Constitution of India – Making, Composition and Features

Making of Constitution of India

World’s largest democracy and world’s most detailed constitution, the constitution of India takes two years 11 months and 18 days to come into reality. It was M.N. Roy who firstly put forward the idea of the constituent assembly in 1935. The demand for constituent assembly accepted in 1940 popularly called as “August Offer.” After series of sittings with all parties, Constituent Assembly established in 1946 as per the Cabinet Mission Plan.

Composition of Constituent Assembly

Partly elected (Not elected by adult franchise) and partly nominated body

Proposals vs. Actual

  1. Total Members = 389 Vs. 299
  2. British Indian = 296 Vs. 229
  3. Princely States = 93 vs. 70
  4. 292 from 11 governors’ provinces
  5. Four from chief commissioners’ provinces

 

Working of the Constituent Assembly

211 members (Muslim League Boycotted) newly formed constituent assembly first met on Dec. 9, 1946, which was headed by Dr. Sachchidanand Sinha (Temporary President).

December 11, 1946

  • President – Dr. Rajendra Prasad
  • Vice – President – H C Mukherjee
  • Sir B N Rau – Constitutional advisor to the Assembly.

On December 13, 1946, Jawaharlal Nehru present the historic ‘Objectives Resolution’ in the Assembly,  which later on passed as the Preamble of the Constitution.

Independence Act 1947

  1. Independence Act enables the assembly act as the sovereign body. Which have the power to alter or stop any law on its discretion made by British Parliament for India.
  2. Legislative Body – According to this act constituent assembly also become legislative assembly for the preparation of the constitution. The Same assembly delivers both the functions on an alternative day and also headed by the different persons.
  • Constituent body – Dr. Rajendra Prasad
  • Legislative body – G V Mavlankar.
  1. Muslim League withdrew from the constitutional assembly and demanded separate Pakistan.

Functions

  1. May 1949 – Confirmed membership of Commonwealth.
  2. July 22, 1947 – Recognized national flag
  3. January 24, 1950 – Accepted national anthem
  4. January 24, 1950 – Adopted the national song
  5. January 24, 1950 – Elected Dr. Rajendra Prasad as President of India.

Constituent Assembly held its final session on 24 Jan. 1950 but continue as the provisional parliament till 1951-52 till General Election.

COMMITTEES OF THE CONSTITUENT ASSEMBLY

  1. Union Powers Committee – Jawaharlal Nehru
  2. Union Constitution Committee – Jawaharlal Nehru
  3. Provincial Constitution Committee – Sardar Patel
  4. Drafting Committee – Dr. B.R. Ambedkar
  5. Rules of Procedure Committee – Dr. Rajendra Prasad
  6. States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
  7. Steering Committee – Dr. Rajendra Prasad
  8. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel.
  • This committee had the following sub-committees:
  • Fundamental Rights Sub-Committee – J.B. Kripalani
  • Minorities Sub-Committee – H.C. Mukherjee
  • North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bardoloi
  • Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee – A.V. Thakkar

Drafting Committee

Seven members committee sat on 29 August 1947 and took less than six months to prepare its draft. The draft published in Feb 1948 for the public opinion.

  1. Dr. B R Ambedkar (Chairman)
  2. Syed Mohammad Saadullah
  3. T T Krishnamachari (He replaced D P Khaitan who died in 1948)
  4. Dr. K M Munshi
  5. N Gopalaswamy Ayyangar
  6. Alladi Krishnaswamy Ayyar
  7. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)

On November 1948, Dr. B R Ambedkar (Father of the Constitution Of India ‘Modern Manu’.) Introduced final draft of the constitution in the assembly for the discussion and over the period of one-year detailed discussion took place. Later on November 26, 1949, it was adopted by the assembly. At that time it contained 395 Articles (22 Parts) and 8 Schedules.

Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949 itself. The remaining provisions came into force on 26th January 1950 (26th January 1930 Purna Swaraj).

Criticism of Constitution of India

  1. Not a Representative Body
  2. Not a Sovereign Body
  3. Time Consuming
  4. Dominated by Congress (Granville Austin – ‘Assembly was the Congress and the Congress was India’ in its Book titled – The Indian Constitution—Cornerstone of a Nation, Oxford, 1966)
  5. Lawyer–Politician Domination
  6. Dominated by Hindus

Features of Constitution

Constitution of India is most described and lengthiest constitutional in the world. This is one of its core features.

Lengthiest Written Constitution

  • A Preamble
  • 465 Articles (divided into 25 Parts)
  • 12 Schedules

Sources

  • Structure inherited from Govt. of India Act 1935. (250 provisions)
  • Fundamental Rights and Directive Principles – American and Irish
  • Political Part – Britain
  • Canada, Australia, Germany, Russia, France, South Africa, Japan are some other countries from where Indian constitution is borrowed.
  • The American Constitution originally consisted of only 7 Articles, the Australian 128, the Chinese 138, and the Canadian 147.

Mix of Rigidity and Flexibility

Article 368 – Two types of amendments

  • Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 percent), of the total membership of each House.
  • Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the entire states.

Some provisions of the Constitution can be modified by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.

Federal inform Unitary in spirit

  1. Federal Feature                                                Non – Federal Feature
  2. Two Government                                                           Strong Centre
  3. Division of Power                                                    Single Constitution
  4. Written Constitution                                                  Single citizenship
  5. Supremacy of constitution                              Flexibility of Constitution
  6. Rigidity of Constitution                                          Integrated Judiciary
  7. Independent judiciary                                         Emergency provisions
  8. Bicameralism.                                                           All-India services

Parliamentary Form of Government

Indian constitutional maker chooses British parliamentary system of government, which based on the cooperation between legislative and executive body. Although it inherited from Britain, there are fundamental differences between two.

Features

  • Presence of nominal and real executives
  • Dissolution of the Lower House (Lok Sabha or Assembly).
  • Membership of the ministers in the legislature
  • Majority party rule
  • Collective responsibility of the executive to the legislature
  • Leadership of the prime minister or the chief minister

Parliamentary Sovereignty and Judicial Supremacy

Parliamentary Sovereignty is a feature of British Parliament, and judicial supremacy is of American Supreme Court. It means Judicial System has the power to declare the parliamentary law as unconstitutional while the government has right to amend a significant portion of the constitution.

Integrated and independent judiciary

The Supreme Court is a federal court. Constitution has ensured separation of judiciary from the executive. Constitution has provided the safeguard for the integrity AND Independency. Expenses of Supreme Court charged from the consolidated fund of India.

Fundamental Rights

Part 3rd of constitutional

  • Right to Equality (Articles 14–18)
  • Right to Freedom (Articles 19–22)
  • Right against Exploitation (Articles 23–24)
  • Right to Freedom of Religion (Articles 25–28)
  • Cultural and Educational Rights (Articles 29–30)
  • Right to Constitutional Remedies (Article 32)

Originally there were seven fundamental rights Right to Property (Article 31) was one of them. Through 44th amendment (1978) it was revoked as fundamental right but continue as Legal Right under Article 300-A in Part -12

Fundamental rights are not absolute, and they are subject to reasonable restrictions. Can be changed or modified through the parliamentary procedure or can be suspended during National Emergency except Article 20 and 21.

Directive Principles

Part 4 of the Constitution classify Directive Principles into four categories.

  • Socialistic
  • Gandhian
  • Liberal–intellectual

Minerva Mills case (1980), the Supreme Court held that ‘the Indian Constitution founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.

Fundamental Duties –

These added through 42nd Amendment (1976) on the recommendation of Sawaran Singh Committee. One more duty added by 82nd amendment in 2003.

Part 4 Article – 51A

  • Respect the Constitution, national flag, and national anthem
  • To protect the sovereignty, unity and integrity of the country
  • To promote the spirit of common brotherhood amongst all the people
  • To preserve the rich heritage of our composite culture

A Secular State

  • The term added by 42nd amendment.
  • Equality before the law or equal protection of the laws (Article 14).
  • Discrimination against any citizen on the ground of religion (Article 15).
  • Equal opportunity for all the people in matters of public employment (Article 16).
  • Propagate any religion (Article 25).
  • Freedom to manage religious affairs (Article 26).
  • Prohibits any taxes for the promotion of a particular religion (Article 27).
  • No religious instruction shall be provided in any educational institution maintained by the State (Article 28).
  • Right to conserve its distinct language, script or culture (Article 29).
  • Right to establish and administer educational institutions of their choice (Article 30).
  • The State shall endeavor to secure for all the citizens a Uniform Civil Code (Article 44).

Universal Adult Franchise

The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988

Single Citizenship

  • Single Citizenship In spite of its dual nature of India polity it offers single citizenship to its citizens.
  • USA gave the franchise to women in 1920, Britain in 1928, USSR (now Russia) in 1936, France in 1945, Italy in 1948 and Switzerland in 1971.

Independent Bodies

Independent Bodies – For the impartial bureaucracy, the constitution provides establishment of independent Bodies secured by their term, Security of Tenure and funds (Consolidated Fund of India).

  • Comptroller and Auditor-General of India
  • Election Commission
  • Union Public Service Commission
  • State Public Service Commission

Emergency Provisions

To safeguard constitution, its integrity and sovereignty constitution provides some emergency provisions which enables the President with some extra powers to take control over the situations.

  • Article 352 – War or external aggression or armed rebellion originally (Internal Disturbance replaced through 44th Amendment)
  • Article 356 – (In the state 356) on the ground of failure of state machinery or non-compliance with the directions of center (Article 365)
  • Article 360 – Financial Emergency

Three-tier Government

  • 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government.
  • 73rd Amendment – constitutional recognition to the Panchayats – Added Part 9 and Schedule 11
  • 74th Amendment – Constitutional recognition to Municipalities – Added Part 9-A and Schedule 12

The Constitution of India at Glance

PartsSubject MatterArticles Covered
1The Union and its territory1 To 4
2Citizenship11
3Fundamental Rights12 To 35
4Directive Principles of State Policy36 - 51
4AFundamental Duties51-A
5The Union Government52 - 151
Chapter I – The Executive52-78
Chapter II – Parliament79 - 122
Chapter III – Legislative Powers of President123
Chapter IV – The Union Judiciary124 - 147
Chapter V – Comptroller and Auditor-General of India148-151
6The State Governments152 - 237
Chapter I – General152
Chapter II – The Executive153 -167
Chapter III – The State Legislature168 -212
Chapter IV – Legislative Powers of Governor213
Chapter V – The High Courts214 -232
Chapter VI – Subordinate Courts233 -237
8The Union Territories239 To 242
9The Panchayats243 To 243-O
9AThe Municipalities243-P to 243-ZG
9-BThe Co-operative Societies243-ZH to 243-ZT
10The Scheduled and Tribal Areas244 to 244-A
11Relations between the Union and the States245 to 263
Chapter I – Legislative Relations245 to 255
Chapter II – Administrative Relations256 to 263
12Finance, Property, Contracts and Suits264 to 300-A
Chapter I – Finance264 to 291
Chapter II – Borrowing292 to 293
Chapter III – Property, Contracts, Rights, Liabilities, Obligations and Suits294 to 300
Chapter IV – Right to Property300-A
13Trade, Commerce and Intercourse within the Territory of India301 to 307
14Services under the Union and the States308 to 323
Chapter I – Services308 to 314
Chapter II – Public Service Commissions315 to 323
14ATribunals323-A to 323-B
15Elections324 to 329-A
16Special Provisions relating to Certain Classes330 to 342
17Official Language343 to 351
Chapter I – Language of the Union343 to 344
Chapter II – Regional Languages345 to 347
Chapter III—Language of the Supreme Court, High Courts, and so on348 to 349
Chapter IV—Special Directives350 to 351
18Emergency Provisions352 to 360
19Miscellaneous361 to 367
20Amendment of the Constitution368
21Temporary, Transitional and Special Provisions369 to 392
22Short title, Commencement, Authoritative Text in Hindi and Repeals393 to 395

 

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