Constitution of India

The Constitution of India was passed by the Constituent Assembly of India on November 26, 1949, and came into effect on January 26, 1950. India celebrates January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 444 articles and 12 schedules for a total of 117,369 words in the English language version.


The importance of the Constitution

The Constitution lays down the basic structure of government under which the people are to be ruled. It establishes the main organs of government - the executive, the legislature and the judiciary. The Constitution not only defines the powers of each organ, but also demarcates their responsibilities. It regulates the relationship between the different organs and between the government and the people.

The Constitution is superior to all other laws of the country. Every law enacted by the government has to be in conformity with the Constitution. The Constitution lays down the national goals of India - Democracy, Socialism, Secularism and National Integration. It also spells out the rights and duties of citizens.

History

The Cabinet Mission

World War II in Europe came to an end on May 9, 1945. In July, a new government came to power in the United Kingdom. The new British government announced its Indian Policy and decided to convene a constitution drafting body. Three British cabinet ministers were sent to find a solution to the question of India's independence. This team of ministers was called the Cabinet Mission.

The Cabinet Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by July-August 1946. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body. The Assembly began work on 9 December 1947.

The Constituent Assembly

The people of India elected the members of the provincial assemblies, who in turn elected the members of the Constituent Assembly.

The Constituent Assembly had members belonging to different communities and regions of India. It also had members representing different political persuasions. Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some important figures in the Assembly's discussions. There were more than 30 members of the scheduled classes. The Anglo-Indian community was represented by Frank Anthony and the Parsis were represented by H.P. Modi. Constitutional experts like Alladi Krishnaswamy Aiyer, B.R. Ambedkar, B.N. Rau and K.M. Munshi were also members of the Assembly. Sarojini Naidu and Vijaylakshmi Pandit were important women members. Dr. Sachidanand Sinha was the first president of the Constituent Assembly. Later, Dr.Rajendra Prasad was elected president of the Constituent Assembly while B.R. Ambedkar was appointed the Chairman of the Drafting Committee.

The Constituent Assembly met for 166 days, spread over a period of 2 years, 11 months and 18 days. Its sessions were open to the press and the public.

Obectives Resolution

The underlying principles of the Constitution were laid down by Jawaharlal Nehru in his Objectives Resolution :

• India is an Independent, Sovereign, Republic; 

• India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States as are willing to be a part of the Union; 

• Territories forming the Union shall be autonomous units and exercise all powers and functions of the Government and administration, except those assigned to or vested in the Union; 

• All powers and authority of sovereign and independent India and its constitution shall flow from the people; 

• All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities before law; and fundamental freedoms - of talk, expression, belief, faith, worship, vocation, association and action - subject to law and public morality; 

• The minorities, backward and tribal areas, depressed and other backward classes, shall be provided adequate safeguards; 

• The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be maintained according to justice and law of civilized nations; 

• The land would make full and willing contribution to the promotion of world peace and welfare of mankind. 
  

Features

The Constitution of India draws extensively from Western legal traditions in its enunciation of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation's constitution "has provided so much impetus toward changing and rebuilding society for the common good." Since its enactment, the constitution has fostered a steady concentration of power in the hands of the central government - especially the Office of the Prime Minister. This centralization has occurred in the face of the increasing assertiveness of an array of ethnic and caste groups across Indian society. Increasingly, the government has responded to the resulting tensions by resorting to the formidable array of authoritarian powers provided by the Constitution. However, a new assertiveness shown by the Supreme Court and the Election Commission suggests that the remaining checks and balances among the country's political institutions are resilient and capable of supporting Indian democracy. Furthermore regional parties are gaining popularity at the expense of national parties which has led to coalition governments at the centre. As a consequence, power is becoming more decentralised.

The Constitution in its final form owes much to a number of different principles from various other Constitutions. The general structure of the Constitution's democratic framework was largely the work of B. N. Rau, a constitutional scholar of international standing. Supporters of independent India's founding father, Mohandas K. Gandhi, backed measures that would form a decentralized polity with strong local government — known as panchayat — in a system known as Panchayati Raj, i.e. rule by Panchayats. However, the view of more modernist leaders such as Jawaharlal Nehru, ultimately prevailed leading to the establishment of a parliamentary system of government and a federal system with a strong central government.

Schedules

Schedules can be added to the constitution by amendment. The twelve schedules in force cover the designations of the States and Union Territories; emoluments for high-level officials; forms of oaths; allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory; provisions for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions); provisions for the administration of tribal areas in Assam; the Union (central government), State, and Concurrent (dual) lists of responsibilities; the official languages; land and tenure reforms; the association of Sikkim with India; anti-defection provisions for Members of Parliament and Members of the State Legislatures; rural development; and urban planning.

Amendments

Methods of Amendment

• By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent. 

• By special majority of the Parliament: Amendments can be made in this category by a two - third majority of the total number of members present and voting, which should not be less than half of the total membership of the house. 

• By special majority of the Parliament and ratification of at least half of the state legislatures by special majority. After this, it is sent to the President for his assent. 

An amendment to the Constitution is an extremely difficult affair, and normally needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. The Constitution of India is one of the most frequently amended constitutions in the world. The first amendment came only a year after the adoption of the Constitution and instituted numerous minor changes. Many more amendments followed, at a rate of almost two amendments per year since 1950. Many matters that would be dealt with by ordinary statutes in most democracies must be dealt with by constitutional amendment in India due to the document's extraordinary detail. Most of the Constitution can be amended after a quorum of more than half of the members of each house in Parliament passes an amendment with a two-thirds majority vote. Articles pertaining to the distribution of legislative authority between Union and State governments must also be approved by 50 percent of State legislatures.

In 1974, the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala enunciated the Basic Structure Doctrine, which expanded the scope of judicial review to include the power to review Constitutional Amendments passed by the Legislature. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being violative of the Basic Structure of the Constitution. Some noted authors of Constitutional law, such as HM Seervai have argued that this is an usurpation of amending power by the judiciary which was never intended by the framers of the Constitution


Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: 
JUSTICE, social, economic and political; 
LIBERTY of thought, expression, belief, faith and worship; 
EQUALITY of status and of opportunity; 
and to promote among them all 
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; 
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 

The preamble is not a part of the Constitution of India as it is not enforceable in a court of law. However, the Supreme Court has, in the case of 'Kesavananda Bharati v. State of Kerala', recognized that the Preamble is a part of the Constitution and may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there is an ambiguity in the article itself and should not be treated as a rights bestowing part of the Constitution.

An interesting side note concerns the words "SOCIALIST" and "SECULAR" in the preamble. The original drafting used the words "SOVEREIGN DEMOCRATIC REPUBLIC". The two additional words "SOCIALIST" and "SECULAR" were introduced by the controversial 42nd amendment. The amendment was pushed through by Indira Gandhi in 1976, when she had dictatorial powers. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience.


The importance of the Preamble

The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. In a majority of decisions, the Supreme Court of India has held that the objectives specified in the preamble constitute the basic structure of the Indian Constitution, which cannot be amended.Though Preamble is a part of the constitution still it nor any of its content is leagally enforcible.

The first words of the Preamble - "We, the people" - signifies that power is ultimately vested in the hands of the people of India. The Preamble lays down the most important national goals which every citizen and the government must try to achieve, such as socialism, secularism and national integration. Lastly, it lays down the date for the adoption of the Constitution - 26 November 1949.


Explanation of some of the important words in the Preamble

Sovereign

The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

Socialist

The word socialist was added to the Preamble by the 42nd amendment act of 1976. It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds of caste, colour, creed, sex, religion, language, etc. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasizing a commitment towards the formation of a Welfare state.

India has adopted a mixed economy and the government has framed many laws to achieve the aim of social equality, such as the Abolition of Untouchability and Zamindari, the Equal Wages Act and the Child Labour Prohibition Act.

Secular

The word secular was inserted into the Preamble by the 42nd amendment act of 1976. It implies equality of all religions and religious tolerance. India, therefore does not have an official state religion. Every person has the right to preach, practise and propagate any religion they choose. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of our constitution.

Democratic

India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years.


Criticisms

The Constitution of India differs from other western constitutions, from which it has derived inspiration, in the fact that it stipulates the supremacy of the legislature as the supreme law making body of the land. In that respect, it renders the legislative arm of government nominally more powerful than either the executive or the judiciary. Thus, the Indian Constitution does not follow a clear system of "checks and balances", as defined in the philosophy of Trias politica by Montesquieu.