The Role of Constituent Assembly Debates in Shaping and Interpreting India’s Living Constitution with Special Focus on Affirmative Action

Abstract

The Constituent Assembly Debates (CADs) offer invaluable insight into how the Indian Constitution took shape and how the farsightedness of framers of our Constitution still contributes to it being described as a “living document.” Held between 1946 and 1949, the deliberations of the Assembly provided textual expression to the Constitution as well as spoke the normative basis of Indian democracy. One of the most deeply deliberated questions by the Assembly was how to give real meaning to equality in a society scared by centuries of exclusion based on caste, religion and sex. Personalities like Dr. B.R. Ambedkar, K.M. Munshi and H.C. Mookerjee repeatedly contented that promise of liberty and equality conferred by the Constitution would remain hollow if the disadvantaged groups were not given support in a targeted manner. The deliberations resulted in the provisions of Article 15(4), 15(5), 16(4) and 46, that now define India’s affirmative action. This was also an attempt towards balancing equality with the need for social justice. Although not legally enforceable, courts consistently turn to CADs to resolve uncertainty, identify the intent of the framers, and bestow legitimacy upon constitutional innovations. From Champakam Dorairajan (1951), the first case to test reservations, to Indra Sawhney (1992), M. Nagaraj (2006), and the recent Janhit Abhiyan case (2022), the courts have drawn upon the framers’ debates to interpret what equality and representation mean in practice. CADs still remain relevant for the values underpinning the constitutional choices. This paper argues that the debates with respect to affirmative action are testament to the Constitution’s distinctive ability to evolve with time while not losing sight of its initial commitments. Affirmative action was not seen as a retreat from equality but the very engine that would propel the ideal of equality in a deeply unequal society. Hence the CADs continue to shape contemporary struggles over inclusion by offering not strict original intent but by keeping alive the deliberative ethos of the Constitution.