THE CONSTITUTION OF INDIA

 

“…ancient societies had their mythologies; constitutions are, today, the mythologies of modern societies…” -Dominique Rousseau

 

1.  BACKGROUND

 

1. The Constitution of India is the highest law of India. It lays down the framework that demarcates fundamental political code, 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 national constitution in the world.
2. It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a constituent assembly rather than Parliament) and was adopted by its people with a declaration in its preamble.
3. In 1928, the All Parties Conference convened a committee in Lucknow to prepare the Constitution of India, which was known as the Nehru Report.
4. The constitution of India repealed the Indian Independence Act 1947 and Government of India Act 1935 when it became effective on 26 January 1950. India ceased to be a dominion of the British Crown and became a sovereign, democratic and republic with the constitution.
5. The Constituent Assembly of India adopted it on 26 November 1949 and became effective on 26 January 1950. It replaced the Government of India Act 1935 and the Dominion of India became the Republic of India. India celebrates its constitution on 26 January as Republic Day.
6. Articles 5-9 (related to citizenship), 60, 324, 366, 367, 379, 380, 388, 391-394 of the constitution came into force on 26 November 1949, and the remaining articles became effective on 26 January 1950.

2. EVOLUTION OF THE INDIAN CONSTITUTION

Constituent Assembly Formation

1. The constitution was drafted by a Constituent Assembly which was elected by elected members of the provincial assemblies.
2. A 389-member constituent assembly (reduced to 299 after the partition of India) was formed which took nearly three years to draft the final constitution holding eleven sessions over a 165-day period.

Chronology of formation of the Constitution of India

1. 6 December 1946: Formation of the Constitution Assembly according to Cabinet Mission Plan.
2. 9 December 1946: The first meeting of the constituent assembly was held. The 1st person to address was J. B. Kripalani, Sachchidananda Sinha became temporary president.
3. 13 December 1946: An "Objective Resolution" was presented by PM Nehru, laying down the underlying principles for the upcoming constitution. It later became the Preamble of the Constitution.
4. 15 August 1947: India achieved independence.
5. 26 November 1949: The Constitution of India was passed and adopted by the assembly.
6. 24 January 1950: Constituent Assembly held its last meeting. The Constitution was signed and accepted.
7. 26 January 1950: The Constitution came into force.

 

3. The Salient Features of the Indian Constitution

 

1. Lengthiest Constitution of the World

1. Indian Constitution has incorporations of articles from multiple constitutions around the world.
2. It is one of the lengthiest constitutions in the world and very detailed also. There are 12 schedules and 448 articles in our Constitution.
3. India is a diverse country and thus it became necessary to draft a Constitution incorporating various provisions in order to accommodate various differences.

2. Unique blend of flexibility and rigidity

1. The famous example of the rigid constitution is the Constitution of the U.S, as the amendment process is very difficult.
2. The Indian Constitution is not very difficult to amend. The Indian Constitution is neither rigid nor flexible, this is also one of the reasons for its length.
3. It has gone through 105 amendments so far but there are certain steps to be satisfied before bringing in the amendment.

3. Drafted from Various Sources

1. The majority of the provisions of the Indian Constitution were taken from other nations’ constitutions as well as from the Government of India Act of 1935 (about 250 of the Act’s provisions were included into the Constitution).
2. Dr. B. R. Ambedkar proclaimed with pride that the Indian Constitution was drafted after “ransacking all known Constitutions of the world.” The Government of India Act of 1935 served as the foundation for a substantial portion of the Constitution’s structural provisions.
3. Federal System with Unitary Bias

1. Though constitution does not explicitly declares India a federal state, it establishes a federal structure of governance is established under the Indian Constitution. Important features of a federation are present such as two governments, a written constitution, a division of powers, the supremacy of the Constitution etc.
2. K.C. Wheare has alternately defined the Indian Constitution as “federal in form but unitary in spirit” and “quasi-federal”.

3. Synthesis of Parliamentary Sovereignty & Judicial Supremacy

1. The American Supreme Court is linked to the doctrine of judicial supremacy whereas the British Parliament is related to the theory of parliamentary sovereignty.
2. This is so that it can be contrasted with the Indian Constitution’s “procedure established by law” and the American Constitution’s guarantee of “due process of law” (Article 21).
3. But the Indian Supreme Court has less judicial review authority than the US Supreme Court, much as how the Indian parliamentary system varies from the British one.

4. Rule of Law

1. This axiom states that men are not infallible and that hence people are ruled by law rather than men. The statement is essential to a democracy. The notion that the rule of law is supreme in a democracy is more significant. The main component of law is custom, which is nothing more than the ordinary people’s ingrained behaviors and beliefs over a lengthy period of time. Rule of law, in the end, refers to the supremacy of the collective knowledge of the people.

2. Independent and Integrated Judiciary

1. A single, integrated judicial system exists in India. The Indian Constitution also establishes an independent judiciary by preventing the legislature and government from having any influence over it.
2. District courts and other lower courts fall within the high court’s hierarchy of subordinate courts. As the highest court of appeal, the protector of people’ basic rights, and steward of the Constitution, the Supreme Court is a federal court.

4. AMENDMENT PROCEDURE OF INDIAN CONSTITUTION

The constitutional amendment procedure reflects the rigidity and flexibility of the Constitution of India. Constitution provides for three different amending procedures as mentioned below.

Amendment of Indian Constitution under Article 368

Article 368 deals with the amendment of the Constitution by the special majority.

According to Article 368(2), an amendment may be initiated in either House of Parliament. It has to be passed by a majority of the total membership and also by a majority of not less than two-thirds of the members of that House present and voting.

 

Types Of Amendments

1. Amendment by special majority and ratification by at least one half of the State Legislatures: This includes the provisions, for instance election of the President, list of subjects in the Seventh Schedule, the relationship between Centre and States etc.
2. Amendment by the special majority: A majority of 2/3rd members for voting is required under Article 249. To pass Rajya Sabha resolutions for making laws in the State list requires a special majority.
3. Amendment by simple majority: Certain provisions can be changed by a simple majority, almost like passing an ordinary law. For instance, creation of new states, alteration in the size of states, qualification of citizenship etc.

 

Some Major Amendments to the Constitution till now

A) 1^st Amendment, 1951

1. Issues in the cases included freedom of expression, possession of Zamindari estate, State trade monopoly, etc. These laws breach property rights, freedom of speech, and equality before the law.
2. It empowered the State to make special provisions to advance socially and economically backward classes.
3. Added Ninth Schedule to protect from judicial review the land reforms and other legislation included in it. Articles 31A and 31B were added after Article 31, respectively.
4. Three more reasons for restricting freedom of speech and expression have been added: public order, friendly relations with foreign states, and incitement to an offence. It also made the restrictions ‘reasonable’ and, therefore, in nature, justiciable.

 

B) 7^th Amendment, 1956

1. Extended high court authority to union territories. It also provided for two or more States to establish a common high court.
2. The current division of states into four divisions (i.e., Part A, Part B, Part C, and Part D states) was repealed and reorganized into 14 states and 6 federal territories.
3. Provided that additional and acting High Court judges are appointed.

 

3. 11^th Amendment Act, 1961

1. Provided that on the ground of any vacancy in the appropriate electoral college, the election of the President or Vice President cannot be challenged.
2. Changed the Vice President ‘s election procedure by providing for an electoral college, rather than a joint parliamentary meeting of the two houses.

 

4. 24^th Amendment Act,1971

1. The Twenty-fourth Constitutional Amendment Act was introduced in reaction to the Supreme Court’s Golaknath decision (1967), which ruled that the Parliament has no authority to revoke constitutional freedoms by amending the Constitution.
2. Affirmed Parliament’s authority, by amending Articles 13 and 368, to change every aspect of the Constitution including constitutional rights.
3. Made it compulsory that the President give his approval to a Constitutional Amendment Bill.

 

5. 35^th Amendment Act, 1974

1. Sikkim was associated with the Indian Union.
2. The Tenth Schedule was added which provided the terms and conditions in regards to the association of Sikkim with the Indian Union in this amendment.
3. Followed by The Constitution (36th Amendment Act), 1975. Sikkim became the 22nd state of Indian Union.

 

6. 42^nd Amendment Act, 1976

1. The citizens have added fundamental duties (new part IV A).
2. The President was made bound by the cabinet ‘s advice. Except for administrative and other matters tribunals (Added Part XIV A).
3. Froze the Lok Sabha seats and the state legislatures on the basis of the 1971 census up to 2001 — Population Management Mechanism. The constitutional amendments were made without judicial review.
4. In the Preamble, three additional terms (i.e. socialist, secular, and integrity) were included.
5. The 42nd amendment is the most comprehensive amendment in the history of Indian Constitutional Amendments. It consisted of 59 clauses and carried out so many changes that it has been termed as a “Mini Constitution”.
6. The Supreme Court and high courts had curtailed the power of judicial review and written jurisdiction. Raised Lok Sabha tenure and state legislatures from 5 to 6 years.
7. Added three new guidelines, namely equal justice and free legal assistance, employee participation in industry management and environmental protection, forests and wildlife.
8. Facilitated declaration of a national emergency within a portion of India’s territories. Extended the one-time period of the law of the President of a State from six months to a year.
9. Shifted five subjects from the state list to the concurrent list, namely education, forests, wildlife and bird protection, weights and measures and the administration of justice, constitution and organization of all courts except the Supreme Court and the high courts.
10. Established for the development of the Judicial Service of all India.

 

7. 44th Amendment Act, 1978

1. Provided that, during a national emergency, the fundamental rights guaranteed by Articles 20 and 21 cannot be suspended.
2. The original term of the Lok Sabha and the state legislatures (i.e., 5 years) was restored.
3. Replaced the term ‘internal disturbance’ with the term ‘armed rebellion’ concerning the national emergency.
4. Made the President declare a national emergency only on the cabinet ‘s written recommendation.
5. Has rendered some constitutional provisions for a national emergency and the law of the Constitution.
6. Deleted the right to property from the Fundamental Rights register, and made it a legal right instead.
7. Restored the rules in Parliament and state legislatures on quorum.
8. Reference to the British House of Commons in the parliamentary privilege’s provisions were omitted.
9. Gave fundamental immunity of the publishing of truthful accounts of legislative trials and state assemblies in a journal.
10. The President was allowed to give the cabinet ‘s recommendations back once for reconsideration. The reconsidered opinion, however, is to be binding on the President.

 

8. 52nd Amendment Act, 1985

1. The 52nd amendment was unanimously adopted by both houses of Parliament.
2. The Act made defection of another party unlawful after elections. Any member who defects after elections to another party will be disqualified from being a member of parliament or a legislature of the state.
3. Provided for disqualification on the ground of defection of parliamentary members and state legislatures, and added a new Tenth Schedule containing the details in this regard.
4. It introduced anti-defection laws through the addition of a new Tenth Schedule in order to prevent the mischief of political defections lured by power or material benefits.

 

1. 73rd Amendment Act, 1992

1. The amendment created the framework for the Panchayati Raj Institutions. The Panchayati Raj institutions now become a constitutional legitimate.
2. A new section IX was added to the Constitution, with the inclusion of the powers and duties of Panchayati Raj Institutions in Article 243A and the fresh schedule called the Eleventh Schedule.

 

10. 74^th Amendment Act, 1992

1. A new Twelfth Schedule was introduced which contains 18 functional duties to be executed by the municipalities.
2. Granted constitutional status and protection to the urban local bodies.
3. Part IX-A was added under the Amendment as the municipalities

 

11. 86^th Amendment Act, 2002

1. The Law amends the Constitution in Part-III, Part -IV, and Part-IV (A).
2. The Act inserts a new Article, namely Article 21A, which confers the right to free and compulsory education on all children aged between 6 and 14 years.
3. One of the most critical changes, with the aid of government support, the government forced private schools to accept 25 percent of their class size from socially vulnerable or deprived classes in society by a random allocation process. This move was taken to seek to offer quality education to everyone.

 

10. 91^st Amendment Act, 2003

1. The total number of ministers including the Prime Minister in the central council of ministers shall not exceed 15% of the total strength of the Lok Sabha, as laid in Article 75(1A)
2. A member of any house of Parliament disqualified under defection is also disqualified to get an appointment as a minister, as provided in Article 75(1B)

 

50. 97th Amendment Act, 2012

1. Promotion of cooperatives: It added the words “cooperative societies” in Article 19(l)(c) and the insertion of Article 43B i.e., Promotion of cooperative societies and added Part-IXB i.e., Co-operative societies.
2. The amendment aims to promote cooperative economic activities which in effect support rural India develop. It is required not only to ensure the independent and democratic operation of cooperatives but also to make the management accountable to members and other stakeholders.

 

1000. 100^th Amendment Act, 2015

1. Exchange of other enclave lands with Bangladesh. Conferring citizenship rights to enclave residents arising from the signing of the Treaty of Land Boundary Agreement (LBA) between India and Bangladesh.

 

14. 101^st Amendment Act, 2016

1. Created the structure for the new indirect tax regime in India- Goods and Services Tax (GST).
2. Goods and Services Tax (GST) commenced on 8 September 2016 with the enactment and subsequent notices of the 101st Constitution Amendment Act, 2016.

 

• 102^nd Amendment Act, 2018

1. The act gave the National Commission on Backward Classes a constitutional status.
2. A new Article 342-A was added that empowers the President to notify that state/union territory’s list of socially and educationally backward classes.
3. It inserted a new Article 338B which provides for NCBC, its mandate, composition, functions, and various officers.

 

16. 103^rd Amendment Act, 2019

1. It made provision for advancing the economically weaker sections of society by reserving a 10% of all government positions and college seats for them. Thus creating the EWS quota for general category people.
2. The amendment enforced Article 46 of India’s Constitution, a Directive Principle which urges the government to protect the educational and economic interests of the weaker sections of society.
3. Two constitutional freedoms were also changed: Articles 15 and 16 (Right to Equality and reservations)

 

17. 104^th Amendment Act, 2020

1. It amended Article 334 to extend the reservations of seats for Scheduled Castes and Scheduled Tribes in Lok Sabha and State assemblies.
2. But it ended reservation for the Anglo-Indian class as it did not extend 2 reserved seats in Parliament and 1 for the legislative assembly for Anglo-Indian communities under Article 331.

 

18. 105^th Amendment Act, 2021

1. The 105th amendment was introduced based on the Supreme Court ruling in the Maratha reservation case which had by a 3:2 majority.
2. This amendment seeks to restore the power of states and Union Territories to identify socially and economically backward communities (SEBCs) and maintain a separate list of other backward communities other than the central list.

SOME IMPORTANT PROVISIONS OF INDIAN CONSTITUTION

 

1. It establishes a Sovereign, Socialist, Secular, Democratic Republic

1. The Preamble of Constitution declares India to be a Sovereign, Socialist, Secular, Democratic and Republic Country. There are also various other terms like Justice, Liberty, Equality, and Fraternity which ensure equality and protect people.

 

2. Form of Government- Parliamentary

1. Articles 74 and Article 75 is concerned with the Parliamentary system at the centre and Article 163 and Article 164 is concerned with the Parliamentary system at the states.
2. The Bicameral Legislature system is followed in our country.
3. Article 74 of the Indian Constitution provides that there should be a Council of Ministers with the Prime Minister and Council of Minister can aid and advise the President. Article 75 of the Indian Constitution deals with the other provisions relating to the appointment of Ministers.

 

3. Directive Principles of State Policy

1. These are the principles which is the duty of the State to apply while making any new law or policy. DPSP’s are similar to the ‘Instrument of Instructions’ of the Government of India Act 1935.

 

4. Federation with a strong Center

1. The constitution of India is neither federal nor unitary. It provides for a federation with a strong centralising tendency on the lines on Canadian constitution.

 

5. Fundamental Duties along with rights

1. Article 51A of the Indian Constitution provides various fundamental duties.
2. These are non-enforceable and non-justiciable. There are no specific provisions in constitution to enforce fundamental duties in the Courts like the fundamental rights but several laws like Flag Code etc. helps in enforceability of these duties.

 

6. Establishes a Secular State

1. The Preamble of the Constitution declares India to be a secular state.
2. Article 26 also provides the right to manage their own religion in order to prevent any intrusion.
3. The proposal of developing a uniform civil code is also provided in the directive principles of State policy in order to resolve the differences between various religions, though it is not implemented still.
4. Secularism is reflected in the Fundamental rights. Fundamental rights provide the citizens’ freedom to follow their own religion and religious practices and no one can be forced to follow any religion.

THE BASIC STRUCTURE DOCTRINE

1. The Basic Structure Doctrine was given by the Supreme Court in the Kesavananda Bharati judgment in 1973.
2. SC held that Parliament cannot use its amending power to alter the basic structure or the essential features of the Constitution.
3. The Basic Structure of the Constitution is its living spirit. It is the “soul” of the Constitution.
4. Granville Austin’s Working of a Democratic Constitution said the basic structure doctrine “is fairly said to have become the bedrock of constitutional interpretation in India”.
5. The Constitution Bench in the NJAC judgment encapsulated the principle behind the basic structure theory when it said “a change in a thing does not involve its destruction”.
6. Some of the elements of the basic structure of the Constitution includes the separation of powers among the legislature, executive and judiciary; dignity of the individual; unity and integrity of the nation; sovereignty of India; democratic character of our policy, federal and secular character of the Constitution; welfare state and egalitarian society; liberty of thought, expression, belief, faith and worship and equality of status and opportunity among other essential features.

Criticism of the Doctrine

1. Almost 50 years after it was propounded, the legitimacy of the term “basic structure” and the theory underpinning its doctrinal creation is still seen as an abstract idea in certain quarters, since it is missing from the text of the Constitution.
2. Its critics believe that the doctrine gives the judiciary the power to impose itself over a democratically formed government. BJP’s Arun Jaitley termed it the “tyranny of the unelected” in his criticism of the NJAC judgment in 2015.

 

“Democracy sustains and blossoms when the legislature, the judiciary and the executive act in tandem and togetherness to fructify constitutional goals and realise aspirations of the people”

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