Constitution of India

The original text of the Preamble and artwork of Beohar Rammanohar Sinha, before the 42nd Amendment) of the Constitution

The Constitution of India is the supreme law of India. It is a living document, an instrument which makes the government system work. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens. It is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules, 5 appendices and 98 amendments (out of 120 Constitution Amendment Bills). Besides the English version, there is an official Hindi translation. Dr. Bhimrao Ramji Ambedkar is widely regarded as the architect of the Indian Constitution.

Jawaharlal Nehru signing the Constitution

The Constitution follows parliamentary system of government and the executive is directly accountable to the legislature. Article 74 provides that there shall be a Prime Minister of India as the head of government. It also states that there shall be a President of India and a Vice-President of India under Articles 52 and 63. Unlike the Prime Minister, the President largely performs ceremonial roles.

The Constitution of India is federal in nature but unitary in spirit. The common features of a federation such as written Constitution, supremacy of Constitution, rigidity of Constitution, two government, division of powers, bicameralism and independent judiciary as well as unitary features like single Constitution, single citizenship, integrated judiciary, flexible Constitution, a strong Centre, appointment of state governor by the Centre, All-India Services, Emergency Provisions etc can be seen in Indian Constitution. This unique combination makes it Quasi-Federal in form. Each state and each Union territory of India has its own government. Analogous to President and Prime Minister, each has a Governor (in case of states) or Lieutenant Governor (in the case of Union territories) and a Chief Minister. The 73rd and 74th Amendment Act also introduced the system of Panchayati Raj in rural areas and Municipality in urban areas. Also, Article 370 of the Constitution gives special status to the State of Jammu and Kashmir.

The Constitution was adopted by the India Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393 and 394 came into force on 26 Nov 1949 and remaining articles on 26 Jan 1950. The date of 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country's fundamental governing document. To ensure constitutional autochthony, the framers of constitution inserted Article 395 in the constitution and by this Article, the Government of India Act 1935 and the Indian Independence Act, 1947 were repealed. The Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavors to promote fraternity among them. The words "socialist" and "secular" were added to the definition in 1976 by the 42nd constitutional amendment (mini constitution). India celebrates the adoption of the constitution on 26 January each year as Republic Day.

Background

Main article: Indian independence movement

Dr. Bhimrao Ramji Ambedkar is hailed as the prime architect of the Indian Constitution

The major portion of the Indian subcontinent was under British rule from 1857 to 1947. The impact of economic, political and social development during this period helped the gradual rise of the Indian independence movement to gain independence from foreign rule. After the Indian Rebellion of 1857, the direct rule of the British crown was established. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. 26 November 1949 is also known as National Law Day. The Indian constitution is the world's longest constitution. At the time of commencement, the constitution had 395 articles in 22 parts and 8 schedules. It consists of almost 80,000 words and took 2 years 11 months and 18 days to build.

In the United Kingdom the office of the Secretary of State for India was the authority through whom Parliament exercised its rule (along with the Council of India), and established the office of Viceroy of India (along with an Executive Council in India, consisting of high officials of the British Government). The Indian Councils Act 1861 provided for a Legislative Council consisting of the members of the Executive council and non-official members. The Indian Councils Act 1892 established provincial legislatures and increased the powers of the Legislative Council. Although these Acts increased the representation of Indians in the government, their power still remained limited. The Indian Councils Act 1909 and the Government of India Act 1919 further expanded participation of Indians in the government.

Previous Legislations as Source

The Constitution of India is drawn from many sources. Keeping in mind the needs and conditions of India the framers of the Constitution of India borrowed different features freely from previous legislation.

Government of India Act 1858

Main article: Government of India Act 1858

After the Indian Rebellion of 1857, the British Government took direct control of territories formerly ruled by the English East India Company. To calm down the after effects of 1857 revolt, the Act of 1858 was introduced. This act abolished East India Company and transferred powers towards the British crown to establish direct rule. The Provisions of the bill are:

• Provision for the creation of an Indian Civil Service under the control of the Secretary of State.
• The Crown was empowered to appoint a Governor-General and the Governors of the Presidencies.
• The Company's territories in India were to be vested in the Queen, the Company ceasing to exercise its power and control over these territories. India was to be governed in the Queen's name.
• All the property of the East India Company was transferred to the Crown. The Crown also assumed the responsibilities of the Company as they related to treaties, contracts, and so forth.
• The Queen's Principal Secretary of State received the powers and duties of the Company's Court of Directors. A council of fifteen members was appointed to assist the Secretary of State for India. The council became an advisory body in India affairs. For all the communications between Britain and India, the Secretary of State became the real channel.
• Abolition of double government.

Indian Councils Act 1861

Main article: Indian Councils Act 1861

Indian Councils Act 1861 enacted by Parliament of the United Kingdom that transformed the Viceroy of India's executive council into a cabinet run on the portfolio system. This cabinet had six "ordinary members" who each took charge of a separate department in Calcutta's government: home, revenue, military, law, finance, and (after 1874) public works.

Indian Councils Act 1861 is an essential landmark in the constitutional and political good reputation for India. The 1861 Act restored the legislative power taken away by the Charter Act of 1833. The legislative council at Calcutta was given extensive authority to pass laws for British India as a whole, while the legislative councils at Bombay and Madras were given the power to make laws for the "Peace and good Government" of their respective presidencies.The Governor General was given the power to create new provinces for legislative purposes. He also could appoint Lt. Governors for the same. Its features are:

• Indians were involved with law-making process. For this purpose, viceroy nominated the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao.
• Decentralization of legislative powers.
• Establishment of recent legislative councils in Bengal, NWFP and Punjab in 1862, 1866 and 1897 respectively.
• Introduction of portfolio system.
• It empowered the Viceroy to issue ordinances with no concurrence of the legislative council throughout an emergency. The life of such an ordinance was 6 months.

Indian Councils Act 1892

Main article: Indian Councils Act 1892

Enacted due to the demand of the Indian National Congress to expand legislative council, the number of non-official members was increased both in central and provincial legislative councils the non official members of Indian legislative councils were henceforth to be nominated by Bengal chamber of commerce and provincial legislative council. In 1892, the council consisted of 24 members, only five being where Indians. Its features are:

• Power discussing budget to legislative councils.
• It deliver to the nomination of some non official people in the central legislative council through the viceroy on the recommendation of the provincial legislative councils which of the provincial legislative councils through the governors on the recommendations of the district boards, municipalities, universities, trade associations, zamindars and chambers.

Indian Councils Act 1909

Main article: Indian Councils Act 1909

Indian Councils Act 1909 commonly known as the Morley-Minto Reforms, was an Act of the Parliament of the United Kingdom that brought about a limited increase in the involvement of Indians in the governance of British India. The Act of 1909 was important for the following reasons:

• It effectively allowed the election of Indians to the various legislative councils in India for the first time. Previously some Indians had been appointed to legislative councils.
• The introduction of the electoral principle laid the groundwork for a parliamentary system even though this was contrary to the intent of Morley.
• Muslims had expressed serious concern that a first past the post electoral system, like that of Britain, would leave them permanently subject to Hindu majority rule. The Act of 1909 stipulated, as demanded by the Muslim leadership.

The Act amended the Indian Councils Acts of 1861 and 1892. Its features are:

1. The maximum number of nominated and elected members of the Legislative Council at the Center was increased from 16 to 60. The number did not include ex-officio members.
2. The right of separate electorate was given to the Muslims.
3. Official members were to form the majority but in provinces non-official members would be in majority.
4. The members of the Legislative Councils were permitted to discuss the budgets, suggest the amendments and even to vote on them; excluding those items that were included as non-vote items. They were also entitled to ask supplementary questions during the legislative proceedings.
5. The Secretary of State for India was empowered to increase the number of the Executive Councils of Madras and Bombay from two to four.
6. Two Indians were nominated to the Council of the Secretary of State for Indian Affairs.

Government of India Act 1919

Main article: Government of India Act 1919

After World War I, the British Government opened the door for Indians to public office and employment. The Provisions of the bill are:

• Relaxation of central treatments for the provinces by demarcating and separating the central and provincial subjects.
• It further divided the provincial subjects into two parts – transferred (That have been administered by governor by the help of ministers who are responsible to legislative council) and reserved (that have been to be administered by the governor and the executive council without being responsible towards the legislative council).
• Introduction of diarchy, Bicameralism, direct elections and establishment of central public service commission in 1926.
• Franchise was granted to some limited people on foundation of property, tax and education.
• Separation of central budget from provisional budget.
• Appointment of statutory commission.

Government of India Act 1935

Main article: Government of India Act 1935

The provisions of the Government of India Act 1935, though never implemented fully, had a great impact on the Constitution of India. Many key features of the constitution are directly taken from this Act. It is really a lengthy and detailed document having 321 sections and 10 schedules. The majority of the today's constitution has drawn from this. Its features are:

• It delivers to the establishment of an All India Federation. The previous names transferred and reserved subjects are changed as federal and provincial lists and concurrent list is definitely an addendum.
• Abolition of Diarchy and introduced provincial autonomy.
• Abolition of Council Asia.
• Establishment of RBI, federal court, Provincial Public service commissions and Joint Public service commissions.
• Extension of bicameralism, communal representation and franchise.

The federal structure of government, provincial autonomy, a bicameral central legislature consisting of a federal assembly and a Council of States and the separation of legislative powers between the centre and states are some of the provisions of the Act which are present in the Constitution of India.

Indian Independence Act 1947

Main article: Indian Independence Act 1947

The legislation was formulated by the government of Prime Minister Clement Attlee and the Governor General of India Lord Mountbatten, after representatives of the Indian National Congress, the Muslim League, and the Sikh community came to an agreement with the Viceroy of India, Lord Mountbatten of Burma, on what has come to be known as the 3 June Plan or Mountbatten Plan. The Prime Minister of the United Kingdom announced on 20 February 1947 that:

1. British Government would grant full self-government to British India by June 1948 at the latest,
2. Partition of India and Pakistan.
3. The future of Princely States would be decided after the date of final transfer is decided.
4. Empowering of Constitution for the nations.

On 18 July 1947, British India divided into two new independent states, India and Pakistan, which were to be dominions under the Commonwealth of Nations until they had each finished drafting and enacted a new constitution. The Constituent Assembly was divided into two for the separate states, with each new Assembly having sovereign powers transferred to it for the respective dominion. The Act also terminated British suzerainty over the princely states, each of which was left to decide whether to accede to one or other of the new dominions or to continue as independent states in their own right.

Constituent Assembly

Main article: Constituent Assembly of India

The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Dr B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Purushottam Mavalankar, Sandipkumar Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng represented the Gorkha Community. Prominent jurists like Alladi Krishnaswamy Iyer, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members.

The first temporary 2-day president of the Constituent Assembly was Dr Sachchidananda Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly. The members of the Constituent Assembly met for the first time on 9 December 1946.

Drafting

On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. These members were Pandit Govind Ballabh Pant, Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar (Ex-Prime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer). The constitutional advisor was Sir Benegal Narsing Rau (who became First Indian Judge in International Court of Justice, 1950–54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). Owing to death of D P Khaitan, T T Krishnamachari was chosen to be included in the drafting committee. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26 November 1949, the process was completed and Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete.

The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India. Rs.1,00,00,000 was official estimate of expenditure on constituent assembly. The Constitution has undergone many amendments since its enactment.

Structure

The Constitution, in its current form (September 2012), consists of a preamble, 25 parts containing 448 articles, 12 schedules, 5 appendices and 99 amendments, the latest of which came into force on 13 April 2015.

Parts

The individual Articles of the Constitution are grouped together into the following Parts:

• Preamble
• Part I – Union and its Territory
• Part II – Citizenship.
• Part III – Fundamental Rights
• Part IV – Directive Principles of State Policy
• Part IVA – Fundamental Duties
• Part V – The Union
• Part VI – The States
• Part VII – States in the B part of the First schedule (repealed)
• Part VIII – The Union Territories
• Part IX – The Panchayats
• Part IXA – The Municipalities
• Part IXB – The Co-operative Societies.
• Part X – The scheduled and Tribal Areas
• Part XI – Relations between the Union and the States

• Part XII – Finance, Property, Contracts and Suits
• Part XIII – Trade and Commerce within the territory of India
• Part XIV – Services Under the Union, the States
• Part XIVA – Tribunals
• Part XV – Elections
• Part XVI – Special Provisions Relating to certain Classes
• Part XVII – Languages
• Part XVIII – Emergency Provisions
• Part XIX – Miscellaneous
• Part XX – Amendment of the Constitution
• Part XXI – Temporary, Transitional and Special Provisions
• Part XXII – Short title, date of commencement, Authoritative text in Hindi and Repeals

Schedules

Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.

• First Schedule (Articles 1 and 4) - This lists the states and territories of India, lists any changes to their borders and the laws used to make that change.
• Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)- – This lists the salaries of officials holding public office, judges, and Comptroller and Auditor General of India.
• Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)—Forms of Oaths – This lists the oaths of offices for elected officials and judges.
• Fourth Schedule (Articles 4(1) and 80(2)) – This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.
• Fifth Schedule (Article 244(1)) – This provides for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions).
• Sixth Schedule (Articles 244(2) and 275(1))— Provisions made for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.
• Seventh Schedule (Article 246) —The union (central government), state, and concurrent lists of responsibilities.
• Eighth Schedule (Articles 344(1) and 351)—The official languages.
• Ninth Schedule (Article 31-B) – Validation of certain Acts and Regulations.
• Tenth Schedule (Articles 102(2) and 191(2))—"Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.
• Eleventh Schedule (Article 243-D) —Panchayat Raj (rural local government),
• Twelfth Schedule (Article 243-W) — Municipalities (urban local government).

Appendices

• Appendix I—The Constitution (Application to Jammu and Kashmir) Order, 1954.
• Appendix II— Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir.
• Appendix III—Extracts from the Constitution (Forty-fourth Amendment) Act, 1978.
• Appendix IV—The Constitution (Eighty-sixth Amendment) Act, 2002.
• Appendix V— The Constitution (Eighty-eighth Amendment) Act, 2003.

Amendment

Main article: Amendment of the Constitution of India

See also: List of amendments of the Constitution of India

The process of rewriting any part of the constitution is called amendment. Amendments to the Constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority and voting. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures. Unlike the ordinary bills (with exception to money bills), there is no provision for joint sitting of the two houses of the parliament to pass a constitutional amendment bill.

As of September 2013 there have been 120 amendment bills presented in the Parliament, out of which 98 have been passed to become Amendment Acts. Most of these amendments address issues dealt with by statute in other democracies. However, the Constitution is so specific in spelling out government powers that many of these issues must be addressed by constitutional amendment. As a result, the document is amended roughly twice a year.

In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution.

Limitations

Main article: Basic structure doctrine

The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that not every constitutional amendment is permissible, the amendment must respect the "basic structure" of the constitution, which is immutable. This "Doctrine of Basic Features" of the Constitution lays down that certain basic features of the Constitution cannot be abridged or deleted or repealed; what are the "basic features" has not been defined exhaustively anywhere and whether a particular provision of the Constitution of India is a "basic feature" will be decided as and when an issue is raised before the court in an individual case.

In the Golak Nath v. State of Punjab case of 1967, the Supreme Court ruled that the State of Punjab could not restrict any of the Fundamental rights found in the basic structure doctrine. The Golak Nath family members were landowners of approximately 500 acres of farmland, but the State of Punjab insisted upon restricting the brothers to only 30 acres apiece under the Security and Land Tenures Act. Golak Nath then challenged this restriction stating that it denied their constitutional rights under Article 32. Land ownership and practice of profession, in this case, were argued to be fundamental rights protected by the basic structure doctrine enacted in 1953. The ruling of the Golak Nath v. State of Punjab case was eventually overturned with the ratification of the 24th Amendment in 1971.

Adoptions from other constitutions

The architects of Indian constitution were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government and the establishment of a supreme court. The principles adopted from Canada were federal government with strong centre and also distribution of powers between central government and state governments along with placing residuary powers with central government. From Ireland, directive principle of state policy was adopted. From Germany, the principle of suspension of fundamental rights during emergency was adopted. From Australia, the idea of having a Concurrent list of shared powers was used as well and some of the terminology was utilized for the preamble.

Judicial review

Judicial review is adopted in the Constitution of India from judicial review in the United States (see). In the Indian constitution, Judicial review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that:

1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.
2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio.
3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.

Due to the adoption of the thirty-eighth amendment, the Indian Supreme Court was not allowed to preside over any laws adopted during a state of emergency that infringes upon fundamental rights under article 32 i.e Right to Constitutional Remedies.Later with the Forty-second Amendment of the Constitution of India, article 31 C was widened and article 368(4) and 368(5) were added, which stated that any law passed by the parliament can't be challenged in the court on any ground. The Supreme court in the Minerva Mills v. Union of India case said that Judicial Review is one of the basic character of the constitution and therefore can't be taken away quashing Article 368(4)&(5) as well as 31 C.

Notable constitutional lawyers

• Subodh Markandeya
• Harish Salve
• Kottayan Katankot Venugopal
• Indira Jaising

See also

• Constitutional economics
• Constitutionalism
• History of democracy
• List of national constitutions
• Magna Carta
• Rule according to higher law
• Uniform civil code of India

Bibliography

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• Pylee, M.V. (1997). India's Constitution. S. Chand & Co. ISBN 81-219-0403-X. 
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• Sen, Sarbani (2007). The Constitution of India: Popular Sovereignty and Democratic Transformations. Oxford University Press. ISBN 978-0-19-568649-4. 
• Sharma, Dinesh; Singh, Jaya; Maganathan, R. et al. (2002). Indian Constitution at Work. Political Science, Class XI. NCERT. 
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External links

• Original Unamended version of the Constitution of India
• Ministry of Law and Justice of India – The Constitution of India Page
• Constitution of India as of 29 July 2008
• Constitutional predilections
• Commonwealth Legal Information Institute– Online Copy