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Anshul Nandwani
Kalyan Law College, Affiliated to Hemchand Yadav University, Durg
The Indian Constitution is the supreme lex of the nation. It sets the foundation upon which the state functions. It enlists the fundamental principles that it adheres to, to function effectively and efficiently. It provides the essential framework for the polity and governance of our nation. It is the grandeur text envisioned by our founding fathers and the constituent assembly of our country.
The Importance of studying and understanding the Constitution of India lies in the fact that it is essential to understand the core principles upon which our statutes set foot. It provides for the structure, functioning, powers, and limitations of India's political set-up, including the Legislature, the Executive, and the Judiciary. It also explains the intra and inter-relations of these bodies.
The Indian Constitution stands out for its unique character and lively spirit. It mirrors the society's historical developments, philosophy, and social values.
The Constitution provides the ultimate authority in the domain of the Indian legal system. As law students, it is necessary to understand the reasoning and principles underscored in the Constitution of India. Law students must hold a firm grip over the understanding of governmental powers the decoding of the balance between personal liberty and social order, and understanding the relations between people and the government.
Studying constitutional law as a law student is a serious duty rather than just a knowledge exercise. Reading, interpreting and understanding the Constitution help us understand the roots upon which the nation's social, political and legal system stands. It is a pledge to protect the rule of law, promote justice, and significantly contribute to the current conversation on rights, liberties, and other contemporary issues. Understanding the Constitution and involvement with constitutional law will mould us into legal scholars and hone our skills to negotiate the complexity of a quickly changing legal environment successfully.
1. Historical Background
The political fabric of modern India is strictly established and secured by the Indian Constitution. It was adopted on January 26, 1950. It is a result of the major and minor events that took place in the past. These events witnessed the passage of many acts by the Britishers which had a significant impact on the making of the Constitution of India.
The major acts included the Charters of 1813, 1833, and 1853, the Government of India Act, of 1858, the Morley-Minto Reforms of 1909, the Montagu-Chelmsford Reforms of 1919, the Government of India Act of 1935 and lastly the Indian Independence Act 1947.
These acts were passed in response to some major events that took place and shaped the course of history such as the revolt of 1857, the Boycott movement, the Jallianwala Bagh event the World Wars, the Non-Cooperation movement, the Civil Disobedience Movement, the Simon Commission.
2. Constituent Assembly
The task of framing the Constitution was handed over to the Constituent Assembly. The idea of creating such an assembly for the drafting of the Constitution was given by M.N. Roy in 1934. Finally, it was constituted in 1946 and first met on December 9, 1946.
The temporary President of the assembly was Dr. Sachchidananda Sinha. later, Dr Rajendra Prasad was elected and became the president. H.C. Mukherjee and V.T. Krishnamachari were the two elected Vice-Presidents.
The total number of members in the assembly was 389 as prescribed by the Cabinet Mission Plan. The first sitting witnessed 211 members. The reason was that the Muslim League decided to boycott the Assembly after securing 73 seats. Whereas, the Princely states who were allotted 93 seats also decided to not take part in the process.
The assembly took 11 sessions over 2 years, 11 months and 18 days to frame the Constitution. The final session took place on January 24, 1950. However, the assembly continued as a provisional parliament from 26th January 1950 until the 1951-52 general elections.
3. The Preamble
The preamble is the introductory part. The preamble is the key. It helps us to decode the philosophy and core values of the Constitution.
It is inspired by the ‘Objective Resolution’, which was drafted and moved by Shri Pandit Jawaharlal Nehru.
The preamble contains the following components.
● It states that the people of India are the source of authority of the Constitution.
●The first part explains the true nature of the Constitution. This will be further discussed in the upcoming points.
● It outlines the objectives it seeks to deliver. Justice, liberty, equality and fraternity are some key objectives the Constitution aims to achieve.
● It mentions the date when the Constitution was adopted.
The preamble is the window through which we look at the provisions to understand it better. Sir Alladi Krishnaswamy Iyer, a member of the Constituent Assembly remarked, ‘The Preamble to our Constitution expresses what we had thought or dreamt so long.’
Is it a part of the Constitution?
4. Sources
The contents and provisions of the Constitution are borrowed from the constitutions of countries across the globe including the UK, the USA, the USSR, Ireland, Canada, France, Japan etc. In parallel, the constituent assembly incorporated a major chunk of provisions by referring to the Government of India Act of 1935.
Most of the provisions in our constitution appear to be identical to the provisions of the 1935 Act.
Let’s now discuss and know what features were borrowed from these sources.
● The features that were adopted from The Government of India Act of 1935 were the office of the Governor, the federal scheme of the government structure, Public service commissions etc.
● The constitution was influenced by the British Constitution when it adopted the Concept of the Rule of Law, the Parliamentary form of government, the concept of single citizenship, the system of the cabinet, the system of bicameralism legislature etc.
●The Constitution referred to the US Constitution for the features of fundamental rights, the Judiciary’s independence, the concept of Judicial Review, and the post of the vice-president.
● The chapter on Fundamental Duties under part IVA is inspired by the Soviet Constitution(USSR - presently Russia)
● The Provision of the Directive Principles of State Policies, the method of electing the President, and Nominating the members of the Rajya Sabha was taken from the Irish Constitution.
● Features such as the Federal system of government which has a strong shift towards the centre, the concept that the residuary powers remain with the centre, and the Supreme Court’s advisory jurisdiction is borrowed from the Canadian Constitution.
● The ideals of liberty, equality and fraternity were borrowed from the Constitution of France and the concept of the Procedure established by Law is taken from the Constitution of Japan.
5. Articles, Schedules and Amendments
The Present constitution consists of 448 articles which are divided into 25 parts. There are in total of 12 Schedules. The Original Constitution when adopted in the year 1950 had 395 articles divided into 22 parts and eight schedules. To date, the constitution has been amended 104 times by the parliament since 1950.
6. The Federal System of India has a Strong Unitary Tilt
A federal system of government is one where the power structure is such that it is divided between the government at the centre and the government at the regional level. The powers and the jurisdiction are determined and defined by the Constitution.
Indian Constitution also reflects a federal form of the governmental system by possessing the following features - Dual Government, Written constitution, Division of Powers, Rigid Constitution, Bicameral Legislature etc. However, the constitution has features such as a strong centre, All India Services, Flexibility of the Constitution, Emergency Provisions, Single Citizenship, Appointment of Governor, etc.
India is a case sui generis, as stated by Alexanderowicz where both the federal and unitary character are resembled by the constitution for the nation. The power shift is towards the union. The motive behind this was to safeguard the unity and integrity of the country.
India's federal structure has been specially designed to meet the needs of changing times and circumstances.
7. Fundamental Rights
The Constitution works towards securing every citizen of India some rights to ensure they reach their maximum potential. This means developing holistically, maintaining dignity and fulfilling their social, economic, and political needs and wants. These rights are inherent and safeguarded by the Judiciary empowered by the Constitution.
These Fundamental Rights are covered from Article 12 to 35 within Part III. It upholds the public interest and secures the unity and integrity of the nation.
It is essential to note that some of these Fundamental Rights are extended to non-citizens and legal entities as well along with the citizens. While some rights are just available to the citizens. If the rights of a person are harmed, then the person can move to court to seek redressal. This means it is justiciable and enforceable.
Another thing that is notable about fundamental rights is that they are not absolute. A person cannot enjoy these rights unconditionally. The parliament can impose restrictions as it deems fit within reasonable limits. Also, the parliament can repeal the rights. However, this can be done without going within the limits of the basic structure of the Constitution. This means these rights are not permanent except for those which come within the ambit of basic structure.
The Constitution provides for the following Fundamental Rights, Right to Equality, Right to Freedom, Right Against Exploitation, Right to Freedom of Religion, Cultural and Property Rights, and Right to Constitutional Remedies.
8. Right to Property
An individual’s property rights in India were safeguarded as Fundamental rights. It was mentioned under the provisions of Article 31 and Article 19(1)(f). Article 19(1)(f) dictated a person’s right to acquire, hold, and dispose of property and Article 31 ensured that no person shall be deprived of his property saved by the authority of law.
Later in 1978, by the 44th Constitutional Amendment Act the Right to property ceased to exist as a Fundamental right. It was moved under Article 300A which stated, “No person shall be deprived of his property save by authority of law”.
9. Constitutional Remedies
Article 32 comes under part III of the Constitution which covers the Fundamental Rights. This article acts as a sword defending the fundamental rights available to citizens from infringement. It is a striking feature that a right protecting fundamental rights is itself a fundamental right.
It provides a way to move directly to the Supreme Court of India whenever a fundamental right is harmed.
There are in total of 5 types of remedies available. These remedies are in the form of “writs”. The writs are namely, Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.
Article 32 defines the power of the apex court of India to issue writs specifically related to fundamental rights. Whereas, Article 226 defines the power of the high court of states to issue writs in matters of fundamental rights as well as other purposes. Therefore, the powers of the High Court to issue writs are wider than the Supreme Court.
Dr B.R. Ambedkar called the constitutional remedies the heart and soul of the Constitution.
10. Directive Principles of State Policy(DPSP)
It is important to note that the Constitution directs and guides the government in power to formulate and bring in policies to ensure the welfare of the people. It seeks to promote and establish a welfare state.
The DPSP imposes a moral duty on the government to promote socio-economic democracy. However, the DPSPs are instructive, which makes them non-justiciable and non-enforceable.
Spanning over from Articles 36 to 51 under Part IV the DPSPs can be read under the categories of Socialistic Principles, LIberal Intellectual Principles and Gandhian Principles based on their inherent character. Some of the principles are securing the rights to adequate means of livelihood for all, equitable distribution of resources, ensuring equal pay for the same work done by both men and women, free legal to the poor, securing a uniform civil code in the country, Independence of the judiciary, organising village panchayats, and promoting cottage industries.
11. Fundamental Duties
It is believed that rights and duties walk parallel to each other. Wherever there is a right, there is a duty. In 1976, the Sardar Swaran Singh Committee made recommendations on the requirement of FUndamental Dutiies to be incorporated in the Constitution. The primary motive to include the Fundamental Duties was to make the Citizens conscious of their responsibilities.
The Fundamental duties were added to the Constitution by an amendment. It was added by the 42nd Constitutional Amendment Act, 1976 under Part IVA. there is only one Article, Article 51A describing the fundamental duties. This added ten Fundamental Duties.
Presently there are eleven duties mentioned in Article 51A the eleventh duty was added in 2002 by the 86th Constitutional Amendment Act.
12. Emergency Provisions
Sometimes states can face unexpected situations or disruptions which can be a barrier to operating and rendering normal functions. Therefore, it is essential to have provisions to address these emergencies effectively. For this, the constitution of India suggests elaborated provisions and giving the president to meet the situations successfully.
During an Emergency, the state functioning comes under the control of the union government. The power tends to be concentrated under the union. This creates a tilted federal structure.
The Constitution of India essentially explains three types of emergency that can be declared by the President. The National Emergency can be declared on the grounds of War, External aggression and armed rebellion as explained under Article 352. The state can go under the President’s Rule if the constitutional machinery fails in that state under Article 356 or under Article 365 if the state fails to give effect to the directions of the union. If the Financial stability of the Country is threatened, the President can declare a Financial Emergency as prescribed under Article 360.
13. Rule of Law
The Rule of Law which was originally propounded by the British Jurist, A.V. Dicey. This theory explains and ensures that there should exist a government of laws and not of men. This states that everyone, citizens and government should function according to the law in existence. This ensures that there are no arbitrary powers exercised by anyone. It is the Rule of Law that upholds the Constitutional Supremacy.
14. Judiciary - Integrated and Independent
The provision under Article 50 directs the separation of the judiciary from the executive. The Constitution the Independence of the Judiciary by securing the tenure of judges, fixing the service conditions, not allowing them to practice after retirement, and the provision to punish for contempt of court. In addition to that the parliament is not allowed to discuss the conduct of judges in the houses. This is done to ensure the functioning of the Judiciary efficiently and there are no hindrances to render their service.
The Indian judiciary is integrated and follows a hierarchical structure. At the top lies the Supreme Court, followed by high courts for every state. Under the High Courts, subordinate courts are comprised of district courts and lower courts. This integrated judiciary enforces both the laws passed by the state and the union.
15. Judicial Review
This is an important power conferred to the Judiciary including the Supreme Court and High Courts by the Constitution. It is an essential element of the basic structure doctrine.
The Judiciary exercises its power when the question arises of the constitutional validity of any law passed by the legislature or any executive orders passed by the state or union government. If the law or order passed is found to be ultra vires the judiciary declares it as unconstitutional and invalid.
Article 13 explains that any law that is inconsistent with the Fundamental Rights shall be null and void. It ensures the supremacy of the Constitution, further protecting fundamental rights.
16. Basic structure Doctrine
The Doctrine of Basic Structure is an important feature that was innovated by the Supreme Court to safeguard the Constitution from being altered in a way that it loses its original character.
This Doctrine came into existence when there was a question arose about the amending powers of the Parliament. The Supreme Court reiterated in several cases that the Constitution cannot be amended in a way that it loses its fundamental character. The Amending powers of the Parliament are not unlimited.
The Basic Structure of the Constitution carries elements such as Constitutional supremacy, the Rule of Law, its Federal Nature, the ideals of Sovereignty, Democracy, Republic, the concept of a welfare state, Judicial Independence, Equality, judicial review etc. The list is not exhaustive as the Supreme has not strictly defined what constitutes the basic structure. It is merely a result of judicial interpretation of the Constitution.
17. Amendability of the Constitution, Flexible and Rigid
One striking feature of the Constitution is its living nature. The proof lies in its provision under Article 368 itself. To meet the needs and wants of contemporary times and adjust accordingly, it can be amended. This means the text can be altered, removed, or added when required.
However, there are types of amendments to the Constitution that can be categorized into 3 types based on majority required, Amendment by Simple Majority, Amendment by Special Majority, and Amendment by Special Majority and the ratification of half of the states.
18. The Concept of Separation of Powers
The Constitution mandates the distribution of power and function between every organ of the state. To prevent the powers from accumulating within a single body it is divided into the 3 organs of the states - the legislature, the executive and the Judiciary.
The constitution not only mandated the distribution of powers at the horizontal level but also at the vertical level. There are provisions in the Constitution that define the jurisdiction of each unit of the organs of the government. For example, Schedule 7 ensures the division of powers by enlisting the subjects on which the union and states are empowered to make laws.
However, the power division is not unlimited. Every organ is empowered to keep a check on the other two organs so that there is no misuse of power. This ensures a balance of power use. Hence the concept of checks and balances complements the separation of powers.
19. It Establishes Independent Bodies
The constitutes provides for the creation of Independent Executive bodies to render their services in the direction of strengthening the fundamental structure of the democratic system.
These bodies derive their powers from the constitution which makes them independent to function without any external obstructions. Election Commission of India to conduct free and fair elections. The comptroller and Auditor General who is responsible for auditing the government accounts. The Union Public Service Commission and State Public Service Commission confer the powers to recruit government officials.
20. It Envisions a Third Tier of Government
Originally the Constitution mandated a dual system of polity. However, due to constant efforts by the government, the 73rd and 74th Constitutional Amendment Act was passed in the year 1992, which established a third tier of government, Panchayats at the village level and Municipality at the urban level as a local form of government.
This was done to meet the needs of people at the local level. To promote decentralisation of governance and give effect to the Directive Principle.
21. Environmental Provisions
It is a basic necessity for a person to live in a pollution-free environment. The constitution has not directly prescribed for the provision regarding the protection of the environment. But it lays down the provision under the directive principles, and fundamental duties, and provides for environmental rights by interpreting article 21 of the Constitution. Furthermore, Article 253, empowers the legislature to make laws to give effect to international treaties including treaties related to environmental problems.
This reflects that the constitution promotes the idea of sustainable development and maintains an ecological balance.
22. Articles 14, 19, and 21 - the Golden Triangle
The most important rights given under the Fundamental rights are Article 14 - Right to Equality, Article 19 - Rights to Freedom which ensures six rights, and Article 21 - Right to life and personal liberty. These three rights cannot be read and interpreted separately but read together to deliver justice. This means that these rights are interconnected to each other.
Article 14 ensures equality before the law and equal protection of the law. Equality before the law ensures that everyone is similar before the eyes of the law. It states that there should not be any special treatment provided to anyone and no person is above the law. Equal protection of laws ensures that the laws provide equal treatment under similar situations.
Article 19 defines six different freedoms including freedom of speech and expression, freedom to assemble peacefully, freedom to form associations and unions, freedom to move freely, freedom to reside in any part of India, and freedom to practice any profession, carry out any trade, business and occupation.
Article 21 talks about securing the life and personal liberty of a person. However, if any procedure established by the law says otherwise Article 21 doesn’t apply. This means that a person has the right to live a life with dignity.
The Golden Triangle reflects the nobles and principles of the constitution of India. It upholds the democratic set-up of India while ensuring the rule of law.
23. Article 20
The Constitution highlights another pivotal feature under the chapter on fundamental rights. Article 20 covers and ensures that the judicial system will treat the people just and fair. The provision provides for safeguards against the state’s actions which are not fair and just.
The article has three main provisions that help us understand the rights and protection available to an arrested person. These protections are made available so they do not suffer any injustice. It acts as a shield safeguarding against the arbitrary actions of the state. Firstly, it states that no one can be held liable and punished for an action that was not a criminal act at the time of commission of that act. It simply means that the action cannot be punished retrospectively. Secondly, it states that no person who has committed a crime can be punished more than once. Lastly, it doesn’t allow self-incrimination. This means no one can force an arrested person to provide evidence and testify against himself.
The provisions under Article 20 which are a part of Fundamental rights reflect that human rights are to be valued at any given time. It promotes the legal principle, of ‘innocent until proven guilty’ in the justice system. It ensures that the legal justice system is fair and just to meet the ends.
24. Article 22
Another fundamental right available for a person who is either under arrest or taken into detention is Article 22. It ensures certain procedural aspects are followed during and after a person is arrested for an offence. It mandates that the person under arrest should be informed of the grounds on which he was arrested. Further, it mandates that the person has the right to seek legal counsel to prepare his case. Additionally, the person under arrest should be brought before a magistrate within 24 hours of his arrest. This prevents arbitrary detention.
Although preventive detention is permitted under certain circumstances, there are safeguards to be followed such as the grounds of detention should be conveyed to the person in detention, and the right to question the validity of the detention before a board. The maximum detention period that can be authorised by law is 3 months unless the advisory board believes that there is sufficient cause for the detention to exceed the prescribed period.
25. Tribunals
The Constitution allows for the establishment of Tribunals. The tribunals are judicial or quasi-judicial bodies that are mandated by statutes. The provisions under the Constitution are Article 323A and Article 323B. Article 323A authorises the parliament to establish administrative tribunals whereas 323B confers the power to the state government to create tribunals within the state. The 42nd Constitutional Amendment Act of 1976 added these provisions to the Constitution.
The idea behind establishing the tribunals was that they offered expert adjudication in matters like labour disputes, and taxation laws. It further provides relief to the traditional courts by diverting the cases to themselves and ensuring quick resolution. This further enhances the efficiency of the judiciary.
26. Bonus points
● The seal of the Constituent Assembly was a symbol of the Elephant.
● The Constituent Assembly appointed Sir B.N. Rau as its Legal Advisor.
● The Secretary of the Constituent Assembly was H.V.R. Iyengar.
● The chief draftsman of the constitution was Sir S.N. Mukerjee.
● Shri Prem Behari Narain Raizada was the calligraphist who wrote the original Constitution including the preamble.
● Beohar Rammanohar Sinha beautified the preamble, whereas Nandlal Bose and Beohar Rammanohar Sinha beautified the original text.
● Vasant Krishan Vaidya wrote the Hindi version of the Constitution.
REFERENCES -
2. The Constitution of India - Bare Act
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