus
had to begin this transition even before the constitution was
finalized, in the interim between independence and becoming
a republic (1946–50), when much of the administration was in
flux. Colonial state officials, many of whom were Indian, had
in the past resisted reforms and held onto autocratic power.17
Moreover, state organs like the judiciary had developed over
time a strong sense of professional collective identity and acted
on occasion to advance their own interest.18 For them, transfer-
ring their loyalty to the new state and its constitutional order
was not an obvious outcome.
Section III examines how people from the margins of Indian
society and territory, the so-called ‘backward tribes’ (Adivasi),
wrote themselves as constitutional actors. Converting the diverse
peoples of India into a single ‘We, the people’ in whose name the
constitution was to be enacted could not have come about sim-
ply through published pronouncement. Tribal people, like other
16
‘Text of Resolution Passed at Princes Meeting Held on 29 January 1947’,
CAD, 28 Apr. 1947, <https://loksabha.nic.in/Debates/cadebatefiles/C28041947.
html> (accessed 8 Mar. 2023). Earlier attempts to bring the princely states into an
Indian federal structure under the Government of India Act 1935, the last colonial
constitutional framework, ultimately failed.
17
Arthur Berriedale Keith, A Constitutional History of India, 1600–1935 (London,
1937).
18
See George H. Gadbois Jr, ‘The Federal Court of India, 1937–1950’, Journal of
the Indian Law Institute, vi, 2–3 (1964). On other state organs, see, for example, on
the army, Steven I. Wilkinson, Army and Nation: The Military and Indian Democracy
since Independence (Cambridge, MA, 2015); on the bureaucracy, William Gould,
Bureaucracy, Community and Influence in India: Society and the State, 1930s–1960s
(London, 2010); Arudra Burra, ‘The Indian Civil Service and the Nationalist
Movement: Neutrality, Politics and Continuity’, Commonwealth and Comparative
Politics, xlviii, 4 (2010).
groups of people across India, had their own imaginings and

expectations of what the constitution and their relationship to
it should be. Numerous tribal groups comprising at least 14 per
cent of the population now put forward their own constitutional
visions, for example asking for tribal-majority provinces where
their ‘customary law [would be] supreme’ or demanding ‘rights

of territorial unity and solidarity and self-determination’ within
a province.19 Uncovering the active and reflective engagement
among people from the farthest social and territorial margins
of India with making the constitution throws new light on this
process and its trajectory in succeeding decades.
I
COMPETING CONSTITUTIONALISM
On 14 August 1947, while the ‘Entire Delhi [was] kept awake to

witness the historic event of ushering in the freedom of India at
the hour of midnight’ and ‘wild scenes of jubilation’ were wit-
nessed across the city, His Highness the Rajadhiraj Sahib, ruler
of Shahpura state, located in what is now Rajasthan, gave assent
to his state’s new constitution.20 The twenty-four-page consti-
tution granted the people of Shahpura full responsible govern-
ment based on universal franchise. It declared the ruling prince
as constitutional head of state, with all his executive, legislative
and judicial powers to be exercised through the State Council,
its Assembly and the courts respectively. It contained a section
entitled ‘Fundamental Rights including General Directions of
State Policy’, which specified in its general preface that ‘Citizens
of the State have the right to all these opportunities and condi-
tions of life and work which are essential for a fuller and richer
development of human personality’.21 The jubilant people of
19
‘Memorandum on the Adibasis of Jharkhand, Demanding Separation from
Bihar on a Constitutional Basis, Requesting Final Decision before June 1948’;
‘Memorandum on the Case of the Mizo’: both NMML, C. Rajagopalachari Papers,
Vth Instalment, F.37/2, 422–31 and 415–21.
20
‘Birth of India’s Freedom’, Times of India, 15 Aug. 1947, 1; Shahpura State
Constitution Act 1947: National Archives of India (hereafter NAI), Ministry of
States, F.13/4/PR/1947 (copies were sold for Re 1 each).
21
Shahpura State Constitution Act 1947, 1.
Delhi, only 410 kilometres away, were yet to be the bearers of
such rights. However, the inauguration of the Shahpura consti-
tution did not prevent the prince from signing, the next day, the
instrument of accession to the Dominion of India in the three
areas of defence, external affairs and communications, as many
other princely states did at the same time. The following month,

the state’s reforms towards responsible government gathered
further momentum as the post of dewan (chief administrator)
was abolished and an interim government headed by a prime
minister was formed.22
Shahpura was a very small state almost 320 years old, with an
area of 405 square miles and a population of only 61,173. Thus,
in the annals of India’s constitutionalism, its efforts to establish
a constitution might not seem significant. But it was just one
among numerous princely states that were engaged with con-
stitutional reforms and constitution-making processes which
challenged India’s constitution-making and the endeavour to
create a single union. Manipur, in the north-east, adopted a
constitution which, on 26 July 1947, provided for fundamental
rights and separation of powers, and recognized the maharaja
as its constitutional head.23 The maharaja of Patna declared the
setting up of a representative constitution-making body on 24
October 1947, just at the moment when the first draft of the
Indian constitution was ready. That same month, M. R. Jayakar,
until the previous May a member of the Constituent Assembly,
advised the Gwalior state Constitutional Reforms Committee
not to depart, in their proposed constitution, ‘from the model
now in vogue, for instance, at Mysore’.24 This pattern, of gen-
eral steps towards constitutions based on the principle of repre-
sentative government, was repeated in numerous other princely
states. These included Aundh, Banswara, Baoni, Baria, Baroda,
Barwani, Benares, Berar, Bhavnagar, Bhopal, Bhor, Bikaner,
22
Ibid.; secretary to the prime minister, Shahpura state, to deputy secretary, State
Department, New Delhi, 12 Nov. 1947.
23
Manipur State Constitution Act 1947, <https://www.satp.org/document/paper-
acts-and-oridinances/manipur-state-constitution-act-1947> (accessed 7 Mar.
2023).
24
M. R. Jayakar, ‘Gwalior Note’, 29 Oct. 1947: NAI, M. R. Jayakar Private
Papers, F.896.
Bilaspur, Cochin, Dhami, Dhenkanal, Gondwana, Gwalior,

Hyderabad, Idar, Indore, Jaipur, Jammu and Kashmir, Jaora,
Jhabua, Khairagarh, Kolhapur, Kotda, Kutch, Mayurbhanj,
Miraj, Morvi, Mysore, Nagod, Narsingpur, Orchha, Palitara,
Pallahara, Panna, Porbundar, Pudukkottai, Raigarh, Rajkot,
Rampur, Ranpur, Ratlam, Rewa, Sailana, Sangani, Sangli,

Sarangarh, Seraikella, Sitamau, Sohawal, Tehri-Garhwal, Theog,
Travancore, Udaipur and Vadia.25 Thus, by the mid 1940s,
constitution-making processes had become the norm and occu-
pied much of the political agenda in the princely states. So far
we have traced sixty-two states that framed their own consti-
tution, and 286 others that were involved in making constitu-
tions for unions of states, which shaped the new constitutional
landscape. This fact has gone largely unnoticed in the study of
India’s constitutionalism.26
These constitution-making processes within the states were
driven by movements for popular government among local
peoples.27 From 1946 these processes became increasingly
interlinked with India’s constitution-making. In the face of the
imminent ending of paramountcy, both rulers and the peo-
ple acted out of a sense of urgency and self-interest to frame
their own constitutions: princely rulers were looking for ways
to ensure the survival of their states, and the people were eager
to secure popular government and democratic rights. In many
states the constitution-making processes outpaced the work
of the Constituent Assembly or progressed in parallel with it.
The people of many princely states thus became the legal bear-
ers of freedom of speech, for example, as well as freedom of
religion and equality of opportunity irrespective of sex or
25
On the Travancore constitution, see Sarath Pillai, ‘Fragmenting the Nation:
Divisible Sovereignty and Travancore’s Quest for Federal Independence’, Law and
History Review, xxxiv, 3 (2016).
26
Scholars mainly explored the constitutions of Travancore and of Jammu and
Kashmir in the context of India’s transition to independence, and largely saw
these two states as exceptions: see ibid., 771. For a recent discussion of Kashmir’s
constitution, see Shahla Hussain, Kashmir in the Aftermath of Partition (Cambridge,
2021), 41–65. Moreover, the question of constitutions and the princely states
has largely been seen as an inter-war phenomenon which became irrelevant with
independence.
27
See, for example, Robin Jeffrey (ed.), People, Princes and Paramount Power:
Society and Politics in the Indian Princely States (Delhi, 1978).
community, two years before Indians across the subcontinent
were granted such fundamental rights with the enactment
of the constitution. By the mid 1940s, constitution-making
within the princely states became the norm and occupied much
of the political agenda. This article argues that these multiple
constitution-making processes gradually transformed the nature

of princely sovereignty and the aspirations of subjects. These
developments within the princely states gave rise to widespread
constitutional dialogue between rulers and constitution-makers
within the states, and their engaged public. Constitutionalism
in the princely states was like an insistent refrain to India’s
constitution-making. In this iterative process, constitutionalism
became the standard discourse through which to think about and
act on political aspirations for democratic government. Moreover,
driven by similar popular expectations, the numerous parallel
constitution-making processes in the states produced compara-
ble constitutional templates that could ultimately be assembled
into the new Indian constitutional fold.
The case of the rather autocratic and underdeveloped Rewa
state, which was ‘bigger than Belgium and Holland’ and was the
largest of the Central India states in both territory and popula-
tion, provides evidence for this dynamic.28 On 16 October 1945,
on the first day of the Hindu holiday of Dussehra, Maharaja
Gulab Singh of Rewa announced his intention to grant respon-
sible government to the people of the state. He pledged to bring
in a system of administration based on ‘adult franchise, com-
mon electorates and no weightage or special representation’ that
would ‘provide for the protection of every religion and civiliza-
tion’.29 In the presence of 130,000 people, he stated that the
viceroy of British India
gave out that a constitution-making body should be formed for the
establishment of self-government in India, which body should include
representatives of the States . . . It is very essential that the Rewa
people should be able to take part in the work of constitution-making
for all-India. It is therefore proper that the people of Rewa should be
granted responsible government.30
28
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 9:
NMML, All India States Peoples’ Conference Papers, F.151, 1947.
29
‘Rough Translation of His Highness the Maharaja of Rewa’s Proclamation on
Dasera Day’, 1 Jan. 1946: British Library (hereafter BL), IOR/R/1/1/4236.
30
Ibid.
The maharaja explained that this would enable Rewa, ‘accord-

ing to its tradition, to take a share in the future development of
India maintaining at the same time the freedom of the Bandhavas
[members of the clan of Rewa]’. ‘Rewa’, he concluded, ‘belongs
to the Rewa people’, and a government for them and by them
was their birthright.31 Although some states had previously ini-

tiated political reforms, such proclamations and the subsequent
appointment of constitutional committees were introduced and
perceived to be linked to the impending setting up of the Indian
Constituent Assembly.
Soon afterwards, the Crown representative deposed the
maharaja.32 However, the outgoing maharaja’s stated intentions
were respected. His son, the new maharaja, was enthroned on
6 February 1946, and the same month the state issued a press
communiqué announcing the appointment of a committee to
frame a constitution for Rewa.33
The search for a chairman for the Rewa Constitutional
Reforms Committee was initially undertaken by the Crown
representative’s office in New Delhi and the resident for
Central India. Sir Tej Bahadur Sapru, Dr M. R. Jayakar and Sir
Gopalaswami Ayyangar, all of them towering legal figures, were
approached in turn, but none accepted the position.34 Then
31
Ibid. In January 1945 the Rewa State Council had set up a committee under the
chairmanship of the chief justice of Rewa High Court, Rai Bahdur P. C. Mogha, to
make recommendations on making the state’s Raj Parishad (People’s Representative
Assembly) more responsible and representative: Council Resolution no. 336, 23 Jan.
1945: BL, IOR/R/1/1/4236.
32
Until shortly before this pronouncement, Maharaja Gulab Singh had been in
exile. According to the Crown representative, who stated that he knew nothing about
the maharaja’s ‘desire for responsible government to be given to his people’, the
maharaja was deposed because he breached one of the conditions he had accepted
before returning to the state on 25 July 1944, according to which ‘all state business
should be initiated in council and concurred by the British Resident’: Crown
representative, New Delhi, to secretary of state for India, London, 1 Jan. 1946:
BL, IOR/R/1/1/4236. On the maharaja’s exile, see, for example, Fiona Groenhout,
‘Loyal Feudatories or Depraved Despots? The Deposition of Princes in the Central
India Agency, c.1880–1947’, in Waltraud Ernst and Biswamoy Pati (eds.), India’s
Princely States: People, Princes and Colonialism (London, 2007), 105–11.
33
Colonel W. F. Campbell, resident for Central India, Central Agency, Indore, to
C. G. Herbert, secretary to His Excellency the Crown Representative, New Delhi,
27 Feb. 1946: BL, IOR/R/1/1/4236.
34
Ibid.; Herbert to Campbell, 15 Mar. 1946: BL, IOR/R/2/442/161. It is
noteworthy that in other states, such as Ratlam, none of the members of the
Constitutional Committee were known legal figures.
Sir Alladi Krishnaswamy Ayyar, formerly an advocate-general
of Madras, and Sir C. B. Mangaonkar, a former Bombay High
Court judge, were invited. Sir Alladi agreed on the condition
that, among other things, it would not preclude him from giving
advice if consulted by a British Indian politician in connection
with the forthcoming constitutional discussions.35

The new Rewa government agreed to Alladi’s appointment, and
on 1 April 1946 the new maharaja announced a Constitutional
Reforms Committee for the establishment of popular government
in the state.36 But things changed soon after Sir Alladi delivered
his plan for the process of framing a constitution for the state.
He suggested that prior to convening the committee, its secretary
should collect all the available reports, books, papers and infor-
mation that might be useful to the committee, meet the state’s
ministers and heads of department and gather their suggestions.
He arranged to conduct the committee’s first meeting in either
Madras or Bangalore, his places of residence. At this meeting, the
committee was to set its programme and procedures, and com-
pose a questionnaire to be issued and translated into Hindi. Sir
Alladi intended to distribute the questionnaire ‘only to represen-
tative institutions and . . . only to such persons as by reason of
their outstanding experience or position, may be expected really
to give helpful information or suggestions to the Committee’. He
also contemplated the setting up of subcommittees ‘for special
purposes, such as Franchise, Finance and Taxation’. These sub-
committees were to have the power to grant personal interviews
to whoever wished to offer their opinion; however, he noted, ‘such
interviews will have reference only to the points raised in the ques-
tionnaire’. Finally, he set his terms of employment, asking not to
be required to proceed to Rewa until the cold weather season, and
therefore to conduct the work of the committee and hold meetings
at one of his homes. He also submitted a proposal for his remuner-
ation, which was seen by the British resident to be ‘outlandish’.37
35
Herbert to C. E. B. Abell, private secretary to the viceroy, 5 Mar. 1946: BL,
IOR/R/1/1/4236.
36
‘A Draft Rewa Government Notification’, 25 Apr. 1946: BL, IOR/R/1/1/4236.
37
Sir Alladi Krishnaswamy Ayyar to Sir Conrad Corfield, political adviser to H.E.
the Crown representative, New Delhi, 11 May 1946: BL, IOR/R/1/1/4236. Besides
a study fee, Sir Alladi asked for a ‘reduced fee’ of Rs 1,000 a day when he was
absent from Madras or Bangalore on committee business; provision for ‘taking a
cook and another personal attendant’; and Rs 750 a day spent substantially on the
committee’s work while in his place of residence: ibid.
Sir Alladi’s plan followed the blueprint of colonial reforms

committees led by external experts who were to decide on future
legislation and who invited the views of specified groups and
leading individuals on the basis of limited terms of reference.
It was perhaps not surprising, therefore, that his plan for the
Constitutional Reforms Committee aroused objections, even

resentment, among the people of Rewa and its government. The
pawaidars (landlords) protested that ‘We do not need a consti-
tution drawn out of one’s bookish knowledge alone. We want a
practical constitution that may suit us according to our needs
and conditions. These cannot be ascribed from outside’. The
members of the District Congress Committee, Baghelkhand,
lodged a similar complaint and warned that they would not
co-operate with the committee if it held its sittings outside the
state.38
The Rewa government also found Sir Alladi’s proposal
‘not altogether suitable’ and ‘most unsatisfactory’ on similar
grounds.39 Attuned to public opinion, it proposed an alternative
plan for adoption by the Constitutional Reforms Committee:
the committee was to hold all its meetings in Rewa state, and its
headquarters were to be in Rewa town so as to make it accessi-
ble ‘to anyone in the State who desires to obtain information or
put in statements, or other papers before the Committee’.40 The
Rewa government suggested that the chairman should
make a brief tour of the State with different members of the Committee
or with officials in order to gain an overall idea of the accurate admin-
istration in the rural areas of the State, degree of development of the
people, institutions and other matters relevant to this enquiry. He
could also be brought in touch with the people in the different tracts
of the State during his tour.41
The prime minister of Rewa, moreover, was concerned that ‘the

complete lack of knowledge of Hindi both of Sir Alladi and [of]
38
Harol Lal Narmada Prasad Singh, president, Pawaidar Association, Rewa, to
T. C. S. Jayaratnam, prime minister, Rewa state, 27 June 1946 (copy); Shambhu
Nath Shukla, president, District Congress Committee, Baghelkhand, Rewa, to
Jayaratnam, 27 June 1946 (copy): both BL, IOR/R/1/1/4236.
39
Jayaratnam, memorandum, 28 June 1946 (copy); Jayaratnam to Campbell, 6
July 1946: both BL, IOR/R/1/1/4236.
40
Jayaratnam, memorandum, 28 June 1946 (copy).
41
Ibid.
his secretary’ would be a hindrance for non-English-speaking
witnesses before the committee, and might prejudice its work.42
In the face of public pressure to deliver on the maharaja’s
promise to appoint a Constitutional Reforms Committee, and
anxious that the committee should begin its work as early as pos-
sible, the Rewa government suggested an alternative chairman,

Sir Hari Singh Gour.43 He knew Hindi, and was familiar with
local conditions. The election of Sir Alladi to the Constituent
Assembly soon after provided a pretext for his dignified resig-
nation as chairman of the committee before it had even been
officially set up, and Sir Hari accepted the chairmanship on 26
August 1946.44 A month later, the Rewa government appointed
the Constitutional Reforms Committee, which was to recom-
mend ‘the form of constitution most suited to the needs of the
Rewa State’.45 It began its work on 2 October 1946, and con-
cluded its sittings after nearly eight months, on 25 May 1947.46
The committee contacted the people of the state for their views
on a future constitution, and, on 12 November 1946, published
a questionnaire addressed to the public in the Rewa Gazette
and in the weekly Prakash, both in Hindi and in English.47 The
committee ‘received 79 written replies bearing signatures of
hundreds of persons. Printed replies were received through the
Praja Mandal Offices [People’s Association] numbering 2,945
over the signatures or thumb impressions of different individ-
uals’.48 The chairman of the committee, Sir Hari, reported that
many people had
42
Jayaratnam to Campbell, 6 July 1946.
43
Ibid.
44
Ayyar to Corfield, New Delhi, 26 July 1946; Corfield to Ayyar, 19 July 1946:
both BL, IOR/R/2/442/161.
45
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 2.
46
Ibid. The committee met on twenty-three days in all.
47
The weekly Prakash was published between 1932 and 1949. Maharaja Gulab
Singh sanctioned a grant of Rs 4,000 a year for its publication. It was a literary
newspaper, but also covered news on policies of Rewa state. See A. U. Siddiqui,
Indian Freedom Movement in Princely States of Vindhya Pradesh (New Delhi, 2004), 60.
48
Chairman of the Constitutional Reforms Committee, Rewa, to maharaja of
Rewa, covering letter to ‘Report of the Rewa Constitutional Reforms Committee’.
The printed submissions bore hundreds of signatures.
expressed a desire to interview the Committee and place their views

before it. To meet their desire and also to make an intimate study of
the conditions prevailing in the State, the Committee undertook an
extensive tour.
It interviewed 333 witnesses, although

many persons, sometimes the numbers running into thousands, used
to be present at the meetings of the Committee held for the examina-
tion of the witnesses . . . Hindus, Muslims, Pawaidars and tenants,
businessmen and labourers, backward classes and tribal people, have
all placed their respective points of view before the Committee.
The chairman noted, moreover, that the committee was
received with great enthusiasm and courtesy from the people wherever
we went. Their statements were characterised with utmost frankness
which enabled us to appraise the true political situation in the State.49
The questionnaire the committee designed, and the way it

addressed the responses, represented a form of participatory
constitution-making. It was composed of fifty-three questions,
seeking feedback on issues such as whether a popular govern-
ment should be established in stages, and what the status of
the maharaja and the nature of his power should be. Some
questions went into detail, such as how many members should
compose the legislature; what the minimum age of a member of
the legislature should be; and whether there should be reserved
seats, for whom, and how candidates to these seats should be
elected. One question asked what matters the legislature should
not be authorized to consider; and the final, open question left
space for additional comments.50 The respondents were also
requested to give details about themselves or the organization
they represented.
Almost all the associations that submitted their views had
already been formed in anticipation of the setting up of the
Constitutional Reforms Committee.51 The demands of marginal
49
Ibid., 1–2, 4.
50
President, State’s Muslim Association, Rewa, to the Honourable President,
Reforms Committee, Rewa, with two attached documents: ‘Memorandum of Behalf
of Muslims’ and ‘Caution in Goodfaith [sic]’, 30 May 1947: BL, IOR/R/2/442/161.
51
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 18.
groups, such as Muslims, Scheduled Tribes and Scheduled
Castes (formerly known as untouchables), are particularly tell-
ing. Rewa’s Muslim Association objected that as a minority they
would ‘not gain anything by the immediate introduction of full
responsible government. Their fate [would] be sealed, and their
miseries . . . perpetuated’.52 They thus preferred the gradual

implementation of a popular form of government in stages, and
requested that the maharaja should remain as ‘constitutional
sovereign’ because they were ‘more secure and safe in the hands
of the Ruler[s] . . . who have, without exception, invariably
followed the long established tradition of protecting . . . their
Muslim subjects’.53 They also asked for 25 per cent of seats in
the future legislature to be reserved for them.
The Raj Gonds tribal group was also sceptical about a full
responsible government, describing their exploitation by the
people of the northern districts of Rewa who were educationally
advanced and dominated the state’s services. They stated that ‘a
Constitution affecting His Highness’s powers will not be accept-
able to us’. They demanded reserved seats in the legislature, and
that ‘Special steps should be taken to educate us to the level of
other castes before we are asked to march along with them’.
They noted that the committee’s questionnaire was not ‘intel-
ligible’ to them, but they replied to the parts which they ‘have
been able to understand’. Representatives of Scheduled Castes
and ‘Depressed and Backward classes’ expressed similar con-
cerns about a ‘party Government’ under which, in their view,
the ‘socially and economically superior classes’ would have the
advantage and their position would worsen. They therefore also
favoured retaining the rule of the maharaja. In fact, maintain-
ing the maharaja as a constitutional head was the one thing the
diverse people of Rewa agreed upon. Even the Praja Mandal,
which demanded full responsible government, stated that the
‘Maharaja is the living embodiment of the individuality and of
the unity of the people of Rewa’.54
52
President, State’s Muslim Association, Rewa, to the Honourable President,
Reforms Committee, Rewa, 30 May 1947. The association was established in
September 1946.
53
Ibid.
54
‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 32–6.
In addition to the replies to the questionnaire, the commit-

tee was also in possession of copies of at least ten constitu-
tions and constitutional acts that had already been framed by
other princely states.55 In its recommendations, the committee
addressed the particular concerns of groups from the social
margins of Rewa. ‘Any constitution which we frame’, stated the

chairman, Sir Hari, ‘must not only meet the aspirations of the
intelligentsia but also make due allowance for the objections of
the less enlightened. A constitution is a political arrangement not
an exercise in logic’. The committee recommended the estab-
lishment of a representative legislature and the introduction of
a popular element in the executive; it suggested enfranchising
in stages, with at first only 150,000 people, establishing local
government institutions, and declaring fundamental rights. The
maharaja was to remain as constitutional head. The committee
saw these as ‘the first step on the democratic path’.56
Upon the Constitutional Reforms Committee submitting
its report on 27 May 1947, the Rewa government published it
widely, inviting comments and suggestions from individuals and
associations for consideration in the State Council before the
maharaja announced his final decision. In the interim, elections
to an Advisory Council with a majority of elected members
took place in June 1947 on a franchise based on property and
educational qualifications. The State Council was reconstituted
‘so as to find room for two non-Illakadar [landlord] Ministers’,
though it had yet to be given statutory powers.57 Groups
among the illakadars and pawaidars expressed dissatisfaction
with the Constitutional Reforms Committee and unsuccess-
fully demanded a round-table conference to devise a different
scheme for an interim government. But the prime minister deci-
sively rejected these demands.
It is not clear from the archival trail whether the new consti-
tution for Rewa was inaugurated before the state became part
55
Among these were copies of the constitutions of Barwani, Hyderabad, Indore,
Jaipur, Jhabua, Orchha, Panna, Sailana, Sitamau and Udaipur.
56
‘Report of the Rewa Constitutional Reforms Committee’, May 1947, 39, 4,
42. It is noteworthy that there was disagreement among the committee’s members:
some wanted fuller democratic reforms; one didn’t want democratic reforms at all.
57
Maharaja of Rewa to H. M. Poulton, resident for Central India, 15 July 1947:
BL, IOR/R/2/442/161.
of the United State of Vindhya Pradesh, which was composed
of thirty-five covenanting princely states, on 4 April 1948.58 At
that point, a new process had begun, setting up a body to frame
a constitution for Vindhya Pradesh. Framing its own constitu-
tion was often a precondition for a state to enter into a union,
as well as a basic demand of its people. The Indian government,

through the Ministry of States, facilitated the formation of
unions of states out of contiguous princely states, seeing these
new sovereign entities as stages in the process towards their ulti-
mate merger with the Indian Union. The draft constitutions of
covenanting states defined more clearly the relations between
the unions of states and the Indian Union and dealt with the
potential constitutional discrepancies between the two.
Rewa’s constitution-making story was one example of similar
processes that took place at the time across the subcontinent.
Although many of the newly produced state constitutions were
short-lived, it was through these multiple overlapping processes
of constitution-making that princely polities and people adopted
constitutional language and used it to imagine their political
future. Their assembling was an essential part of the making of
the Indian Union. Moreover, the making of the Union hinged
on the state apparatuses of the nascent Indian state, aligning
with and transitioning into the new constitutional order. The
judiciary, for example, which in anticipation of democracy was
to become a separate, independent branch of the state, had a
particular stake in the making of the constitution. Thus, judges
across India, both as individuals and as a collective, engaged in
an unprecedented manner with the constitution-making process
and with the Constituent Assembly.
II
CONSTITUTION-MAKING AND JUDICIAL EXPECTATIONS
In June 1948, Sir Harilal Kania, the chief justice of the Federal
Court of India, presided over the inauguration of the Guwahati
High Court in the province of Assam and delivered a widely
58
Government of India, White Paper on Indian States (New Delhi, 1948), 99. The
rulers signed the covenanting agreement on 18 Mar. 1948. By an agreement dated
26 Dec. 1949, the rulers of the covenanting states of the United State of Vindhya
Pradesh ceded to India with effect from 1 Jan. 1950.
circulated public address.59 This little-studied speech was highly

unusual. Firstly, it marked the beginning of the practice whereby
the chief justice of an appellate court in Delhi would inaugurate
high courts in other parts of India, signalling its superior status.
The Federal Court of India, over which Chief Justice Kania pre-
sided, was only a decade old and had a narrow appellate juris-

diction, and the judges of the high courts across India resented
and actively contested its authority.60 However, by early 1948,
with the circulation of the draft constitution, it was clear that the
Federal Court would be elevated to a Supreme Court, exercis-
ing wide jurisdiction over all courts in India, and its chief justice
would become the face of judicial leadership.61
Secondly, Chief Justice Kania’s speech broke a tradition of
judicial reticence. In it, he offered a critique of the new nation-
alist governments, and made a case for judicial independence,
aligning the goals of the judiciary with that of the national move-
ment led by Gandhi. Observing that the country was in a ‘tran-
sitional phase’, he noted that the composition and powers of
the legislatures had changed, and with the absence of a political
opposition, laws were being approved at speed: often ‘more than
half a dozen bills were approved in the course of an hour’. The
decision to set up a high court in Guwahati had been taken in
just a few weeks with little consultation. Kania famously noted,
‘in view of the fact that the opposition at present is negligible, the
role of the judiciary . . . [is] all the more important’.62 Describing
the new powers of the high courts to issue writs as ‘the most
powerful weapons which a citizen could claim for redress against
. . . the executive’, he made the case for a judiciary that would be
independent and free from executive control. The colonial judi-
ciary, of which Chief Justice Kania had been a member since
1930, had rarely advocated for itself or criticized the government
in public, other than in written judgments.63
59
Sir Harilal Kania, speech, All India Reporter (1948), 13–16.
60
George H. Gadbois Jr, Supreme Court of India: The Beginnings (New Delhi,
2018); Rohit De, ‘Emasculating the Executive: The Federal Court and Civil
Liberties in Late Colonial India, 1942–1944’, in Terence C. Halliday, Lucien Karpik
and Malcolm M. Feeley (eds.), Fates of Political Liberalism in the British Post-Colony:
The Politics of the Legal Complex (Cambridge, 2012).
61
Draft Constitution of India 1948, Art. 308.
62
Kania, speech, 13.
63
Abhinav Chandrachud, An Independent, Colonial Judiciary: A History of the
Bombay High Court during the British Raj, 1862–1947 (New Delhi, 2015); De,
‘Emasculating the Executive’.
Finally, and perhaps most strikingly, Chief Justice Kania
addressed his expectations and apprehensions about the future
constitution of India. On the basis of his year-long experience
of working with the post-independent government, he recom-
mended certain provisions to be written into the new constitu-
tion. Noting with dismay the growing tendency to ‘communalize

judicial appointments’, or to privilege jobs for ‘persons belong-
ing to the party in power’, he argued for judges to be appointed
by the judiciary on ‘merit’ and experience. Since the high court
was responsible for the administration of justice in the ‘public
eye’, it needed to be the controlling voice in the selection of
judges.64
The Indian judiciary has been seen largely as a creation of the
constitution, engaging with it after its promulgation.65 However,
as this section will demonstrate, Chief Justice Kania’s speech
was one of several public and private initiatives by the Indian
judiciary to shape the constitution from outside the Constituent
Assembly while it was still being written. Indeed, newly discov-
ered archival materials show that the experience of working with
the postcolonial governments prompted almost all sitting judges
from across the high courts and the Federal Court to push
actively for changes in the draft constitution. In consideration
of the anticipated effects of the proposed constitution on both
the citizenry and the judiciary, and in the face of problems they
encountered during the daily routine of the courts, they sought
to ensure an autonomous judiciary in the future. The sparse
scholarship on the drafting of the provisions regarding the judi-
ciary pays no attention to this. Despite their sweeping impact,
the Constituent Assembly debates on the judiciary have gener-
ally been described as brief, meriting little public attention, and
as being a consensual technical exercise.66 Indeed, at the time
Assembly member N. G. Ayyangar expressed surprise during
the debates that ‘so important an issue as the constitution and
64
Kania, speech, 16.
65
See Alice Jacob, ‘Nehru and the Judiciary’, Journal of the Indian Law Institute,
xix, 2 (1977); Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi:
The Political Economy of the Indian State (Chicago, 1987), ch. 3.
66
Arghya Sengupta, Independence and Accountability of the Higher Indian Judiciary
(Cambridge, 2019), 14–18.
the functioning of the Supreme Court’ could take up so little

time in the Assembly.67 Reading only these debates leaves the
impression that the Assembly simply accepted the recommenda-
tions made by the Ad Hoc Committee on the Supreme Court.68
This view of the judges as passive actors in the constitu-
tion-drafting process was heightened by the Federal Court’s

reluctance to take on a publicly political role as an arbitrator
for the Constituent Assembly. In June 1946, the British Cabinet
Mission had recommended that the Assembly should consult
the Federal Court on matters of constitutional importance. The
chief justice of the Federal Court, Sir Patrick Spens, expressed
‘considerable doubt’ about the validity of such a consultation. He
declared that the Federal Court, as a statutory body with limited
powers, would not entertain any referrals from the Assembly
unless its recommendations were binding; otherwise, it would
be ‘useless and derogatory to the prestige of the Court’.69
The judges were acutely conscious that the basis of their author-
ity and legitimacy was about to be changed, and intervened in
an attempt to influence the draft constitution, for which initially
there had been little or no input from them. Upon reading instal-
ments of the draft published in newspapers in February 1948,
Chief Justice Ram Lall of the East Punjab High Court wrote
directly to Jawaharlal Nehru, noting with concern that there were
‘glaring defects which had the potential of incalculable mischief’.
Nehru forwarded Chief Justice Lall’s concerns to the Constituent
Assembly Secretariat on 1 March 1948. The very next day,
perhaps anticipating a flood of outraged correspondence, the
Secretariat dispatched an official letter to all the high courts ask-
ing the judges for their comments on the draft constitution.70
Close to a hundred high court judges offered individual feed-
back in addition to the collective statement from each high
67
CAD, 29 July 1947, <https://loksabha.nic.in/writereaddata/cadebatefiles/
C29071947.html> (accessed 8 Mar. 2023).
68
The Ad Hoc Committee was headed by Justice S. Varadachariar (retired from
the Federal Court), Alladi Krishnaswamy Ayyar, B. L. Mitter, K. M. Munshi and B.
N. Rau: The Framing of India’s Constitution: A Study, ii (Bombay, 1967), appendix,
‘Report of the Ad Hoc Committee on Supreme Court’, 21 May 1947’, 587–91.
69
Chief Justice Sir Patrick Spens to Sir John Colville, 10 Dec. 1946: BL,
IOR/R/3/1/33.
70
Chief Justice Ram Lall to Jawaharlal Nehru, 1 Mar. 1948; Nehru to B. N. Rau,
1 Mar. 1948: both NAI, CA/21/Cons/48 I.
court. The comments ranged from terse paragraphs on a spe-
cific provision, to line-by-line commentary on the draft consti-
tution taking issue with ‘clerical errors’ and defective wording,
and extensive memorandums offering radically distinct visions
for the constitution.71
Chief Justice Bidhubhushan Malik of the Allahabad High

Court offered the most extensive memorandum, emphasizing
ways in which the postcolonial constitution needed to make
a break from the past. His first priority was a new provision
to restrict the practice of setting up special tribunals, which
removed jurisdiction from the courts, particularly in political
cases. These special tribunals were not to be bound by the pro-
cedural safeguards and rules of evidence that governed ordinary
courts. Chief Justice Malik quoted Article 70 of the Irish Free
State constitution, which stipulated that ‘No one shall be tried
save in due course of law and extraordinary courts shall not be
established’. He argued that the constitution should provide that
‘extraordinary courts’ should be convened only for the duration
of a presidentially proclaimed emergency.72 He criticized the
continuation of the colonial practice of special legislation and
ordinances that allowed for arrest or detention without trial, and
demanded that the constitution should guarantee all accused
the right to counsel.73
While Chief Justice Malik offered a vision of a new constitu-
tional order built on a break from the repressive legal practices
of the colonial era, his colleague Justice P. N. Sapru imag-
ined a new judicial architecture with a single supreme court
divided into a court of appeal and a high court which could sit
on benches across India. The provincial high courts would be
abolished and the higher judiciary would be transformed into a
single unified body supported by revenue from the Union gov-
ernment. Justice Sapru argued that such a scheme would pro-
vide a unified system of law and justice, avoid conflicts of law,
71
‘Note on the Draft Constitution of India, Chief Justice and Judges of the Patna
HC’, 16 Mar. 1948: NAI, CA/21/Cons/48 I.
72
Chief Justice Bidhubhushan Malik, Allahabad High Court, ‘Comments on the
Draft Constitution’, 24 Mar. 1948: NAI, CA/21/Cons/48 I.
73
The retention of preventive detention after independence despite having
been opposed by the nationalist parties for decades was the subject of both public
criticism and litigation: Charles Henry Alexandrowicz, ‘Personal Liberty and
Preventive Detention’, Journal of the Indian Law Institute, iii, 4 (1961).
protect the judicial administration from ‘provincial influences’,

and evolve a uniform civil code.74
However, the overwhelming majority of judges viewed the
draft constitution as an attempt to restrict judicial powers and
make them subservient to an elected government. The Calcutta
High Court stated that the ‘most striking features of the draft

constitution are the omission of any provisions to secure inde-
pendence of the judiciary’.75 The Allahabad High Court saw the
draft as an ‘attempt to reduce the High Court to the position of
a department in the provincial government’.76
The judges almost unanimously protested that the subordi-
nate judiciary, district and local courts, with which the major-
ity of citizens interacted, remained under the supervision of the
executive. Even the minimal protections under the Government
of India Act 1935 that required the provincial governments to
consult with the high courts over administering the subordinate
judiciary had been removed. The Allahabad High Court wrote
that it would be ‘suicidal’ to allow the provincial governments
to have complete control over the subordinate judiciary, which
included all civil, criminal and revenue courts in the provinces.77
The Madras High Court also pointed out that the Government
of India Act 1935 had gone further than the draft constitution
in giving the high courts power to appoint their own staff and
formulate their own conditions of service free from interference
from the provincial government. The Madras High Court also
recommended that no legislation affecting the judiciary should
be introduced in the parliament or state legislatures without the
prior approval of a body comprising the president, the chief jus-
tice of India and the chief justice of the province.78
The opinions of judges were not confined to their chambers
but echoed throughout the legal profession. The Calcutta Weekly
74
Justice P. N. Sapru, memorandum, 21 Mar. 1948: NAI, CA/21/Cons/48 I.
75
Chief justice and judges, Calcutta High Court, memorandum, 19 Mar. 1948:
NAI, CA/21/Cons/48 I.
76
D. S. Mathur, registrar, Allahabad High Court, note, 23 Mar. 1948: NAI,
CA/21/Cons/48 I.
77
Ibid.
78
Registrar, Madras High Court, to constitutional adviser, 23 Mar. 1948: NAI,
CA/21/Cons/48 I.
Notes, a leading law reporter for the province of Bengal, was
unequivocal in condemning the draft constitution for giving
the ‘complete go-by to judicial independence’. As the editors
remarked in the words of the fable, ‘we asked for a king and we
got a stork’.79
The bulk of the criticism focused on what appeared to be

minor provisions regulating the conditions of service of judges,
which they argued had implications for their independence.
Chief Justice Lall noted that, unlike the Government of India
Act 1935, which laid down the age of retirement as 60, the draft
constitution left the power to raise the retirement age to the pro-
vincial legislature through ordinary legislation. While seemingly
innocuous, this could incentivize judges desiring an extension to
their service to canvass politicians and ‘strike at . . . the dignity
and independence of the court’. Similarly, provincial ministers
could weaponize the raising and lowering of the retirement age
for judges, effectively giving them the power to dismiss ‘inconve-
nient and independent judges’.80 The judges also painstakingly
pointed out the implications for the independence of the judi-
ciary of some of the provisions on qualifications, salaries and
limitations on post-retirement practice.81
Through sometimes caustic commentary, the judges offered
an expansive vision of judicial autonomy which should not be
compromised by a popularly elected executive. Justice T. I.
Sheode of the Nagpur High Court elaborated this distinction
lyrically, noting that the executive in a democratic state was
bound to be a fluctuating body, ‘like the clouds it may come and
go’, and therefore should not be allowed to exert its influence
over the judiciary by arrogating to itself the power to control it.82
Justice R. S. Pollock, also of the Nagpur High Court, expressed
a fear that there was ‘little enthusiasm’ for a strong and indepen-
dent judiciary within political circles in India.83
79
Extract from Calcutta Weekly Notes, liii, 18 (22 Mar. 1948): NAI, CA/21/
Cons/48 I.
80
Lall to Nehru, 1 Mar. 1948.
81
‘Comments of the Chief Justice and the Honourable Judges of the Nagpur
HC’, 17 Mar. 1948: NAI, CA/21/Cons/48 I.
82
Justice T. I. Sheode, Nagpur High Court, memorandum, 11 Mar. 1948: NAI,
CA/21/Cons/48 I.
83
Justice R. S. Pollock, Nagpur High Court, ‘Memorandum on the Draft
Constitution’, 15 Mar. 1948: NAI, CA/21/Cons/48 I.
With the formal circulation of printed copies of the draft con-

stitution to the Federal Court and the high courts, the judges
convened a conference of the Federal Court and the chief jus-
tices of all the high courts in Delhi, on 27 and 28 March 1948,
to formulate a ‘collective opinion’ on the draft. This was the first
gathering where judges across India presented themselves as a

united front, authorizing Chief Justice Kania to convey their
unanimity to the Constituent Assembly.84 Both the organization
of the conference in itself, and the memorandum they produced,
showed that the judiciary viewed itself as a unified national
entity, distinct from both central and provincial governments.
The memorandum reflected an awareness of the changed pol-
ity with a ‘democratic government’ in which the independence
and integrity of the judiciary was of the highest importance to
citizens who sought redress against ‘illegal acts and [the] high-
handed power of the executive’.85 The judges presented them-
selves as a body that had until now played an independent role
in protecting the rights of individual citizens. They expressed
concern over ‘a tendency . . . [to] detract from the status and
dignity of the judiciary and to whittle down their powers, rights
and authority’, which would only intensify as more power was
devolved into the hands of political parties.86
At the time of independence, the higher judiciary was the most
Indianized branch of the administration, but with the coming of
the universal franchise, the executive could claim greater repre-
sentative legitimacy than the judiciary. What then would be the
basis for judicial authority?
The joint memorandum expressed concern that since inde-
pendence judicial appointments were being made according
to ‘political, communal and party considerations’ and rarely
on merit. When the chief justice of a high court proposed the
names of judges to the premier and home minister of a prov-
ince, his recommendations were not being forwarded to the
Union government.87 Instead, politicians were asking judges to
84
‘Memorandum Representing the Views of the Federal Court and the Chief
Justices Representing All the Provincial High Courts in the Union of India’,
Comments on the Provisions of the Draft Constitution of India (New Delhi, 1948), 20–8.
85
Ibid.
86
Ibid., 21.
87
Ibid.
be nominated who were expected to co-operate with the govern-
ment, and, conversely, the judiciary was being used as a dump-
ing ground for inconvenient politicians. The chief justices were
aghast at being reduced to corresponding with junior bureau-
crats on appointments, and felt that they were being treated
as a minor government department. Thus, they unanimously

recommended that the draft constitution be amended to allow
the chief justice of a high court to forward recommendations
directly to the president, who would appoint the judge in con-
currence with the chief justice of India. This would allow a high
court to avoid having to justify its recommendations to the pro-
vincial government in question, and would immunize it from
local party and political considerations, giving the judiciary the
final say on its own composition.
These recommendations arose from the judges’ own experi-
ences with judicial appointments after independence. Under the
Government of India Act 1935, an elected provincial premier
had no say in judicial appointments; judges were appointed by
the secretary of state for India. However, on the eve of indepen-
dence the Home Ministry issued a memorandum of procedure
that required the provincial chief minister, the provincial home
minister and the Union home minister to be involved in the
selection of judges.88
The judges’ memorandum also offered a road map for insu-
lating the judiciary from both the executive and the legislature
by asking for a provision in the draft constitution according to
which no former minister could be appointed a judge. It also sug-
gested that members of the Indian Civil Service (ICS) should be
barred from becoming permanent judges. This was a particularly
audacious recommendation, given that a third of all high court
judges had been recruited from the ICS and selected through
the same appointment process as other high-ranking bureau-
crats. The cadre of ICS judges included B. N. Rau, the adviser
to the Constituent Assembly. By opposing the recruitment of
judges from the ICS, the higher judiciary was strengthening the
perception that ICS judges tended to favour the executive and
that an independent judiciary should be drawn from the Bar.
In a separate memorandum, Justice Sheode elaborated further,
88
Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the
Supreme Court of India, 1980–1989 (Delhi, 2018).
arguing that recruitment of the judiciary from the Bar pro-

vided both legal expertise and a spirit of independence.89 The
Congress had long demanded separation of the executive from
the judiciary, but after assuming power had suddenly dropped
their objections to ICS judges.90
Judges felt that it was necessary to have uniformity of position,

status and privileges across the high courts. Conditions of ser-
vice had varied greatly in colonial India, with judges in smaller
high courts like Nagpur and the Oudh Special Court receiving
considerably lower salaries than their counterparts in Bombay
or Allahabad.91 The judges therefore demanded that the right to
fix the jurisdiction of high courts, salary conditions, leave and
pensions should be entrusted to the Union government and
removed from the provincial executive. Their memorandum
also required a constitutional guarantee against the reduction of
judicial salaries, arguing that judges appointed before indepen-
dence were entitled to the conditions of service they had been
promised in the Indian Independence Act 1947. A reduction
in salary would not only compromise the independence of the
judiciary but make it harder for them to persuade distinguished
lawyers to give up legal practice to become a judge.
The Constituent Assembly received thousands of submis-
sions, but a unanimously endorsed memorandum from the
entire judicial establishment had to be considered seriously by
the drafters. The memorandum was circulated across the Home
Ministry, the Law Ministry and the office of the constitutional
adviser, B. N. Rau, and the consolidated comments were dis-
cussed in four cabinet meetings. The home minister, Sardar
Patel, rejected the judges’ critique of judicial appointments,
stating that it was not based on facts and that the new procedure
was better in screening out ‘favouritism and communal consid-
erations’. He noted that he had personally stepped in several
times to check these tendencies, and asserted that by allowing
for conversations between the political class and the judiciary,
the new procedure eliminated the possibility of conflict and ‘bad
89
Justice Sheode, memorandum, 11 Mar. 1948.
90
Kailash Nath Katju, ‘Separation of the Executive and Judicial Functions’,
Address to the Bengal Chamber of Commerce, Calcutta, 12 Sept. 1948, Indian Law
Review, ii, 3–4 (1949).
91
Chief Justice Malik, ‘Comments on the Draft Constitution’, 24 Mar. 1948.
blood’ between the executive and the judiciary, and attempts
by the high court to circumvent provincial appointments. He
opposed granting the chief justice power of veto over appoint-
ments. Patel’s comments in themselves gave ample evidence of
the mistrust between the two branches as he attacked the judi-
ciary for the ‘fundamental misconception [that] they seem to

think that they alone are the custodians of what is right, what is
just’.92 While the judiciary made the case for checking political
self-interest, Patel was calling for safeguards against the preju-
dices of a chief justice.
Unsurprisingly, the one suggestion with which Patel was in
‘entire sympathy’ was the recommendation that judges’ condi-
tions of service should be regulated by central government to
create uniformity. Unlike colonial India, where each high court
was a largely autonomous entity, the political class envisaged
the transfer of judges between provinces, with some politicians
arguing for it to be the norm that judges should be appointed
from outside the province.93 While the Constituent Assembly
had emphasized centralized authority shaping provisions for
emergency powers, taxes, planning and federalism, it was the
judges who pushed for the centralization of the judiciary.
Generally, the drafting of a constitution is understood as a
linear process, with a draft being circulated for comments, sug-
gestions being incorporated and the revised draft being debated
and eventually promulgated by the constitution-making body.
However, the Indian judiciary was able to draw upon its embed-
dedness within the state structure and personal connections with
politicians to make repeated interventions for changes in the
draft constitution. Even a year after the Constituent Assembly
had debated constitutional provisions regarding the judiciary,
judges across the various high courts were writing to the home
minister demanding adjustments to salaries, the retirement age
and the right to practise after retirement.94 These repeated inter-
ventions, which included telephone conversations and lunches
92
NAI, Ministry of Home Affairs, F.11/3/48, 1948.
93
V. Shankar, memorandum, 24 Apr. 1948: NAI, Ministry of Home Affairs,
F.11/3/48, 1948.
94
Chief justice and judges of Allahabad High Court, memorandum, 18 July
1949; ‘Report of the Committee Appointed by the Judges of Calcutta HC, 1948’:
both NAI, Sardar Patel Papers, F.2/308.
with judges, led to new amendments being forwarded to the

Assembly for consideration.95 At length, an exasperated B. R.
Ambedkar, chair of the Constitution Drafting Committee,
noted that all these points had been raised repeatedly through
multiple memorandums, and that the provisions relating to the
judiciary were among those ‘that [had] received the greatest and

most serious consideration’ from the committee. For instance,
he himself had withdrawn from discussion the clauses on judi-
cial privileges originally scheduled for debate on 27 May 1949,
to be enacted two months later incorporating changes based on
suggestions made by several high court judges.96
The judges used their physical and social proximity to the
Constituent Assembly to intervene at multiple points in the
making of the constitution to shape the Indian judiciary and its
independence. But it was not only agents of the state apparatus
who sought to have a say about the future constitution and their
place in it. Even people who were distant from the Assembly
geographically, politically and socially, from the so-called ‘back-
ward, excluded and partially excluded areas’, made efforts to
insert themselves into the process, and some even embarked on
constitution-making of their own.
III
TRIBALS AND THE MAKING OF THE CONSTITUTION
On 20 February 1947, three weeks after the Constituent

Assembly had set up the Advisory Committee that was to report
to it on fundamental rights, the protection of minorities, and a
scheme for the administration of the tribal and excluded areas,
a letter addressed to the committee arrived from the remote and
sparsely populated ‘excluded area’ of Lahaul (Lahoul) and Spiti
in the Kangra district of Punjab. The ‘petitioners’, it seems, were
not even sure that the members of the Advisory Committee were
aware of their existence. ‘The present petitioners’, they wrote,
describing in detail their location,
95
Chief Justice Malik to Shankar, 13 Nov. 1948: NAI, Sardar Patel Papers,
F.2/308.
96
B. R. Ambedkar to Sardar Patel, 24 Nov. 1948; Sir Trevor Harries to Patel, 7 July
1949: both NAI, Sardar Patel Papers, F.2/308; CAD, 27 May 1949, <https://loksabha.
nic.in/Debates/cadebatefiles/C27051949.html>; 30 July 1949, <https://loksabha.nic.
in/Debates/cadebatefiles/C30071949.html> (both accessed 8 Mar. 2023).
belong to Lahoul, a tract of area bounded on the North by Chamba
State, South Rohtang Pass and Kulu Sub Division, East Kashmir and
Jammu State and Tibet and West Chamba State and Bhangal . . . it is
situated at an elevation of 10 thousand feet above sea level.
They estimated that the combined population of Lahaul and

Spiti was at most eighteen thousand, and noted that there was

‘no medical aid of any sort’, ‘no telegraph office in the area’
and ‘no veterinary hospital’. They demanded that ‘they should
at once cease to remain as excluded areas, should have a special
representation in the local bodies as well as provincial and cen-
tral legislatures’, and that a ‘Special development department
for these areas with the object of bettering economic, cultural,
educational and political status should be created’.97
The letter was timely. A week later, on 27 February, the Advisory
Committee set up three subcommittees to make recommenda-
tions on the future administration of the tribal and excluded
areas. Historically, the Government of India Act 1919 had made
provision for the notification of areas that were excluded from
the authority of the reformed provincial governments, which at
that point afforded very restricted representation to Indians in
the legislatures on the grounds that in these ‘backward areas’ the
people were ‘primitive and there is as yet no material on which
to found political institutions’.98 The ensuing Government of
India Act 1935 defined excluded and partially excluded areas
to which no act of the federal or provincial legislatures applied
unless the governor so directed. Again, the exclusion of these
areas from the democratic reforms was based on the view that
the state of development of the inhabitants ‘prevents the possi-
bility of applying to them methods of representation adopted
elsewhere’.99 The three subcommittees were assigned to report,
97
Sri Swedev, Bazar Akhara Kallu, district of Kangra, to members of the Advisory
Committee of the Constituent Assembly, 14 Feb. 1947: NAI, CA/27/COM/47 I.
98
Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas:
Excluded and Partially Excluded Areas (New Delhi, 1947), 2, quoted from the Report
on Indian Constitutional Reforms of 1918. For an analysis of excluded areas under
the Government of India Act 1919, see Stephen Legg, ‘Dyarchy: Democracy,
Autocracy, and the Scalar Sovereignty of Interwar India’, Comparative Studies of
South Asia, Africa and the Middle East, xxxvi, 1 (2016).
99
Excluded and Partially Excluded Areas, 3. The partially excluded areas, however,
were generally included in the electoral constituencies, and by independence had
representation in the provincial legislatures: ibid., 1.
respectively, on the North-East Frontier (Assam) tribal and

excluded areas, on the excluded and partially excluded areas
other than Assam, to which Lahaul and Spiti belonged, and on
the North-West Frontier Province and Baluchistan.100
The general note that was prepared for the meeting before
the subcommittees commenced their work had presumed that

‘Areas where no system of representation is practicable must
remain unenfranchised and the question arises as to the best
way of administering the area’. Similarly, a few provincial
governments, for example in the memorandum from Assam,
advised that it was ‘too premature’ to think of a system of rep-
resentative Government for some of the tribes of the excluded
areas. The Punjab memorandum suggested that, ‘On account of
its inaccessibility’, Spiti should not be brought ‘under the nor-
mal system of administration’, whereas the Lahaul area should
no longer be considered an excluded area because ‘it is now
reported to be well developed and suitable for inclusion in the
general administration’.101
The subcommittees toured the excluded and partially
excluded areas, hearing from witnesses and representatives of
many of the tribes, some of whom also submitted written mem-
orandums. They also co-opted tribals from these areas as mem-
bers of the subcommittees. The subcommittees submitted their
separate and joint reports by 25 September 1947, and their rec-
ommendations were incorporated into the draft constitution of
February 1948 but not discussed by the Constituent Assembly
until September 1949.
A close reading of the subcommittees’ reports and recommen-
dations, and of the Constituent Assembly debates, leaves the
impression that the tribal people of India, especially those from
the excluded and partially excluded areas, were almost oblivi-
ous to their future administration and constitutional position;
their views and wishes are absent from these records. Moreover,
the provisions for the administration of tribal areas, which
were set out in the Fifth and Sixth schedules of the constitu-
tion, ultimately instituted new forms of exclusion of the tribal
100
Ultimately, the subcommittee for the North-West Frontier Province and
Baluchistan never functioned as these areas became part of Pakistan.
101
Excluded and Partially Excluded Areas, 9, 69, 14.
people from India’s democratic transition. In a departure from
the original draft, the final provisions granted the governors, as
the direct administrators of these areas, increased powers. The
authority of the state legislatures, the tribe advisory councils
that were to be formed in defined ‘Scheduled Areas’, and the
district and regional councils in Assam was restricted. Assembly

member Gopinath Bardoloi, who chaired the subcommittee
on the North-East Frontier (Assam) tribal and excluded areas,
explained to the Assembly that ‘the time may come when they
may become fit to govern themselves’.102 The press was broadly
in agreement with the final provisions, suggesting that ‘there was
danger, particularly in some Scheduled Areas, of the initiative
allowed under the original Draft being misused . . . Moreover,
elected tribal representatives are likely to be of the sophisticated
type, out of touch with their more primitive fellows and suscep-
tible to political influences from outside’.103
Scholarship on the current dire conditions of India’s tribal
people and on the complications of administering the tribal
areas after independence largely traces the roots of the trou-
ble to the constitutional arrangements made in 1947. Nandini
Sundar, for example, argues that ‘many of today’s problems
may be traced back to the anti-democratic and authoritarian
impulses of some of the Constitution’s makers’, and also notes
the racist nature of the Assembly debates, especially in relation
to the Sixth Schedule, which lays down structures of gover-
nance for India’s north-eastern tribal regions.104 In exploring
how ‘past injustices were being written into the Constitution’,
scholars have analysed the constitutional debates, and the poli-
tics that surrounded them, specifically relating to the Congress
Party and its dynamics of marginalizing tribal leaders such as
102
CAD, 6 Sept. 1949, <https://loksabha.nic.in/Debates/cadebatefiles/C06091949.
html> (accessed 8 Mar. 2023).
103
‘Tribesmen in the Republic’, 12 Sept. 1949, newspaper cutting: NAI, Rajendra
Prasad Papers, F.10; ‘Tribal Areas’, Hindustan Times, 7 Sept. 1949, 2.
104
Nandini Sundar, Subalterns and Sovereigns: An Anthropological History of Bastar
(1854–2006), 2nd edn (New Delhi, 2008), 183–90; here, 188. See also, for example,
Ramachandra Guha, Savaging the Civilized: Verrier Elwin, his Tribals, and India
(1999), in The Ramachandra Guha Omnibus (New Delhi, 2005); Sanjib Baruah, In
the Name of the Nation: India and its Northeast (Palo Alto, 2020); Sangeeta Dasgupta,
‘Adivasi Studies: From a Historian’s Perspective’, History Compass, xvi, 10 (2018).
Assembly member Jaipal Singh Munda.105 Shaunna Rodrigues

has suggested that the Assembly’s ‘formulation and application
of murky boundaries to demarcate among and across tribal
communities within its territory deliberately avoided the pursuit
of detailed knowledge and routinised administration of its sub-
jects in these areas’.106 This happened, as Rodrigues recognizes,

despite members of the Assembly having at their disposal ample
evidence and detailed knowledge about tribal views and expec-
tations of the constitution.
The subcommittee on the North-East Frontier (Assam) tribal
and excluded areas produced a volume in two parts containing
557 pages of evidence and memorandums submitted by a large
number of tribal organizations. These were made available to the
members of the Constituent Assembly. Moreover, we have thus
far traced eleven folders from the archive of the Assembly con-
taining close to fifteen hundred pages of memorandums from
other tribal groups, and of correspondence between them and the
Assembly, on the position of the tribal and excluded areas in the
future constitution. We also found such documents in the private
papers of Assembly members. These materials are clear evidence
that tribal groups across India sought to make themselves legible
to the Assembly, asserting their identities and fighting to include
themselves in the constitution on their own terms.107
105
Parmar, ‘Undoing Historical Wrongs’, 491. For studies that focus on tribal
engagement with the making of the constitution, see Ornit Shani, ‘We the People’, in
Ravinder Kaur and Nayanika Mathur (eds.), The People of India: New Indian Politics
in the 21st Century (Delhi, 2022); Tewari, ‘Framing the Fifth Schedule’; Nandini
Sundar, ‘The Making of the Indian Constitution and Indigenous Rights’, unpubd
MS. In addition to Munda, scholars have also paid particular attention to Assembly
member J. J. M. Nichols Roy: P. R. Kyndiah, Rev. J. J. M. Nichols Roy: Architect of
District Council Autonomy (New Delhi, 2013).
106
Shaunna Rodrigues, ‘Excluded Areas as the Limit of the Political: The Murky
Boundaries of Scheduled Areas in India’, International Journal of Human Rights, xxv,
7 (2021), 1129, our emphasis.
107
This important facet of India’s constitution-making has barely been studied.
For a few exceptions, see Shani, How India Became Democratic, 212–21; Shani,
‘People and the Making of India’s Constitution’; Sundar, ‘Making of the Indian
Constitution and Indigenous Rights’; J. Zahluna, ‘Constituent Assembly and the
Sixth Schedule: With Special Reference to Mizoram’, Indian Journal of Political
Science, lxxi, 4 (2010), 1236–8; Rodrigues, ‘Excluded Areas as the Limit of the
Political’; Tewari, ‘Framing the Fifth Schedule’.
On 10 December 1946, a day after the Constituent Assembly
began its proceedings in Delhi, the Chittagong Hill Tracts
(CHT) People’s Association met in picturesque Rangamati,
in eastern India, to discuss their concerns about the proposed
constitutional changes. They had been ‘taken aback’ a day ear-
lier when the colonial district commissioner and the raja of the

Chakma tribes addressed a festival gathering on the subject of
their plans for the constitutional changes but invited only the
village headmen to attend a subsequent meeting at the raja’s
palace to discuss these provisions. Many people who ‘were
willing to give expression to their own opinions’ were left dis-
appointed, and protested against the district commissioner’s
limited attempts to gather public opinion, seeing the privileging
of clan and village headmen as a ‘sinister attempt to suppress
popular opinion’.108 The district commissioner was following
a long-established practice of soliciting the opinion of tribes
through traditional authorities like chiefs and headmen, but by
1946 it was increasingly clear that the assumption that these
traditional tribal authorities could speak for the people would
be strongly contested and that the dominant discourse was one
of democracy and popular representation.
Indeed, so powerful was the language of popular representation
that traditional chiefs sought to co-opt it. Within a month, the
Chakma raja’s relatives had formed the Chittagong Hill Tracts
Hillsmen Association and had begun to make representations
to the Constituent Assembly. The CHT People’s Association,
which had been established six years earlier, pointed out that
the Hillsmen Association consisted of merely twenty-one people
and had been created to suppress public opinion and to ele-
vate the raja’s authority in the future constitution.109 The CHT
People’s Association sent their own delegation to the Assembly,
asserting that the people of the region wanted democratic
self-government and not the autocratic form preferred by the
Chakma raja.110
108
‘Resolutions Adopted at the Annual Meeting of the CHT People’s Association
at Rangamati on 10th December, 1946’: NAI, CA/27/COM/47/I.
109
‘Resolution Adopted by Executive Meeting of CHT People’s Association at
Rangamati on 9th Feb. 1947’: NAI, CA/27/COM/47/I.
110
‘Delegation from CHT to Mr R. K. Ramdhyani, 27th February 1947’: NAI,
CA/27/COM/47/I.
Similar demands were echoed in the Khasi Hills, which were

governed by twenty-five syiems (male chiefs of Khasi clans),
whose positions had been recognized by the British through
treaties. In August 1946, Constituent Assembly member and
Khasi leader the Reverend J. J. Nichols Roy had drafted a con-
stitution for the Khasi and Jaintia Hills that sought to introduce

democracy progressively by co-opting the syiems and preserving
some elements of traditional government. In stark contrast, the
Myliem Khasi clan delegation told the Assembly subcommittee
for the North-East Frontier (Assam) tribal and excluded areas
that they did not want to engage with their syiem. They asserted
that the syiems of the Khasi and Jaintia Hills had never held
‘sovereign powers’ over either the people or the land, that ‘The
soil belonged to the people’, and that the syiems had to consult
the people before they could speak for them. They argued that
‘independence comes to all, not only to the Syiems’.111
In some places, tribes also contested the authority of the sub-
committee and its procedures. A mass gathering of the Naga
National Council in Kohima passed a resolution on 19 February
1947, just ahead of the appointment of the subcommittee,
stating that a ‘constitution drawn [up] by people who have no
knowledge of the Naga Hills and the Naga People [would] be
unsuitable and unacceptable’.112 They declared that they spoke
on behalf of all Naga people and that the different tribes would
not give evidence separately.113 Arguing that ‘thrown among
[four hundred million] Indian people, the one million Nagas and
their unique system of life [would] be wiped out of existence’,
the Naga National Council demanded an interim government
similar to that headed by Nehru in Delhi, with a separate con-
stitution and the option of revisiting their relationship with the
111
‘Proposed Draft Constitution of the Khasi and Jaintia Hills by Hon’ble Rev. J. J.
M. Nichols Roy’, in Constituent Assembly of India, North-East Frontier (Assam) Tribal
and Excluded Areas Sub-Committee, 2 vols. (Delhi, 1947), ii, Evidence, pt ii, 183–90,
160, 162.
112
‘Memorandum on the Case of the Naga People for Selfdetermination and an
Appeal to H.M.G. and the Government of India’, in Constituent Assembly of India,
Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee, ii, Evidence, pt i,
248.
113
Meeting in the School Hall, Kohima, 19 May 1947, in Constituent Assembly
of India, Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee, ii,
Evidence, pt i, 181.
Indian Union after ten years. Thus, tribal groups across the
country, including the Lushai Hills, the Chittagong Hill Tracts
and the Chotanagpur areas, pressed for territorial autonomy.
Tribal women also demanded rights in the future constitution
and in contesting traditional tribal authorities. A thirty-member
women’s delegation led by Bonily Khongmen and L. Shullai met

the subcommittee in Shillong, protesting against the exclusion
of women from political life by the Khasi syiems on the grounds
of custom. They insisted that unless they were included, ‘there
[would] be a rebellion from among women’. They demanded
adult franchise and the right of women to vote for clan heads
and syiems. They also asked for reserved positions for women
in legislatures and in government employment, differentiat-
ing themselves from national women’s organizations, who had
rejected affirmative action.114
Similarly, while demanding universal franchise, the Mizo
Mcheichhe Tangrual (Mizo Women’s Union), in its meeting
with the subcommittee in Aizawl in the Lushai Hills, claimed
that mere elections would be insufficient to achieve equality.
While male Mizo leaders demanded that customary laws should
be preserved, Kwatin Khuma, the president of the Women’s
Union, argued that these laws should be radically changed, giv-
ing rights of inheritance to widows and daughters. She stated
that the Women’s Union was placing itself ‘in line with other
bodies who are struggling for liberty and freedom in its widest
sense’.115
Some tribal groups also worked at the national level to advance
their views on the constitution by setting up an office next to the
Constituent Assembly. Taking the lead, the All-India Excluded
Areas and Tribal Peoples Association opened an office in the
114
‘Witnesses Examined: Mrs B. Khongmen and 15 Others, Mrs L. Shullai and 15
Ladies’, Shillong, 12 June 1947, in Constituent Assembly of India: Northeast Frontier
(Assam) Tribal and Excluded Areas Sub-Committee, ii, Evidence, pt ii, 145, 146. Among
the other women’s organizations that met the subcommittee were the Adibasi
Mahila Sangh (Hazaribagh), the Mizo Women’s Union (Aizawl) and the Khasi
Women’s Association (Shillong), and independent women representatives such as
Miss Hansda (Santhal Parganas), Mavis Dunn Lyngdoh (Shillong) and Lalziki Sailo
(Aizawl).
115
‘The Aim and Object of “Mizo Hmeichhe Tangrual”’, 18 Apr. 1947, in
Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas
Sub-Committee, ii, Evidence, pt i, 66.
residence of Assembly member Professor N. G. Ranga during

the first week of the Assembly debates. Their aim was to advance
the ‘political rights and Constitutional Status’ of tribal people
and all other people in these areas. The association followed
the Assembly proceedings, appealing to central and provincial
governments to set up special departments for tribal welfare

and to elect Assembly representatives from the excluded areas.
Their office was inaugurated by no less than Rajendra Prasad,
the Assembly president. The introductory note in the Excluded
Areas Bulletin, which the association published a fortnight later,
stated: ‘The Problem of the Excluded Areas and the Tribal peo-
ple has now become a burning topic . . . The constitution mak-
ing body therefore requires at this juncture the voice and the
advice of experts who have studied the problem with a politi-
cal and humanitarian outlook’.116 While the association had its
roots within the Congress Party, it sought to build a tribal con-
sensus by including tribal leaders from outside the Congress,
including Jaipal Singh Munda, the CHT People’s Association
and the Gurkha League. The association held many meetings in
the Constitution House, where the Assembly and its commit-
tees sat, following the work of the committees and offering their
expertise.117 They demanded that the excluded areas and their
people be integrated into the political mainstream, defying the
decisions of the Congress leadership in the Assembly.
Tribal people were not waiting for a constitution to arrive:
they were busy working out a constitutional framework for
themselves. They did not passively respond to a process initi-
ated from Delhi, but set their agenda at their own pace. Masses
of tribal people, women among them, were involved in this pro-
cess. Months before the Constituent Assembly convened, on 24
August 1946 over twenty thousand people from the Khasi and
Jaintia Hills had gathered in the Students’ Field in Shillong to
listen to the Reverend J. J. M. Nichols Roy presenting a plan for
changes in the administration of the district. What was described
as ‘the biggest political gathering in the Khasi and Jaintia Hills’
116
Office of the All-India Excluded Areas and Tribal Peoples Association, New
Delhi, Excluded Areas Bulletin, no. 2, 30 Dec. 1946, 2: NAI, CA/27/COM/1947 I.
117
Working president of the All-India Excluded Areas and Tribal Peoples
Association to secretary of the Constituent Assembly, 5 Mar. 1947: NAI, CA/27/
COM/1947 I.
witnessed active debates that led to many alterations and addi-
tions to the plan.118 This event was followed by public meetings
in villages across the hills to consolidate demands, so that by the
time the subcommittee came to visit the area the following year,
most major political parties, chiefs and civil society groups had
arrived at a common set of claims for the future of the state.

IV
ASSEMBLING INDIA’S CONSTITUTION-MAKING
The constitution-making process was far more iterative and

reflective than what is captured by the 5,546 pages of the
Constituent Assembly debates. It was transformed by a mass
of inputs and revisions which provided a training and testing
ground for the constitution-making in Delhi. By the time the
Assembly published the draft constitution in February 1948
and invited comments, the people in many princely states had
already been consulted and expressed their views on the con-
stitution. Concerned by their experiences of working with the
post-independence government, the Indian judiciary had cir-
cumvented the standard processes of consultation on the draft
to secure stronger constitutional guarantees of judicial indepen-
dence. Reading the Constituent Assembly debates, it appears
as if a handful of tribal representatives struggled to make their
voices heard. But looking beyond the Assembly, as this article
has shown, thousands of tribals, both women and men, were
able to speak out, loudly making demands and requiring guar-
antees from the future constitution.
Indians at different sites and in different positions of power were
thinking about the constitution, framing their claims within this
language and transforming what constitutionalism would mean
in independent India. The three sets of actors chosen as exam-
ples in this article, the rulers and people of Rewa, judges across
India, and the thousands of tribal people in India’s north-east,
represent a range of social and economic classes, though they
form only a fraction of a far larger, and even more diverse, pub-
lic who engaged with the making of the constitution. Focusing
118
Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded
Areas Sub-Committee, ii, Evidence, pt ii, 191.
on the relationship between the public and the Constituent

Assembly, and grounding the research in archival records from
beyond the formal constitutional debates, this article shows that
ordinary people understood very well the potential implications
of the constitution for their lives, and as a result of their ongo-
ing engagement, the constitution-making process itself became

public. Constitution-making in the princely states in many cases
preceded India’s constitution-making, the judges inserted them-
selves as commentators and critics of the constitution, and tribal
groups contested the terms of their participation as dictated by
the assembly.
However, scholars of India’s constitution have overlooked
these public voices, mainly under the assumption that the con-
stitution was beyond people’s imagination and that the key to
understanding it lies in the making of the text. In contrast, if we
draw into the foreground the constitutional engagements that
took place away from the debates in the Constitution Hall, a
new picture emerges. It renders somewhat redundant, for exam-
ple, the question of either continuity with, or a break from, the
colonial constitutional order. While diverse groups had indeed
petitioned and made constitutional demands during colonial
times, in 1946 new kinds of claims and involvements, on a far
greater scale, turned the constitution-making process into a
public experience, with the public beginning to own the consti-
tution as a political practice, as a means of asserting themselves.
These constitutional demands from the public were not sim-
ply resolved through consensus or even by force; sometimes they
were not resolved at all. But they remained the basis of agitation
and mobilization, even after the promulgation of the Indian con-
stitution, and continued to transform India’s constitutional text
up to the present day. For example, while the Nagas’ demand
for their own constitution was dismissed in 1950, it remained a
basis of political struggle until the Indian government was forced
to consider it as part of a peace agreement with Naga groups in
August 2015.119 Moreover, although the final provisions of the
constitution disregarded the judges’ views on appointments, by
the 1980s, through judicial interpretation, the judiciary was able
119
Jimmy Leivon, ‘Manipur: Nagas Endorse Demand for Separate “National”
Flag and Constitution’, Indian Express, 10 Sept. 2019, <https://indianexpress.com/
article/north-east-india/manipur/manipur-nagas-endorse-demand-for-separate-
national-flag-and-constitution-5983840> (accessed 7 Mar. 2023).
to gain control over appointments, as they had pushed for in
1948.120
Listening to voices from outside the Constituent Assembly it
becomes clear that the constitution was not a textbook for edu-
cating the people into democracy, as it has been interpreted by
scholars. Princes and people in states such as Rewa were already

engaged in writing their own constitutions, and insisted that they
did not need a constitution drawn out of ‘bookish knowledge’
and demanded a practical constitution.121 Moreover, by look-
ing at involvement in constitution-making at different sites and
scales, such as the debates over minority claims and representa-
tion in the princely states, we may see how different outcomes
were made possible by their involvement that are erased by an
exclusive focus on the Assembly debates. Constitutionalism
within the princely states, although it did not produce lasting
constitutions within the states, generated a language and prac-
tices that a constitutional text constructed from the centre could
not have created on its own. Viewed from the outside, judges
saw the constitution as a document that could be constantly
revised and improved through both public and informal pro-
cesses. For tribals, constitution-making was about educating
Assembly members in Delhi about their lives, conditions and
requirements, and their older traditions of democracy.
Recovering this understanding of India’s constitution-making
for this article entailed a work of assembly. Like an archaeo-
logical excavation of a mosaic, pieces of constitution-making
were unearthed and fitted together to create a new pattern
from the diverse elements, revealing a more comprehensive
story of India’s constitution-making. The new picture no lon-
ger looks like a top-down endeavour driven by elite consensual
decision-making produced for India’s ‘soil, which is essentially
undemocratic’.122 The new constitution came into being and
was legitimized through many acts of assembling among people
120
Sengupta, Independence and Accountability of the Higher Indian Judiciary, ch. 2.
121
Harol Lal Narmada Prasad Singh to Jayaratnam, 27 June 1946 (copy): BL,
IOR/R/1/1/4236.
122
CAD, 4 Nov. 1948, <https://loksabha.nic.in/Debates/cadebatefiles/C04111948.
html> (accessed 8 Mar. 2023).
from diverse places and positions of power across India who,

through engagement with the making of India’s constitution,
reinvented themselves as constitutional actors and gained own-
ership over it.
Rohit De

Yale University, New Haven, USA
Ornit Shani
University of Haifa, Israel

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ASSEMBLING INDIA’S CONSTITUTION:

TOWARDS A NEW HISTORY*

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its establishment and terms of reference, which had been set a

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text aiming to educate an ‘ignorant’ and undemocratic public.

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statement made by the secretary of the Assembly, H.V. R. Iyengar,

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from mid 1946 onwards that led to the burgeoning of consti-

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groups of people across India, had their own imaginings and

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On 14 August 1947, while the ‘Entire Delhi [was] kept awake to

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Bilaspur, Cochin, Dhami, Dhenkanal, Gondwana, Gwalior,

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The maharaja explained that this would enable Rewa, ‘accord-

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Sir Alladi’s plan followed the blueprint of colonial reforms

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The prime minister of Rewa, moreover, was concerned that ‘the

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expressed a desire to interview the Committee and place their views

It interviewed 333 witnesses, although

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The chairman noted, moreover, that the committee was

The questionnaire the committee designed, and the way it

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In addition to the replies to the questionnaire, the commit-

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circulated public address.59 This little-studied speech was highly

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the functioning of the Supreme Court’ could take up so little

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protect the judicial administration from ‘provincial influences’,

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With the formal circulation of printed copies of the draft con-

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arguing that recruitment of the judiciary from the Bar pro-

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with judges, led to new amendments being forwarded to the

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On 20 February 1947, three weeks after the Constituent

They estimated that the combined population of Lahaul and

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respectively, on the North-East Frontier (Assam) tribal and