HISTORICAL EVOLUTION, MAKING & FEATURES OF THE CONSTITUTION
HISTORICAL EVOLUTION, MAKING &FEATURES OF THE CONSTITUTION
|WE ARE GOING TO COVER:|
1. SIGNIFICANCE OF CONSTITUTION
2. OBJECTIVE OF CONSTITUTION
4. HISTORICAL EVOLUTION
5. CONSTITUENT ASSEMBLY
6. WORKING OF CONSTITUENT ASSEMBLY
7. COMMITTEES OF CONSTITUENT ASSEMBLY
8. DRAFTING COMMITTEE
9. INDIAN INDEPENDENCE ACT OF 1947 MADE THE FOLLOWING THREE CHANGES
10. FUNCTIONS PERFORMED BY CONSTITUENT ASSEMBLY
11. CRITICISM OF CONSTITUENT ASSEMBLY AND CONSTITUTION
12. WHAT IS CONSTITUTION?
13. COMPONENTS OF INTERPRETATION OF CONSTITUTION
14. SALIENT FEATURES OF CONSTITUTION
15. BY 42ND AMENDMENT 1976, 5 SUBJECTS MOVED FROM STATE TO CONCURRENT LIST
16. SEPARATION OF POWER
17. SIGNIFICANCE OF THE SEPARATION OF POWER DOCTRINE
18. EXCEPTIONS TO SEPARATION OF POWER
19. SOURCES OF CONSTITUTION
WHAT IS CONSTITUTION?
- A constitution is a body of fundamental principles according to which a state is constituted or governed.
- The constitution is fundamental law of land which fulfils aspirations and goals of a society.
- It is an overarching framework within which one pursues individual aspirations, goals and freedoms.
- It defines the fundamental values that we may not trespass.
- The constitution is living document which grows and evolves according to needs and aspirations of changing society through instruments such as –
- Amendments to the constitution
- Judicial interpretations and judgements.
|SIGNIFICANCE OF CONSTITUTION|
- It gives us political framework and distributes decision making powers.
- Constitution exhibits our conflicts, aspirations, ideals and national struggle.
- Constitution also gives one a moral identity.
- It creates, reflects and accords an Indian identity to individuals.
|OBJECTIVE OF CONSTITUTION|
|“Constitution envisions establishing an egalitarian social order rendering to every citizen social, economic and political justice in a social and economic democracy of the Bharat Republic” – Supreme Court observed in 1997|
- To enable the government to fulfil the aspirations of a society and create conditions for a just society.
- To specify who has the power to make decisions in a society. It decides how the government will be constituted.
- Constitution is to provide a set of basic rules that allow for minimal coordination amongst members of society.
- To set some limits on what a government can impose on its citizens.
- A political philosophy based on the idea that government authority is derived from the people and should be limited by a constitution.
- Origin– Magna Carta (1215) of King John of England and English Bill of Rights.
- Western idea of constitutionalism is negative in orientation as it seeks to restrict, disempower and limit the state.
- Components –
- Rule of law – Developed by British ruler Dicey
- Separation of power – India follows the mixed separation of power model
- Free press and media
- Independent judiciary
- Elected government (temporariness of government)
- Inheritance of INM – These principles were forged during the long freedom struggle. The Constituent Assembly was giving concrete shape and form to the principles it had inherited from the nationalist movement.
- Perhaps the best summary of the principles that the nationalist movement brought to the Constituent Assembly is the Objectives Resolution moved by Nehru in 1946. This resolution encapsulated the aspirations and values behind the Constitution.
Introduced bicameralism and direct election. Indian Legislative Council divided into:
|The system of Budget was introduced in British India in 1860.|
- Idea of a Constituent Assembly for India was put forward for the first time by N. Roy in 1934.
- INC first time officially demanded a Constituent Assembly to frame the Constitution of India in 1935.
- British Government accepted demand for first time in ‘August Offer’ of 1940.
- Constitution drew its authority from the fact that members of the Constituent Assembly engaged in what one might call public reason (Principle of Deliberation).
- Constitutional advisor – B.N Rao
- Drafting Committee – Dr. B.R. Ambedkar
- Introduction of Universal suffrage was only one provision of the Constitution which passed without virtually any debate.
- Constituent Assembly was constituted under the scheme formulated by the Cabinet Mission Plan 1946 (members à Lawrence, Cripps, Alexander)
- Total membership of 389.
- Members from British India – 296
- Seats from princely states – 93
- Seats allotted in proportion to their respective population (1 seat : 1 M)
- Division of among the three principal communities – Muslims, Sikhs and General.
- Constituent Assembly was partly elected (provincial legislative assembly) and partly nominated (representatives of princely states) body.
- Members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.
- Assembly does not include Mahatma Gandhi.
- Constituent Assembly had 11 sessions over two years, 11 months and 18 days.
- Final session– January 24, 1950. It, however, continued as the provisional parliament of India from January 26, 1950, till the formation of new Parliament after the first general elections in 1951–52.
|WORKING OF CONSTITUENT ASSEMBLY|
- First meeting on Dec 9, 1946 (Muslim League boycotted); attended by 211 members.
- Temporary President of the Assembly- Sachchidananda Sinha, the oldest member, was elected as following the French practice.
- Later, Dr. Rajendra Prasad was elected as the President of the Assembly.,
- Vice – Presidents (Two) – Both H.C. Mukherjee and V.T. Krishnamachari
- Objectives Resolution – moved on December 13, 1946; by Jawaharlal Nehru
- Representatives of the princely states, who had stayed away from the Constituent Assembly, gradually joined
- Members of the Muslim League from Indian Dominion also entered the Assembly after acceptance of Mountbatten Plan of partition (June 3, 1947)
|SALIENT FEATURES OF CONSTITUTION|
1. MAJOR COMMITTEES
In constituent assembly, eight were major committees and the others were minor committees. The names of these committees and their Chairman are given below:
- Union Powers Committee – Jawaharlal Nehru
- Union Constitution Committee -Jawaharlal Nehru
- Provincial Constitution Committee -Sardar Patel
- Drafting Committee – Dr. B.R. Ambedkar
- Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel.
- Rules of Procedure Committee – Dr. Rajendra Prasad
- States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
- Steering Committee – Dr. Rajendra Prasad
2. MINOR COMMITTEES
- Finance and Staff Committee – Dr. Rajendra Prasad
- Credentials Committee – Alladi Krishnaswami Ayyar
- House Committee – B. Pattabhi Sitaramayya
- Order of Business Committee – Dr. K.M. Munshi
- Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad
- Committee on the Functions of the Constituent Assembly – G.V. Mavalankar
- Ad-hoc Committee on the Supreme Court – S. Varadachari (Not an Assembly Member)
- Committee on Chief Commissioners’ Provinces – B. Pattabhi Sitaramayya
- Expert Committee on the Financial Provisions of the Union Constitution -Nalini Ranjan Sarkar (Not an Assembly Member)
- Linguistic Provinces Commission – S.K. Dar (Not an Assembly Member)
- Special Committee to Examine the Draft Constitution – Jawaharlal Nehru
- Press Gallery Committee – Usha Nath Sen
- Ad-hoc Committee on Citizenship – S. Varadachari (Not an Assembly Member)
- Among all the committees, the most important and pivotal committee was the seven members Drafting Committee set up on August 29, 1947.
- It was this committee that was entrusted with the task of preparing a draft of the new Constitution. Members of this committee were:
- B.R. Ambedkar (Chairman)
- Gopalaswamy Ayyangar
- Alladi Krishnaswamy Ayyar
- K.M. Munshi
- Syed Mohammad Saadullah
- Madhava Rau (He replaced B.L. Mitter who resigned due to ill-health)
- T. Krishnamachari (He replaced D.P. Khaitan who died in 1948)
- The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February, 1948.
- The people of India were given eight months to discuss the draft and propose amendments.
- Drafting Committee prepared a second draft, which was published in October, 1948.
- The Drafting Committee took less than six months to prepare its draft.
- In all, drafting committee sat only for 141 days.
|INDIAN INDEPENDENCE ACT OF 1947 MADE THE FOLLOWING THREE CHANGES|
- Assembly was made a fully sovereign body, free to abrogate or alter any law.
- Two separate functions were assigned to the Assembly (performed on separate days) – legislative body (Chaired by G V Mavalankar) and Constituent body (chaired by Dr. Rajendra Prasad); first Parliament of free India (Dominion Legislature).; These two functions continued till November 26, 1949.
- After withdrawal of Muslim League members, total strength came down to 299 as against 389 under the Cabinet Mission Plan.
|FUNCTIONS PERFORMED BY CONSTITUENT ASSEMBLY|
- Making of the Constitution and enacting of ordinary laws
- Ratified the India’s membership of the Commonwealth in May 1949.
- Adopted the national flag on July 22, 1947.
- Adopted the national anthem on January 24, 1950.
- Adopted the national song on January 24, 1950.
- It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.
|Constitution as adopted on November 26, 1949, contained Preamble, 395 Articles and 8 Schedules.|
January 26 as ‘date of commencement’ – In 1930, Purna Swaraj day was celebrated at Lahore Session (December 1929) of the INC.
NOTE – The Preamble was enacted after the entire Constitution was already enacted to align with philosophy of constitution.
|CRITICISM OF CONSTITUENT ASSEMBLY AND CONSTITUTION|
- Non-representative composition – Not directly elected by the people of India on the basis of universal adult franchise.
- Dominated by Congress – 82% seats of assembly were held by INC
- Constitution is un-Indian and slavish imitation of Western constitutions
- Time Consuming exercise – Final Drafting took almost 3-year span.
- Elephantine sized and complicate language – Lawyer’s paradise.
- Un-Gandhian nature of constitution, although not sidelined completely.
- Communist’s opposition to parliamentary democracy.
- Carbon Copy of the 1935 Act or Amended Version of the 1935 Act.
|COMPONENTS OF INTERPRETATION OF CONSTITUTION|
- Constitutional assembly debates
- Doctrine of liberal interpretation
- Tools evolved by judiciary (apex court)
- Doctrine of progressive interpretation – in align with contemporary realities.
- Doctrine of prospective interpretation
- Article 367 – General Clauses Act, 1897
|SALIENT FEATURES OF CONSTITUTION|
- Borrowed constitution (referred constitution of 60+ countries)
- Structural part – GOI act 1935
- Philosophical part – American + Irish constitution
- Political part – British constitution
- Blend of rigidity (American constitution) and flexibility (British constitution)
- Synthesis of Parliamentary Sovereignty (Britain) and Judicial Supremacy(USA)
- Federal System with Unitary Bias – ‘quasi-federal’, ‘co-operative federalism’.
- Fundamental Rights (Part III), DPSP (Part IV) (‘novel feature’), FD (Part IVA)
- Secular State – Added by 42nd CAA 1976, Preamble, Art. 14,15,16, 25-30, 44.
- Universal Adult Franchise -Voting age as 18 years from 21 years (61st CAA 1988)
- A Single Citizenship.
- Emergency Provisions – Art. 352, 356, 360.
- Accords socio-economic justice (DPSP) along with political justice (FR)
- Unique blend of Justiciable and non-justiciable rights – Sapru committee
- Independent (Federal feature) and Integrated judiciary (Unitary feature)
- Independent Bodies – ECI (Art 324), CAG (Art. 148), Public Service commissions (Art 315-323); known as Bulwarks of the democratic system of India.
- Third-tier of government – Panchayats (Sch.11) and municipalities (Sch.12)
|LIMITATIONS OF CONSTITUTION|
- Indian Constitution has a centralized idea of national unity.
- It appears to have glossed over some important issues of gender justice, particularly within the family.
- Certain basic socio-economic rights were relegated to the section on Directive Principles rather than made an integral feature of our fundamental rights.
|SCHEDULES OF CONSTITUTION|
|• Name of states and UTs along with territorial jurisdiction.|
|• Provisions relating to emoluments, allowances, privileges: – President, governors, speaker and Dy. Speaker of LS and SLA, chairman and Dy. Chairman of RS and SLC, judges of SC and HC, CAG.|
|• Forms of Oaths or Affirmations (Remember oath of CAG mentioned)|
• “Oath of secrecy” should be replaced by “Oath of transparency” – 2nd ARC
|• Allocation of seats in the Rajya Sabha to the states and UTs;|
• Punchhi commission recommended “equal representation” of states in Rajya Sabha
|• Administration and control of scheduled areas and scheduled tribes|
|• Administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram (Art. 244 and 275) -> AMTM|
|• Division of powers between the Union and the States via 3 lists.|
|• Languages recognized by Constitution. (Originally – 14 languages. presently there are 22 languages.) English and Bhojpuri and not Sch. Languages|
|• Protection of laws from judicial invalidation (added by 1st amendment 1951; PM – Jawaharlal Nehru);|
• Post Kesavananda Bharti case of 24 April 1973, Judicial Review is part of basic structure of constitution, hence 9th schedule is not an exception
|• Originally added by 35th CAA 1974 along with Art. 2A. (Sikkim).|
• Subsequently, 52nd CAA 1985 deals with anti–defection replaced above provisions; speaker’s decision liable for Judicial review – SC in Kihoto Hollohan case 1992
|• Specifies powers, responsibilities and authorities of panchayats (Art.243 G);|
• Added by 73rd CAA 1992; consist 29 functional matters.
|• Specifies powers, responsibilities and authorities of municipalities (Art.243 W);|
• Added by 74th CAA 1992; consist 18 functional matters.
|BY 42ND AMENDMENT 1976, 5 SUBJECTS MOVED FROM STATE TO CONCURRENT LIST|
- Weights and measures
- Protection of wildlife
- Of justice and Organisation of subordinate courts.
- Education (excluding primary)
|SEPARATION OF POWER|
- In India, a separation of functions rather than of powers is followed.
- Unlike in the US, in India, the concept of a separation of powers is not adhered to strictly.
- India follows mixed separation of power model unlike USA.
- System of checks and balanceshave been put in place in India.
- Article 50:Obligation over the State to separate the judiciary from the executive.
- Article 123:Ordinance making power of President in certain conditions.
- Articles 121 and 211:Legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
|SIGNIFICANCE OF THE SEPARATION OF POWER DOCTRINE|
- Keeps away autocracy -corruption, nepotism, abuse of power.
- Safeguards individual liberty
- Helps create an efficient administration
- Judiciary’s independence is maintained.
- Promotes division of labour, efficiency, specialization.
- Prevents the legislature from enacting arbitrary or unconstitutional laws
|EXCEPTIONS TO SEPARATION OF POWER|
- Setting up independent regulator for sector of economy
- Executive conferred with judicial powers – SDM, DM, Tehsildar
- Parliamentary form of government – Executive are member of legislature.
- Schemes such as MPLAD, LAD et
|SOURCES OF CONSTITUTION.|
“One likes to ask whether there can be anything new in a constitution framed at this hour in the history of the world… The only new thing, if there can be any, in a constitution framed so late in the day are the variations, made to remove the failures and accommodate it to the needs of the country.” – B. R AMBEDKAR
|SOURCE CONSTITUTION||FEATURES BORROWED|
|GOI 1935||2/3rd of constitution, British Federal Scheme, Office of governor, Judiciary, Public Service Commissions, Emergency provisions, administrative details.|
|British constitution||Parliamentary government, Rule of Law, legislative procedure, single citizenship, cabinet system, writs, parliamentary privileges, bicameralism, FPTP method.|
|US constitution||Fundamental rights, independence of judiciary, judicial review, impeachment of the president, removal of Supreme Court and high court judges and post of vice-president.|
|Irish constitution||Directive Principles of State Policy, nomination of members to Rajya Sabha and method of election of president.|
|Canadian constitution||Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.|
|Australian constitution||Concurrent List, freedom of trade, Constitution commerce and inter-course and joint sitting of the two Houses of Parliament.|
|Weimar constitution (Germany)||Suspension of Fundamental Rights of Germany during Emergency.|
|Soviet constitution (USSR- Now Russia)||Fundamental duties and the ideal of (USSR, now Russia) justice (social, economic and political) in the Preamble.|
|French constitution||Republic and the ideals of liberty, equality and fraternity in the Preamble.|
|South African constitution||Procedure for amendment of the Constitution and election of members of Rajya Sabha|
|Japanese constitution||Procedure established by Law.|