Genesis and Evolution of the Constitution
Constitutional Development in India: Pre-Independence Era
The constitutional history of India is a fascinating journey marked by the gradual evolution of administrative and political structures under British rule. Starting from the regulatory measures for a trading company, it progressed through various Acts and reforms, eventually laying the groundwork for a sovereign democratic republic. These developments were influenced by political needs, administrative exigencies, and growing nationalist aspirations in India. Understanding this pre-independence phase is crucial as it provides context for the framework and principles adopted in the Constitution of India.
Regulating Act, 1773
The Regulating Act of 1773 was the first significant step taken by the British Government to control and regulate the affairs of the East India Company in India. It marked the beginning of parliamentary control over the Company's administration.
Key Provisions:
It designated the Governor of Bengal as the Governor-General of Bengal and created an Executive Council of four members to assist him. Lord Warren Hastings was the first such Governor-General.
It subjugated the Governors of Bombay and Madras to the Governor-General of Bengal, thus creating a centralised administration.
It provided for the establishment of a Supreme Court at Calcutta (in 1774) comprising a Chief Justice and three other judges.
It prohibited the servants of the Company from engaging in any private trade or accepting presents or bribes from the 'natives'.
It required the Court of Directors (governing body of the Company) to report on its revenue, civil, and military affairs in India to the British Government.
Significance:
This Act was important as it acknowledged the political functions of the Company and for the first time provided a framework for the central administration of Company territories in India. However, it suffered from defects like the weakness of the Governor-General's authority over his council and the lack of clear separation between judicial and executive functions.
Pitt's India Act, 1784
The Pitt's India Act of 1784, also known as the East India Company Act, 1784, was enacted to rectify the shortcomings of the Regulating Act, 1773. It distinguished between the commercial and political functions of the Company.
Key Provisions:
It established a Board of Control in England, composed of six Commissioners including the Chancellor of the Exchequer and a Secretary of State, to supervise the political and revenue affairs of the Company. This effectively introduced a system of double government: the Court of Directors managed commercial affairs, and the Board of Control managed political affairs.
The Governor-General's Council was reduced from four to three members, including the Commander-in-Chief of the British forces in India, giving the Governor-General more authority as he could now potentially override his council.
It strengthened the Governor-General's control over the Presidencies of Bombay and Madras.
It explicitly designated the Company's territories in India as 'British Possessions in India'.
Significance:
This Act is significant for creating the Board of Control and introducing the double government system, which continued until 1858. It tightened British governmental control over the Company's administration in India, making the British Crown and Government the ultimate authority.
Charter Acts (1813, 1833, 1853)
These Acts were passed periodically (every 20 years) by the British Parliament to renew the Company's charter, but they also introduced significant changes in its role and the administration of British India.
Charter Act, 1813:
It abolished the Company's monopoly over trade in India, except for trade in tea and trade with China. This opened up India trade to all British merchants.
It asserted the sovereignty of the British Crown over the Company's territories in India.
It allowed the Christian missionaries to come to India for the purpose of enlightening the people.
It provided for a sum of Rupees One Lakh for the promotion of education among the inhabitants of British territories in India.
Charter Act, 1833:
This Act was the final step towards centralisation in British India.
It made the Governor-General of Bengal the Governor-General of India. Lord William Bentinck was the first Governor-General of India.
It vested in him all civil and military powers. The Government of British India was, for the first time, called the 'Government of India', and his Council was called the 'India Council'.
It deprived the Governors of Bombay and Madras of their legislative powers.
It ended the activities of the East India Company as a commercial body, making it a purely administrative body. The Company's territories in India were held by it 'in trust for His Majesty, His heirs and successors'.
It introduced a system of open competition for selection of civil servants and stated that Indians should not be debarred from holding any place, office or employment under the Company. However, this provision was negated after opposition from the Court of Directors.
It added a fourth member (Law Member) to the Governor-General's Council for legislative purposes (though initially only as a temporary member).
Charter Act, 1853:
This was the last of the series of Charter Acts and marked the separation of the legislative and executive functions of the Governor-General's Council.
It established a separate Central Legislative Council (Indian Legislative Council) of six members for the Governor-General.
It introduced an open competition system of selection and recruitment of civil servants, including Indians. The Macaulay Committee (Committee on the Indian Civil Service) was appointed in 1854.
It extended the Company's rule and allowed it to retain the territories on trust for the British Crown, but did not specify any time period, unlike the previous Charter Acts. This meant that the Company's rule could be terminated at any time the Parliament liked.
It introduced, for the first time, local representation in the Indian (Central) Legislative Council. Of the six new members of the legislative council, four members were appointed by the local governments of Madras, Bombay, Bengal, and Agra.
Significance of Charter Acts:
The Charter Acts progressively increased the British Parliament's control, centralised administration, ended the Company's commercial role, introduced elements of modern administration like a separate legislative council and open competition for civil services, and paved the way for increased Indian participation in administration (though very limited initially).
Government of India Act, 1858
This Act was enacted in the wake of the Revolt of 1857. It was a pivotal moment as it abolished the rule of the East India Company and transferred the powers of government, territories, and revenues to the British Crown.
Key Provisions:
It provided that India was to be governed by and in the name of Her Majesty.
It changed the designation of the Governor-General of India to that of Viceroy of India. The Viceroy was the direct representative of the British Crown in India. Lord Canning was the first Viceroy of India.
It abolished the system of double government by abolishing the Board of Control and Court of Directors.
It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration. The Secretary of State was a member of the British Cabinet and was responsible ultimately to the British Parliament.
It established a 15-member Council of India to assist the Secretary of State.
It ended the Company's rule and ushered in the era of direct rule of the British Crown.
Significance:
The Act of 1858 was primarily concerned with the machinery of government in England, rather than changing the system of administration in India. It symbolised the transfer of power but did little to alter the existing administrative structure in India, although it promised reforms and better treatment of Indians.
Indian Councils Acts (1861, 1892, 1909)
These Acts were passed to associate Indians in the legislative process and administration, largely in response to the growing nationalist demands and the lessons learned from the 1857 revolt.
Indian Councils Act, 1861:
It initiated the process of associating Indians in the law-making process by providing that the Viceroy should nominate some Indians as non-official members of his expanded Legislative Council.
Lord Canning nominated three Indians to his legislative council: the Raja of Benares, the Maharaja of Patiala, and Sir Dinkar Rao.
It initiated the process of decentralisation by restoring the legislative powers to the Bombay and Madras Presidencies. This reversed the centralising tendency started by the Charter Act of 1833.
It provided for the establishment of new legislative councils for Bengal, North-Western Frontier Province (NWFP), and Punjab.
It empowered the Viceroy to make rules and orders for the more convenient transaction of business in the council.
It also empowered the Viceroy to issue ordinances, without the concurrence of the legislative council, during an emergency. The life of such an ordinance was six months.
Indian Councils Act, 1892:
It increased the number of additional (non-official) members in the Central and provincial legislative councils, though the official majority was retained.
It increased the functions of legislative councils and gave them the power of discussing the budget and addressing questions to the executive.
It provided for the nomination of some non-official members of the Central Legislative Council by the Viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce.
It provided for the nomination of some non-official members of the provincial legislative councils by the Governors on the recommendation of district boards, municipalities, universities, trade associations, zamindars, and chambers.
While election was not formally introduced, this Act made a limited and indirect provision for the use of election for filling up some of the non-official seats.
Indian Councils Act, 1909:
This Act is also known as Morley-Minto Reforms (Lord Morley was the then Secretary of State for India, and Lord Minto was the then Viceroy of India).
It considerably increased the size of the legislative councils, both Central and provincial. The number of members in the Central Legislative Council was raised from 16 to 60. The number of members in the provincial legislative councils was not uniform.
It retained the official majority in the Central Legislative Council but allowed the provincial legislative councils to have non-official majority.
It enlarged the deliberative functions of the legislative councils at both levels. Members were allowed to ask supplementary questions, move resolutions on the budget, and move resolutions on any matter of public interest.
It provided for the first time for the association of Indians with the executive Councils of the Viceroy and Governors. Satyendra Prasad Sinha became the first Indian to join the Viceroy’s Executive Council. He was appointed as the Law Member.
It introduced a system of communal representation for Muslims by accepting the concept of 'separate electorate'. Under this, Muslim members were to be elected only by Muslim voters. Lord Minto came to be known as the Father of Communal Electorate.
It also provided for the separate representation of presidency corporations, chambers of commerce, universities, and zamindars.
Significance of Indian Councils Acts:
These acts gradually increased Indian participation in legislative bodies, introduced limited forms of election (though indirect), and expanded the functions of councils. The 1909 Act, in particular, significantly expanded the councils but also sowed the seeds of communal division through separate electorates.
Government of India Acts (1919, 1935)
These two acts are the most comprehensive and influential pieces of legislation passed by the British Parliament concerning Indian administration, profoundly impacting India's future constitution.
Government of India Act, 1919:
This Act was enacted based on the recommendations of the Montague-Chelmsford Reforms (Montague was the Secretary of State for India, and Lord Chelmsford was the Viceroy of India).
It separated the provincial and central subjects. The subjects were classified into two lists: central list and provincial list.
It introduced a system of 'Dyarchy' (dual rule) in the provinces. Provincial subjects were further divided into two parts: transferred and reserved. Transferred subjects were administered by the Governor with the help of Ministers responsible to the legislative council. Reserved subjects were administered by the Governor and his Executive Council without being responsible to the legislative council.
It introduced, for the first time, bicameralism and direct elections in the country. The Indian Legislative Council was replaced by a bicameral legislature consisting of an Upper House (Council of State) and a Lower House (Legislative Assembly). A majority of members of both Houses were chosen by direct election.
It required that the three of the six members of the Viceroy's Executive Council (other than the Commander-in-Chief) were to be Indians.
It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians, and Europeans.
It created a new office of the High Commissioner for India in London and transferred to him some of the functions hitherto performed by the Secretary of State for India.
It provided for the establishment of a Public Service Commission. Central Public Service Commission was set up in 1926 for recruiting civil servants.
It separated, for the first time, provincial budgets from the Central budget and empowered the provincial legislatures to enact their budgets.
It provided for the appointment of a statutory commission to inquire into and report on its working after ten years of its coming into force. This led to the appointment of the Simon Commission in 1927.
Government of India Act, 1935:
This Act was a result of the Simon Commission Report, the recommendations of the Round Table Conferences, and the White Paper published by the British Government.
It provided for the establishment of an All-India Federation consisting of provinces and princely states as units. However, this federation never came into being as the princely states did not join it.
It divided the powers between the Centre and units into three lists: Federal List (for Centre, 59 items), Provincial List (for provinces, 54 items), and Concurrent List (for both, 36 items). Residuary powers were vested with the Viceroy.
It abolished Dyarchy in the provinces and introduced 'Provincial Autonomy' in its place. Provinces were allowed to act as autonomous units of administration in their defined areas. The Governor was required to act with the advice of Ministers responsible to the provincial legislature, though he retained discretionary powers.
It provided for the adoption of Dyarchy at the Centre. The federal subjects were divided into reserved subjects (administered by the Governor-General with his councillors, responsible to the legislature) and transferred subjects (administered by the Governor-General with the advice of Ministers, responsible to the legislature). However, this part of the Act did not come into operation.
It introduced bicameralism in six out of eleven provinces (Bengal, Bombay, Madras, Bihar, Assam, and United Provinces).
It further extended the principle of communal representation by providing separate electorates for depressed classes (Scheduled Castes), women, and labour (workers).
It abolished the Council of India, established by the Government of India Act of 1858.
It provided for the establishment of a Federal Court (which was set up in 1937).
It provided for the establishment of the Reserve Bank of India (RBI) to control the currency and credit of the country.
It provided for the establishment of a Federal Public Service Commission, Provincial Public Service Commissions, and Joint Public Service Commissions for two or more provinces.
Significance of Government of India Acts (1919 & 1935):
The 1919 Act introduced significant features like Dyarchy in provinces, bicameralism, and direct elections. The 1935 Act was a landmark in the constitutional history of India, being a lengthy and detailed document. It provided the structure for provincial autonomy, divided legislative powers, and introduced federal features, many of which were later incorporated into the Constitution of India.
Indian Independence Act, 1947
This Act was passed by the British Parliament based on the Mountbatten Plan (or 3rd June Plan) and brought an end to British rule in India, providing for the creation of two independent Dominions.
Key Provisions:
It declared India as an Independent and Sovereign State from August 15, 1947.
It provided for the partition of India and the creation of two independent Dominions of India and Pakistan with the right to secede from the British Commonwealth.
It abolished the office of Viceroy and provided for a Governor-General for each dominion, who was to be appointed by the British King on the advice of the dominion cabinet.
It empowered the Constituent Assemblies of the two Dominions to frame and adopt any constitution they wished and to repeal any act of the British Parliament, including the Indian Independence Act itself.
It abolished the office of the Secretary of State for India and transferred his functions to the Secretary of State for Commonwealth Affairs.
It lapsed the British paramountcy over the Indian princely states and tribal areas. They were free to join either India or Pakistan or remain independent.
It provided for the governance of each of the Dominions and the provinces by the Government of India Act, 1935, until the new Constitution was framed.
It deprived the British Monarch of his right to veto Bills or ask for reservation of certain Bills for his approval. This right was reserved by the Governor-General.
It dropped the title of Emperor of India from the royal titles of the English King.
Significance:
This Act marked the culmination of the independence movement, formally ending nearly two centuries of British rule and transferring power to Indian hands. It paved the way for the Constituent Assembly to frame the Constitution of free India.
Constituent Assembly: Formation and Functions
The demand for a Constituent Assembly to frame the Constitution of India was first made by M. N. Roy in 1934. The Indian National Congress officially demanded it in 1935. The British Government accepted the demand in principle in the 'August Offer' of 1940 and finally in the 'Cripps Mission' of 1942. However, the final framework for the formation of the Constituent Assembly was provided by the Cabinet Mission Plan of 1946.
Composition and Election of the Constituent Assembly
The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.
Composition as per Cabinet Mission Plan:
The total strength of the Constituent Assembly was to be 389.
Of these, 296 seats were allotted to British India and 93 seats to the Princely States.
Out of the 296 seats allotted to British India, 292 members were to be drawn from the eleven Governors' provinces and four from the four Chief Commissioners' provinces (Delhi, Ajmer-Merwara, Coorg, and British Baluchistan).
Each province and princely state (or group of states) were to be allotted seats in proportion to their respective population, roughly one seat for every million population.
Seats allotted to each British province were to be decided among the three principal communities - Muslims, Sikhs, and General (all except Muslims and Sikhs), in proportion to their population. Members from each community were to be elected by votes of members of that community in the provincial legislative assembly using the method of proportional representation by means of single transferable vote.
The representatives of Princely States were to be nominated by the heads of the Princely States.
The election for the 296 seats allotted to the British Indian Provinces was held in July-August 1946.
Results of the 1946 Elections (British India):
The results were as follows:
| Party | Seats Won |
|---|---|
| Indian National Congress | 208 |
| Muslim League | 73 |
| Smaller groups & Independents | 15 |
| Total | 296 |
The 93 seats allotted to the Princely States were not filled as they decided to stay away from the Constituent Assembly initially.
Impact of Partition:
Following the acceptance of the Mountbatten Plan of partition on June 3, 1947, the representatives of most of the Princely States gradually joined the Assembly. However, the representatives of the areas included in Pakistan withdrew from the Assembly.
The total strength of the Assembly came down to 299. Of these, 229 were from the British provinces and 70 from the Princely States.
Working of the Constituent Assembly
The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting, demanding a separate state of Pakistan. The meeting was, therefore, attended by only 211 members.
Dr. Sachchidanand Sinha, the oldest member, was elected as the temporary President of the Assembly, following the French practice.
Later, on December 11, 1946, Dr. Rajendra Prasad was elected as the President of the Assembly, and H. C. Mukherjee was elected as the Vice-President. Sir B. N. Rau was appointed as the Constitutional Advisor to the Assembly.
Objectives Resolution:
On December 13, 1946, Jawaharlal Nehru moved the historic 'Objectives Resolution' in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure.
It declared India as an Independent Sovereign Republic.
It proposed a Union of British Indian territories and Indian States and other parts willing to be constituted into the Union.
It aimed to frame a Constitution for the Union wherein the territories would be autonomous units with residuary powers, exercising all powers and functions of government and administration save and except such powers and functions as are vested in or assigned to the Union.
It guaranteed and secured to all the people of India justice, social, economic, and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association, and action, subject to law and public morality.
It provided adequate safeguards for minorities, backward and tribal areas, and depressed and other backward classes.
It declared that the territorial integrity of the Republic and its sovereign rights on land, sea, and air according to the law of civilised nations shall be maintained.
It proclaimed that the ancient land would attain its rightful and honoured place in the world and contribute its full and willing share to the promotion of world peace and the welfare of mankind.
The Objectives Resolution was unanimously adopted by the Assembly on January 22, 1947. Its modified version forms the Preamble of the present Constitution.
Other Functions Performed:
In addition to framing the Constitution, the Constituent Assembly also performed the following functions:
It ratified India's membership of the Commonwealth in May 1949.
It adopted the National Flag on July 22, 1947.
It adopted the National Anthem on January 24, 1950.
It adopted the National Song on January 24, 1950.
It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.
The Assembly worked as the provisional parliament of India from August 15, 1947, to January 26, 1950. Whenever the Assembly met as the Constituent body, it was chaired by Dr. Rajendra Prasad, and when it met as the legislative body, it was chaired by G. V. Mavalankar.
Committees of the Constituent Assembly (Drafting Committee, Union Powers Committee, etc.)
To deal with different tasks of constitution-making, the Constituent Assembly appointed a number of committees, both major and minor.
Major Committees:
| Name of the Committee | Chairman |
|---|---|
| Union Powers Committee | Jawaharlal Nehru |
| Union Constitution Committee | Jawaharlal Nehru |
| Provincial Constitution Committee | Sardar Patel |
| Drafting Committee | Dr. B. R. Ambedkar |
| Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas | Sardar Patel |
| Rules of Procedure Committee | Dr. Rajendra Prasad |
| States Committee (Committee for Negotiating with States) | Jawaharlal Nehru |
| Steering Committee | Dr. Rajendra Prasad |
Drafting Committee:
Among all the committees of the Constituent Assembly, the most important was the Drafting Committee set up on August 29, 1947. It was entrusted with the task of preparing a draft of the new Constitution.
Its members were:
Dr. B. R. Ambedkar (Chairman)
N. Gopalaswamy Ayyangar
Alladi Krishnaswamy Ayyar
Dr. K. M. Munshi
Syed Mohammad Saadullah
N. Madhava Rau (He replaced B. L. Mitter who resigned due to ill health)
T. T. Krishnamachari (He replaced D. P. Khaitan who died in 1948)
The Drafting Committee, after taking into consideration the reports of the various committees, prepared the first draft of the Constitution of India, which was published in February 1948. The people of India were given eight months to discuss the draft and propose amendments.
In the light of the public comments, criticisms, and suggestions, the Drafting Committee prepared a second draft, which was published in October 1948.
Adoption and Enactment of the Constitution
The Drafting Committee finished its work and presented the final draft to the Assembly on November 4, 1948. The Assembly held three readings on the Draft Constitution:
First reading: November 4 to 9, 1948 (General discussion)
Second reading: November 15, 1948, to October 17, 1949 (Clause-by-clause consideration)
Third reading: November 14, 1949, to November 26, 1949 (Final passing of the Bill)
Dr. B. R. Ambedkar moved the motion 'The Constitution as settled by the Assembly be passed'. The motion was declared as passed on November 26, 1949, and received the signatures of the members and the President.
This date, November 26, 1949, is referred to in the Preamble as the date on which the people of India in the Constituent Assembly adopted, enacted, and gave to themselves this Constitution.
The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles, and 8 Schedules.
Dr. B. R. Ambedkar, the Chairman of the Drafting Committee, is recognised as the 'Father of the Constitution of India'. He is also regarded as the 'Chief architect of the Constitution of India' and a 'Modern Manu'.
Enforcement of the Constitution:
Some provisions relating to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 387, 388, and 391, 392, and 393 came into force on November 26, 1949, itself.
The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This date is referred to in the Constitution as the 'date of its commencement', and is celebrated as the Republic Day.
January 26 was chosen as the date of commencement of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj Day was celebrated, following the resolution of the Lahore Session (December 1929) of the Indian National Congress.
Time Taken and Expenditure:
The Constituent Assembly took 2 years, 11 months, and 18 days to frame the Constitution.
The total expenditure incurred on framing the Constitution was about ₹64 lakh.
The Assembly had 11 sessions over this period.
The drafts of the Constitution were considered for 114 days.
Salient Features of the Indian Constitution
Written and Lengthiest Constitution
Constitutions can be classified into written and unwritten. The Constitution of India is a written constitution, meaning it is a codified document adopted at a specific time. It is also renowned for being the lengthiest and most detailed written constitution in the world.
Why is the Indian Constitution so lengthy?
Several factors contributed to the voluminous nature of the Indian Constitution:
Geographical Factors:
The vastness of the country and its diversity (linguistic, cultural, etc.) necessitated numerous detailed provisions to cater to the needs and peculiarities of different regions and groups.
Historical Factors:
The Constitution drew heavily from the Government of India Act, 1935, which was itself a very detailed and comprehensive document. This Act served as a major source for many provisions.
Single Constitution for both Centre and States:
Unlike federal countries like the USA, where states have their own constitutions, India has a single Constitution that lays down the framework for both the Central and state governments, further adding to its length.
Dominance of Legal Luminaries:
The Constituent Assembly was dominated by legal experts. This led to the incorporation of intricate legal provisions and detailed explanations, resulting in a complex and lengthy document.
Inclusion of Detailed Provisions:
The Constitution includes detailed provisions not only on the basic structure and powers of government organs but also on administrative matters, Fundamental Rights, Directive Principles of State Policy, Fundamental Duties, provisions for Scheduled Castes, Scheduled Tribes, other backward classes, etc.
Comparison:
To understand its length, compare it with other major constitutions:
USA: Approx. 7 Articles
Australia: Approx. 128 Articles
Canada: Approx. 147 Articles
India (as of 2023): Preamble, 25 Parts, 448+ Articles, 12 Schedules
Significance:
The comprehensive nature aims to provide a clear and detailed framework, minimising ambiguities and potential conflicts. However, critics sometimes argue it can be overly detailed and rigid.
Parliamentary System of Government
India has adopted the Parliamentary System of Government, also known as the 'Westminster' model of government, primarily from the UK. In this system, the executive is responsible to the legislature for its policies and acts.
Features of Indian Parliamentary System:
Presence of nominal and real executives: The President is the nominal executive (de jure executive or tituiar executive), while the Prime Minister and the Council of Ministers are the real executive (de facto executive).
Majority party rule: The political party which secures a majority of seats in the Lok Sabha forms the government. The leader of that party is appointed as the Prime Minister by the President.
Collective responsibility: This is the most important principle of the parliamentary system. The Council of Ministers is collectively responsible to the Lok Sabha. This means that all the ministers swim or sink together. If a no-confidence motion is passed against the Council of Ministers, the entire council has to resign, including the Prime Minister.
Membership of the ministers in the legislature: The ministers are members of the legislature. A person who is not a member of the Parliament cannot be a minister. However, a non-member can be appointed as minister for a maximum period of six months, within which he must become a member of the Parliament (either House), failing which he ceases to be a minister.
Leadership of the Prime Minister: The Prime Minister is the leader of the Council of Ministers, leader of the Parliament, and leader of the party in power. He plays a significant role in the functioning of the government.
Dissolution of the lower house: The lower house of the Parliament (Lok Sabha) can be dissolved by the President on the recommendation of the Prime Minister.
Why was the Parliamentary System chosen?
Familiarity: India had prior experience with the parliamentary system during British rule, as the Government of India Acts of 1919 and 1935 had introduced responsible government to some extent.
Preference for Responsibility: The Constituent Assembly preferred the British model over the American Presidential system because the parliamentary system ensures greater responsibility of the executive to the legislature. The presidential system, while potentially offering more stability, concentrates power in the President and has less day-to-day accountability to the legislature.
Although based on the British model, the Indian parliamentary system has certain differences, such as the elected head of state (President) instead of hereditary monarchy, and the Parliament is not sovereign like the British Parliament.
Blend of Rigidity and Flexibility
Constitutions are often classified as rigid or flexible based on their amendment procedure. A rigid constitution requires a special procedure for its amendment (like the US Constitution), while a flexible constitution can be amended in the same manner as ordinary laws are made (like the British Constitution).
The Indian Constitution is a unique synthesis of both rigidity and flexibility.
Methods of Amendment:
Article 368 of the Constitution provides for two types of amendments, while some other articles provide for amendment by simple majority.
1. Amendment by Simple Majority:
Some provisions can be amended by a simple majority of the two Houses of Parliament, i.e., a majority of members present and voting. These amendments do not fall under the purview of Article 368.
Examples:
Formation of new states and alteration of areas, boundaries, or names of existing states (Article 3).
Abolition or creation of legislative councils in states (Article 169).
Second Schedule - emoluments, allowances, privileges and so on of President, Governors, Speakers, judges, etc.
Quorum in Parliament (Article 100).
Rules of procedure in Parliament (Article 118).
This method reflects the flexibility of the Constitution.
2. Amendment by Special Majority of Parliament:
Most provisions of the Constitution can be amended by a special majority of the Parliament. This means a majority of 2/3rd of the members of each House present and voting, and a majority (more than 50%) of the total membership of each House.
Examples: Fundamental Rights, Directive Principles of State Policy, etc., and all other provisions which are not covered by the first and third categories.
This method reflects a degree of rigidity.3. Amendment by Special Majority of Parliament and Ratification by States:
Some provisions relating to the federal structure of the Constitution require amendment by a special majority of the Parliament and also requires ratification by the legislatures of half of the states by a simple majority.
Examples:
Election of the President and its manner (Article 54, 55).
Extent of the executive power of the Union and the states (Article 73, 162).
Distribution of legislative powers between the Union and the states (Part XI).
Any of the Lists in the Seventh Schedule.
Representation of states in Parliament (Fourth Schedule).
The power of Parliament to amend the Constitution and its procedure (Article 368 itself).
This method reflects significant rigidity and respects the federal nature of the Constitution.
This blend allows the Constitution to adapt to changing needs while protecting its core principles and federal structure.
Federal System with Unitary Bias
The Constitution of India establishes a federal system of government, but with pronounced unitary features. A federal system is one in which power is divided between a central authority and constituent political units (states).
Federal Features of the Indian Constitution:
Dual Polity: The Constitution establishes a dual polity consisting of the Union at the Centre and the states at the periphery. Each is endowed with sovereign powers in its own field.
Written Constitution: The Constitution is a written document specifying the structure, powers, and functions of both the Centre and the states.
Division of Powers: The Seventh Schedule divides powers between the Union and the states through the Union List, State List, and Concurrent List.
Supremacy of the Constitution: The Constitution is the supreme law of the land. Laws enacted by the Centre or the states must conform to the provisions of the Constitution.
Rigidity of the Constitution: The procedure for amendment is not easy for many provisions, especially those affecting the federal structure.
Independent Judiciary: The judiciary is independent and empowered to interpret the Constitution and resolve disputes between the Centre and the states (Federal Court/Supreme Court).
Bicameralism: The Parliament is bicameral, consisting of the Lok Sabha (representing the people) and the Rajya Sabha (representing the states).
Unitary (Non-Federal) Features:
Alongside the federal features, the Indian Constitution contains a large number of unitary or non-federal features, leading experts to describe it as 'quasi-federal', 'federal in form but unitary in spirit', etc.
Strong Centre: The Union List has more items than the State List, and the Centre has overriding powers on the Concurrent List. Residuary powers are vested in the Centre.
Single Constitution: There is a single Constitution for the entire country.
Single Citizenship: Citizens owe allegiance only to the Union, not to the states.
Flexibility of the Constitution: A large part of the Constitution can be amended by the Parliament alone.
Integrated Judiciary: There is a single integrated judicial system with the Supreme Court at the apex.
Appointment of Governor by Centre: The Governor of a state is appointed by the President and holds office during his pleasure. The Governor acts as an agent of the Centre.
All-India Services: The All-India Services (IAS, IPS, IFS, etc.) are common to both the Centre and the states, but they are recruited and controlled by the Centre.
Emergency Provisions: During an emergency, the Constitution can be converted into a unitary system, giving the Centre all powers.
Parliament's power over State List: Parliament can legislate on subjects in the State List under certain extraordinary circumstances (e.g., Resolution by Rajya Sabha, National Emergency, State Emergency, implementation of international agreements).
Veto over State Bills: The Governor is empowered to reserve certain bills passed by the state legislature for the consideration of the President. The President can veto these bills.
The Constitution thus represents a balance, creating a strong Centre necessary for maintaining unity and integrity in a diverse country, while also establishing state governments with devolved powers.
Fundamental Rights, Directive Principles, and Fundamental Duties
These three components constitute the soul of the Indian Constitution, providing the foundation for a just and equitable society and outlining the rights and obligations of citizens and the state.
Fundamental Rights (Part III)
Fundamental Rights are enshrined in **Part III** of the Constitution (Articles 12 to 35). They are **justiciable** rights, meaning that individuals can approach the courts (High Courts and the Supreme Court) for their enforcement if violated. They are primarily aimed at protecting citizens against the arbitrary action of the State.
Inspired by the **Bill of Rights of the USA**, the Constitution originally provided for seven Fundamental Rights. Currently, there are six categories:
Right to Equality (Articles 14-18)
Right to Freedom (Articles 19-22)
Right against Exploitation (Articles 23-24)
Right to Freedom of Religion (Articles 25-28)
Cultural and Educational Rights (Articles 29-30)
Right to Constitutional Remedies (Article 32)
The Right to Property (Article 31) was removed from the list of Fundamental Rights by the 44th Amendment Act, 1978, and made a legal right (Article 300A) in Part XII of the Constitution.
Fundamental Rights are not absolute and are subject to reasonable restrictions imposed by the state.
Directive Principles of State Policy (DPSPs) (Part IV)
The DPSPs are enumerated in **Part IV** of the Constitution (Articles 36 to 51). They are **non-justiciable**, meaning that they cannot be enforced by the courts for their violation. They are fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws.
Inspired by the **Constitution of Ireland**, they aim at promoting the ideal of a **welfare state** and establishing social and economic democracy in the country.
They broadly cover principles such as:
Socialist principles (e.g., equitable distribution of wealth, equal pay for equal work, securing right to work, education, public assistance)
Gandhian principles (e.g., organisation of village panchayats, promotion of cottage industries, prohibition of intoxicating drinks and drugs)
Liberal-Intellectual principles (e.g., securing a uniform civil code, providing free and compulsory education for children below 14, separating judiciary from executive)
While not legally enforceable, they serve as moral obligations and guidelines for the state in framing policies and laws.
Fundamental Duties (Part IVA)
The Fundamental Duties were not originally in the Constitution. They were added by the **42nd Amendment Act, 1976**, based on the recommendations of the **Swaran Singh Committee**. They are contained in **Part IVA** (Article 51A).
Inspired by the **Constitution of the erstwhile USSR**, they are **non-justiciable** like the DPSPs, although Parliament is free to enforce them by suitable legislation.
There are eleven Fundamental Duties (the 11th duty was added by the 86th Amendment Act, 2002). Some of these include:
To abide by the Constitution and respect its ideals and institutions, the National Flag, and the National Anthem.
To cherish and follow the noble ideals that inspired the national struggle for freedom.
To uphold and protect the sovereignty, unity, and integrity of India.
To promote harmony and the spirit of common brotherhood amongst all the people of India.
To protect and improve the natural environment.
To provide opportunities for education to his child or ward between the age of six and fourteen years.
They serve as a reminder to citizens that they have duties towards their country and society, alongside their rights.
Independent Judiciary and Judicial Review
The Indian Constitution establishes an independent judiciary with the power of Judicial Review as a guardian of the Constitution and protector of citizens' rights.
Independent Judiciary:
An independent judiciary is crucial for safeguarding the rights of individuals and maintaining the balance between the various organs of government (legislature, executive, and judiciary) as well as between the Centre and the states.
Provisions Ensuring Independence:
Security of Tenure: Judges of the Supreme Court and High Courts are provided with security of tenure. They can be removed from office only by the President on the basis of a resolution passed by both Houses of Parliament by a special majority on grounds of proved misbehaviour or incapacity.
Fixed Service Conditions: Their salaries, allowances, privileges, leave, and pension are determined by Parliament and cannot be changed to their disadvantage after their appointment, except during a financial emergency.
Expenses Charged on Consolidated Fund: The salaries and allowances of the judges and the staff, as well as the administrative expenses of the Supreme Court and High Courts, are charged on the Consolidated Fund of India/State, respectively, and are not subject to the vote of the legislature.
Prohibition on Practice after Retirement: Former judges of the Supreme Court are prohibited from pleading or acting in any court or before any authority within the territory of India.
Power to Punish for Contempt: The Supreme Court and High Courts can punish any person for their contempt.
Separation from Executive: The Constitution directs the State to take steps to separate the judiciary from the executive in the public services of the State (Article 50 - DPSP).
Judicial Review:
Judicial Review is the power of the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. If a law or order is found to be in violation of any provision of the Constitution (ultra vires the Constitution), it can be declared as illegal, unconstitutional, and invalid by the judiciary.
The power of judicial review is not explicitly mentioned as 'Judicial Review' in the Constitution but is derived from various articles, particularly:
Article 13: Declares that all laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.
Article 32: Guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights and empowers the Supreme Court to issue writs.
Article 226: Empowers High Courts to issue writs for the enforcement of Fundamental Rights and for any other purpose.
Article 131, 132, 133, 134, 136, 143, 245, 246, 251, 254: These articles deal with the jurisdiction and powers of the Supreme Court and High Courts, implicitly granting them the power of judicial review.
The Indian judiciary is an integrated system, with the Supreme Court at the apex, followed by the High Courts at the state level, and subordinate courts below them. The Supreme Court is the final interpreter and guardian of the Constitution.
Secular State
The Constitution of India stands for a secular state. The term 'secular' was added to the Preamble by the 42nd Constitutional Amendment Act of 1976. However, even before this amendment, the Constitution contained various provisions that reflected the secular character of the Indian State.
Indian Concept of Secularism:
The Indian concept of secularism is different from the Western concept, which implies a complete separation between religion and the state. In India, secularism means:
The State does not have an official religion.
The State guarantees equal respect and equal protection to all religions ('Sarva Dharma Sama Bhava').
The State may intervene in religious affairs to remove social evils (e.g., prohibition of untouchability, Sati, child marriage).
Constitutional Provisions Reflecting Secularism:
Preamble: The Preamble declares India to be a 'Secular Republic'.
Fundamental Rights (Part III):
Article 14: Equality before law and equal protection of laws.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
Article 16: Equality of opportunity in public employment (no discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence).
Article 25: Freedom of conscience and free profession, practice, and propagation of religion.
Article 26: Freedom to manage religious affairs.
Article 27: Freedom from payment of taxes for promotion of any particular religion.
Article 28: Freedom from attending religious instruction or worship in educational institutions.
Directive Principles of State Policy (Part IV):
Article 44: Directs the State to endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India (aims at uniformity in personal laws, which are often based on religion).
The Supreme Court of India has held that secularism is one of the basic features of the Constitution and cannot be altered even by a constitutional amendment (Kesavananda Bharati case, 1973).
Thus, the Indian Constitution ensures religious freedom for all citizens and maintains a policy of principled distance and neutrality towards all religions, upholding the principle of religious equality.
Universal Adult Franchise
The Indian Constitution introduces Universal Adult Franchise as a basis for elections to the Lok Sabha and the state legislative assemblies. This means that every citizen who is not less than a certain age has the right to vote without any discrimination on grounds of caste, race, religion, sex, literacy, wealth, and so on.
Key Aspects:
Original Age Limit: Originally, the age of voting was fixed at 21 years.
Reduction in Age Limit: The 61st Constitutional Amendment Act of 1988 reduced the voting age from 21 years to 18 years for elections to the Lok Sabha and the state legislative assemblies.
Significance:
Bold Experiment: At the time of independence, introducing universal adult franchise in a country with mass poverty and illiteracy was a bold and challenging step.
Promotion of Democracy: It is a cornerstone of a democratic system, ensuring that the government is based on the will of the people.
Political Equality: It upholds the principle of political equality by giving every eligible citizen one vote, regardless of their socio-economic status.
Enhances Self-Respect: It gives a sense of dignity and self-respect to the common people, especially the poor and illiterate, by giving them the same status as the rich and educated.
Encourages Political Participation: It empowers citizens to participate in the political process and hold their representatives accountable.
The adoption of universal adult franchise, despite the challenging conditions at the time, reflected the deep faith of the Constitution-makers in the capabilities and wisdom of the common masses.
Single Citizenship
India has a system of single citizenship. This means that every citizen is a citizen of India and owes allegiance to the Union alone. They are not citizens of the particular state in which they reside.
Contrast with Federal States:
In federal states like the USA, there is a system of dual citizenship. A person is a citizen of the USA (national citizenship) as well as a citizen of the particular state in which he resides (state citizenship). This dual citizenship provides separate rights and privileges under the federal and state constitutions.
In India:
In India, all citizens, irrespective of the state they are born in or reside in, enjoy the same political and civil rights of citizenship all over the country. There is no separate state citizenship or state rights (with some historical exceptions, like the special status of Jammu and Kashmir under Article 370, which has since been abrogated).
Significance:
The concept of single citizenship is adopted to:
Promote Unity and Integrity: It aims to create a sense of unity and brotherhood amongst the people of India, despite its vast diversity (linguistic, religious, regional).
Prevent Regionalism: It seeks to prevent regionalism and other fissiparous tendencies by fostering a common Indian identity.
The Constitution does make provisions for certain exceptions, such as some special privileges enjoyed by the residents of Jammu and Kashmir under the erstwhile Article 370, and reservations in employment or education by states for their residents, but these do not dilute the fundamental principle of single citizenship.
Emergency Provisions
The Indian Constitution contains elaborate provisions to enable the President to deal with any abnormal situation that might pose a threat to the peace, security, stability, and governance of the country or a part thereof. These are known as Emergency Provisions and are contained in Part XVIII of the Constitution (Articles 352 to 360).
Types of Emergencies:
The Constitution provides for three types of emergencies:
National Emergency (Article 352): An emergency declared by the President on the grounds of war, external aggression, or armed rebellion. The term 'armed rebellion' was substituted for 'internal disturbance' by the 44th Amendment Act of 1978.
State Emergency (President's Rule) (Article 356): An emergency declared by the President on the failure of constitutional machinery in a state. Article 365 also provides for President's Rule if a state fails to comply with or give effect to any direction from the Centre.
Financial Emergency (Article 360): An emergency declared by the President if a situation has arisen whereby the financial stability or credit of India or any part of its territory is threatened.
Impact of Emergency:
The most dramatic effect of emergency provisions is that the Constitution gets transformed from a federal structure into a unitary one without a formal amendment. The Centre acquires full control over the states.
During a National Emergency, the executive and legislative powers of the Centre extend to states, and Fundamental Rights (except Articles 20 and 21) can be suspended (though the suspension of Article 19 is automatic only on grounds of war or external aggression, not armed rebellion).
During President's Rule, the President assumes all the functions of the state government and the powers vested in the Governor. The state legislature's powers are exercised by the Parliament.
During a Financial Emergency, the Centre can give directions to states to observe financial propriety, salaries of government officials can be reduced, and money bills passed by state legislatures may be reserved for President's consideration.
Sources:
The provisions for **President's Rule** were largely influenced by the **Government of India Act, 1935** (Section 93).
The provisions relating to the **suspension of Fundamental Rights during a National Emergency** are inspired by the **Weimar Constitution of Germany**.
The emergency provisions are designed to safeguard the sovereignty, unity, integrity, and security of the country, the democratic political system, and the Constitution. However, they have also been criticised for potentially leading to centralisation and infringing upon state autonomy and fundamental rights.
Sources of the Indian Constitution
Borrowed Features from Constitutions of Various Countries
The Constitution of India is often described as a 'bag of borrowings' because its framers drew inspiration from various constitutions of the world, as well as from the Government of India Act, 1935. However, the features were not blindly copied but adopted after careful consideration and modification to suit the Indian context and needs. This approach allowed the Constituent Assembly to incorporate the best aspects of different systems while addressing the unique challenges of India.
United Kingdom
The influence of the British Constitution (Westminster model) is particularly strong, given India's long association with British rule.
Borrowed Features:
Parliamentary government: The system of government where the executive is responsible to the legislature.
Rule of Law: The principle that no one is above the law and that law governs a nation.
Legislative procedure: Procedures for making laws in Parliament.
Single Citizenship: A person is a citizen of the entire country, not just a state.
Cabinet System: A body of senior ministers, usually led by a Prime Minister, who head government ministries.
Prerogative Writs: Writs like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto (Article 32 and 226).
Bicameralism: Presence of two Houses of Parliament (Lok Sabha and Rajya Sabha).
Office of Comptroller and Auditor General (CAG): An independent authority that audits all receipts and expenditure of the Government of India and state governments.
United States of America
The US Constitution, known for its strong federal structure and emphasis on individual rights, provided several key features.
Borrowed Features:
Fundamental Rights: Guaranteeing civil liberties to citizens.
Independence of Judiciary: Ensuring the judiciary can function without influence from the executive or legislature.
Judicial Review: Power of the judiciary to interpret the Constitution and declare laws/actions unconstitutional.
Impeachment of the President: Procedure for removing the President.
Removal of Supreme Court and High Court judges: Procedure for removing judges.
Post of Vice-President: The office and functions of the Vice-President.
Ireland
The Irish Constitution (Constitution of the Republic of Ireland) was the source for crucial guiding principles for the State.
Borrowed Features:
Directive Principles of State Policy (DPSPs): Non-justiciable guidelines for the State in formulating laws and policies, aiming for a welfare state.
Nomination of members to Rajya Sabha: The process of nominating members with special knowledge or practical experience in art, literature, science, and social service.
Method of election of the President: The system of proportional representation by means of a single transferable vote.
Canada
Canada's federal system provided insights into structuring a federation with a strong central government.
Borrowed Features:
Federation with a strong Centre: Distribution of powers favouring the Union.
Vesting of residuary powers in the Centre: Powers not listed in any of the three lists belong to the Union Parliament.
Appointment of state governors by the Centre: The practice of the President appointing governors in states.
Advisory jurisdiction of the Supreme Court: Power of the Supreme Court to give advice to the President on questions of law or fact.
Australia
Key provisions related to the distribution of powers and trade were influenced by the Australian Constitution.
Borrowed Features:
Concurrent List: List of subjects on which both the Centre and the states can legislate.
Freedom of trade, commerce, and intercourse: Provisions ensuring free movement of trade throughout the territory of India (Articles 301-307).
Joint sitting of the two Houses of Parliament: Provision for a joint session to resolve deadlocks on ordinary bills.
Germany
Provisions related to emergencies and their impact on fundamental rights were influenced by Germany's Weimar Constitution.
Borrowed Features:
Suspension of Fundamental Rights during Emergency: The power of the President to suspend Fundamental Rights during a National Emergency (except Articles 20 and 21).
France
Ideals that shaped the Preamble were inspired by the French Revolution.
Borrowed Features:
Republic: The head of state is elected, not hereditary.
Ideals of Liberty, Equality, and Fraternity in the Preamble: Core values adopted to define the nature of the Indian state and society.
Japan
A key concept related to the rule of law was drawn from the Japanese Constitution.
Borrowed Features:
Procedure established by law: The principle that a person's life or personal liberty can be deprived only according to the procedure laid down by law (Article 21).
Soviet Union (Russia)
The focus on social and economic justice and citizen duties was influenced by the USSR Constitution.
Borrowed Features:
Fundamental Duties: Obligations of citizens towards the state and society (Part IVA).
Ideal of justice (social, economic, and political) in the Preamble: The goals set out for the Indian state.
Government of India Act, 1935
Despite borrowing from various foreign constitutions, the most significant source and the largest part of the Indian Constitution is derived from the Government of India Act, 1935. This Act, enacted by the British Parliament, provided a detailed framework for the governance of British India and had already laid down many structures and institutions that were continued and adapted in the Constitution of independent India.
Influence and Borrowed Features:
Around 250 articles of the present Constitution are either taken directly from the 1935 Act or are based on its provisions. Key features borrowed or heavily influenced include:
Federal Scheme: The structure of a federal government with division of powers, although the 1935 Act's proposed federation did not fully materialise.
Office of Governor: The role and powers of the provincial (now state) Governor.
Judiciary: The structure and functioning of the federal court and provincial high courts, leading to the Supreme Court and High Courts in independent India.
Public Service Commissions: The establishment and functions of federal and provincial public service commissions (Union Public Service Commission and State Public Service Commissions).
Emergency Provisions: The framework for dealing with emergency situations.
Administrative details: Many details regarding administration, like the distribution of powers in lists, were retained or adapted.
Structure of the Parliament: Elements of the legislative structure.
The familiarity with the 1935 Act among the Indian political elite and administrators, as well as its comprehensive nature, made it a natural starting point and a major source for the Constitution-makers. While modifications were made to align with the aspirations of an independent democratic republic, the skeletal framework and numerous provisions were retained.