The Constitution of India is the supreme law of India. It frames fundamental political principles, procedures, practices, rights, powers, and duties of the government. 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. Parliament cannot override it.
The world’s longest constitution is the Indian’s constitution. At its commencement, it had 395 articles in 22 parts and 8 schedules. It consists of approximately 145,000 words, making it the second largest active constitution in the world. Currently, it has a preamble, 25 parts with 12 schedules, 5 appendices, 448 articles, and 101 amendments.
History
The constitution of India was adopted on the 26th of November, in the year 1949. However, it came to effect on the 26th of January, 1950. 26th of January is celebrated as the Republic Day of India.
It was adopted by the Constitution Assembly. Dr. B. R. Ambedkar, the chairman of the Drafting Committee, is widely considered to be the architect of the Constitution of India. After, the adoption of the constitution, The Union of India became the contemporary and modern Republic of India.Before 1947, India was divided into two main entities – British India which consisted of 11 provinces and the Princely states ruled by Indian princes under a subsidiary alliance policy.
The two entities merged to form the Indian Union, but many of the legacy systems in British India are followed even now. The historical underpinnings and evolution of the Indian Constitution can be traced to many regulations and acts passed before Indian Independence.
Indian democracy is a Parliamentary form of democracy where the executive is responsible to the Parliament. The Parliament has two houses – Loksabha and Rajyasabha. Also, the type of governance is Federal, ie there is a separate executive and legislature at the Center and States. We also have self-governance at local government levels.
All these systems owe their legacy to the British administration. Let us see the historical background of the Indian Constitution and its development through the years.
Regulating Act of 1773
The first step was taken by the British Parliament to control and regulate the affairs of the East India Company in India.
It designated the Governor of Bengal (Fort William) as the Governor-General (of Bengal).
Warren Hastings became the first Governor-General of Bengal. Executive Council of the Governor-General was established (Four members). There was no separate legislative council.
It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.
The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.
It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives. The Court of Directors ( the governing body of the company) should report its revenue.
Pitt’s India Act of 1784
Distinguished between commercial and political functions of the company.
Court of Directors for Commercial functions and Board of Control for political affairs.
Reduced the strength of the Governor General’s council to three members.
Placed the Indian affairs under the direct control of the British Government.
The company’s territories in India were called “the British possession of India”.
Governor’s councils were established in Madras and Bombay.
Charter Act of 1813
The Company’s monopoly over Indian trade was terminated; Trade with India was open to all British subjects.
Charter Act of 1833
Governor-General (of Bengal) became the Governor-General of India.
The First Governor-General of India was Lord William Bentick.
This was the final step towards centralization in British India.
The beginning of a Central legislature for India as the act also took away legislative powers of Bombay and Madras provinces.
The Act ended the activities of the East India Company as a commercial body and it became a purely administrative body.
Charter Act of 1853
The legislative and executive functions of the Governor-General’s Council were separated.
6 members in the Central Legislative Council. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal, and Agra.
It introduced a system of open competition as the basis for the recruitment of civil servants of the Company (Indian Civil Service open for all).
Government of India Act of 1858
The rule of the Company was replaced by the rule of the Crown in India.
The powers of the British Crown were to be exercised by the Secretary of State for India
He was assisted by the Council of India, having 15 members
He was vested with complete authority and control over the Indian administration through the Viceroy as his agent
The Governor-General was made the Viceroy of India.
Lord Canning was the first Viceroy of India.
Abolished Board of Control and Court of Directors.
Indian Councils Act of 1861
It introduced Indian representation in institutions like the Viceroy’s executive and legislative council (non-official). 3 Indians entered the Legislative Council.
Legislative councils were established in centers and provinces.
It provided that the Viceroy’s Executive Council should have some Indians as non-official members while transacting the legislative businesses.
It accorded statutory recognition to the portfolio system.
Initiated the process of decentralization by restoring the legislative powers to the Bombay and the Madras Provinces.
India Council Act of 1892
Introduced indirect elections (nomination).
Enlarged the size of the legislative councils.
Enlarged the functions of the Legislative Councils and gave them the power to discuss the Budget and address questions to the Executive.
Indian Councils Act of 1909
This Act is also known as the Morley- Minto Reforms.
Direct elections to legislative councils; first attempt at introducing a representative and popular element.
It changed the name of the Central Legislative Council to the Imperial Legislative Council.
The member of the Central Legislative Council was increased to 60 from 16.
Introduced a system of communal representation for Muslims by accepting the concept of a ‘separate electorate’.
Indians for the first time in the Viceroy’s executive council. (Satyendra Prasanna Sinha, as the law member)
Government of India Act of 1919
This Act is also known as the Montague-Chelmsford Reforms.
The Central subjects were demarcated and separated from those of the Provincial subjects.
The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial subjects.
Under the dyarchy system, the provincial subjects were divided into two parts – transferred and reserved. On reserved subjects, the Governor was not responsible to the Legislative council.
The Act introduced, for the first time, bicameralism at the center.
Legislative Assembly with 140 members and Legislative Council with 60 members.
Direct elections.
The Act also required that three of the six members of the Viceroy’s Executive Council (other than Commander-in-Chief) were to be Indians.
Provided for the establishment of the Public Service Commission.
Government of India Act of 1935
The GoI Act of 1935 provided for the establishment of an All-India Federation consisting of the Provinces and the Princely States as units, though the envisaged federation never came into being.
Three Lists: The Act divided the powers between the Centre and the units into items of three lists, namely the Federal List, the Provincial List, and the Concurrent List.
The Federal List for the Centre consisted of 59 items, the Provincial List for the provinces consisted of 54 items and the Concurrent List for both consisted of 36 items
The residuary powers were vested with the Governor-General.
The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial Autonomy’.
It provided for the adoption of Dyarchy at the Centre.
Introduced bicameralism in 6 out of 11 Provinces.
These six Provinces were Assam, Bengal, Bombay, Bihar, Madras, and the United Province.
Provided for the establishment of the Federal Court.
Abolished the Council of India.
Indian Independence Act of 1947
It declared India as an Independent and Sovereign State.
Established responsible Governments at both the Centre and the Provinces.
Designated the Viceroy India and the provincial Governors as the Constitutional (normal heads).
It assigned dual functions (Constituent and Legislative) to the Constituent Assembly and declared this dominion legislature as a sovereign body.
Salient features of Constitution
Indian constitution, one of the utmost admired constitutions in the world was enacted after ‘ransacking’ all the known constitutions of the world at that time. This constitution that we have enacted has stood the test of times. Though provisions were borrowed from other constitutions, the constitution of India has several salient features that distinguish it from constitution of other countries
Some of its salient features are discussed below:
Lengthiest written constitution
Constitution can be classified into written constitution such as that of America or unwritten constitution such as that UK.
The constitution of India is a written constitution which happens to be the lengthiest written constitution in the world.
It is comprehensive, elaborate and a detailed document
The factors that have contributed to this phenomenon are: geographical factors (vastness of country and diversity), Historical factors (Influence of GoI, 1935), Single constitution for both centre and state and dominance of legal luminaries
Drawn from various sources
It has borrowed most of its provisions from the constitution of various other countries as well as from the Government of India act, 1935. Ex: structural part from GoI, 1935, independence of judiciary from USA, Fundamental Rights from USA etc
Though it is borrowed, the Indian constitution-makers made sure the borrowed features were made suitable to Indian conditions. Ex: Though we borrowed cabinet form of governance from UK, the cabinet is not all-supreme as in the case of UK.
Preamble of the constitution
The Preamble consists of the ideals, objectives and basic principles of the Constitution.
The salient features of the Constitution have developed directly and indirectly from these objectives which flow from the Preamble
It asserts India to be a Sovereign Socialist Secular Democratic Republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation.
The Preamble is the nature of Indian state and the objectives it is committed to secure for the people.
Democratic system
The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights.
Free fair and regular elections are held for electing governments
India is a republic
The Preamble declares India to be a Republic.
India is not ruled by a monarch or a nominated head of state. India has an elected head of state (President of India) who wields power for a fixed term of 5 years.
After every 5 years, the people of India indirectly elect their President.
Union of states
Article I of the Constitution declares, that “India that is Bharat is a Union of States.”
Fundamental Rights and duties
The Constitution of India grants and guarantees Fundamental Rights to its citizens.
The constitution of India confirms the basic principle that every individual is permitted to enjoy certain basic rights and part III of the Constitution deals with those rights which are known as fundamental right.The Six FR include- Right to Equality; Right to Freedom; Right Against Exploitation; Right to Freedom of Religion; Cultural and Educational Rights and Right to Constitutional Remedies (Art. 32).
The fundamental rights are justiciable and are not absolute. Reasonable constraints can be imposed keeping in view the security-requirements of the state.A new part IV (A) after the Directive Principles of State Policy was combined in the constitution by the 42nd Amendment, 1976 for fundamental duties.
Directive Principles of State Policy
A unique aspect of the Constitution is that it comprises of a chapter in the Directive Principles of State Policy.
These principles are in the nature of directives to the government to implement them to maintain social and economic democracy in the country.
Parliamentary System:
The Constituent Assembly decided to espouse Parliamentary form of government both for the Centre and the states. In Indian parliamentary system, distinction is made between nominal and real executive head.
The Council of Ministers is responsible before the Lok Sabha, The lower house of union parliament. There are close relations between executive and legislature.
Federal structure of government
A federal state is a state where a country is divided into smaller regions and the government is functioning at two levels
The Indian Constitution has envisaged a federal structure for India considering the geographical vastness and the diversity of languages, region, religions, castes, etc.
Written Constitution, supremacy of the Constitution, division of powers between Union and States, bicameral Legislature, independent Judiciary, etc. are the features of Indian federation.
Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with a unitary bias, or even as ‘a Unitarian federation.’
Universal adult franchise
All men and women enjoy an equal right to vote. Each adult man and woman above the age of 18 years has the right to vote.
All registered voters get the opportunity to vote in elections.
Single integrated State with Single Citizenship:
India is the single Independent and Sovereign integrated state.
All citizens enjoy a common uniform citizenship.
They are entitled to equal rights and freedoms, and equal protection of the state.
Integrated Judicial system
The Constitution provides for a single integrated judicial system common for the Union and the states.
The Supreme Court of India works at the apex level, High Courts at the state level and other courts work under the High Courts.
Independent Judiciary
It is necessary to secure the philosophical foundations of the rule of law and democracy
Firstly, the Constitution makers created a separate Judiciary independent of Legislature and Executive.
Secondly, the Constitution has ensured complete independence of Judiciary in the matters of administration and finances.
Amending the Constitution of India
Amending the Constitution of India is the procedure of making modifications to the nation’s fundamental law or supreme law.
The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India.
This procedure guarantees the sanctity of the Constitution of India and keeps a check on uninformed power of the Parliament of India.
Judicial Review
The judiciary has significant position in Indian Constitution and it is also made independent of the legislature and the executive.
The Supreme Court of India stands at the peak of single integrated judicial system
It operates as defender of fundamental rights of Indian citizens and guardian of the Constitution.
Basic Structure doctrine
The basic structure doctrine is an Indian judicial norm that the Constitution of India has certain basic features that cannot be changed or destroyed through amendments by the parliament.
The basic features of the Constitution have not been openly defined by the Judiciary.
At least, 20 features have been described as “basic” or “essential” by the Courts in numerous cases, and have been incorporated in the basic structure.
In Indira Gandhi v. Raj Narayan case and also in the Minerva Mills case, it was witnessed that the claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it.
Secularism
In no other country of the world so many religions co-exist as in India. In view of such diversity the Constitution guarantees complete freedom of religion to all.
The citizens of our country are free to follow any religion and they enjoy equal rights without any distinction of caste, creed, religion or sex.