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, the permanent 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. The nation is governed on the basis of this Constitution. Dr. Bhimrao Ramji Ambedkar is regarded as the chief architect of the Indian Constitution, but it was the Constituent Assembly that worked under Dr Ambedkar and his team that drafted the final copy of the Indian Constitution

Jawaharlal Nehru signing the Constitution

The constitution of India imparts constitutional supremacy and not parliamentary supremacy as it is not created by the Parliament but created by a constituent assembly and adopted by its people with a declaration in the preamble to the constitution. Parliament cannot override the constitution.

The Constitution was adopted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 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 To ensure constitutional autochthony, the framers of constitution repealed the prior Acts of the British Parliament via the Article 395 of the constitution. India celebrates the coming into force of the constitution on 26 January each year as Republic Day.

The Constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavors to promote fraternity among them.

Background

Dr. 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. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act.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.

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.

Previous legislation used as sources

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 viz. Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909, Government of India Act 1919, Government of India Act 1935 and the Indian Independence Act 1947. The last legislation which led to the creation of the two independent nations of India and Pakistan provided for the division of the erstwhile Constituent Assembly into two, with each new assembly having sovereign powers transferred to it, to enable each to draft and enact a new constitution, for the separate states.

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. The 389 member Constituent Assembly took almost three years (two years, eleven months and eighteen days to be precise) to complete its historic task of drafting the Constitution for Independent India. During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were spent on the consideration of the Draft Constitution. On 29 August 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India. While deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled. Dr B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Ganesh Vasudev 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. This day is celebrated as National Law Day or Constitution Day.

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.

Influence of other constitutions

British Constitution

• Parliamentary form of government

• The idea of single citizenship

• The idea of the Rule of law

• Institution of Speaker and his role

• Lawmaking procedure

• Procedure established by Law

United States Constitution

• Charter of Fundamental Rights

• Federal structure of government

• Electoral College

• Independence of the judiciary and separation of powers among the three branches of the government

• Judicial review

• President as supreme commander of
  armed forces

• Equal Protection under law

Irish Constitution

• Directive principles of state policy

Australian Constitution

• Freedom of trade and commerce within
  the country and between the states

• Power of the national legislature to make
  laws for implementing treaties, even on
  matters outside normal Federal jurisdiction

• Concurrent List
• Terminology for the Preamble

French Constitution

• Ideals of Liberty, Equality and Fraternity

Canadian Constitution

• A quasi-federal form of government —
  a federal system with a strong central government
• Distribution of powers between the central government and state governments
• Residual powers retained by the central government

Constitution of the Soviet Union

• Fundamental Duties u/a 51-A

• A Constitutionally mandated Planning Commission
  to oversee the development of the economy

Other Constitutions

• Emergency Provision u/a 356, Weimar Constitution (Germany)

• Amendment of Constitution, South Africa

• Due Procedure of Law, Japan

Structure

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. The Constitution, in its current form (September 2012), consists of a preamble, 25 parts containing 448 articles, 12 schedules, 5 appendices and 100 amendments, the latest of which came into force on 1 August 2015.

Parts

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

• Preamble

with the words "socialist" and "secular" added to it in 1976 by the 42nd constitutional amendment (mini constitution).

• 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.

The constitution and the government

Institutions of governance, such as the Parliament, the President, the Judiciary, the Executive, etc. did not exist before the adoption of the constitution, by the people of India, and were created by it. With the aid of the Constitution, India is governed by a parliamentary system of government with the executive directly accountable to the legislature. It states that there shall be a President of India who shall be the head of the executive, under Articles 52 and 53. The President's duty is to preserve, protect and defend the constitution and the law under Article 60 of the Indian constitution. Article 74 provides that there shall be a Prime Minister as the head of union cabinet which would aid and advice the President in performing his constitutional duty. Union cabinet is collectively responsible to the House of the People as per Article 75(3).

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. Article 356 permits the President to dismiss a state government when a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. This power was abused earlier as state governments came to be dismissed on the flimsiest of grounds, and more due to the political discomfiture of the party in power at the centre. Post - Bommai judgment, such a course of action has been rendered rather difficult, as the courts have asserted their right to review it. Consequently, very few state governments have been disbanded since.

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 and the legislature

Main article: Amendment of the Constitution of India

See also: List of amendments of the Constitution of India

Amendment

The process of addition, variation or repeal of any part of the constitution by the Parliament under its constituent powers, is called amendment of the constitution. The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds members are present and voted. 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 under legislative powers of Parliament as per Article 245 (with exception to money bills), there is no provision for joint sitting of the two houses (Lok Sabha and Rajya Sabha) of the parliament to pass a constitutional amendment bill. During recess of Parliament, President can not promulgate ordinances under his legislative powers as per Article 123, Chapter III which needs constitutional amendment. Deemed amendments to the constitution which can be passed under legislative powers of Parliament, are no more valid after the addition of Article 368 (1) by Twenty-fourth Amendment of the Constitution of India.

As of September 2015, there have been 120 amendment bills presented in the Parliament, out of which 100 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 thrice in a two year's duration.

In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution. Government of India, establishes term based law commissions to recommend law reforms for maximising justice in society and for promoting good governance under the rule of law.

Limitations

Main article: Basic structure doctrine

The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that an amendment cannot destroy what it seeks to modify, which means while amending anything, it cannot tinker with the "basic structure" or framework of the constitution, which is immutable. Such an amendment will be declared invalid even though no part of the constitution is explicitly prevented from being amended, nor does the Basic Structure Doctrine protect any single provision of the Constitution. Yet, this "Doctrine of Basic Features" lays down that, the Constitution when "read as a whole", that what comes to be understood as its basic features cannot be abridged, deleted or abrogated. What these "basic features" are, have not been defined exhaustively anywhere, and whether a particular provision of the Constitution of India is a "basic feature" is decided as and when an issue is raised before a court in an instant 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 protected by the basic structure doctrine. Extent of land ownership and practice of profession, in this case, were held to be a fundamental right. The ruling of the Golak Nath v. State of Punjab case was eventually overturned with the ratification of the 24th Amendment in 1971.

The constitution and the judiciary

The Judiciary interprets the Constitution as its final arbiter. It is its duty as mandated by the Constitution, to be its watchdog, by calling for scrutiny any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping bounds set for them by the Constitution. It acts like a guardian in protecting the fundamental rights of the people, as enshrined in the Constitution, from infringement by any organ of the state. It also balances the conflicting exercise of power between the centre and a state or among states, as assigned to them by the Constitution.

While pronouncing decisions under its constitutional mandate, it is expected to remain unaffected by pulls and pressures exerted by other branches of the state, citizens or interest groups. And crucially, independence of the judiciary has been held to be a basic feature of the Constitution, and which being inalienable, has come to mean - that which cannot be taken away from it by any act or amendment by the legislature or the executive.

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 43. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 43 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.

The constitution - a living document

"The Indian Constitution is first and foremost a social document, and is aided by its Parts III & IV (Fundamental Rights & Directive Principles of State Policy, respectively) acting together, as its chief instruments and its conscience, in realising the goals set by it for all its people."

The Constitution's provisions have consciously been worded in generalities, though not in vague terms, instead of making them rigid and static with a fixed meaning or content as in an ordinary statute, so that they may be interpreted by coming generations of citizens with the onward march of time, to apply to new and ever-changing and demanding situations, making the Constitution a living and an organic document. Justice Marshall asserts: “It is the nature of (a) Constitution that only its great outlines be marked”. It is a document intended “to endure for ages” and therefore, it has to be interpreted not merely on the basis of the intention and understanding of the its framers but on the experience of its working effectively, in the existing social and political context.

For instance, "right to life" as guaranteed under Article 21, has by interpretation been expanded to progressively mean a whole lot of human rights

In the conclusion of his Making of India's Constitution, Justice Khanna writes:

"If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people."

See also

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

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
• Indian Constitution MCQ Quiz