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FRAMING OF THE INDIAN CONSTITUTION. INTRODUCTION.
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INTRODUCTION • The Constitution of India was drafted by the Constituent Assembly. The Constituent Assembly held its first sitting on the 9th December, 1946. It reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India. • Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. • Passed by the Constituent Assembly on 26 November 1949, it came into effect on 26 January 1950. The date 26 January was chosen to commemorate the declaration of independence of 1930.
The Constitution of every country has certain special features because the historical background ,social, economic and political conditions influence the making of the constitution. All these factors have contributed in the making of the Constitution of India.
Constitution of India • Basic features: • A basic document which lays down the structure of political system • Constitution is headed by President of India • It deals with – Legislature, Executive & Judiciary • It defines their power, demarcates their responsibility & regulates relationship with each other • It is a written constitution
Background……. • Cabinet Mission Plan (Members- Stafford Cripps, P Lawrence & AV Alexander) decided to form interim govt. in september-1946. • Members of Interim Govt. were the members of viceroy’s executive council. • JawaharLal Nehru was the Vice-President while the viceroy was the head of the council.
Constituent Assembly Formation • As per the Cabinet Mission Plan a Constituent Assembly was formed in November-1946 • Total Members in Constituent Assembly- 389 • Total Elected Members of Provincial Assemblies- 296 • Total Nominated Members from Princely States- 93 • First meeting held on 9th Dec. 1946 with Sh. Sachidanand Sinha as Interim Chairman. Dr.Rajendra Prasad was elected as permanent Chairman on 11th Dec. 1946. • On 13th Dec. 1946, Nehru moved the famous “Objective Resolution” (rules that defined assembly’s aims) that formed the fundamentals of structure of our constitution.
22 committees were formed by the assembly to deal with various issues. Among these Drafting Committee was the most Important chaired by Dr. BR Ambedker. • The Assembly met for 11 sessions (165 days) that took nearly 3 years. • Constitution of 60 countries were reffered during these. • On 24th Jan. 1950, it took the final session where it was decided that Dr.Rajendra Prasad will be the president of India. • Finally, constitution was adopted on 26 Nov.1949, & came into effect on 26 Jan.1950.
Nehru signing Indian Constitution The Constitution of India was adopted and enacted on 26th November 1949 Constitution of India
A Tumultuous Time : Circumstances • It was a time of great hope but also of abject disappointment. • On 15th Aug.1947 India had been made free but also divided. • Royal Indian Navy Revolt in Bombay & other cities in the spring of 1946. • Mass protests of workers & peasants in different parts of India. • The Great Calcutta killing of August 1946 began a year of almost continuous rioting across country. • Problems of Native States.
The making of the Constituent Assembly • The members of the Constituent Assembly were not elected on the basis of universal franchise. • In the winter of 1945-46 provincial elections were held in India. The Provincial Legislatures then chose the representatives to the Constituent Assembly. • The Constituent Assembly that came into being was dominated by one party: the Congress. • 82 per cent of the members of the Constituent Assembly were also members of the Congress. • Its members differed in their opinion on critical issues. Some members were inspired by socialism while others were defenders of landlordism. Some were close to communal parties while others were assertively secular. • Through the national movement Congress members had learnt to debate their ideas in public and negotiate their differences. Within the Constituent Assembly too, Congress members did not sit quiet.
The making of the Constituent Assembly • The discussions within the Constituent Assembly were also influenced by public opinion. • These opinions were published in News Papers & proposals were publicly debated. • In order to create a sense of collective participation, the public was also asked to send their views on what needed to be done. • Many of the linguistic minorities wanted the protection of their mother tongue, religious minorities asked for special safeguards, • while dalits demanded an end to all caste oppression and reservation of seats in government bodies. • Important issues of cultural rights and social justice raised in these public discussions were debated on the floor of the Assembly.
The Vision of the Constitution • On 13 December 1946, Jawaharlal Nehru introduced the “Objectives Resolution” in the Constituent Assembly. • It was a momentous resolution that outlined the defining ideals of the Constitution of Independent India, and provided the framework within which the work of constitution-making was to proceed. • Itproclaimed India to be an “Independent Sovereign Republic”, guaranteed its citizens justice, equality and freedom, and assured that “adequate safeguards shall be provided for minorities, backward and tribal areas, and Depressed and Other Backward Classes … ” • Afteroutlining these objectives, Nehru placed the Indian experiment in a broad historical perspective.
Ideas influenced the Constitution Making • Ideas expressed in American & French Revolutions. • Socialist / Communist Ideas. • Aspirations of leaders of struggle for independence. • Aspirations of organised workers & formers. • Ideas expressed by Socio-Religious reformers of 18th & 19th centuries. • Provisions from British Constitutional Reforms (i.e. Act of 1909, 1919, 1935 etc.)
The will of the people • A Communist member, SomnathLahiri saw the dark hand of British imperialism hanging over the deliberations of the Constituent Assembly. He thus urged the members, and Indians in general, to fully free themselves from the influences of imperial rule. • Lahiri exhorted his colleagues to realise that the Constituent Assembly was British-made and was “working the British plans as the British should like it to be worked out”. • “But,” emphasised Nehru, “you must not ignore the source from which this Assembly derives its strength.”
Defining Rights & Issues of Minorities • Religious Minorities. • Linguistic Minorities. • Economic minorities- Mr. NG Ranga • Social & Political Minorities- • Scheduled Castes- Dr. BR Ambedkar. • Scheduled Tribes – Mr. Jaypal Singh.
The Powers of the state • The Draft Constitution provided for three lists of subjects: • Union- 97 subjects • State- 66 subjects • Concurrent- 47 subjects approx. • The Union also had control of minerals and key industries. • Besides, Article 356 gave the Centre the powers to take over a state administration on the recommendation of the Governor. • The Constitution also mandated for a complex system of fiscal federalism. In the case of some taxes (for instance, customs duties and Company taxes) the Centre retained all the proceeds; in other cases (such as income tax and excise duties) it shared them with the states; in still other cases (for instance, estate duties) it assigned them wholly to the states. • The states, meanwhile, could levy and collect certain taxes on their own: these included land and property taxes, sales tax, and the hugely profitable tax on bottled liquor.
Greater Powers for Central Govt. • Dr.Ambedkar declared that he wanted “a strong and united Centre ( much stronger than the Centre we had created under the Government of India Act of 1935. • Many members stated that the powers of the Centre had to be greatly strengthened to enable it to stop the communal frenzy. • GopalaswamiAyyangar declared that “the Centre should be made as strong as possible”. • Balakrishna Sharma, a member of united provinces, reasoned at length that only a strong centre could plan for the well-being of the country, mobilise the available economic resources, establish a proper administration, and defend the country against foreign aggression. • The violence of the times gave a further push to centralisation, now seen as necessary both to forestall chaos and to plan for the country’s economic development. • TheConstitution thus showed a distinct bias towards the rights of the Union of India over those of its constituent states.
Conttd… • The rights of the state were most eloquently defended by K. Santhanam from Madras. • A reallocation of powers was necessary, he felt, to strengthen not only the states but also the Centre. • If the Centre was overburdened with responsibilities, it could not function effectively. By relieving it of some of its functions, and transferring them to the states, the Centre could, in fact, be made stronger. • As for the states, Santhanam felt that the proposed allocation of powers would cripple them. • The fiscal provisions would impoverish the provinces since most taxes, except land revenue, had been made the preserve of the Centre. Without finances how could the states undertake any project of development? • He said, in this way all the provinces would rise in “revolt against the Centre”. • A member from Orissa warned that “the Centre is likely to break”.
WRITTEN CONSTITUTION • The written constitution is the one which we can get in the form of a book and can be read. • There are 395 Articles, 12 schedules and it has been divided into 22 parts and till date more than 104 amendments have been made into it. • The Constitution, in its current form, consists of a preamble, 22 parts containing 448 articles, 12 schedules, 5 appendices and 108 amendments to date.
UNWRITTEN CONSTITUTION • The conventions grow automatically and make their special place in the constitutional system. The important conventions of the Indian Constitution : • Prime Minister in LokSabha and Chief minister in State Legislative Assembly is the leader of the majority party. • The Speaker and Deputy Speaker of loksabha are generally elected unopposed. • The Governor is generally taken from other state and the Chief minister of the concerned state is consulted at the time of his appointment.
DETAILED CONSTITUTION • The Indian Constitution is the longest and the most detailed in the world. A detailed list of Fundamental Rights from article 12-25 is included in chapter 3rd of the constitution. In chapter 4th from article 35-51 a detailed list of directive principles of State Policy is also included which are guidelines of the State in policy making. From article 350-360 the Emergency powers of the President have also been included in it. A detailed description of center-states relations is given in chapter 11 and 12 of it.
Constitution starts with preamble. • The preamble has been accepted as the part of the constitution. It includes the objectives of the constitution such as to provides Liberty, Equality and Justice to the citizens, and to promote amomg them all fraternity, assuring the dignity of the individual and unity and integrity of the nation. It also states about the nature of the state which is Sovereign, Socialist, Secular, Democratic Republic.
CONSTITUTION DRAWN FROM VARIOUS SOURCES • The objective of the Constituent Assembly was not to enact an original constitution rather to enact a good and workable constitution. The assembly evaluated the constitutions of other countries and whatever good they found in these constitutions, they included in their own constitution. • Parliamentary Government and Rule of Law are the influences of the British Constitution. • The Fundamental Rights and the special position of the judiciary is the influence of the constitution of U.S.A • The Directive Principles of State Policy have been borrowed from the constitution of Ireland.
4. The Federal system of India is the influence of Canadian Constitution. • 5. The method of the amendment of the constitution and the method of the election of the members of RajyaSabha have been borrowed from the constitution of South Africa. • 6. The Emergency powers of the President are the influence of the Weimer Constitution of Germany.
Sovereign ,Socialist ,Secular , Democratic, Republic • India has been declared a sovereign, secular, Democratic, Republic through the Preamble of the Constitution of India. • Sovereign State –India is free to formulate its internal and foreign policy and free to maintain relations with any foreign state. • Socialist State- The aim of the state is to establish socialist society which is free from exploitation of man by man and in which social economic and political justice is provided to all. • Secular State- The state has no religion of its own, it does not discriminate against any religion by imposing restrictions upon it
4. Democratic State -The preamble also declares India to be a democratic state in which the supreme power rests in the hands of the people. • 5. Republic- The President of India is elected for a fixed term by the indirect vote of the people.
FUNDAMENTAL RIGHTS • Fundamental rights have been included into the chapter 3rd of the constitution from Article- 12 to 35 • Right to Equality • Right to Freedom • Right Against Exploitation • Right to Religious Freedom • Cultural and Educational rights • Right to Constitutional Remedies
RIGHT TO PROPERTY ,AN ORDINARY RIGHT • Till 1979 Right to Property was included in the list of Fundamental Rights. But through 42nd amendment it has been made an ordinary right and for this purpose Articls-300 A has been included into the constitution.
PARLIAMENTARY FORM OF GOVERNMENT • The Constituent Assembly decided to adopt Parliamentary form of government both for the center and the states. • Distinction is made between nominal and real executive head. • The Council of Ministers is responsible before the LokSabha, The lower house of union parliament. • There are close relations between executive and legislature. • The tenure of the Council of Ministers is not fixed as it stays in office till it enjoys the confidence
FUNDAMENTAL DUTIES • These Fundamental rights have been provided at the cost of some fundamental duties. These are considered as the duties that must be and should be performed by every citizen of India. These fundamental duties are defined as:
To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; • To cherish and follow the noble ideals which inspired our national struggle for freedom; • To uphold and protect the sovereignty, unity and integrity of India; • To defend the country and render national service when called upon to do so; • To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; • To value and preserve the rich heritage of our composite culture; • To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; • To develop the scientific temper, humanism and the spirit of inquiry and reform; • To safeguard public property and to abjure violence; • To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
RIGID AS WELL AS FLEXIBLE CONSTITUTION • Indian constitution is neither rigid as the constitution of U.S.A nor flexible as the constitution of Great Britain. • Under Article-368 of the constitution, • Some of the articles of the constitution can be amended by the union parliament by passing a resolution with 2/3rd majority of the members present and voting and absolute majority of the total members. • Some of the articles of the constitution can be amended by the Union Parliament by passing resolution with 2/3rd majority of the members present and voting and absolute majority of the total members and approval of ½ State Legislatures.
FEDERAL IN FORM , UNITARY IN SPIRIT • The Constitution of India provides for <<CENTRALISED FEDERALISM>>. There is no doubt that federal system has been adopted in India, but keeping in mind certain special situations, the centre is made more powerful or strong. Federal features : • Written Constitution • Rigid constitution • Supremacy of the constitution • Division of subjects • Independent judiciary etc.
UNIVERSAL ADULT FRANCHISE • Article-326 provides for universal adult franchise and evry citizen including both male and female who is 18 years of age is given the right to vote without making any discrimination on the basis of sex, caste, colour religion etc.
SECULAR STATE • Every person has the right to practise, profess, propagate his/her religion according to his/her goodwill. The religious dominations have the right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property and to administer such property in accordance with law. But no individual is allowed to misuse his or her religious freedom.
LIMITED POWERS OF THE PARLIAMENT • Indian Parliament is non-sovereign. There are limitations on the powers of the Parliament- • It can pass laws on those subjects which have been entrusted to it by the constitution. • The bills passed by the Parliament need the approval of the President. • The supreme court can exercise the powers of judicial review over the laws passed by the parliament and can declare unconstitutional the laws which it considers are against the constitution.
SINGLE-INTEGRATED JUDICIAL SYSTEM • The entire judicial system of India is organized into an hierarchical order. Supreme Court is at the top of judicial administration below that there are high courts at the state level and there are district courts at the district level. All the courts of India are bound to accept the decisions of the supreme court.
INDEPENDENT JUDICIARY • The constitution of India makes provisions for the independence of judiciary because only independent judiciary can safeguard the rights and liberties of the people, can protect the supremacy of the constitution- • An impartial method has been adopted for the appointment of the judges • High qualifications have been fixed for the judges • The judges of the Supreme Court stay in office till 65 years of age and of High courts till 62 years of age
4. Difficult method has been adopted for the removal of the judges as they can be removed only through impeachment by the union parliament 5. There is prohibition of practice after the retirement of the judges
POWER OF THE JUDICIAL REVIEW • The judiciary in India is provided the power of judicial review through the constitution which means that all the laws passed by the parliament and State Legislatures, constitutional amendments, ordinances and executive orders issued by the executive are reviewed by the judiciary and in case judiciary finds that any one of these is against the constitution, the judiciary has the power to declare it unconstitutional.
RULE OF LAW • The Rule of Law means that the law is supreme over person and everybody is equally responsible before law howsoever he/she may be. Also the man is punished on the violation of law and no arbitrary punishment can be given to him
SINGLE CITIZENSHIP • There is provision of single citizenship in India. A person may be living in any state, but he is the citizen of India alone. The principle of double citizenship promotes regionalism and provincialism whereas the principle of single citizenship promotes national unity, therefore the principle of single citizenship is adopted in India.
SPECIAL PROVISIONS • SPECIAL PROVISIONS FOR THE PROTECTION OF THE INTERESTS OF SCHEDUELED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES AND MINORITIES • Everybody is given the Right to Equality • Untouchability has been abolished • Under Article 29 and 30 special provisions for the made for the interests and protection of minorities.
NATIONAL COMISSION FOR SCHEDULED CASTES • The 68th Constitutional amendment made in 1990, it was provided for the appointment of the National Commission for the scheduled castes for the protection of their interests. In 2002, the government constituted two separate commissions for scheduled castes and scheduled tribes.
CONSTITUTIONAL RECOGNITION TO LOCAL SELF-GOVERNMENT INSTITUTIONS • Under 73rd and 74th constitutional amendments passed in April ,1993. • Constitutional recognition was granted to the panchayati Raj Institutions in the villages and the urban local bodies in the cities and for this purpose part 9 and part 9A and 11th and 12th schedules were added to the constitution.
PROVISIONS OF LIBERAL DEMOCRACY • The Constitution of India makes provisions for the establishment of liberal democratic government in India. • Provision of universal adult features has been made and everybody is given the right to vote without making any discrimination. • Due respect is given to opposition and the leader of the opposition is given recognition in both the houses of Union Parliament and States Legislatures. • India is declared a Secular state. • There is provision of Individual judiciary. • There is Rule of law in India.
References • Avasthi, A.P, Indian Government and Politics, NarainAgarwal, Agra, 2001. • Badyal, J.S, Indian Government and Politics, Raj Publishers, Jalandhar, 2013. • Fadia, B.L, Indian Government and Politics, SahityaBhawan Publication, Agra, 2002 • Ghai, U.R, Indian Government and Politics, New Academic Publishing, Jalandhar, 2002. • Gupta, D.C, Indian Government and Politics,Vikas Publishing House, New Delhi, 1978 • Johari, J.C, Indian Government and Politics, Vishal Publication, 1979.
