Constitution of India

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The Constitution of India (IAST: Bh?rat?ya Sa?vidh?na) is the supreme law of India. The document lays down the framework demarcating fundamental political code, institutes 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. B. R. Ambedkar, the chairman of the drafting committee, is widely considered to be its chief architect.

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

It was adopted by the Constituent Assembly of India on 26 November 1949, and came into effect on 26 January 1950. With its adoption, it replaced the Government of India Act, 1935 as the country's fundamental governing document, and the Dominion of India became the modern and contemporary Republic of India. To ensure constitutional autochthony, the framers of the constitution repealed the prior Acts of the UK parliament via Article 395 of the constitution. India celebrates its coming into force 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 endeavours to promote fraternity among them.

Video Constitution of India

Background

The major portion of the Indian subcontinent was under British rule from 1857 to 1947. The Constitution of India repealed the Indian Independence Act 1947 and Government of India Act, 1935 when it came into effect on 26 January 1950; India also ceased to be a dominion of the British Crown and became a sovereign democratic republic after the constitution's commencement. The date of 26 January was chosen to commemorate the anniversary Purna Swaraj of 1930.

Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393 and 394 of the constitution came into force on 26 November 1949 and the remaining articles on 26 January 1950.

Previous legislation used as sources

It is drawn from many sources. Keeping in mind the needs and conditions of India its framers 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.

Maps Constitution of India

Constituent assembly

The constitution was drafted by the Constituent Assembly, which was elected by elected members of the provincial assemblies. The 389-member -- which was reduced to 299 after the partition of India -- Constituent Assembly took almost three years to complete its task of drafting the constitution for an independent India, during which, it held eleven sessions over 165 days. Of these, 114 days were spent on the consideration of the draft constitution.

Membership and structure

B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Vallabhbhai Patel, Kanaiyalal Maneklal Munshi, Ganesh Vasudev Mavalankar, Sandipkumar Patel, Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some key figures in the assembly. There were more than 30 members of the scheduled classes. Frank Anthony was the representative of the Anglo-Indian community, the Parsis were represented by H. P. Modi. A vice president of the assembly, Harendra Coomar Mookerjee was made the chairman of the minorities committee, a Christian, Mookerjee also represented non-Anglo-Indian Christians. Ari Bahadur Gurung was the Gorkha community's representative. Noted jurists like Alladi Krishnaswamy Iyer, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar were members of the assembly. Prominent women members of the assembly included Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Amrit Kaur and Vijaya Lakshmi Pandit.

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

Drafting

Benegal Narsing Rau, a civil servant who later became the first Indian judge in the International Court of Justice and also served as the United Nations Security Council's president, was appointed as the constitutional adviser to the Constituent Assembly in formulating the Indian constitution in 1946. He was responsible for the general structure of the constitution and prepared its initial draft in February 1948.

On 14 August 1947 meeting of the Assembly, it was proposed that committees be formed. In all, the work of the assembly was overseen by five committees, the drafting committee, the committee on fundamental rights, the union powers committee, the minorities committee and union constitution committee.

Rau's draft was then considered, debated and amended by the drafting committee, appointed on 29 August 1947 with B. R. Ambedkar as its chairman, it had six other members and was assisted by the constitutional advisor. The drafting committee's members were United Provinces chief minister Govind Ballabh Pant; former Bombay Presidency home minister Kanaiyalal Maneklal Munshi; former Madras State advocate general Alladi Krishnaswamy Iyer; former Jammu and Kashmir prime minister, N Gopalaswami Ayyangar; former Indian advocate general B. L. Mitter; former Assam prime minister and Muslim League politician Muhammed Saadulah; and D. P. Khaitan. Later B. L. Mitter resigned and was replaced by Madhav Rao, a former legal adviser of the Maharaja of Baroda. On D. P. Khaitan's death, Congress politician and a member of the Madras Legislative Assembly, T. T. Krishnamachari was included in the drafting committee. A revised draft constitution was prepared by the committee and submitted to the assembly on 4 November 1947.

While deliberating upon the revised draft constitution, the assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled. Before adopting the constitution, the Constituent Assembly held eleven sessions over 165 days.

The assembly's final session convened on 24 January 1950 in which each member of the assembly signed two copies of the document, one each in Hindi and English. The original Constitution of India is hand-written and illustrated-calligraphed, with each page being beautified and decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. The illustrations on the cover and pages represent styles from the different civilisations of the subcontinent, ranging from the prehistoric Indus Valley Civilisation to the present. The calligraphy in the book was done by Prem Behari Narain Raizada. It was published in Dehradun and photolithographed at the offices of Survey of India. The entire exercise to produce the original took nearly five years. Two days later, on 26 January 1950, the Constitution of India became the law of all the states and union territories of India. Rs. 6.3 crore (63 million) was the official estimate of expenditure on constituent assembly. The constitution has undergone many amendments since its enactment.

Finally, on 26 November 1949, the process was completed and the 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 original 1950 Constitution of India is preserved in helium-filled cases in the Parliament House, New Delhi. There are two original versions of the constitution -- one in Hindi and the other in English. The original constitution can be viewed here.

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Influence of other constitutions

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Structure

The Indian constitution is the world's longest for a sovereign nation. At its commencement, it had 395 articles in 22 parts and 8 schedules. It is made up of approximately 145,000 words, making it the second largest active constitution -- after the Constitution of Alabama -- in the world.

In its current form, it has a preamble, 448 articles, which are grouped into 25 parts,; it also has 12 schedules, 5 appendices, and 101 amendments, the latest of which came into force on 1 July 2017.

Parts

The individual articles of the constitution are grouped together into the following parts:

Schedules

Schedules are lists in the constitution that categorise 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 the 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 Area 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 the parliament and members of state legislatures.
• Eleventh Schedule (Article 243-G) --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.

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The constitution and the government

Branches of the government - the legislature, the executive and the judiciary get their power from the constitution and are bound 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 the union cabinet which would aid and advise the President in performing his constitutional duty. The union cabinet is collectively responsible to the House of the People per Article 75(3).

The Constitution of India is considered to be federal in nature but unitary in spirit. The common features of a federation such as written constitution, supremacy of constitution, rigidity of constitution, three-tier governmental structure (centre, state, local), 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 governors 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 union territory of India has its own government. Analogous to president and prime minister, each has a governor or -- in case of union territories -- a lieutenant governor and a chief minister. Article 356 permits the president to dismiss a state government and assume direct authority when a situation has arisen in which the state government cannot be carried on in accordance with the provisions of the constitution. This power, known as President's rule, 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 - S. R. Bommai v. Union of India 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 amendments acts also introduced the system of panchayati raj in rural areas and nagar palikas in urban areas. Also, Article 370 of the constitution gives special status to the state of Jammu and Kashmir.

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The constitution and the legislature

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 a joint sitting of the two houses of the parliament (Lok Sabha and Rajya Sabha) to pass a constitutional amendment bill. During a parliamentary recess, the president can not promulgate ordinances under his legislative powers per Article 123, Chapter III which needs a constitutional amendment. Deemed amendments to the constitution which can be passed under the 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 July 2018, there have been 124 amendment bills presented in the parliament, out of which 101 have been passed to become Amendment Acts. Despite the supermajority requirement for amendments to pass, the Constitution of India is the most frequently amended national governing document in the world. The constitution is so specific in spelling out government powers that many of these amendments address issues dealt with by ordinary statute in other democracies. As a result, the document is amended roughly twice a year, and three times every two years.

In 2000, the National Commission to Review the Working of the Constitution was set up to look into updating the constitution. The 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

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 in the constitution, it cannot tinker with the "basic structure" or its framework, 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.

The judgment in the Kesavananda Bharati v. State of Kerala case laid down the following as the basic structure of the Constitution of India:

1. The supremacy of the constitution.
2. A republican and democratic form of the Government.
3. The secular character of the constitution.
4. Maintenance of separation of powers.
5. The federal character of the constitution.

This implies that the parliament, while amending the constitution, can only amend it to the extent so as to not destroy any of the aforesaid characters. The supreme court -- or a high court -- may declare the amendment null and void if this is violated, by performing a judicial review. This is typical of parliamentary governments, where the judiciary has to exercise an effective check on the exercise of the powers of the parliament, which in many respects is supreme.

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. The 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.

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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. 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 a 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 the 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 a state 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 the constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis for 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 characters 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 the 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. Fourth Chief Justice of the United States, John Marshall said that it is the nature of a constitution that its "great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves, ..." It is a document "intended to endure for ages to come", and therefore, it has to be interpreted not merely on the basis of the intention and understanding of 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, including -- but not necessarily limited to -- the right to speedy trial;; the right to water; the right to livelihood; the right to health; and the right to education.

In the conclusion of his book, Making of India's Constitution, Justice H.R. Khanna -- a retired judge of the Supreme Court of India -- 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

Notes

Notes on Article 21

References

Bibliography

• Khanna, Justice H.R (2015). Making of India's Constitution (2nd Edition 2008, (Reprinted 2015) ed.). Eastern Book Company. ISBN 978-81-7012-188-6. 
• Austin, Granville (1999). The Indian Constitution: Cornerstone of a Nation (2nd ed.). Oxford University Press. ISBN 978-01-9564-959-8. 
• Austin, Granville (2003). Working a Democratic Constitution: A History of the Indian Experience (2nd ed.). Oxford University Press. ISBN 978-01-9565-610-7. 
• Baruah, Aparajita (2007). Preamble of the Constitution of India : An Insight & Comparison. Eastern Book Co. ISBN 978-81-7629-996-1. 
• Basu, Durga Das (1965). Commentary on the constitution of India : (being a comparative treatise on the universal principles of justice and constitutional government with special reference to the organic instrument of India). 1-2. S. C. Sarkar & Sons (Private) Ltd. 
• Basu, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0-8364-1097-1. 
• Basu, Durga Das (1981). Shorter Constitution of India. Prentice-Hall of India. ISBN 978-0-87692-200-2. 
• Das, Hari Hara (2002). Political System of India. Anmol Publications. ISBN 81-7488-690-7. 
• Dash, Shreeram Chandra (1968). The Constitution of India; a Comparative Study. Chaitanya Pub. House. 
• Dhamija, Dr. Ashok (2007). Need to Amend a Constitution and Doctrine of Basic Features. Wadhwa and Company. ISBN 9788180382536. 
• Ghosh, Pratap Kumar (1966). The Constitution of India: How it Has Been Framed. World Press. 
• Jayapalan, N. (1998). Constitutional History of India. Atlantic Publishers & Distributors. ISBN 81-7156-761-4. 
• Khanna, Hans Raj (1981). Making of India's Constitution. Eastern Book Co. ISBN 978-81-7012-108-4. 
• Rahulrai, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0-8364-1097-1. 
• Pylee, M.V. (1997). India's Constitution. S. Chand & Co. ISBN 81-219-0403-X. 
• Pylee, M.V. (2004). Constitutional Government in India. S. Chand & Co. ISBN 81-219-2203-8. 
• 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. 
• "The Constituent Assembly Debates (Proceedings):(9th December,1946 to 24 January 1950)". The Parliament of India Archive. Retrieved 22 February 2008. 

External links

• Original as published in the Gazette of India
• 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
• "Constitution of India". Commonwealth Legal Information Institute.  - online copy

Source of article : Wikipedia