Constitution of India

The Constitution of India is the supreme law of India. 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 22 parts, 12 schedules and 97 amendments. Besides the English version, there is an official Hindi translation.

The Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.

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

The words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on 26 January each year as Republic Day.

Background

Main article: Indian independence movement

The major portion of the Indian subcontinent was under British colonial rule from 1757 to 1947. The impact of economic, political and social exploitation during this period helped the gradual rise of the Indian independence movement to gain independence from foreign rule.

The movement culminated in the formation of the Dominion of India on 15 August 1947, along with the Dominion of Pakistan. The Constitution of India was adopted on 26 November 1949 and came into effect on 26 January 1950, proclaiming India to be a sovereign, democratic republic.

It contained the founding principles of the law of the land which would govern India after its independence from British rule. On the day the constitution came into effect, India ceased to be a dominion of the British Crown. 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. It took 2 Years 11 Months and 8 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.

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. 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.

The Cabinet Mission Plan

Main article: 1946 Cabinet Mission to India

In 1946, British Prime Minister Clement Attlee formulated a cabinet mission to India to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership as well as provide India with independence under Dominion status in the Commonwealth of Nations. The 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 August 1946. The Constituent Assembly of India first met and began work on 26 November 1946.

The mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. However, Lord Wavell, the Viceroy of India, did not participate.

Indian Independence Act 1947

Main article: Indian Independence Act 1947

The Indian Independence Act, passed by the British Parliament on 18 July 1947, divided British India 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.

 However, in most cases the states were so dependent on central institutions that they were widely expected to accede to a dominion.

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.

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 Mavlankarwere also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members.

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

The first temporary 2-day president of the Constituent Assembly was Dr Sachidanand 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 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 Nov. 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 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, the establishment of a supreme court.

The principles adopted from Canada were unitary government with strong centre and also distribution of powers between central government and provinces 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 principle of Concurrent list and Language of preamble was adopted.

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 463  articles, 12 schedules, 2 appendices and 97 amendments to date (latest being related to co-operative societies added in part IX(B) in 2012). Although it is federal in nature it also has a strong unitary bias. 

 Parts

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

• Preamble
• Part I[12] – Union and its Territory
• Part II[13] – Citizenship.
• Part III – Fundamental Rights.
• Part IV[14] – Directive Principles of State Policy.
• Part IVA – Fundamental Duties.
• Part V[15] – The Union.
• Part VI[16] – The States.
• Part VII[17] – States in the B part of the First schedule(Repealed).
• Part VIII[18] – The Union Territories
• Part IX[19] – The Panchayats.
• Part IXA – The Municipalities.
• Part IXB – The Cooperative 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, 65, 75, 97, 125, 148, 158, 164, 186 and 221)- – This lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of India.

·         Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219)—Forms of Oaths – This lists the oaths of offices for elected officials and judges.

·         Fourth Schedule (Articles 4 and 80) – This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.

·         Fifth Schedule (Article 244) – 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 and 275) — Provisions 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 and 351)—the official languages.

·         Ninth Schedule (Article 31-B) – Originally Articles mentioned here were immune from judicial review on the ground that they violated fundamental rights. but in a landmark judgement in 2007, the Supreme Court of India held in I.R. Coelho v. State of Tamil Nadu and others that laws included in the 9th schedule can be subject to judicial review if they violated the fundamental rights guaranteed under Article 14, 15, 19, 21 or the basic structure of the Constitution.

·         Tenth Schedule (Articles 102 and 191)—"Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.

·         Eleventh Schedule (Article 243-G)—Panchayat Raj (rural local government).

·         Twelfth Schedule (Article 243-W)—Municipalities (urban local government).

System of government

The basic form of the Union Government envisaged in the Constitution is as follows,

A democratic executive must satisfy three conditions: 1. It must be a stable executive, 2. It must be a responsible executive. To date, both conditions have not been attained to an equal degree concurrently.

Federal Structure

Three subject lists, the Union list, the State list, and the Concurrent list, define the legislative powers of each level of government. The Union government reserves the right to make laws in areas specified on the Union list, the state governments allowed to make laws in areas specified on the State list, and laws in areas listed on the concurrent list may be made at either a state or federal level.

The areas of public order, dealings with local governments, and certain types of taxes are examples of topics which are on the state lists, where Parliament is forbidden to intervene barring exceptional circumstances. Issues such as education, transportation, and criminal law are on the concurrent list, where both state legislatures and Parliament are able to make laws. All residuary powers are vested in the Union.

Parliamentary Democracy

The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the head of state, and all the business of the Executive and Laws of the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers.

The Prime Minister and the Council of Ministers exercise their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either the Lok Sabha or the Rajya Sabha, the upper house of the Parliament. Thus, the Parliament exercises control over the Executive.

A similar structure is present in States, where the directly elected Legislative Assembly enjoys control over the Chief Minister and the State Council of Ministers.

Independent Judiciary

The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and as an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates the provisions of the Constitution.

Changing the constitution

Main article: Amendment of the Constitution of India

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.

As of January 2012 there have been 115 amendment bills presented in the Parliament, out of which 97 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.

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.

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

Judicial review of laws

Judicial review is adopted in the Constitution of India from the Constitution of the United States of America. 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.

Hints

1.     Although the last article of the Constitution is Article 395, the total number, as of March 2012 is 448. New articles added through amendments have been inserted in the relevant location in the original constitution. In order not to disturb the original numbering, the new articles are inserted with alphanumberic enumerations. For example, Article 21A pertaining to Right to Education was inserted by the 86th Amendment Act.

2.     Scheduled Areas are autonomous areas within a state, administered federally, usually populated by a predominant Scheduled Tribe.

3.     Scheduled Tribes are groups of indigenous people, identified in the Constitution, struggling socio-economically