The Constitution That Would Not Remember A founding text with a missing chapter India’s Constitution was written in the middle of partition, yet it never once names it. The Constituent Assembly sat in Delhi from 9 December 1946 to 26 November 1949, the very years in which the subcontinent was carved in two. Refugees crowded the capital’s camps while members debated fundamental rights in Parliament House.
The human cost was staggering. On the conservative estimates Kanika Gauba uses, eight to ten million people were displaced, five to ten lakh were killed (some scholars put the toll at 20 lakh), and around 75,000 women were raped, abducted or widowed. Other constitutions born of catastrophe say so openly. Germany’s Basic Law opens with the inviolability of human dignity after the Holocaust, and South Africa’s 1996 preamble acknowledges the injustices and divisions of apartheid. India’s founding text, by contrast, is silent.
In her 2016 Economic and Political Weekly article, “Forgetting Partition: Constitutional Amnesia and Nationalism”, Gauba asks what that silence means. Her answer, which this article builds on, is that the Constitution did not forget partition at all. It remembered it selectively, and through the same lens as nationalist history-writing.
Gauba’s argument: an amnesia that remembers
Gauba’s central claim is that the Constitution’s forgetting is selective, not total. Read closely, the Constituent Assembly Debates show partition steering three major decisions: who counts as a citizen, what political protection religious minorities receive, and how powerful the Centre should be.
She borrows from historian Gyanendra Pandey, who shows how official history tames partition violence in two ways: Blaming the outsider. Responsibility is placed on Pakistan as a nation or on the Muslim as an individual, so the Indian citizen’s own part in the killing is never confronted. Calling it an aberration.
The violence is broken into local “riots” and framed as a freak event that would not recur in normal times. The Assembly largely avoided the subject. When partition did surface, it came wrapped in euphemism, such as Patel’s reference to the “present peculiar unsettled conditions”. One member warned that posterity might compare the framers to Nero, busy drafting clauses while Lahore burned.
Gauba’s insight is that the finished text nonetheless carries both registers of memory. Its citizenship and minority provisions encode the first; its centralised federalism encodes the second.
Partition turned citizenship from an easy question into the most contested part of the draft. In April 1947, before the great exchange of populations, Patel’s interim report proposed a simple test of birth or domicile, the territorial principle lawyers call jus soli.
By 1948 the drafters had to deal with migrants. Draft Article 5A (now Article 6) admitted those who had come from Pakistan before a cut-off date. Draft Article 5AA (now Article 7) excluded those who had left for Pakistan, except people who returned under a resettlement permit.
The debate split along religious lines. Incoming migrants, mostly Hindu and Sikh, were embraced as “our refugee brethren”. The permit clause, which would mostly help Muslims, was denounced as the “obnoxious clause”, and several members argued that anyone who had left had transferred their loyalty and must prove it before being readmitted. Nehru conceded these articles received more thought than any others.
The final text, Articles 5 to 11, kept the territorial principle but handed the future of citizenship to Parliament. Gauba reads this as a laudable refusal to entrench the refugee/evacuee divide, but also as a door left open.
Writing in 2016, Gauba flagged two signals: the Supreme Court’s 2005 Sarbananda Sonowal ruling, which treated migration into Assam as a security threat, and proposed exemptions from “illegal migrant” status for minority refugees from Pakistan and Bangladesh. As long as citizenship tracked religious affinity, she warned, the migrant would remain at the centre of official discourse. The 2019 Act turned those exemptions into law, which makes it the sharpest test of her argument.
The government’s case is that the law grants citizenship to persecuted minorities and takes it away from no one. Critics argue that it makes religion a criterion of citizenship and, paired with a proposed nationwide National Register of Citizens, could weigh heavily on Muslims . The Supreme Court declined to stay the Rules in March 2024 and in February 2026 listed more than 200 challenges for final hearing in May 2026. This article found no reported final verdict as of October 2026.
Minorities: protection recast as separatism
Before partition, the Assembly seemed willing to give religious minorities a guaranteed political voice. After it, every such safeguard was withdrawn, each time on the reasoning that partition had shown where such claims lead.
The mood was set on the first day of the fourth session in July 1947. As former Muslim League members signed the register, one member asked whether they had pledged cooperation, given that they had been elected on the two-nation theory. Gauba records that Muslim members were later heckled, booed and pressed to abandon “communal” politics for the sake of the new nation.
Notably, some Muslim members themselves urged their community to give up reservation “voluntarily”. Gauba suggests this near-silence may be read less as consent than as an admission of defeat.
Her conclusion is pointed. Because the Assembly assigned the guilt for partition to one side, minority demands always looked suspect. Had the framers acknowledged the majority community’s share in the violence, she argues, they might have been slower to strip minorities of political safeguards, a lack of foresight felt in later episodes of communal violence.
The strong centre: partition as cause and cure Partition did more than any other event to give India its centralised federation. The 1946 Cabinet Mission Plan, a concession to the Muslim League, gave the Union only defence, external affairs and communications, with residuary powers left to the provinces. Nehru and Patel wanted a strong centre but could not say so openly while the Mission Plan was still the Assembly’s formal framework.
The Objectives Resolution spoke loosely of a “republic”, and discussion of the Union Subjects Committee’s report was put off as partition grew likely. Once partition was announced and the League withdrew, the brakes came off. The Union Powers Committee, chaired by Nehru, reported in August 1947 that a weak centre would now harm the country, and residuary powers moved to the Union. One member summed up the logic: the weak-centre scheme had been a concession to communal politics, and with partition there was no longer any reason for it.
The violence supplied the justification as well as the opportunity: Emergency powers. The draft articles that became today’s President’s Rule provisions drew fire from H V Kamath and S L Saksena as a subversion of provincial autonomy.
Kamath accepted them only as transitional, given the dangerous times. Preventive detention. A hated colonial power was written into Article 22, which constitutional historian Granville Austin links to the belief that it was the best weapon against the communal violence then racking North India.
Provincial voices overruled. Hasrat Mohani protested that the provinces would now hold even less power than under the Government of India Act, 1935.
Gauba’s reading is that the strong centre is both the product of partition and the remedy designed for it. Yet the remedy rests on the second register of memory: partition as a limit case, to be handled by police powers.
The Assembly made untouchability a constitutional offence (Article 17) but created nothing comparable for communal violence.
Why forget? Nationalism and the agents of forgetting
The framers forgot partition because it did not fit the story of the nation they were building. That is Gauba’s answer, and it extends an argument by legal scholar Upendra Baxi.
Baxi holds that every constitution must forget the violence that founded it. A new state needs to sort all future upheaval into the constitutional or the unconstitutional, and transformative constitutions in particular break with the past in order to promise a different future.
Gauba adds a sharper, Indian-specific point: constitutionalism forgets whatever contradicts nationalism. In India the overlap between the two was almost total. Seventeen of the 21 ministers in Nehru’s first cabinet (1947–52) also sat in the Constituent Assembly, and the Congress controlled the floor and every key committee.
The nationalist project, as Nehru and Patel framed it, needed a rational, modern citizen unmarked by religious loyalties, and a nation united enough to call itself a “Union of States” in Article 1. Partition, the violent breakup of a shared, syncretic society, was the living negation of that idea. The Constitution’s secularism did the quiet work.
It protects religion as private faith, worship, education and culture, while clearing community out of political life. In doing so, Gauba argues, it expels the figure blamed for partition and implicitly treats the catastrophe as something done by others, not by Indians, and so not India’s to remember.
The official silence Gauba described in 2016 has since been broken, and her framework is a useful lens for reading how. On 14 August 2021 the Prime Minister announced, and the Home Ministry notified, that the day would be observed every year as Partition Horrors Remembrance Day, so that present and future generations remember the suffering of partition.
Reactions divided. Supporters welcomed it as long-overdue recognition of the killing, rape and displacement endured by those who fled what is now Pakistan. Critics pointed to the politics around it: a Union minister cast the victims as casualties of the Congress party’s ambitions, and the date coincides with Pakistan’s Independence Day.
Some commentators suggested a remembrance shared across India, Pakistan and Bangladesh would have been more inclusive.. Gauba’s two registers suggest a test for this new memory. Does it acknowledge the violence Indians committed as well as the violence they suffered? If it remembers only the second, it ends the silence while keeping the first register, partition as the other’s doing. How the day is observed over time will answer that better than its founding notification.
In law, the decade has deepened the citizenship trend traced above, from the 2019 amendment to the 2024 Rules and the pending Supreme Court challenge. Meanwhile the constitutional text itself remains as it was: it still contains no provision that names or Counterpoints: where the argument can be questioned Gauba’s reading is persuasive, but it is one interpretation of a vast and contradictory record. Several objections deserve a hearing: Silence as restraint. Naming partitions in the text might have entrenched the very communal categories the framers wanted to dissolve. A forward-looking, universalist constitution can be read as deliberate statesmanship rather than denial, and Gauba herself praises the Assembly’s refusal to write the refugee/evacuee divide into Part II. Many causes, not one. The new state also faced reluctant princely states, the Telangana uprising, food shortages and economic crisis, as Gauba concedes. Ambedkar defended centralisation as a requirement of modern government, and Nehru’s commitment to national planning predated partition.
Joint electorates had principled roots. The Nehru Report (1928) and Sapru Committee (1945) had already favoured joint electorates as a way to bind communities together. Keeping reservation for Scheduled Castes and Scheduled Tribes suggests the Assembly drew a line at religion, not at group protection as such. Speeches are not intentions. Individual members’ words in the debates do not necessarily reveal the Assembly’s collective reasons, and “difficult times” could refer to many crises at once.
The comparisons are imperfect. Germany and South Africa wrote their constitutions after a defeated or departing regime could be named as the wrongdoer. Partition’s violence was committed by all communities across a new international border, which made it far harder to name without assigning blame between two states. The citizenship drift is cross-party. The 1986 amendment came under a Congress government and the 2003 amendment under a BJP-led one. That can be read as proof of a deep nationalist consensus, as Gauba implies, or as pragmatic responses to migration pressure in the Northeast.
Gauba’s lasting contribution is to change the question. Instead of asking why the framers said nothing about partition, she asks what their silence said, and finds it speaking through citizenship, minority rights and the shape of the federation.
What it said, in her reading, is that partition was someone else’s crime and a passing storm, to be handled by a strong state rather than confronted in the founding text. Ten years after her article, partition has an official day of remembrance and citizenship law has moved further from soil towards descent and faith.
The question she leaves is not whether India remembers partition, but whether it can remember it whole: the violence suffered and the violence committed, on both sides of the line. That is a question for citizens and courts as much as for historians.
