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CONSTITUTIONAL LAW – I

UNIT 1 – INTRODUCTION

MEANING AND SIGNIFICANCE

Constitution:

• The Word ‘Constitution’ originates from LATIN term ‘Constitutio’
• ‘Constitutio’ means ‘Establishment’ or ‘Arrangement’
• Fundamental principles or rules that govern a state or organization

Significance:

• Supreme Law of land
• Fundamental Law of land
• Set of Principles that help to govern a nation and its citizens
• Structure, Powers and Functions of Government
• Rights and Duties of Citizen
• Legal Framework for governance and protecting individual rights
• Stability, Flexibility and Adaptability of governance

EVOLUTION OF MODERN CONSTITUTIONS

• Constitutions evolutes from Ancient Civilizations
• Mesopotamia, Egypt, India and China were those ancient civilizations
• They were in the form of Legal codes and governance structure
• Codes – Rules for Behaviour, Property Rights and Justice
• Greece and Rome developed written laws
• In Greece, Athenian Constitution to SOLON
• In Rome, Constitution with XII Tables
• Middle Ages witnessed Feudal societies operated under Customary laws and agreements
• Magna Carta (1215) an example of document with principles of limited government and individual rights
• Modern Constitutionalism concept arose after English Civil War (17^th century) and Glorious Revolution (1688)
• Constitutional Monarchies and Recognition of Parliamentary Supremacy established
• American Constitution adopted after American Revolution (1775-1783) in 1787
• American Constitution was a federal republic with separation of powers and bill of rights
• Separation of Powers between the Legislative, Executive and Judicial Branches
• Bill of Rights which guarantee Fundamental Freedoms and Protections for Citizens
• France adopted ‘Declaration of the Rights of Man and of the Citizen’ after French Revolution (1789-1799) in 1789 and subsequent constitutions
• France’s first constitution adopted in 1791 as a Constitutional Monarchy with a Unicameral Legislature and there were several constitutional developments
• Many countries in the 19^th Century adopted written constitutions and transitioned from Monarchies to Republics or established as new forms of Governments
• Belgium – Belgian Constitution of 1831
• Germany – German Constitution of 1849 or Frankfurt Constitution
• Post World War I and II and due to decolonization many democratic constitutions emerged
• Germany after WW-I, established a parliamentary republic, ‘The Weimer Constitution’ in 1919
• Many countries sought to rebuild and establish democratic governments post WW-II
• ‘The Universal Declaration of Human Rights’ (UDHR) influenced many constitutions to emphasize on Human Rights and Fundamental Freedoms
• India adopted ‘the Constitution of India’ in 1950 after decolonization
• Kenya adopted ‘the Constitution of Kenya’ in 1963
• Evolution of Modern Constitutions reflects Political, Social and Cultural dynamics of societies, states over a period of time
• Basic, Common Principles and Structure are that Rule of Law, Separation of Powers, Protection of Rights and Accountability in Governance

CLASSIFICATION OF CONSTITUTION

Constitutions are classified on the basis of its Characteristics, Origins, Types, Structures and Principles

Characteristics

• Written – Single or set of documents
  • United States Constitution, Constitution of India and Constitution of South Africa

• Unwritten – Body of laws, Conventions and Judicial decisions
  • British Constitution, Constitution of New Zealand and Israeli Constitution (partly written and partly unwritten)

Origins

• Enacted – Created through Constitutional Conventions, Assemblies or Constituent Assemblies
  • United States Constitution through Constitutional Convention and Constitution of France through Constitutional referendum

• Evolved – Developed over time through Historical Practices, Customs and Judicial Interpretations
  • British Constitution through Statutes, Conventions and Judicial Decisions and Constitution of Canada through series of statutes and agreements (Constitution Act of 1867 and Patriation of the Constitution)

Types

• Democratic – Emphasizes Democratic principles (Sovereignty, Rule of Law and Protection of Individual rights)
  • United States Constitution, Constitution of India and Constitution of Germany (Basic Law)

• Authoritarian – Power in the hands of an Individual, a small group with limited political freedom
  • Constitution of North Korea and Constitution of the People’s Republic of China

• Monarchical – System of Government with a hereditary monarch as head of state
  • Constitution of Japan and Constitution of the United Kingdom

Structures

• Unitary – Power in a single – central government with subnational entities having limited autonomy
  • Constitution of France, Constitution of Japan and Consititution of Sweden

• Federal – Divides power between a central government and state or provincial government each with its own right of authority
  • United States Constitution, Constitution of Canada and Constitution of Australia

• Confederal – Union of Sovereign States or entities and the central authority is limited while the member states retain significant autonomy
  • Articles Confideration which was in practice in the United States in 1777 and Confederate States Constitution of the Confederate States of America in 1861

Principles

• Liberal – Priority for Individual Rights and Freedoms, Limited Government Intervention and Protection of Civil Liberties
  • United States Constitution, Constitution of Germany (Basic Law) and Constitution of South Africa

• Socialist – Emphasizes Social and Economic equality, Collective Ownership of Natural Resources and Government intervention in economic matters
  • Constitution of the People’s Republic of China and Constitution of Cuba
• Islamic – Incorporates Principles and laws derived from Islamic teachings (Primary Sources: Quran and Sharia)
  • Constitution of Iran and Basic Law of Saudi Arabia
• Secular – Separates Religion from the State, Ensures Government Institutions and Law are independent of Religious influence
  • Constitution of India, Constitution of France and Constitution of Turkey
• Pluralistic – Acknowledges and accommodates diversity in society, ensuring equality and protection of minority rights
  • Constitution of South Africa and Constitution of Belgium
• Democratic Socialist – Combines elements of democracy and socialism and attain Social Justice, Economic equality and Political participation
  • Constitution of Venezuela and Constitution of Bolivia

INDIAN CONSTITUTION

Constitution

A set of laws and rules, setting up the machinery of the government of a State which defines and determines the relations between the different institutions and areas of the government, the legislature, the executive and the judiciary.

Constitution of India

• Supreme Law of the land
• Framework defines Fundamental political principles
• Establishes the structure, procedures, powers and duties of government
• Provides Fundamental rights, directive principles and duties of the citizens
• Largest Written Constitution in the world
• It Contains 395 Articles divided into 24 parts and 12 schedules
• Passed and adopted by the Constituent Assembly on 26^th November 1949
• Came into effect from 26^th January 1950
• India – A Sovereign, Socialist, Secular, Democratic Republic
• Assures citizens of Justice, Equality and Liberty
• Endeavors to promote Fraternity among them all

Elements of Constitution of India

• Preamble – Ideals, objectives of the Constitution which includes justice, liberty, equality and fraternity
• Federal Structure – Division of Powers between the Central and State governments except during emergencies
• Fundamental Rights – Guarantees fundamental rights to all citizens
• Directive Principles of State Policy – To guide the state in making laws and policies to establish a just society
• Parliamentary System – President is the head of the state and Prime Minister is the head of government.
  • Parliament consists of
    • The President,
    • the Rajya Sabha (Council of States)
    • the Lok Sabha (House of the People)
• Independent Judiciary – Supreme Court as the Apex body, Indian Constitution provides a well-established and independent Judiciary
• Universal Adult Franchise – Allow all citizens above the age of 18 to vote in elections
• Secularism – Guarantees Religious freedom to all citizens and prohibits discrimination on the basis of religion
• Amendment – Constitution provides for Amendment of itself though rigid and flexible procedures
• Special Provisions – For Upliftment of backward classes and scheduled castes and tribes, Constitution provide special provisions – reservations

Nature of the Indian State through Constitution

• Liberal – Democratic State
  • Rule of Law prevails
  • Government run by the chosen representatives of the people
  • Authority of the government is not absolute but limited by the laws
  • Adult Franchise
  • Periodic Elections
  • Representative and responsible government
  • Independent Judiciary
  • Separation of Powers

• Federal State
  • Decentralisation of Powers of the State in the Indian Context
  • Economic development, Social Change, Agriculture and Industrial Development vested in the State

• Welfare State
  • Provisions to make India a Welfare State
  • Part IV – Directive Principles of State Policy provides for it

• Caste-ridden Society
  • System of hierarchical social organization was evolved earlier
  • It is the basic foundation of India’s social structure
  • Fact is that it was forced not only among the Hindus but also to some extent among the Indian Muslims, Christians, Sikhs, Jains and Jews etc.,

• Multi-religious Society
  • No homogeneity on the basis of religion
  • Indian population comprises of Hindus, Muslims, Buddhisht, Parsis and Christians
  • No Uniformity in the personal laws

HISTORICAL PERSPECTIVE

Our Present Constitution of India had been formed with several inputs from the constitutions all over the world. Historical perspective of our Constitution can be traced from the entry of East India Company in India even though it wasn’t directly formed from them.

• East India Company established trading venture in India in 1600
• Spice trade was their main aim
• Traded with a Royal Charter from Queen Elizabeth I

Before Independence, India was divided into two main entities viz., British India which consisted of 11 provinces and the Princely States ruled by Indian Princes under a subsidiary alliance policy. The background and development of Constitution of India can be traced through various acts and charters passed.

Regulating Act of 1773

• It was the first step of British Parliament to control and regulate the affairs of East India Company
• Governor of Bengal was changed as Governor General and Warren Hastings became the first Governor General of Bengal
• Governors of Bombay and Madras were subordinated to the Governor General of Bengal
• Supreme Court was established at the Fort Williams in Calcutta as the Apex Court in 1774

Pitt’s India Act of 1784

• It separated the Commercial and Political functions of East India Company with the formation of two councils.
• Court of Directors to manage commercial functions
• Board of Control for political affairs
• The strength of Governor General’s Council reduced to 3 members
• Governor’s council were established in Bombay and Madras
• British Government took over the direct control in the Indian affairs
• Company’s territories in India were called as ‘the British possession of India’

Charter Act of 1813

• East India Company’s mono poly of trade in India terminated
• Trade was opened to all British business entities

Charter Act of 1833

• Governor General of Bengal was changed as Governor General of India
• Lord William Bentick became the First Governor General of India
• British India was changed to centralized administration
• Provinces of Madras and Bombay lost their legislative powers due to this central legislative concept
• Commercial Activities of East India Company was put an end
• East India Company’s power was restricted to administrative body

Charter Act of 1853

• The Legislative and executive functions of the Governor General’s Council were separated
• Central Legislative Council have 6 members out of which 4 members were appointed by the Provincial Governments of Madras, Bombay, Bengal and Agra (Each one)

Government of India Act of 1858

• The British Crown replaced the role of the East India Company in India
• Secretary of State for India with the assistance from Council of India which had 15 members to exercise the powers of British Crown in India
• The Governor-General was made the Viceroy of India
• Secretary of State for India had been granted with complete authority and control over Indian administration with the Viceroy as his agent
• Lord Canning became the first Viceroy of India
• Board of Control and Court of Directors were abolished

Indian Councils Act of 1861

• Three Indians were given representation in the Viceroy’s Legislative Council as non-official members
• Legislative Councils were established in the Centre and provinces
• The Act accorded statutory recognition to the portfolio system

India Council Act of 1892

• Introduced indirect elections
• Enlarged the size and functions of the Legislative Councils and gave them the power to discuss the Budget

Indian Councils Act of 1909

• This Act is also known as the Morley-Minto Reforms
• Introduced direct elections to legislative councils
• Central Legislative Council changed as the Imperial Legislative Council
• Imperial Legislative Council’s member count increased from 16 to 60
• Communal representation for Muslims introduced
• Satyendra Prasanna Sinha as the law member was given place in Viceroy’s Executive Council

GOVERNMENT OF INDIA ACT, 1919

World War I forced British Colonial Regime to give away some rights and status to Indians. This brought changes in the British Policy towards India. The Government of India Act of 1919 also known as the Montagu-Chelmsford Reforms which introduced a limited self-government in India.

Montagu – Chelmsford Report

In 1917, Montagu, Secretary of State for India in that period declared British intentions to gradually increase the participation in governing institutions. Montagu and Lord Chelmsford submitted a report in 1918 on which basis a bill was introduced in the Parliament in 1919.

• To constitute a first comprehensive constitutional document of India
• Provided maximum autonomy to provinces
• Changes the power of Secretary of State and his council, Central and Provincial Governments
• As per ‘Devolution Rules’ i.e., transfer of power from a central to sub-national level of government, subjects of general or common interests vested with the centre and subjects of local importance vested with the local self-governments
• Diarchy at the centre was introduced with the establishment of Imperial Legislative Councils
• Indian Legislature had two houses (Bicameralism at the center introduced) viz., Council of State and Legislative Assembly
• Legislative Assembly with 140 members and Legislative Council with 60 members formed
• Members of both the houses are elected or nominated as per the rules made therefor
• Provincial Governments were also established as a Diarchy viz., Reserved and transferred
• Subjects of vital importance were kept as reserved and Subjects related to self-local governance kept as transferred
• Governor and his council (Governor-in-council) to manage reserved subjects and Governor and Ministers to look after the transferred subjects’.
• Governor and his council was appointed by the King of England
• Ministers were appointed by the Governor
• Six members, other than the Chief, to be Indians in the Viceroy’s Executive Council
• The act provided for the establishment of the Public Service Commission

The act had several effects which brought dissatisfaction among Indians and they were

• Even though the act provided for autonomy and increased participation in the Governance, the power was limited with a framework to have British Control and oversight in all matters
• Nationalist movements demanded for further reforms due to increased political awareness
• The limited power and British Control over key areas disappointed many Indians
• Growth of political parties was witnessed with this act (Indian National Congress and All India Muslim League)
• It laid the first step towards the concept of self-rule and independence

GOVERNMENT OF INDIA ACT, 1935

The overall dissatisfaction of Government of India Act, 1909 and the non-cooperation of the people resulted in the introduction of Government of India Act, 1935. It was a significant, the longest and most detailed legislation to govern British India. It is considered as the basis for India’s Constitutional framework later.

• Reforms Enquiry Committee was formed in 1924 under Sir Alexander Muddiman
• Minorities objected its report which was submitted in 1925 and demanded a Royal Commission
• In 1927, Simon Commission was appointed and it submitted the report in 1930 stated that ‘not to change in federal setup’
• The demand of people and willingness of Indian Princes to take part in the federal government resulted in 3 Round Table conferences, 2 of which were failed and an agreement reached in the 3^rd round table conference held in England
• White paper stating ‘the establishment of a federation with autonomous Provinces and the creation of responsible Central government and Governments in the Provinces’ was released
• Joint Select Committee formed to overcome the issues that arose over white paper recommended the corrections in 1934
• The act was passed by the British Parliament and received the Royal assent on 2^nd August 1935
• The Government of India Act of 1935 provided for the establishment of an All India Federation consisting of the Provinces and the Princely States as units, though the envisaged federation never came into being
• The Act divided the powers between the Centre and the units into 3 items of lists namely, the Federal list, the Provincial List and the Concurrent List
• The Federal list for the Centre consisted of 59 items, the Provincial List for the Provinces consisted of 54 items and the Concurrent List for both consisted of 36 items
• Diarchy in the Provinces abolished and introduced ‘Provincial Autonomy’
• Introduction of Bicameralism in 6 provinces viz., Assam, Bengal, Bombay, Bihar, Madras and the united Province out of 11 Provinces
• Central government had large control over the Provinces and the structure was a quasi-federal system
• Central government to exercise more administrative powers than to Provinces than to Indian States
• The Act provided for the establishment of the Federal Court in Delhi
• The Act abolished the Council of India
• The act is a landmark legislation that it represented an important step in developing a democratic governance in British India

DRAFTING OF INDIAN CONSTITUTION

Declaration of World War II and the resignation of Congress Ministries in the Provinces in 1939 made the Viceroy to announce that the federal part of the Constitution to be indefinitely postponed from October 1940. Muslim League passed ‘Pakistan Resolution’ in the same year at Lahore. British government appointed Sir Stafford Cripps to try for a settlement with the Indian Political parties and communities due to the rise in war pressure in 1942.

Cripps Mission

Cripps put the following proposals before the Indian Political parties and Communities

• Indian Union should be made an independent Dominion in the British Commonwealth
• Post war, to frame a new Constitution for India
• Representation for Indian States in the Constitution making body
• Subject to the approval of British Queen, Provinces shall be free to accede or stay as such and treaty between British Government and Constitution making body in settling disputes arising out of it
• Electoral College to elect the members of Constitution making body on Proportional representation and their strength to be one tenth of the Electoral College for Provincial Legislatures and for Indian States on the basis of the population
• British would be responsible until the framing of the new Constitution and would retain control as a part of their World War II effort

Congress agreed to cooperate in case if a free national Cabinet would be established. Muslim League on the other hand totally rejected the proposals. Hence it became a failure.

Wavell Plan

In 1942, All India Congress Committee took in hand ‘Quit India’ resolution demanding complete freedom from British Rule. Lord Wavell who was the Viceroy of Indian in 1945 proposed and conducted a conference at Shimla and assured to have only Indian Councilors in his Executive Council except the Viceroy and the Commander in Chief. There was no agreement made and the plan failed

The Cabinet Mission 1946

After World War II, Labour Party formed the government in Britain in 1945 which was in favour of Indian Independence.

• In 1946, Lord Pethick Lawrence, the then Secretary of State for India announced a Cabinet mission consisting of himself, Sir Stafford Cripps and A.V Alexander to reach a settlement
• Muslim league’s demand of partition put a block to the mission

However the Cabinet Mission proposed the following

• Union of India consisting of the Provinces and the Indian States
• Union to have an executive and a legislature
• Bothe Executive and Legislature to have representatives from British India and the Indian States
• A Constitution making body elected indirectly should be formed on a proportionate basis
• All the representatives to meet in New Delhi as a Constitution making body or Constituent Assembly
• The paramountcy of the Crown over the Indian States to lapse
• An Interim government to be set up on the majority basis until the Constitution is framed

The Proposals were almost accepted by all the parties with some reservations. Congress denounced the grouping of the Provinces but agreed to join the Constituent Assembly.

Muslim League had accepted for the Cabinet Mission’s proposals but reiterated with their demand for a sovereign Pakistan and observed 16^th August 1946 as ‘Direct Action Day’ resulted in a nationwide violence. Interim Government under the leadership of Jawaharlal Nehru took charge in 2^nd September 1946. The government was unable to work successfully due to non-cooperation of Muslim League.

The British Regime used this situation to transfer power to India and with the idea of forming a sovereign Pakistan

Mountbatten Plan

Lord Mountbatten implemented the idea of partition by the British Regime and hence the Constituent Assembly was divided into two and the members representing the divided territories to join their respective Constituent Assemblies for India and Pakistan. Final Shape of Mountbatten Plan was given by enacting the Indian Independence Act, 1947

The Indian Independence Act, 1947

The act was passed in the British Parliament within less than a fortnight and got assent from the Crown on 18^th July 1947 and provided for

• India and Pakistan, two independent Dominions shall be set up in India as from 15^th August 1947
• Government of UK shall have no responsibility in the territories included in British India from the above date
• Paramountcy of the British Crown shall lapse and all treaties to cease as on the date of passing this act
• Powers of the Dominion Legislature shall be exercised by the Constituent Assembly
• The Government of India Act 1935 with necessary modifications and adaptations shall be the Constitutional Law of India until the formation of New Constitution
• The Act came into force on 15^th August 1947 thereby ending 182 years old British Colonial Rule and Lord Mountbatten had sworn in as the first Governor General of free India

Framing of the Constitution

The Indian Independence Act, 1947 made the Constituent Assembly which was already elected in 1946 through Cabinet Mission a sovereign body free from all limitations.

• First sitting of the Constituent Assembly took place on 9^th December 1946
• Even though Muslim League boycotted the meeting, the Assembly transacted some business
• Interim President and basic rules were finalized
• Jawaharlal Nehru moved an Objective Resolution for the Constitution
• To proclaim India, an Independent Sovereign Republic
• All power and authority of the Sovereign Independent India, its constituent parts and organs of government are derived from the people
• To guarantee and secure all the people of India with Justice, Social, Economic and Political equality of status, opportunity and before law

Later the resolution reflected in the Preamble. Dr Rajendra Prasad was elected as the President of Constituent Assembly. The Constituent Assembly appointed several committees for the efficient and effective conduct of framing the Constitution. Dr Ambedkar took the charge of Drafting Committee to draft the Constitution and to steer it through the Assembly for its adoption on 26^th November 1949. Few of the provisions came into effect from that day and as a whole, Constitution of India came into effect from 26^th January 1950.

ROLE OF DRAFTING COMMITTEE OF THE CONSTITUENT ASSEMBLY

The Constituent Assembly was formed in December 1946 with representatives from various political parties, princely states and regions. The Constituent Assembly appointed several committees to frame the Constitution most efficiently and effectively. On 29^th August 1947, the Constituent Assembly appointed a Drafting Committee with Dr Ambedkar as the chairman of the drafting committee. Based on the reports of the various committees and discussions in the Constituent Assembly, B.N Rau, the Constitutional Adviser to the Constituent Assembly prepared a Draft Constitution which was completed by October 1947 and submitted the draft to the Drafting Committee.

• Drafting committee started scrutinizing the draft constitution from 27^th October 1947
• After making changes, the committee submitted final draft constitution to the president of the Constituent Assembly on 21^st February 1948
• This Final draft was circulated among the public
• The Comments, Critiques and suggestions were overlooked by a Special Committee comprised of members from the Union Constitution Committee, Provincial Constitution Committee, Union Powers Committee and the Drafting Committee
• Drafting Committee held discussions based on those comments and suggestions during March and October months of 1948
• Drafting Committee reprinted and resubmitted the version of Draft Constitution with the set of amendments appended on 26^th October 1948
• Draft Constitution was opened up for discussions in the Assembly after Dr B.R Ambedkar presented it to the Constituent Assembly on 4^th November 1948
• Second Reading of the Draft Constitution was on clause-by-clause discussion in each and every Article which lasted until 17^th October 1949
• Majority of amendments sort by Assembly Members were ultimately rejected
• Drafting Committee then worked in fine tuning of the Draft Constitution by making minor changes in terms of language, adding or removing some clauses
• The revised Draft was then submitted to the President of the Constituent Assembly on 3^rd November 1949 and subsequently introduced in the Assembly on 14^th November 1949
• Third Reading of the Draft found a few significant debates, most of them are general comments, majority expressed satisfaction and others raised concerns

On 26^th November 1949, the third reading of the Constitution ended and the Constituent Assembly voted in favour of the motion proposed by Ambedkar. The final version of the Constitution was signed by the members of the Constituent Assembly on 24^th January 1950 and it came into effect from 26^th January 1950.

Thus the role of the Drafting Committee of the Constituent Assembly in shaping the Constitution of India which reflects the ideals, aspirations and diversity of the nation is phenomenal. It’s efforts laid the foundation of Indian Democracy with a robust constitutional framework that served as a hope and inspiration for democratic movements all over the world.