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Article Contents

I competing constitutionalism, ii constitution-making and judicial expectations, iii tribals and the making of the constitution, iv assembling india’s constitution-making.

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Assembling India’s Constitution: Towards a New History *

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Rohit De, Ornit Shani, Assembling India’s Constitution: Towards a New History, Past & Present , Volume 263, Issue 1, May 2024, Pages 205–248, https://doi.org/10.1093/pastj/gtad009

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The framing of India’s constitution was a critical event in the global history of both constitution-making and democracy. Conventionally it has been analysed as a founding moment. Its success against multiple odds has been explained as resulting from a vision and consensus among the elite over what would become a pedagogical text for an ‘ignorant’ and undemocratic public. This focus among academics on political elites, and an underlying assumption that constitutional details were beyond the public’s imagination, limited the scope of investigations largely to the Constituent Assembly debates. By directing the inquiry away from these debates towards hitherto unstudied documents, this article offers a paradigm shift in the method of research and understanding of India’s constitution-making. It explores the constitution as it emerged from beyond the Constituent Assembly through engagement with its making among diverse publics. In doing so, it shows that the Indian constitution was not simply founded and granted from above, but came about through many smaller acts of assembly away from the Constitution Hall. It was the public who set normative expectations and tried to educate the members of the Constituent Assembly, and this was critical for the constitution’s future reception and endurance.

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 unquestioned at that point, and neither was the underlying scheme for its establishment and terms of reference, which had been set a few months earlier by the British Cabinet Mission. 2 The legislative assemblies of the provinces of British India chose the members 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 constitution 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-makingand 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 democracies 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 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 constitution, both older and more recent, have focused their investigations 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 understanding 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 constitution. 6 They have understood the document as a pedagogical text aiming to educate an ‘ignorant’ and undemocratic public. Indeed, scholars have largely assumed that constitutional politics 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 to engage the public directly with the process, which might, in any event, have been both difficult and tokenistic in the conditions of the time’. 10

Focusing primarily on the Constituent Assembly debates as it does, scholarship on the Indian constitution has relied substantially 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, scholars 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 common 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 interviews with surviving members of the Constituent Assembly and consulted their private papers, although, perhaps relying on a statement made by the secretary of the Assembly, H. V. R. Iyengar, he observed that much of the work of constitution-makinghappened 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 theconstitution-making process, two-thirds of India’s future territory 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 constitutional 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’sconstitution-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 disparate interactions between princes and subjects, important representatives of state institutions and members of the public, many from the social margins, and the Constituent Assembly. This 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 members 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 critical 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 represents the making of the Indian constitution, driven by contestations 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 process 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 political 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 constitution. 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 from mid 1946 onwards that led to the burgeoning of constitutionalism 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 members 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 meaning, 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, cannot 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 article 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 paramountcy of the British Crown. But with the imminent attainment 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, transferring 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 simply through published pronouncement. Tribal people, like other 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.

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 witnessed 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 constitution granted the people of Shahpura full responsible government 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 conditions of life and work which are essential for a fuller and richer development of human personality’. 21 The jubilant people of Delhi, only 410 kilometres away, were yet to be the bearers of such rights. However, the inauguration of the Shahpura constitution 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 constitutional 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 general steps towards constitutions based on the principle of representative government, was repeated in numerous other princely states. These included Aundh, Banswara, Baoni, Baria, Baroda, Barwani, Benares, Berar, Bhavnagar, Bhopal, Bhor, Bikaner, 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 occupied much of the political agenda in the princely states. So far we have traced sixty-two states that framed their own constitution, and 286 others that were involved in making constitutions 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 people 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 bearers of freedom of speech, for example, as well as freedom of religion and equality of opportunity irrespective of sex or 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 parallelconstitution-making processes in the states produced comparable 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 population, 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 responsible government to the people of the state. He pledged to bring in a system of administration based on ‘adult franchise, common electorates and no weightage or special representation’ that would ‘provide for the protection of every religion and civilization’. 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

The maharaja explained that this would enable Rewa, ‘according 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 initiated 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 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 information 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 compose a questionnaire to be issued and translated into Hindi. Sir Alladi intended to distribute the questionnaire ‘only to representative 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 subcommittees 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 questionnaire’. 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 remuneration, which was seen by the British resident to be ‘outlandish’. 37

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 constitution 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 accessible ‘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 administration 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] 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 possible, 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 resignation 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 recommend ‘the form of constitution most suited to the needs of the Rewa State’. 45 It began its work on 2 October 1946, and concluded 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 individuals’. 48 The chairman of the committee, Sir Hari, reported that many people had

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 examination 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 government 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 groups, such as Muslims, Scheduled Tribes and Scheduled Castes (formerly known as untouchables), are particularly telling. 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 acceptable 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 ‘intelligible’ 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 concerns 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, maintaining 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

In addition to the replies to the questionnaire, the committee was also in possession of copies of at least ten constitutions 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 establishment 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 unsuccessfully demanded a round-table conference to devise a different scheme for an interim government. But the prime minister decisively rejected these demands.

It is not clear from the archival trail whether the new constitution for Rewa was inaugurated before the state became part 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 constitution 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 ultimate 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.

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 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 presided, was only a decade old and had a narrow appellate jurisdiction, 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, exercising 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 nationalist governments, and made a case for judicial independence, aligning the goals of the judiciary with that of the national movement led by Gandhi. Observing that the country was in a ‘transitional 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 judiciary, 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

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 recommended certain provisions to be written into the new constitution. Noting with dismay the growing tendency to ‘communalize judicial appointments’, or to privilege jobs for ‘persons belonging 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 discovered 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 judiciary pays no attention to this. Despite their sweeping impact, the Constituent Assembly debates on the judiciary have generally 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 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 recommendations made by the Ad Hoc Committee on the Supreme Court. 68

This view of the judges as passive actors in the constitution-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 authority 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 instalments 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 asking the judges for their comments on the draft constitution. 70

Close to a hundred high court judges offered individual feedback in addition to the collective statement from each high court. The comments ranged from terse paragraphs on a specific provision, to line-by-line commentary on the draft constitution 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 procedural 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 constitutional order built on a break from the repressive legal practices of the colonial era, his colleague Justice P. N. Sapru imagined 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 government. Justice Sapru argued that such a scheme would provide a unified system of law and justice, avoid conflicts of law, 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 independence 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 subordinate judiciary, district and local courts, with which the majority 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 justice 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 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 provincial 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 ‘inconvenient and independent judges’. 80 The judges also painstakingly pointed out the implications for the independence of the judiciary 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 independent judiciary within political circles in India. 83

With the formal circulation of printed copies of the draft constitution to the Federal Court and the high courts, the judges convened a conference of the Federal Court and the chief justices 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 polity 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 themselves 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 representative legitimacy than the judiciary. What then would be the basis for judicial authority?

The joint memorandum expressed concern that since independence 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 province, his recommendations were not being forwarded to the Union government. 87 Instead, politicians were asking judges to be nominated who were expected to co-operate with the government, and, conversely, the judiciary was being used as a dumping ground for inconvenient politicians. The chief justices were aghast at being reduced to corresponding with junior bureaucrats 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 concurrence with the chief justice of India. This would allow a high court to avoid having to justify its recommendations to the provincial 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 experiences 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 independence 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 insulating 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 suggested 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 bureaucrats. 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, arguing that recruitment of the judiciary from the Bar provided 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 service 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 independence 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 submissions, 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 discussed 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 considerations’. 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 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 appointments. Patel’s comments in themselves gave ample evidence of the mistrust between the two branches as he attacked the judiciary 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 prejudices of a chief justice.

Unsurprisingly, the one suggestion with which Patel was in ‘entire sympathy’ was the recommendation that judges’ conditions 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, suggestions 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 embeddedness 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 interventions, which included telephone conversations and lunches 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 judicial 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 ‘backward, excluded and partially excluded areas’, made efforts to insert themselves into the process, and some even embarked on constitution-making of their own.

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,

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 central 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 recommendations 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 possibility of applying to them methods of representation adopted elsewhere’. 99 The three subcommittees were assigned to report, 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 representative 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 normal 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 memorandums. They also co-opted tribals from these areas as members of the subcommittees. The subcommittees submitted their separate and joint reports by 25 September 1947, and their recommendations 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 recommendations, 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 oblivious 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 constitution, ultimately instituted new forms of exclusion of the tribal 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 susceptible 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 trouble 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 governance 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 politics that surrounded them, specifically relating to the Congress Party and its dynamics of marginalizing tribal leaders such as 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 subjects 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 expectations 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 containing 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

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 earlier 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 disappointed, 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 elevate 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

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 constitution 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 subcommittee 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 constitution and the option of revisiting their relationship with the 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, differentiating 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, giving 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 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 people has now become a burning topic . . . The constitution making body therefore requires at this juncture the voice and the advice of experts who have studied the problem with a political and humanitarian outlook’. 116 While the association had its roots within the Congress Party, it sought to build a tribal consensus 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 committees 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 initiated from Delhi, but set their agenda at their own pace. Masses of tribal people, women among them, were involved in this process. 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’ witnessed active debates that led to many alterations and additions 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.

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 constitution. Concerned by their experiences of working with the post-independence government, the Indian judiciary had circumvented the standard processes of consultation on the draft to secure stronger constitutional guarantees of judicial independence. 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 guarantees 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 examples 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, public who engaged with the making of the constitution. Focusing 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 ongoing 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 themselves 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 constitution 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 example, 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 constitution as a political practice, as a means of asserting themselves.

These constitutional demands from the public were not simply 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 constitution, 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 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 educating 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 looking at involvement in constitution-making at different sites and scales, such as the debates over minority claims and representation 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 practices 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 processes. 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 archaeological 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 longer 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 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 ownership over it.

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.

‘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).

‘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).

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).

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).

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.

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 (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.

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).

Khilnani, Idea of India , 34.

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).

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.

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.

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).

Nehru Memorial Museum and Library, New Delhi (hereafter NMML), H. V. R. Iyengar Oral History Transcript, no. 303, 129.

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).

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).

‘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.

Arthur Berriedale Keith, A Constitutional History of India, 1600–1935 (London, 1937).

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).

‘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, V th Instalment, F.37/2, 422–31 and 415–21.

‘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).

Shahpura State Constitution Act 1947, 1.

Ibid .; secretary to the prime minister, Shahpura state, to deputy secretary, State Department, New Delhi, 12 Nov. 1947.

Manipur State Constitution Act 1947, < https://www.satp.org/document/paper-acts-and-oridinances/manipur-state-constitution-act-1947 > (accessed 7 Mar. 2023).

M. R. Jayakar, ‘Gwalior Note’, 29 Oct. 1947: NAI, M. R. Jayakar Private Papers, F.896.

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).

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.

See, for example, Robin Jeffrey (ed.), People, Princes and Paramount Power: Society and Politics in the Indian Princely States (Delhi, 1978).

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 9: NMML, All India States Peoples’ Conference Papers, F.151, 1947.

‘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.

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.

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.

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.

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.

Herbert to C. E. B. Abell, private secretary to the viceroy, 5 Mar. 1946: BL, IOR/R/1/1/4236.

‘A Draft Rewa Government Notification’, 25 Apr. 1946: BL, IOR/R/1/1/4236.

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 .

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.

Jayaratnam, memorandum, 28 June 1946 (copy); Jayaratnam to Campbell, 6 July 1946: both BL, IOR/R/1/1/4236.

Jayaratnam, memorandum, 28 June 1946 (copy).

Jayaratnam to Campbell, 6 July 1946.

Ayyar to Corfield, New Delhi, 26 July 1946; Corfield to Ayyar, 19 July 1946: both BL, IOR/R/2/442/161.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 2.

Ibid . The committee met on twenty-three days in all.

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.

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.

Ibid ., 1–2, 4.

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.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 18.

President, State’s Muslim Association, Rewa, to the Honourable President, Reforms Committee, Rewa, 30 May 1947. The association was established in September 1946.

‘Report of the Constitutional Reforms Committee, Rewa’, May 1947, 32–6.

Among these were copies of the constitutions of Barwani, Hyderabad, Indore, Jaipur, Jhabua, Orchha, Panna, Sailana, Sitamau and Udaipur.

‘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.

Maharaja of Rewa to H. M. Poulton, resident for Central India, 15 July 1947: BL, IOR/R/2/442/161.

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.

Sir Harilal Kania, speech, All India Reporter (1948), 13–16.

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).

Draft Constitution of India 1948, Art. 308.

Kania, speech, 13.

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’.

Kania, speech, 16.

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.

Arghya Sengupta, Independence and Accountability of the Higher Indian Judiciary (Cambridge, 2019), 14–18.

CAD , 29 July 1947, < https://loksabha.nic.in/writereaddata/cadebatefiles/C29071947.html > (accessed 8 Mar. 2023).

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.

Chief Justice Sir Patrick Spens to Sir John Colville, 10 Dec. 1946: BL, IOR/R/3/1/33.

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.

‘Note on the Draft Constitution of India, Chief Justice and Judges of the Patna HC’, 16 Mar. 1948: NAI, CA/21/Cons/48 I.

Chief Justice Bidhubhushan Malik, Allahabad High Court, ‘Comments on the Draft Constitution’, 24 Mar. 1948: NAI, CA/21/Cons/48 I.

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).

Justice P. N. Sapru, memorandum, 21 Mar. 1948: NAI, CA/21/Cons/48 I.

Chief justice and judges, Calcutta High Court, memorandum, 19 Mar. 1948: NAI, CA/21/Cons/48 I.

D. S. Mathur, registrar, Allahabad High Court, note, 23 Mar. 1948: NAI, CA/21/Cons/48 I.

Registrar, Madras High Court, to constitutional adviser, 23 Mar. 1948: NAI, CA/21/Cons/48 I.

Extract from Calcutta Weekly Notes , liii, 18 (22 Mar. 1948): NAI, CA/21/Cons/48 I.

Lall to Nehru, 1 Mar. 1948.

‘Comments of the Chief Justice and the Honourable Judges of the Nagpur HC’, 17 Mar. 1948: NAI, CA/21/Cons/48 I.

Justice T. I. Sheode, Nagpur High Court, memorandum, 11 Mar. 1948: NAI, CA/21/Cons/48 I.

Justice R. S. Pollock, Nagpur High Court, ‘Memorandum on the Draft Constitution’, 15 Mar. 1948: NAI, CA/21/Cons/48 I.

‘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.

Ibid ., 21.

Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India, 1980–1989 (Delhi, 2018).

Justice Sheode, memorandum, 11 Mar. 1948.

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).

Chief Justice Malik, ‘Comments on the Draft Constitution’, 24 Mar. 1948.

NAI, Ministry of Home Affairs, F.11/3/48, 1948.

V. Shankar, memorandum, 24 Apr. 1948: NAI, Ministry of Home Affairs, F.11/3/48, 1948.

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.

Chief Justice Malik to Shankar, 13 Nov. 1948: NAI, Sardar Patel Papers, F.2/308.

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).

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.

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).

Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas: 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.

Ultimately, the subcommittee for the North-West Frontier Province and Baluchistan never functioned as these areas became part of Pakistan.

Constituent Assembly of India, Advisory Committee, Tribal and Excluded Areas: Excluded and Partially Excluded Areas , 9, 69, 14.

CAD , 6 Sept. 1949, < https://loksabha.nic.in/Debates/cadebatefiles/C06091949.html > (accessed 8 Mar. 2023).

‘Tribesmen in the Republic’, 12 Sept. 1949, newspaper cutting: NAI, Rajendra Prasad Papers, F.10; ‘Tribal Areas’, Hindustan Times , 7 Sept. 1949, 2.

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).

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).

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.

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’.

‘Resolutions Adopted at the Annual Meeting of the CHT People’s Association at Rangamati on 10th December, 1946’: NAI, CA/27/COM/47/I.

‘Resolution Adopted by Executive Meeting of CHT People’s Association at Rangamati on 9th Feb. 1947’: NAI, CA/27/COM/47/I.

‘Delegation from CHT to Mr R. K. Ramdhyani, 27th February 1947’: NAI, CA/27/COM/47/I.

‘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.

‘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.

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.

‘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).

‘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.

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.

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.

Constituent Assembly of India: Northeast Frontier (Assam) Tribal and Excluded Areas Sub-Committee , ii, Evidence , pt ii , 191.

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).

Sengupta, Independence and Accountability of the Higher Indian Judiciary , ch. 2.

Harol Lal Narmada Prasad Singh to Jayaratnam, 27 June 1946 (copy): BL, IOR/R/1/1/4236.

CAD , 4 Nov. 1948, < https://loksabha.nic.in/Debates/cadebatefiles/C04111948.html > (accessed 8 Mar. 2023).

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