Internal Constitutions of States
The Draft Constitution of India 1948 provided that India shall be a “Union of States”. The term “State” included Part I, Part II, Part III states in the First Schedule to the Constitution.
- The territories known as Governors’ Provinces immediately before the commencement of the Constitution were placed in Part I of the First Schedule to the Draft Constitution. This included the States of Madras, Bombay, West Bengal, United Provinces, Bihar, East Punjab, Central Provinces and Berar, Assam, and Orissa.
- The territories known immediately before the commencement of the Constitution as the Chief Commissioners’ Provinces were placed in Part II. Part II included the states of Delhi, Ajmer-Mewara including Panth Piploda, and Coorg.
- Part III consisted of Indian States. The State of Jammu and Kashmir was placed in Part III.
The Indian States (included in Part III of the Draft Constitution) entered the Constituent Assembly of India on the basis that they would accede to the Union of India by suitable instruments, and that the Constituent Assemblies of the States would frame separate Constitutions for the States.
In the Covenants relating to the formation of Unions of States, a provision was made for setting up local Constituent Assemblies in each State. However, it was soon realised that if each of the States were to have their own Constitution without any guidance, there would be inconsistencies between the Constitutions of the States and the Constitution of the Union.
To resolve this anomaly, a committee Chaired by the constitutional advisor, BN Rau, was appointed to prepare a model Constitution to serve as a guide in framing the Constitution for the States. The Committee noted that if the Constitution proposed by the Committee is accepted by the Constitution making bodies in the Indian States, then a special part in the Draft Constitution could be included on the Constitutions of Indian States.
This Part would then provide that the provisions relating to the Provinces would apply to the States subject to specified variations set out in a separate Schedule to the Constitution.
However, certain practical difficulties arose in implementing the proposal. Constituent Assemblies had not yet been set up in a few of the States (Rajasthan, PEPSU, Vindhya Pradesh and Madhya Bharat) in Part III. But it was imperative that the Constitution for the whole of India came into force from January 1950. In a Conference held in May 1949, it was decided to not wait till Constituent Assemblies were set up in each State.
Instead, the Constituent Assembly of India could with the “consent and concurrence” of the States frame Constitutions for all the States in consonance with the model State Constitution which was framed earlier and that these State Constitutions would be a Part of the Indian Constitution itself. Sardar Vallabhbhai Patel explained the shift from the theory of two Constitutions (at the level of the Union and the States) to a single Constitution (only at the level of the Union which would incorporate State Constitutions) in the following words:
“When the covenants establishing the various Unions of States were entered into, it was contemplated that the constitutions of the various Unions would be formed by their respective Constituent Assemblies within the framework of the covenants and the Constitution of India.
These provisions were made in the covenants at a time when we were still working under the shadow of the theory, that the assumption, by the Constituent Assembly of India, of the constitution-making authority in respect of the States would constitute an infringement of the autonomy of the States. As however, the States came closer to the Centre, it was realised that the idea of separate Constitutions being framed for the different constituent unis of the Indian Union was a legacy from the Rulers’ polity and that in a people’s polity there was no scope for variegated constitutional patterns.
We, therefore, discussed this matter with the Premiers of the various Unions and decided, with their concurrence, that the Constitution of the States should also form an integral part of the Constitution of India. The readiness with which the legislatures of the three States in which such bodies are functioning at present, namely, Mysore, Travancore and Cochin Union and Saurashtra, have accepted this procedure, bears testimony of the wish of the people of the States to eschew the separatist trends of the past.”[1]
The problem of the division of legislative competence
The Constituent Assembly of India was unable to lay down the division of legislative competence between the State and the Union because the Indian States had earlier acceded legislative competence to the Dominion of India only over the subjects of Defence, Foreign Affairs and Communications. The reason for the Indian States acceding legislative competence only with respect to these three specific subjects is traceable to the Cabinet Mission Plan.
The Cabinet Mission examined whether a separate and fully independent sovereign State of Pakistan could be formed. It rejected the idea of a separate sovereign State of Pakistan and as a compromise recommended a three-tier basis for the Constitution. There was to be a Union of India, embracing both British India and Princely States. The Union was to deal with foreign affairs, defence, and communications. The provinces would have power over all other subjects and residuary power.[2]
However, fresh IoAs (Instrument of Accession) were entered into by the States acceding competence to the Dominion of India over all matters specified in the Federal and Concurrent Legislative Lists of the Draft Constitution, except those relating to taxation.[3] The Raj Pramukh of Saurashtra executed a revised IoA on 22 May 1948. The Preamble to the IoA stated that a fresh IoA was being executed, replacing the IoA executed in August 1947 “accepting as matters with respect to which the Dominion Legislature may make laws for the United State all matters mentioned in List I and List III of the Seventh Schedule to the Government of India Act 1935, except matters relating to taxation.”
Clause 3 of the IoA read as follows: “I accept all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the United State.
Provided that nothing contained in said Lists or in any other provision of the Act shall be deemed to empower the Dominion Legislature to impose any tax or duty in the territories of the United State or to prohibit the imposition of any duty or tax by the Legislature of the United State in the said territories.”
Similar IoAs were executed by the States of Madhya Bharat, Patiala and East Punjab States Union, Matsya Union, United State of Rajasthan, Tranvancore-Cochin, and Mysore. However, the State of Jammu and Kashmir had expressed its inability to expand the matters listed in the IoA until the Constituent Assembly of the State was formed.[4] The State of Jammu and Kashmir only acceded to Dominion control over the subjects of defence, external affairs, communication, and ancillary matters.
A separate Part was included in the Draft Constitution, numbered as Part VI-A, which provided for an “internal Constitution” for the States in Part III, except Jammu and Kashmir. Article 211A of the Draft Constitution stipulated that the provisions of Part VI of the Constitution shall apply to states in Part III as they apply to the States in Part I subject to certain modifications and omissions. While introducing the amendment, Dr. BR Ambedkar explained that the provisions which apply to Part I States shall be applied to Part III States. However, the provisions would necessarily be modified to deal with the special circumstances of the States in Part III.
In view of the peculiar position of the State of Jammu and Kashmir, the Ministry suggested that a special provision be made as a “transitional arrangement”. The Ministry suggested the following approach for the consideration of the Drafting Committee:
a. Jammu and Kashmir will be placed in Part III States of Schedule I; and
b. A special provision that the power of Parliament to enact laws with respect to the State of Jammu and Kashmir shall be limited to matters specified in the IoA until Parliament by law provides that all provisions of the Constitution that apply to Part III States shall apply to Jammu and Kashmir will be incorporated.
Procedure for Indian States to ratify the Constitution
The Constituent Assembly had to decide upon the procedure to be followed by the States for ratification of the Constitution because the Draft Constitution did not contain any provision prescribing a procedure for the ratification of the Constitution by the States. The Constituent Assembly was faced with the question of whether the Indian States would be bound by the Constitution framed because of the execution of the IoA or whether the Constituent Assembly would have to devise a separate procedure for ratification of the Constitution.
After a detailed discussion, it was decided that the Rajpramukh or Ruler must accept the entire Constitution of India which also includes the internal Constitution of States on the basis of a resolution adopted by the Constituent Assembly of the State or the Legislature, where such a body exists. The Constituent Assemblies in the States of Mysore, Travancore and Cochin Union, and Saurashtra which were functioning at that time accepted the Constitution on behalf of the States upon an examination of the provisions of the Constitution concerning the States.
In States where a Constituent Assembly was not formed, the Constitution was to be operative on the basis of the Ruler or Rajpramukh’s acceptance, and the legislatures or the Constitution making bodies when constituted would have the opportunity to propose modifications to the provisions of the Constitution in so far as they applied to the States. It was decided that any such amendment proposed would receive earnest consideration.
The objective behind this formulation was expressed as under:
“This formula has been evolved to meet the difficulty arising out of the fact that constitution-making bodies are not likely to come into existence in some of the Unions by the time the new Constitution is to come into operation.
The objective underlying the proposed arrangement is that whereas the whole of the Constitution will become operative in all the States and the Unions as soon as it comes into force, it will be a good political gesture to the popular opinion in the Unions in which no Constituent Assemblies have yet to come into existence, if their first Legislatures are enabled to express their views on such provisions of the Constitution as are not considered fundamental.”
The views of the Constituent Assembly would assume the “form of recommendation and it would be open to the Union Parliament which is expected to exercise constituent powers for a period of five years or so, to accept or reject them”.
In pursuance of the procedure for ratification, all the States issued a Proclamation accepting the Constitution of India.
Summary
The discussions preceding the development for a unified Constitution and the procedure for ratification of the Constitution indicate that:
a. The Indian States mentioned in Part III of the First Schedule of the Draft Constitution were placed differently when compared to the States mentioned in Part I and Part II of the Schedule because:
i. constituent assemblies were constituted by the States in Part III to frame internal constitutions for the States. Upon a steady integration of the States with the Union, it was realised that there was no place for two constitutions in a “people’s polity”; and
ii. the legislative competence of the Union over the States in Part III was limited to the subjects of defence, external affairs, and communications. Later, all States in Part III, other than Jammu and Kashmir, by expanding the scope of IoA correspondingly conferred the Union legislature competence over all entries in List I and List III.
In view of the limited competence of the Constituent Assembly of India with respect to the State of Jammu and Kashmir in demarcating legislative competence between the Union and the State, a special provision had to be made for the State of Jammu and Kashmir in the Constitution of India.
Reference
Re: article 370 of the constitution, 2023
[1] Constituent Assembly Debates (Volume 10; 12 Oct 1949)
[2] B Shiva Rao, The Framing of India’s Constitution: A Study
[3] White Paper on Indian States (July 5 1948) 77
[4] Shiva Rao, pg. 991