Constitution of India Totally Explained

Everything about The Constitution Of India totally explained

The Constitution of India (Hindi: भारतीय़ संविधान, see names in other Indian languages) is the supreme law of India. It lays down the framework defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. Passed by the Constituent Assembly on November 26, 1949, it came into effect on January 26, 1950. It declares The Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty; the words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 395 articles, 12 schedules and 83 amendments, for a total of 117,369 words in the English language version. Besides the English version, there's an official Hindi translation. Being the supreme law of the country, every law enacted by the government must conform to the constitution.

History

The Cabinet Mission Plan

In 1946, at the initiative of British Prime Minister Clement Attlee, a cabinet mission to India was formulated to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership and providing India with independence under Dominion status in the Commonwealth of Nations.
The Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by August 1946. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body and began work on 9 December 1947.

The Constituent Assembly

The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi and R. K. Sidhwa. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narasingh Rao and K. M. Munshi Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur were important women members. The first president of the Constituent Assembly was Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly. The members of the Constituent Assembly met for the first time in the year 1946 on December 9.

Drafting

In the August 14 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees include Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On August 29, 1947, the Drafting Committee was appointed, with Dr. Ambedkar as the Chairman along with six other members. A Draft Constitution was prepared by the committee and submitted to the Assembly on November 4, 1947.
The Assembly met, in sessions open to public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document (one each in Hindi and English) on the January 24, 1950. Two days later, the Constitution of India became the law of all the Indian lands.

Influence of Other Constitutions

British Constitution

Parliamentary form of government
The idea of single citizenship
The idea of the Rule of law
Institution of Speaker and his role
Lawmaking procedure
Procedure established by Law

United States Constitution

Charter of Fundamental Rights

Federal structure of government

Independence of the judiciary

Judicial review

President as supreme commander of
armed forces

Equal Protection under law Irish Constitution

Directive principles of state policy Australian Constitution

Freedom of trade and commerce within
the country and between the states

Power of the national legislature to make
laws for implementing treaties, even on
matters outside normal Federal jurisdiction

Concurrent List French Constitution

Ideals of Liberty, Equality and Fraternity Canadian Constitution

A quasi-federal form of government —
a federal system with a strong central government

The idea of Residual Powers Constitution of the Soviet Union

Fundamental Duties u/a 51-A

A Constitutionally mandated Planning Commission
to oversee the development of the economy Other Constitutions

Emergency Provision u/a 356, Weimar Constitution

Amendment of Constitution, South Africa

Due Procedure of Law, Japan

Philosophy

Every law doesn't explicitly promote morality, but some laws demonstrate a commitment to moral values. For example, laws against discrimination are connected to the moral value of equality. Therefore, there's a connection between laws and moral values. A philosophical approach to the constitution is needed not only to find out the moral content expressed in it and to evaluate its claims; but to use it to arbitrate between varying interpretations of the many core values in Indian polity.
The Constitution of India was drawn base upon several principles of liberal democracy —

Individual freedom

Social Justice

Respect for diversity and minority rights

Secularism

Universal franchise

Federalism The Constitution of India draws extensively from Western legal traditions in its enunciation of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation's constitution "has provided so much impetus toward changing and rebuilding society for the common good."

Structure of the Union Government

The basic form of the Union Government envisaged in the Constitution was introduced by Dr. Ambedkar as follows,
India, thus adopted a Parliamentary form of government, with the President as the nominal head of the Executive and the Prime Minister and the Council of Ministers wielding actual power.

Articles of the Constitution

The Constitution, in its current form, consists of a preamble, twenty-two parts, twelve schedules, ninety-four amendments, and five appendices.

Preamble

The Preamble states:
Kesavananda Bharati vs. The State of Kerala, recognized that the Preamble is a part of the Constitution and may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there's an ambiguity in the article itself and shouldn't be treated as a rights bestowing part of the Constitution.
An interesting side note concerns the words "SOCIALIST" and SECULAR in the preamble. The original drafting used the words "SOVEREIGN DEMOCRATIC REPUBLIC". The two additional words "SOCIALIST" and SECULAR were introduced by the controversial 42nd amendment. The amendment was pushed through by Indira Gandhi in 1976, when she'd dictatorial powers. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience.

Interpretation

The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. In a majority of decisions, the Supreme Court of India has ruled that neither it nor any of its content is legally enforcible.
The first words of the Preamble - "We, the people" - signifies that power is ultimately vested in the hands of the people of India. It also tells that the constitution is made by & made for the people of India and not given to them by any outside powers.The Preamble lays down the most important national goals which every citizen and the government must try to achieve, such as socialism, secularism and national integration. Lastly, it lays down the date for the adoption of the Constitution - 26 November 1949.

Sovereign

The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

Socialist

The word socialist was added to the Preamble by the 42^nd amendment act of 1976, during The Emergency (India). It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasizing a commitment towards the formation of a welfare state.
India has adopted a mixed economy and the government has framed many laws to achieve the aim.

Secular

The word secular was inserted into the Preamble by the 42^nd amendment act of 1976, during The Emergency (India). It implies equality of all religions and religious tolerance. India, therefore doesn't have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and fesitivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.

Democratic

India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President Of India isn't hereditary. Every citizen of India is eligible to become the President of the country.
Preamble plays pivotal role when there's ambiguity in provisions of any Article or interpretation becomes confusing, spirit of preamble becomes guiding factor. Preamble is stem, root and source of constitution.

Parts

Part I - Union and its Territory

Part II - Citizenship.

Part III - Fundamental Rights.

Part IV - Directive Principles and Fundamental Duties.

Part V - The Union.

Part VI - The States.

Part VII - States in the B part of the First schedule.

Part VIII - The Union Territories

Part IX - Panchayat system and Municipalities.

Part X - The scheduled and Tribal Areas

Part XI - Relations between the Union and the States.

Part XII - Finance, Property, Contracts and Suits

Part XIII - Trade and Commerce within the territory of India

Part XIV - Services Under the Union, the States and Tribunals

Part XV - Elections

Part XVI - Special Provisions Relating to certain Classes.

Part XVII - Languages

Part XVIII - Emergency Provisions

Part XIX - Miscellaneous

Part XX - Amendment of the Constitution

Part XXI - Temporary, Transitional and Special Provisions

Part XXII Short title, date of commencement, Authoritative text in Hindi and Repeals.

Schedules

Schedules can be added to the constitution by amendment. The twelve schedules in force cover the designations of the

States and Union Territories;

Emoluments for High-Level Officials;

Forms of Oaths;

Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;

Provisions for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions);

Provisions for the administration of tribal areas in Assam;

The Union (central government), State, and Concurrent (dual) lists of responsibilities;

The Official Languages;

Article 31B-Validity excluded from Court’s Review (land and tenure reforms; the association of Sikkim with India);

Anti-Defection provisions for Members of Parliament and Members of the State Legislatures;

Panchayat Raj (Rural Development);

Municipality (Urban Planning).

Amendments

Article 368 of the Constitution provides that the amendments to the Constitution can take place through three ways. These are;

By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.

By special majority of the Parliament: Amendments can be made in this category by a two-thirds majority of the total number of members present and voting, which shouldn't be less than half of the total membership of the house.

By special majority of the Parliament and ratification of at least half of the state legislatures by special majority. After this, it's sent to the President for his assent. Basic structure of constitution can not be amended by any means. The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi, Minerava Mills, Bonded Labour, Bhopal Gas tragedy case etc. The method of amendment was borrowed from South African constitution. The constitution laid down three lists - namely; Union, State and Concurrent. The union law is powerful compared to State, but if The president has given assent to the State law, than it prevails over Union Law.
   On paper, an amendment to the Constitution is an extremely difficult affair, and normally needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. However, the Constitution is one of the most frequently amended governing documents in the world; amendments average about two a year. The document outlines governmental powers in considerable detail, meaning that amendments are required to deal with matters addressed by ordinary statute in most other democracies.
   In 1974, the Supreme Court of India in the landmark case of Kesavananda Bharati vs. The State of Kerala enunciated the Basic Structure Doctrine, which expanded the scope of judicial review to include the power to review Constitutional Amendments passed by the Legislature. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being violative of the Basic Structure of the Constitution. Some noted authors of Constitutional law, such as HM Seervai, have argued that this is an usurpation of amending power by the judiciary, which was never intended by the framers of the Constitution. However, it can be argued that this doctrine is necessary to protect basic human rights from being legislated away. Amendment 44 has repelled many of 42nd amendments during Morarj Desai's Janata Party raj in 1977.
   There have been a total of 94 amendments to the constitution of India, as of 2006. It has now crossed the 100 mark. One of the major amendment (74) was to reserve one third of PRI seat for women. It was a landmark amendment for affirmative actions to empower women. After 1994, more than a million women can enter politics to share power with men.

Criticism

The strongest critics of the Constitution claim that it's unwieldy, unrepresentative and that it's alien to Indian conditions.

Unwieldy

The criticism that it's unwieldy is based on the assumption that the entire constitution of a country must be found in one compact document. But this isn't true even of countries such as the US which do have a compact constitution. The fact is that a country’s constitution is to be identified with a compact document and with other written documents with constitutional status. Thus, it's possible to find important constitutional statements and practices outside one compact document. In the case of India, many such details, practices and statements are included in one single document and this has made that document somewhat large in size. Many countries for instance, don't have provisions for election commission or the civil service commission in the document known as constitution. But in India, many such matters are attended to by the Constitutional document itself.

Unrepresentative

The second criticism of the Constitution is that it's unrepresentative. At that time, adult franchise wasn't yet granted and most members came from the advanced sections of the society.
Here the distinguishing components of representation are "voice" and "opinion". The voice component of representation is important. People must be recognised in their own language or voice, not in the language of the masters. Indian Constitution from this dimension, it's indeed unrepresentative because members of the Constituent Assembly were chosen by a restricted franchise, not by universal suffrage. However, it doesn't lack representativeness. The claim that almost every shade of opinion was represented in the Constituent Assembly may be a trifle exaggerated but may have something to it. In debates that took place in the Constituent Assembly, a vast range of issues and opinions were mentioned, members raised matters not only based on their individual social concerns but based on the perceived interests and concerns of various social sections as well.

Alien

The final criticism alleges that the Indian Constitution is entirely an alien document, borrowed article by article from western constitutions and sits uneasily with the cultural ethos of the Indian people. This criticism is often voiced by many. Even in the Constituent Assembly itself, there were some voices that echoed this concern.
   It is true that the Indian Constitution is modern and partly western, but it was never a blind borrowing; it was innovative borrowing. Besides, this doesn't make it entirely alien.
   Many Indians have not only adopted modern ways of thinking, but have made these their own. For them westernisation became a form of protest against the weaknesses in their own tradition. Rammohan Roy started this trend and it's continued to this day by Dalits. As early as 1841, it was noticed that the Dalit people of northern India were not afraid to use the newly introduced legal system and bring suits against their landlords. So, this new instrument of modern law was effectively adopted by the people to address questions of dignity and justice.
   When western modernity began to interact with local cultural systems, something like a hybrid culture began to emerge, possibly by creative adaptation, for which a parallel can be found neither in western modernity nor in indigenous tradition. This cluster of newly developed phenomenon forged out of western modern and indigenous traditional cultural systems have the character of a different, alternative modernity. In non-western societies, different modernities emerged as non-western societies tried to break loose not only from their own past practices but also from the shackles of a particular version of western modernity imposed on them. Thus, when the founding fathers were drafting the Constitution, efforts were made to amalgamate western and traditional Indian values.

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