Constitution

 The Making of India's Constitution

Simon Commission was a group of 7 parliament members from Britain. They were sent to India to help in the preparation of a constitution for India.

Indian leaders rejected Simon Commission. They said Indians are capable of preparing their own constitution and do not need Britishers' help.

In response to Simon Commission, All Party Conference of India prepared NEHRU REPORT to show that Indians are capable of writing their own constitution. All Party Conference was headed by Motilal Nehru. His son Jawaharlal Nehru was the secretary.

Mohammad Ali Jinnah (founder of Pakistan) was also a member of the Indian National Congress at that time. He suggested 14 points but they were not included in Nehru Report. Jinnah was hurt and left India. He went to London and continued his profession as a lawyer there. In 1933, he returned to India with the Two Nation Theory (which said Hindus and Muslims are two different nations and it is not possible for them to live together, so a separate country called Pakistan must be created for muslims).

The Government of India Act 1935, passed by the British government, was the first governing document of India.

In 1942, Winston Churchill (Prime Minister of Britain at that time) sent a committee of 4 members to India. Stafford Cripps was the head of the committee. So it was called Cripps Mission. The aim of the mission was to discuss with Indian leaders and ask for India's cooperation in World War II. In return, Cripps offered full self-government for India (Dominion status). The discussions failed. India refused to join Britain in the war.

In 1946, Clement Attlee (Prime Minister of Britain at that time) sent a committee of 3 members to India. Pethick Lawrence was the head of the committee. Stafford Cripps and A.V. Alexander were the other members. This was called the Cabinet Mission. The aim of the mission was to discuss with Indian leaders and make arrangements for transfer of power and self-government in India.

In January 1946, elections were held in British India and Princely States. Members of Provincial Assemblies elected the members of Constituent Assembly. 292 members were elected from British India and 93 members were elected from Princely States to the Constituent Assembly. 4 members were elected from Delhi, Ajmer-Mewar, Koorg and British Baluchistan. The total number of members in the Constituent Assembly was 389. (That is, the members of the Constituent Assembly were indirectly elected.) The task given to the Constituent Assembly was to write a Constitution for India. After India's independence in1947, the Constituent Assembly became our first Parliament.

Care was taken to ensure that there were members from all the communities - Hindus, Muslims, Christians, Sikhs and Anglo-Indians. 26 members were from Scheduled Castes. 9 members were women. 69% of the members from Indian National Congress. Muslim League was the second largest party.

After independence and partition, 86 of the members were separated to form Pakistan's Constituent Assembly. 299 members continued in India's Constituent Assembly.

Suffrage or franchise means the right to vote.

Universal suffrage (or universal franchise) means the right to vote for everyone above a certain age.

Article 326 of the Indian Constitution gives universal adult franchise. It means all the adults (18 or older) have the right to vote irrespective of religion, caste, region or gender. (Members of the Constituent Assembly were not elected through universal adult franchise. Their election was indirect.)

At the time of 1946 provincial elections, there was no universal adult franchise. Only 10% of the population voted in 1946.

Members of the Constituent Assembly from Princely States were decided through consultation, not by election.

Therefore, the Constituent Assembly was not really representative in nature.

Constituent Assembly was formed on 6 December 1946. Sachchidananda Sinha was its temporary Chairperson. Babu Rajendra Prasad was the President.

Constituent Assembly appointed a committee of 7 members to put the points discussed in writing. It was called the Drafting Committee. Dr B.R. Ambedkar was the head of the drafting committee. Alladi Krishnaswami Ayyar, N. Gopalaswami, K.M Munshi, Mohammad Saadulla, B.L. Mitter and D.P. Khaitan were the other six members.

Dr Ambedkar is known as the architect of India's Constitution because he was the head of the drafting committee.

The making of Constitution continued for 2 years 11 months. In Jan 1948, draft constitution was published and people's opinions were invited. On 26 Nov 1949, the Constituent Assembly approved the final draft of the Constitution. The new Constitution was inaugurated (implemented) from 26 Jan 1950. That means, the term of the Constituent Assembly expired on 25 Jan 1950.

From 1773 to 1858, India was a colony of Britain ruled by the East India Company. From 1858 to 1947, India was a colony of Britain ruled directly by the British government.

From 15 August 1947 to 25 January 1950, India was a dominion (సామంత రాజ్యం) of British empire but with self-government.

It means the Head of the State for India was Queen Elizabeth II during this period. We had no president of our own.

During East India Company's rule, India's head was the British emperor. On his behalf, India was ruled by a Governor General. Warren Hastings was the first Governor General (1773-85). Canning was the last Governor General (1856-58) under East India Company.

From 1858, when India came under the direct rule of the British Crown, the title 'Governor General' was changed to 'Viceroy'.

Canning was the first Viceroy of India (1858-62). Mountbatten was the last Viceroy (from 21 February 1947 to 14 August 1947).

After independence, India did not want to accept the term 'viceroy'. So it was changed to 'governor general' again.

Mountbatten was the first governor general of free India (from 15 August 1947 to 21 June 1948). Chakravarthy Raja Gopalachari was the second (and the last) Governor General of free India (from 22 June 1948 to 25 January 1950). It should be remembered that during this time, Mountbatten and Raja Gopalachari were only the representatives of the British emperor. From 26 January 1950, we completely disconnected from the British emperor and we have had our own Head of the State, called the President of India.

From 26 January 1950, India became a Sovereign Democratic Republic.

From that day, we are SOVEREIGN because we are completely independent and not under the British authority (or any other authority) anymore. We are a REPUBLIC because our Head of the State (President) is elected for a limited term of 5 years only.

In countries like Britain, the head of the state (the king or queen) remains in that position for his/her entire lifetime. Such countries are monarchies. In countries like India/USA, the head of the state is elected only for a limited term of 4 or 5 years. Such countries are called republics.

26 January 1950 is called the Republic Day because we started having OUR OWN PRESIDENT from that day. Babu Rajendra Prasad was the first President of India. Dr S Radhakrishnan became the first Vice-President. (5 September which is celebrated as Teacher's Day is the birth anniversary of Radhakrishnan.)

Countries which accept Britain's authority are called commonwealth countries or the British Commonwealth of Nations.

There are 54 countries even now which accept Britain's authority. For example, Australia is a commonwealth country. It has a prime minister but no president. British Queen is officially the head of state for Australia.

India is not a member of the commonwealth countries.

Our Constitution declared India as a Sovereign Democratic Republic. During emergency (1975-77), Indira Gandhi made the 42nd Amendment to the Constitution (42nd Amendment Act of India, 1976). It added two more words: Socialist and Secular. By socialist, we mean India is a welfare state and it strives for economic equality. By secular, we mean religion and politics are separated. There shall be no official religion followed by the government of India and all religions get the same respect and equal treatment.

Therefore, India is a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC now according to the Constitution.

Constitution is a very important document because it is the SUPREME authority in our country.

Parliament, government and courts are all subordinate to the Constitution. This is what we call the Rule of Law.

In dictatorship, all the power is vested in a person, but in the rule of law, all the power is vested in the Constitution and individuals have no importance.

Preamble to the Constitution of India: We, the people of India, having solemnly resolved to constitute India into a Sovereign, [Socialist, Secular] Democratic Republic and to secure to all its citizens: Justice – social, economic and political, Liberty of thought, expression, belief, faith and worship, Equality of status and of opportunity, and to promote among them all, Fraternity assuring the dignity of the individual and the unity and integrity of the Nation; in our Constituent Assembly this 26th day of November 1949, do hereby adopt, enact and give to ourselves this Constitution.

From the Preamble, we can say that the character of India's Constitution is given by the 5 words: sovereign, socialist, secular, democratic and republic.

The goals of the Indian Constitution (or, the values to which Indian Constitution is committed): justice, liberty, equality and fraternity to all the people of India

Constitution of India has Preamble followed by 22 parts with 395 articles and 12 schedules. Part 1 (articles 1–4) is about the Indian Union and the formation of states. Part 2 (articles 5–11) deals with citizenship. Part 3 (articles 12–35) contains fundamental rights. Part 4 (articles 36–51) consists of directive principles of state policy. Part 4A (article 51A) lists fundamental duties. Part 5 (articles 52–151) describes the Union Legislature, Executive and Judiciary. Part 6 (152–237) describes the legislature, executive and judiciary in states. Part 7 (article 238, which does not exist now) is repealed by the 7th amendment. Part 8 (articles 239–242) is about the union territories. Part 9 (articles 243 – 243 ZT) describes Panchayats, Municipalities and cooperative societies. Part 10 (articles 244 and 244A) describes scheduled and tribal areas.

Part 11 deals with the relations between the Union and states. Part 12 deals with finance and property. Part 13 (articles 301–307) deals with trade and commerce. Part 14 (articles 308–323) describes All India Services and Public Service Commissions. Part 15 (articles 324–329) describes election process. Part 16 (articles 330–342) deals with special provisions for backward castes, scheduled castes, scheduled tribes, Anglo-Indians, etc. Part 17 (articles 343–351) deals with India's official language and regional languages. Part 18 (articles 352–360) describes provisions for the imposition of emergency. Part 19 (articles 361–367) deals with miscellaneous things like protection to president, governors, parliament, state assemblies, etc.

Part 20 (article 368) deals with procedure to amend the constitution. Part 21 (articles 369–392) deals with temporary or special provisions and powers (as in the case of Jammu-Kashmir, Northeast states, etc.) Part 22 (articles 393–395) contains short titles, dates of commencement and Hindi text of the Constitution.

Schedules are tables and lists. Schedule 1: List of states and UTs; Schedule 2: Provisions of President, Governors, Speakers, Judges, etc. Schedule 3: Forms of oaths; Schedule 4: Allocation of seats in Rajya Sabha; Schedule 5: Administration of scheduled areas; Schedule 6: Administration of tribal areas in northeast; Schedule 7: Union List, State List and Concurrent List; Schedule 8: List of recognised languages; Schedule 9: List of laws that cannot be challenged in courts; Schedule 10: Provisions of disqualification on grounds of defection; Schedule 11: Powers of panchayats; Schedule 12: Powers of municipalities

Union list has 98 subjects. On these, only the Union Government can make laws. State list has 59 subjects. On these, only the state government can make laws. Concurrent list has 52 subjects. On these, both Union government and state can make laws and if there is a clash between them, the law made by the Union will prevail. Residual powers rest with the Union.

Indian Constitution is the lengthiest constitution in the world.

Ours is Parliamentary system like the UK. President of India is similar to King/Queen of Britain. He is only a nominal head. The real head is the Prime Minister and his cabinet. That is, in parliamentary system, there are two heads – one is titular (nominal) and one is real.

USA follows Presidential system which is different. President in USA's system is similar to India's Prime Minister. That is, there is only one head in the presidental system.

Legislature (Lok Sabha, Rajya Sabha and President) makes laws. Executive (Cabinet of Ministers, IAS officers and government emloyees) implements laws. Judiciary (courts) settles disputes and checks the working of legislature and executive. All the three are subordinate to the Constitution.

Constitutions are of two types – unitary and federal. In a unitary constituion, union government has supreme powers and states have very limited powers or no powers. In a federal constitution, Union and states have equal powers. In a federation, if there is a supreme court to settle disputes between states and centre. We can say Union is a 'single government' and federation is a system of 'double government'.

UK is a perfect example of union. USA is a perfect example of a federation.

Now, the question – is India a union or a federation?

Article 1 of our Constitution says: "India, that is Bharat, shall be a UNION of states." From this, we have to say India is a union.

But there is division of powers between centre and states in India. We have a separate union list and a state list mentioned in the 9th schedule. Also, there is a Supreme Court in India to settle disputes between states and Centre. From these features, we have to say India is a federation.

Conclusion: India is a union in spirit and federal in structure. It means, India's body is federal and the soul is unitary.

Some countries, like the US, allow dual citizenship. India only allows single citizenship. That means, if a foreigner wants to take Indian citizenship, he must forego his earlier citizenship. In the same way, if an Indian becomes a citizen of another country, his Indian citizenship automatically gets cancelled.

Fundamental rights are legally challengeable. It is the government's duty to protect our fundamental rights. If the government fails in it, we can challenge in the court. Supreme Court is the guardian of fundamental rights. can be challenged in the court. But directive principles are not legally challengeable. The constitution advises the government to do the things which are laid down in the directive principles but even if the government does not fulfill them, we can't question. There is no obligation on the part of the government to follow the directive principles. (For example, the directive principles state that the government must try to impose total prohibition on the consumption of alcoholic liquor. The government may or may not do it.)

Free and compulsory education to all children aged 6–14 was in the directive principles earlier. The Right to Education Act, 2009, made education a fundamental right of children.

Right to property was a fundamental right earlier. But it is removed from the list of fundamental rights by the 42nd amendment.

Fundamental rights: 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 (articles 32–35)

Constitutional remedies: 1. Habeas corpus (to release a person from unlawful detention), 2. Mandamus (an order from the court to a government servant to perform his constitutional duty), 3. Certiorari (an order issued by a higher court quashing an order given by a lower court), 4. Prohibition ('stay' order), 5. Quo–warranto (an order to restrain a person from holding a public office to which he is not entitled)

As of January 2020, the Constitution has been amended 104 times since 1950.