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INDIA’S CONSTITUTION – MAKING PROCESS: A BRIEF OVERVIEW

Introduction

The Constitution of India is the ultimate law of the country. It is a living document that provides the foundation of the political system, the fundamental organization, processes, powers, and responsibilities of government. These documents provide the groundwork for a legal state by clearly defining and limiting the authority of government institutions in their dealings with one another and with the general public. In terms of length, it is the world’s longest written constitution for any sovereign nation. It confers “constitutional supremacy” rather than “parliamentary supremacy” because it was formed by a constituent assembly rather than Parliament and accepted by the people via a statement in its preamble. Parliament can’t amend the constitution; nevertheless, some provisions of the constitution may be modified according to the authority granted by Article 368 of the Constitution. India’s constitution is often credited to Dr. Bhimrao Rao Ambedkar.[1]

The Indian Constitution was designed to be federal. Each of India’s states and territories is governed by its own legislature. Governors (in states) or Lieutenant Governors (in territories) and Chief Ministers (in states) are like the President and Prime Minister. Having been adopted on November 26, 1949, by the Indian Constituent Assembly as a whole, the Constitution went into force one year later on January 26, 1950. The 26th of January was chosen as a commemoration of the Purna Swaraj declaration of independence from British rule, which was made in 1930. As a result of its acceptance, the Union of India has legally renamed the “Republic of India”, and the “Government of India Act, 1935” was substituted as the country’s primary administering document. The Constitution of India states India to be a “sovereign, socialist, secular, democratic republic,” promising its people of “justice, equality, and liberty,” and attempting to foster brotherhood amongst them. By constitutional amendment in 1976, the terms “socialist” and “secular” were added. This amendment in 1976 was the 42nd amendment and was also called a mini-constitution. Every year on January 26th, India commemorates the adoption of the Constitution as Republic Day.

The principles of the Indian Constitution are taken from many different countries. Keeping India’s requirements and conditions in mind, the architects of the Indian Constitution extensively took several characteristics from past legislation. There are significant similarities between today’s Constitution and the Government of India Act, 1935. It was never fully implemented, but it served as a basis for the development of a new constitution for India. Many of the Act’s provisions are included in the Indian Constitution, such as the federal structure of government, the autonomy of states and territories, the bicameral central legislature, the Council of States, and a division of legislative responsibilities between the centre and states.[2]

Numerous levels exist in the framework of the Constitution’s Historical Foundations & Evolution:

Sr. No.

Name of the Act

1

“The Regulating Act 1773

2

The Pitts Act 1784

3

The Charter Act 1833 

4

The Charter Act 1853

5

The Government of India Act 1858

6

The Indian Councils Act 1861

7

The Indian Councils Act 1892

8

The Indian Councils Act 1909 (Morley Minto Reform)

9

The Government of India Act 1919 (Montague-Chelmsford Reforms)

10

Government of India Act 1935

11

India Independence Act 1947”

Constituent Assembly

The Constituent Assembly was selected by the “Provincial Assembly” to frame the Indian Constitution. It was tasked with drafting a constitution that would facilitate the transition of sovereignty from British to Indian control. The constitution was written by 299 representatives from all castes, regions, religions, and genders. As early as 1934, Manabendra Nath Roy suggested the proposal of a Constituent Assembly. The Constituent Assembly had its first session on December 9, 1946, in which Dr. Sachchidananda Sinha was the 1st  interim two-day president of the Constituent Assembly, but due to the stressful situation, hardly any development was done.

On December 13, 1946, Nehru passed an “Objective Resolution” outlining the constitution’s core ideas. The Constituent Assembly overwhelmingly accepted the resolution at its next sitting on January 22, 1947, making it the Preamble of the Constitution. On August 14, 1947, a proposal for the formation of several committees was tabled. The Drafting Committee was formed in August 1947, with Dr. B.R. Ambedkar as its Chairman and B.N. Rau as its Constitutional Advisor.[3] Thirteen committees were established by the Constituent Assembly to handle various aspects of the constitution-making process. Eight of them were significant committees, while the others were small committees.

  • “Drafting Committee – Dr. B.R. Ambedkar
  • Union Powers Committee – Jawaharlal Nehru
  • Union Constitution Committee – Jawaharlal Nehru
  • Provincial Constitution Committee – Sardar Vallabhbhai Patel
  • Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Vallabhbhai Patel.

This committee had the following subcommittees :

  • Fundamental Rights Sub-Committee – J.B. Kripalani
  • Minorities Sub-Committee – Harendra Coomar Mookerjee,
  • North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bardoloi
  • Excluded & Partially Excluded Areas (except Assam) Sub-Committee – A V Thakkar
  • Rules of Procedure Committee – Dr. Rajendra Prasad
  • States Committee (Committee for Negotiating with States) – Jawaharlal Nehru.
  • Steering Committee – Dr. Rajendra Prasad”

The assembly met 11 times. The document was finished after 2 years, 11 months, and 8 days, and the Constituent Assembly accepted the document as definitive on November 26, 1949. The final text was divided into 22 parts, 395 articles, and 8 schedules. The constitution went into effect on January 26, 1950.

Structure of Indian Constitution

The Indian constitution has a preamble and 470 articles divided into 25 parts. It has been amended 105 times, with 12 schedules and five appendices; the most recent change was passed in Rajya Sabha on August 11, 2021. Some important parts of the Constitution are as follows:

“Part I – Union and its Territory

Part II – Citizenship.

Part III – Fundamental Rights.

Part IV– Directive Principles of State Policy.

Part IVA – Fundamental Duties.

Part V – The Union.

Part VI – The States.

Part VIII – The Union Territories

Part X – The scheduled and Tribal Areas

Part XI – Relations between the Union and the States.

Part XV – Elections

Part XVI – Special Provisions relating to certain classes.

Part XVII – Languages

Part XVIII – Emergency Provisions

Part XX – Amendment of the Constitution”[4]

Schedules Indian Constitution contains a total of 12 Schedules relating to union and territories, emoluments, oaths, allocation of seats, languages, defection, etc.

Limitations of Amending Constitution

Kesavananda Bharati v. the State of Kerala[5], (1973). This is one of the most famous landmark cases ever recorded in the judiciary which comprised of the largest constitutional bench of 13 judges. In this case, the doctrine of “basic structure of the constitution” was evolved, which was not mentioned anywhere in the Constitution. The Supreme Court held that the Parliament cannot amend the “basic structure of the constitution”. The Constitution’s “Doctrine of Basic Features” states how some fundamental features of the Constitution can’t be altered, eliminated, or abolished.

Adoptions from Other Countries

The Constitution has taken its source from multiple constitutions of different countries. Dr. Ambedkar, in this regard, said that – “As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution….

List of Indian Constitutional Features Borrowed:

  • Single Citizenship, Bicameralism, Cabinet System – Britain
  • Directive Principles of State Policy, Election of President – Ireland
  • Impeachment of President, Fundamental Rights, Preamble, Independent Judiciary – USA
  • Federalism, Residuary Powers of Centre, Appoint of Governors – Canada
  • Concurrent List, Joint Sitting of Two Houses – Australia
  • Fundamental Duties, Ideals of Justice – USSR
  • Ideals of Liberty, Equality, and Fraternity – France
  • Suspension of FR during Emergency – Germany
  • Amendment to the Constitution, Election of Rajya Sabha Members – South Africa
  • Concept of Procedure established by Law – Japan

Conclusion

A crucial component of India’s Constitution is its statement of societal values. The Constitution embodies a democratic system and secularism, with social democratic features. Individuals and communities’ social, economic, and political freedoms are protected. The writers of the constitution’s apparent dedication to a democratic, secular, egalitarian, and libertarian society is a strong sign of their vision and devotion to the well-being of everyone, not just a few. At last, it is worth mentioning the quote by Dr. B.R. Ambedkar, “However good a constitution maybe if those who are implementing it are not good, it will prove to be bad. However, bad a constitution may be if those implementing it are good, it will prove to be good”.

Author(s) Name: Shashank Shekhar (Hidayatullah National Law University, Raipur)

References:

[1] Legislative Department, https://legislative.gov.in/sites/default/files/COI_1.pdf (last visisted Jan. 1, 2022, 4:55 PM).

[2] Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis 20 (Bloomsbury Publishing 2017).

[3] B.K. Manish, Making of the Indian Constitution: a simplified brief, Down To Earth (Jan. 4, 2022, 5:00 PM), https://www.downtoearth.org.in/coverage/governance/making-of-constitution-a-simplified-brief-56529

[4] Institute of Company Secretaries of India, https://www.icsi.edu/media/webmodules/CONSTITUTION.pdf (last visisted Dec. 28, 2021, 10:10 PM).

[5] Kesavananda Bharati v. State of Kerala, A.I.R. 1973 SC 1461 (India).

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