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Constitution of India
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The Constitution of India (Hindi: ??????? ???????, see names in other Indian languages) 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 November 26, 1949, it came into effect on January 26, 1950. It declares the Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty; the words "socialist", "secular" and "integrity" were added to the definition in 1976 by constitutional amendment.
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The Constitution of India (Hindi: ??????? ???????, see names in other Indian languages) 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 November 26, 1949, it came into effect on January 26, 1950. It declares the Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty; the words "socialist", "secular" and "integrity" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on January 26 each year as Republic Day. It is the longest written constitution of any sovereign nation in the world, containing 395 articles , 12 schedules and 94 amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation. Being the supreme law of the country, every law enacted by the government must conform to the constitution.
History
Government of India Act 1935
The Government of India Act 1935 was the last constitution of the British Raj.
The Cabinet Mission Plan
In 1946, at the initiative of British Prime Minister Clement Attlee, a cabinet mission to India was formulated to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership and providing 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. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body and began work on 9 December 1947.
The Constituent Assembly
The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee and N R Ghosh [Nalini Ranjan Ghosh] 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 and R. K. Sidhwa. 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, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur were important women members. The first president of the Constituent Assembly was Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly. The members of the Constituent Assembly met for the first time in the year 1946 on December 9.
Drafting
In the August 14, 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees include Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On August 29, 1947, the Drafting Committee was appointed, with Dr. Ambedkar as the Chairman along with six other members. A Draft Constitution was prepared by the committee and submitted to the Assembly on November 4, 1947.
The Assembly met, in sessions open to public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document (one each in Hindi and English) on the January 24, 1950. Two days later, the Constitution of India became the law of all the Indian lands.
The Indian Constitution has undergone 108 amendments in its less than 60 years of enactment. The intellectual Dr Ambedkar,hailed as the Architect of the Indian Constitution, with hundreds of statues erected in his honor, studied at Columbia University and had the opportunity of studying the time tested American Constitution.
Structure of the Union Government
The basic form of the Union Government envisaged in the Constitution was introduced by Dr. Ambedkar as follows,
India, thus adopted a Parliamentary form of government, with the President as the nominal head of the Executive and the Prime Minister and the Council of Ministers wielding actual power.
Structure of the Constitution
The Constitution, in its current form, consists of a preamble, twenty-two parts containing three hundred and ninety five articles, twelve schedules, ninety-four amendments, and five appendices.
Preamble
The Preamble states:
The preamble delineates the basic structure of the Constitution of India. It does not contain laws enforceable in a court but, no law can be enacted or amended in a manner that violates the spirit of the preamble. The Supreme Court, in the case of Kesavananda Bharati vs. The State of Kerala, recognized that the Preamble may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there is an ambiguity in the article itself and should not be treated as a rights bestowing part of the Constitution.
The original draft of the constitution, as it came into effect in 1950, had the words SOVEREIGN DEMOCRATIC REPUBLIC in the first line. The words SOCIALIST and SECULAR were inserted by the controversial 42nd amendment. Through the same amendment, the words unity of the nation were changed to unity and integrity of the nation. The amendment was pushed through by Indira Gandhi in 1976, when she had dictatorial powers. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience.
Interpretation
The Preamble reflects the basic structure and the spirit on which the Constitution of India is based. Even though the Preamble does not bestow any rights to individual or entity; it serves as a guiding tool for the interpretation of the Constitution in its entirety.
The beginning words of the Preamble - "We, the people" - signifies that power is ultimately vested in the hands of the people of India. It also tells that the constitution is made by & made for the people of India and not given to them by any outside powers.The Preamble lays down the most important national goals which every citizen and the government must try to achieve — justice, liberty, equality, and fraternity.
Sovereign
The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people...
Socialist
The word socialist was added to the Preamble by the 42nd amendment act of 1976, during the emergency. It implies social equality, and does not connote any economic or political ideology. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality all are equal before law and has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the opportunities available to its citizens equitable, and each citizen is to have every right to improve his or her condition, on his or her own efforts and merits. This is not to emphasise a commitment towards the formation of a welfare state, as evidenced by the Indian government's decision to open public business schools, known formally as the Indian Institutes of Management, around the same time as the enactment of this amendment.
Secular
The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during emergency. It implies equality of all religions and religious tolerance. India, therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favor or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and festivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.
However demand for Uniform civil code is generally perceived as anti-Secular and subsidizing religious schools or pilgrims is generally perceived as promoting secularism in India.
Democratic
India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.
Republic
As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he/she abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President Of India is not hereditary. Every citizen of India is eligible to become the President of the country.
Preamble plays pivotal role when there is ambiguity in provisions of any Article or interpretation becomes confusing, spirit of preamble becomes guiding factor. Preamble is stem, root and source of constitution.
Parts
Parts are the individual chapters in the Constitution, focused in single broad field of laws, containing articles that addresses the issues in question.
Schedules
Schedules are lists in the Constitution that categorizes and tabulates bureaucratic activity and policy of the Government.
First Schedule— States and Union Territories;
The first schedule lists the states and territories on of India, lists any changes to their borders and the laws used to make that change.
Second Schedule— Emoluments for High-Level Officials;
The second schedule lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of India.
Third Schedule— Forms of Oaths;
The third schedule lists the oaths of offices for elected officials and judges.
Fourth Schedule— Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
Fifth Schedule— Provisions for the administration and control of Scheduled Areas[Scheduled Areas are autonomous areas within a state, administered federaly, usually populated by a predominant Scheduled Tribe.] and Scheduled Tribes[Scheduled Tribes are groups of indigenous people, identified in the Constitution, struggling socio-economically.] (areas and tribes needing special protection due to disadvantageous conditions);
Sixth Schedule— Provisions for the administration of tribal areas in Assam;
Seventh Schedule— The Union (central government), State, and Concurrent (dual) lists of responsibilities;
Eighth Schedule— The Official Languages;
Ninth Schedule— Article 31B-Validity excluded from Court’s Review (land and tenure reforms; the accession of Sikkim with India);
Tenth Schedule— Anti-Defection provisions for Members of Parliament and Members of the State Legislatures;
Eleventh Schedule— Panchayat Raj (Rural Development);
Twelfth Schedule— Municipality (Urban Planning).
Changing the Constitution
Amendments
Article 368 of the Constitution provides that amendments to the Constitution can take place in three ways. These are;
- By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.
- By special majority of the Parliament: Amendments can be made in this category by a two-thirds majority of the total number of members present and voting, which should not be less than half of the total membership of the house.
- By special majority of the Parliament and ratification by at least half of the state legislatures by special majority. After this, it is sent to the President for his assent.
On paper, an amendment to the Constitution is an extremely difficult affai. However, the Constitution is one of the most frequently amended governing documents in the world; amendments average about two a year. The document outlines governmental powers in considerable detail, meaning that amendments are required to deal with matters addressed by ordinary statute in most other democracies.
Since 1967, the Supreme Court has interpreted Article 13 of the Constitution to mean that the document's "basic structure" cannot be altered by any means. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being in violation of the Basic Structure of the Constitution. Some noted authors of Constitutional law, such as HM Seervai, have argued that this is an usurpation of amending power by the judiciary, which was never intended by the framers of the Constitution. However, it can be argued that this doctrine is necessary to protect basic human rights from being legislated away. The 44th Amendment has repealed many of the provisions of the 42nd Amendment during Morarj Desai's Janata Party rule in 1978.
The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi, Minerva Mills, Bonded Labour, Bhopal Gas tragedy case etc. The method of amendment was borrowed from South African constitution. The constitution laid down three lists of subjects for law-making - namely; Union, State and Concurrent. The Union law is more powerful compared to the State law, but, if the president has given assent to the State law, then it prevails over the Union Law.
There have been a total of 94 amendments to the constitution of India, as of 2006. It has now crossed the 100th mark. One of the major amendments (74th) was to reserve one third of PRI seats for women. It was a landmark amendment legislating affirmative action for women. After 1994, more than a million women are able to enter politics to share power with men.
Judicial Review
Judicial review is actually adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt under Article 13. Judicial Review actually refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 deals that
- All the post constitutional laws, after the coming into force of constitution, if differs from it in all or some of its provisions then the provisions of constitution will prevail & the provisions of that post constitutional law will hide till any amendment in constitution relating to the same matter. In such sitution the provision of that law will again come into force this is called the Theory of Eclipse.
- 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.
In such type of situations Supreme Court or High Court inteterprets the LAW as if they are in conformity with constitution or not. If find it not in conformity they declare it either whole & if possible to separate, then only that much of provision to be void which are inconsistent with that of the CONSTITUTION.
Bibliography
See also
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