Constitution of India -Historical perspective of the Constitution of India

To enable the students to understand the Historical Background of Indian constitution as well as to interpret the Fundamental Duties and its legal status. It further enables them to understand the Scope of the Right to Life and Personal Liberty.

1. 20AC002-Constitution of India Dr.S.Mary Praveena Associate Professor ECE Department Sri Ramakrishna Institute of Technology Coimbatore

2. Unit-I Historical perspective of the Constitution of India

3. Meaning of the constitution law and constitutionalism The concepts of constitution and constitutionalism refer to the legal framework of a country. While constitution is often defined as the “supreme law of a country,” constitutionalism is “a system of governance under which the power of the government is limited by the rule of law”.

4. What is a Constitution? The definition of constitution is quite complex and has significantly evolved during the last two centuries. According to the Western conception, constitution is the document that contains the basic and fundamental law of the nation, setting out the organization of the government and the principles of the society . Yet, although many countries have a written constitution, we continue to see the phenomenon of “living constitution” in many parts of the world. As society change, so do laws and regulations . Furthermore, in some cases there is no single document that defines all aspects of the state, but rather several different documents and agreements that define the power of the government and provide a comprehensive legal framework although they are not unitary .

5. Constitution has also been defined as : Basic norm (or law) of the state; System of integration and organization of norms and laws; Organization of the government .

6. What is Constitutionalism ? Constitutionalism is a system of governance in which the power of the government is limited by laws, checks and balances, in order to reconcile authority with individual and collective freedoms . The principle of constitutionalism must be understood in opposition to nonconstitutionalism – a system in which the government uses its powers in an arbitrary fashion, without respecting the citizen’s rights.

7. The idea of constitutionalism (and of constitution) is strictly linked with the progress and spread of democracies. In monarchic, totalitarian and dictatorial systems there is generally no constitution or, if it exists it is not respected. Individual and collective rights are often disregarded in dictatorial regimes, and the government cannot be held accountable as there is no legal document that defines its limits. The concept of constitutionalism has evolved during the last few centuries.

8. Different forms of government Absolute Monarchy (absolutism )- Absolute monarchy (or Absolutism as a doctrine) is  a form of monarchy in which the monarch rules in their own right or power . In an absolute monarchy, the king or queen is by no means limited and has absolute power, though a limited constitution may exist in some countries. These are often hereditary monarchies. Oman , Saudi Arabia, Vatican City.

9. Constitutional monarchy ,  system of government in which a monarch (see monarchy) shares power with a constitutionally organized government . United Kingdom, Netherlands, Belgium, Norway, Denmark, Spain. Representative democracy is a form of government in which the people elect officials to create laws and policy on their behalf. Nearly 60 percent of the world’s countries employ a form of government based on representative democracy, including the U.S. (a democratic republic), the UK (a constitutional monarchy), and France (a unitary state). Representative democracy is sometimes called indirect democracy.

10. Direct democracy   describes those rules, institutions and processes that enable the public to vote directly on a proposed constitutional amendment, law, treaty or policy decision . Switzerland Dictatorship is a   form of government in which one person or a small group possesses absolute power without effective constitutional limitations . Nazi Germany under Hitler and the Soviet Union under Stalin

11. An oligarchy is  a form of government characterized by the rule of a few persons or families. Russia , China Totalitarianism is  a form of government that attempts to assert total control over the lives of its citizens. North Korea Theocracy is a form of government by divine guidance or by officials who are regarded as divinely guided. Saudi Arabia, Afghanistan, Iran and Vatican City.

12. Historical perspective of the Constitution of India In 1928 , the All Parties Conference convened a committee in Lucknow to prepare the Constitution of India, which was known as the Nehru Report . Most of India was under direct British rule from 1857 to 1947 . Upon independence it became clear an new constitution was need to be created. But for that the all of India needed to be brought into the union. This meant the the Princely States needed to be convinced to become a part of the Indian union. Either by force or diplomacy. Sardar Vallabhai Patel and V.P Menon did this unenviable task. Until this happened India was still legally a dominion under the British, responsible for external security. Thus , 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 republic with the constitution.

13. Historical Evolution of the Indian Constitution Regulating Act 1773 Pitt’s India Act 1784 Charter Act of 1813 Charter Act of 1833 Charter Act of 1853 Government of India Act 1858 Indian Councils Act 1861 India Councils Act 1892 Morley- Minto Reforms 1909 Montague-Chelmsford Reforms 1919 Government of India Act 1935 Indian Independence Act 1947

14. Regulating Act 1773 First time the British Parliament resorted to regulating the affairs of the East India Company . The Governor of Bengal was made the Governor-General of Bengal ( Warren Hastings ). An Executive Council of the Governor-General was created with 4 members . Centralized the administration with the Presidencies of Madras and Bombay being made subordinate to the Bengal Presidency . Supreme Court was established at Calcutta as the Apex Court in 1774 . Prohibited company officials from engaging in private trade and from accepting gifts from Indians.

15. Pitt’s India Act 1784 Commercial and political functions of the company separated . The Court of Directors managed the commercial activities while the Board of Control managed political affairs . The company territories in India were called ‘British possession in India ’. Governor’s Councils were set up in Madras and Bombay as well.

16. Charter Act 1813 This act ended the East India Company’s monopoly over trade with India except in tea and opium. Trade with India was open to all British subjects.

17. Charter Act 1833 Governor-General of Bengal was designated the Governor-General of India ( Lord William Bentinck ). The legislative powers of the Bombay and Madras Presidencies were removed . This act ended the commercial activities of the company and it was transformed into an administrative body.

18. Charter Act 1853 The legislative and executive powers of the Governor-General’s Council were separated . A Central Legislative Council was created of 6 members out of which 4 were appointed by the provisional governments of Madras, Bombay, Agra and Bengal . The Indian civil service was opened as a means to recruit officers for administration through open competition.

19. Government of India Act 1858 After the  1857 revolt , the rule of the company was ended and the British possessions in India came directly under the British Crown . The office of the Secretary of State for India was created . He was assisted by a 15-member Council of India . The Indian administration was under his authority and the Viceroy was his agent. The Governor-General was designated the Viceroy as well ( Lord Canning ). The Court of Directors and the Board of Control were abolished.

20. Indian Councils Act 1861 Indians were given representation in the Viceroy’s Councils. 3 Indians entered the Legislative Council . Provisions were made for the entry of Indians in the Viceroy’s Executive council also as non-official members . Portfolio system was recognised . Decentralisation initiated with the presidencies of Madras and Bombay being restored their legislative powers.

21. Indian Councils Act 1892 Indirect elections (nominations) were introduced . Legislative Councils expanded. Gave more functions to the legislative councils such as the discussion of budget and questioning the executive.

22. Indian Councils Act 1909 (Morley- Minto Reforms ) Direct elections to the legislative councils were introduced for the first time . Central Legislative Council became the Imperial Legislative Council . The number of members of the legislative council was increased from 16 to 60 . The concept of the separate communal electorate was accepted . For the first time, an Indian was made a member of the Viceroy’s Executive Council. ( Satyendra Prasad Sinha – Law Member).

23. Government of India Act 1919 (Montague-Chelmsford Reforms ) Central and provincial subjects were separated. Diarchy was introduced in the provincial governments with executive councillors being in charge of the reserved list and the ministers in charge of the transferred list of subjects. The ministers were nominated from among the elected members of the legislative council and were responsible to the legislature. A bicameral legislature was introduced for the first time at the centre . (Legislative council and legislative assembly later to become Rajya Sabha and  Lok Sabha  respectively). It mandated 3 members of the Viceroy’s executive council to be Indians. This act provided for the first time, the establishment of a public service commission in India. This act extended the right to vote and with this, about 10% of the population acquired voting rights.

24. Government of India Act 1935 An all-India Federation was proposed which would consist of British India and the princely states. This never materialized though. Subjects were divided between the centre and the provinces. Centre was in charge of the Federal List, provinces in charge of the Provincial List and there was a Concurrent List which both catered to. Diarchy was abolished at the provincial level and introduced at the centre . More autonomy was accorded to the provinces and in 6 out of 11 provinces, the bicameral legislature was introduced. A federal court was established and the Indian Council abolished. Burma and Aden were severed off from India . This act provided for the establishment of the RBI . This Act continued until it was replaced by the new Indian Constitution.

25. Indian Independence Act 1947 India was declared independent and sovereign . The Viceroy and the Governors were made constitutional (nominal) heads . Set up responsible governments at the centre and the provinces . Assigned both legislative and executive powers to the Constituent Assembly of India.

26. Salient features and characteristics of the Constitution of India The Constitution of India is a very dynamic creation of our lawmakers. The Constitution of India as we all know is a supreme law of the country and every citizen of our country has to abide by the constitution. The constitution is a fundamental law of a country that reflects the fundamental principles on which the government of the country is based.

27. 1.Modern Constitution Drawn from different sources:  The Constitution of India is a unique and remarkable document having various outstanding features. It is said that, the Constitution has been prepared after deep study of all the known Constitutions of the world.  U.S.A. 1787 – 7000 Words, 7 Articles Australia 1900 Canada – 1867 / 1982 Switzerland – 1874 United Kingdom – Unwritten Constitution Most of the provisions substantially borrowed from others .  Gather best features of each Constitution.

28. 2.Longest known Constitutions of the World The Indian Constitution has a distinction of being the most lengthy and detailed constitutional document Structure. The Indian Constitution originally consisted of 395 Art, 22 parts, 8 Schedules. But after  the Constitution 104th Amendment Act, 2003 , the Indian Constitution Consists of  448 Art, 25 parts, 12 Schedules . The volume of the Constitution has increased mainly due to endeavour of constitutional makers to incorporate detailed Fundamental Rights, Directive Principles, Parliamentary Systems, Constitution of the Union and States, Emergency Provisions, Amendment Provisions, detailed Administrative Provisions regarding Executive, Parliament, Privileges, Union Judiciary, Union Legislature, Comptroller and Auditor General, State Legislature, High Courts in the States, Union Territories, Union and States Relations, Finance properties Contracts, Services under the Union and States, Elections, certain provisions relating to certain classes, language and various schedules etc.

29. 3.More Flexible than Rigid one Compared to American or Australian Constitution, the Constitution of India is more flexible than rigid. The American Constitution of 1787 has been amended only 27 times so far . Australian Constitution is known as Frozen Constitution . Referendum is required to carry out amendment in the Constitution . The amending power laid down in  Article 368   is comparatively very much easy, so our Constitution has been amended  99th time  so far.

30. 4.Reconciliation of Written Constitution with Parliamentary Sovereignty Written Constitution denotes supremacy of the Constitution and all three organs of the Government have to function within the framework of the principles laid down in the written Constitution and it is comparatively rigid one . The principle of parliamentary sovereignty is peculiar feature of British Westminster Model.

31. 5.Role of Convention under the Constitution  Most of the British convention of Cabinet system has been embodied in the Constitution of India. E.g .  Article 75  - Cabinet Responsibility and Cabinet System , Leader of majority party is called to form Government. After passing of No-Confidence motion Ministry has to resign etc. 

32. 6.Justiciable Fundamental Rights   Part III of the Constitution from   Article 12 to 35 deals with Justiciable fundamental rights  which is essential for the all round development of the human being. The nature of fundamental rights is as such that, human personality cannot be  developed in any democratic country without these sacred rights . They are justiciable because the aggrieved person can move to Court for vindication of his precious rights, which has been taken from the American Bill of Rights. 

33. 7.Non-justiciable Directive Principles  This principle which is somewhat moral in nature is a gift from Irish Constitution. The socio-economic democracy is a fundamental object of Constitution which can be fulfilled by implementation of these novel directives. Of course they are non-justiciable in the sense that, person cannot move to the Court for non-implementation of the directives . Part IV of the Constitution  Article 36 to 51 deals with directive principles . The enforceability of which, as noted author Seervai has observed, is found out in the mandate of the people to the Government . If the welfare principle has not been taken care, then people are free to overthrow the Government in general elections. 

34. 8.Judicial Review  In the Constitution of India, the power of judicial review bestowed upon apex judiciary is one of the novel outstanding 105 features which is also a part of basic structure of the Constitution. Unless , judiciary is given power of declaring any law, rules, regulations, bye-laws or any administrative action which violates provisions of the Constitution including fundamental rights, the sanctity of the fundamental rights cannot be protected. Particularly for the protection and to maintain enforceability of fundamental rights. The Courts of Law is empowered to use this power against any organ of the State i.e. Legislative or Executive. The power of judicial review is incorporated in  Article 13, 32, 141, 143, 226  and Court is empower to issue writs in the nature Habeas Corpus, Mandamus, Prohibition, Quo- warranto , Certiorari. The power of judicial review is a precious gift from American Supreme Court. An independent judiciary having the power of judicial review is most important feature of our Constitution. The judicial power of the State exercisable by the Courts under the Constitution as sentinels of Rule of Law is a basic feature of the Constitution. 

35. 9.Socio-economic Justice  Constitution aims at securing socio-economic and political justice and guarantees that State will not discriminate between one citizen and another merely on the ground of religion, race, caste, sex or place of birth in the matter of employment, special provisions for the women’s, children’s, socially and educationally backward classes and Scheduled Caste and Scheduled Tribes including Prohibition of Untouchability . 

36. 10.Fundamental Duties Article 51A which is inserted by 42nd constitutional amendments 1976 enshrined novel fundamental duties which have no judicial enforceability.  11.Universal Adult Franchise  This is another outstanding feature of the Constitution. The entire adult population having a voting age of 18, without any qualification either of sex, property, taxation can exercised their voting rights.  (Article 326 ) The independent Election Commission of India is entrusted the job of holding free and fair election in our country. 

37. 12.Parliamentary Form of Government  Our Constitution though federal in nature is modelled on the British Parliamentary System where  Council of Minister is collectively responsible to the popularly elected House i.e. Lok Sabha or Legislative Assembly.  They have to command majority in the Legislature otherwise it has to resign . The  President is Head of the State in Parliamentary System  of responsible Government but he is to act on the advice of the Council of Ministers.

38. 13.Federal System with Unitary Bias  In various judgements the Supreme Court has described our Constitution as basically federal with striking unitary features. Our federal system is based on American model. It is a combination of federal and unitary system i.e. quasi-federal system.   14.Secular State India has adopted a policy of secularism that means State does not protect, help, promote any particular religion and State has no official religion.

39. 15.Basic Structure Theory  The Supreme Court in his landmark judgement of  Keshavananda Bharati Case  has devised the theory of basic feature of the Constitution. There are certain basic features like  Judicial Review, Parliamentary Form, Secularism, Federal Republic Nature, Free and Fair Election System   etc are immune from the amending powers of Parliament under  Article 368 of the Constitution . Basic Structure Theory puts implied limitation on the power of the Parliament and advocated Doctrine of Limited Government preferred to English Doctrine of Parliamentary Sovereignty.