Definition:The system of fundamental principles according to which a nation, state, corporation, or the like, is governedThe term constitution comes through French from the Latin word constitution used for regulations and orders.
Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations.
1. The first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society.
2. The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
3. The third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
4. The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.
in single act (document)
Most of the world constitutions.
fully written (in few documents)
San Marino, Israel, Saudi Arabia
partially unwritten (see constitutional convention)
Canada, NZ, UK
The idea of a Constituent Assembly to frame the Constitution of India was first mooted by the Communist leader MN Roy. The Indian National Congress (INC) demanded a Constituent Assembly for the first time in 1935. The British Government accepted the demand in its “August Offer” in 1940. The Cripps Mission in 1942 came to India with a draft proposal but the Muslim League didn’t accept it as it wanted the division of India. Finally, the Cabinet Mission came out with a compromise formula which constituted the Constituent Assembly in November, 1946.
The Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others were minor committees. The names of these committees and their chairmen are given below:
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. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel.
This committee had the following sub-committees:
(a) Fundamental Rights Sub-Committee – J.B. Kripalani
(b) Minorities Sub-Committee – H.C. Mukherjee
(c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub Committee – Gopinath Bardoloi
(d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee – A.V. Thakkar
6. Rules of Procedure Committee – Dr. Rajendra Prasad
7. States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
8. Steering Committee – Dr. Rajendra Prasad
Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:
1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
7. T T Krishnamachari (He replaced D P Khaitan who died in 1948)
The first meeting of the Constituent Assembly was convened on December 9, 1946 with Sachchidanand Sinha as the Interim President. He was the oldest member of the assembly. On December 11, 1946, Dr Rajendra Prasad was elected as Permanent President of the Constitution Assembly. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It pledged to make India an independent sovereign union of states. Sir B.N. Rao was appointed as the Constitutional Advisor to the Assembly.
The final reading of the draft was completed on November 26, 1949 and the constitution was declared as passed. The provisions relating to citizenship, elections and provisional parliament etc. were implemented effect that is from the 26th November, 1949. The constitution came into full operations with effect from 26 January 1950.
The Constituent Assembly took 2 years, 11 months and 18
days to frame the Constitution. Originally, the Constitution had 22
parts, 395 articles and 8 schedules.
Presently, it consists of 448 articles divided into 25 parts and 12 schedules.
The Indian Constitution is borrowed from almost all the major countries of the world but has its own unique features too.
Major sources are:
1. Government of India Act of 1935- Federal Scheme, Office of Governor, Judiciary, Public Service Commission, Emergency provisions and administrative details.
2. British Constitution – Parliamentary System, Rule of law, Legislative Procedure, Single Citizenship, Cabinet System, Prerogative Writs, Parliamentary Privileges and Bicameralism.
3. US Constitution – Fundamental rights, independence of judiciary, judicial review, impeachment of president, removal of Supreme Court and high court judges and post of vice president.
4. Irish Constitution- Directive Principles of State Policy, nomination of members of Rajya Sabha and method of election of president.
5. Canadian Constitution- Federation with a strong centre, vesting of residuary power in the centre, appointment of state Governor by the centre and advisory jurisdiction of Supreme Court.
6. Australian Constitution- Concurrent list, joint sitting of two houses of Parliament.
7. Constitution of Germany- Suspension of fundamental rights during emergency.
8. French Constitution- Republic and ideals of liberty, equality and fraternity in the Preamble.
9. South African Constitution- Procedure for amendment of the constitution and election of members of Rajya Sabha.
10. Japanese Constitution- Procedure established by Law.
11. Constitution of former USSR- Procedure of five-year plan, fundamental duties, ideals of justice in Preamble.
First Schedule: It deals with the
territories of the 28 States and 7 Union Territories of the Indian Union.
Second Schedule: It prescribes the salaries, allowances etc. of the President, Vice President, Speaker of the Lok Sabha, Comptroller and Auditor General, Judges of the Supreme Court and High Court, etc..,.
Third Schedule: Forms of oath of affirmation to be taken by the Union Ministers, candidates for election to the Parliament, Judges of the Supreme Court and High Court, Comptroller and Auditor General, Members of Parliament and State Legislature.
Fourth Schedule: Allotment of seats in the Rajya Sabha to States and Union Territories.
Fifth Schedule: It deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes in states other than Assam, Meghalaya, Tripura and Mizoram.
Sixth Schedule: It deals with the provisions regarding administration of Tribal Areas in the states of Assam, Meghalaya, Mizoram, Tripura and Arunachal Pradesh.
Seventh Schedule: This Schedule gives the details of the division of subjects into the three lists: List I (the Union list–100 subjects), List II (the States List–61subjects) and List III (the concurrent list–52subjects).
Eighth Schedule: It gives the list of 22 languages recognised by the Constitution.
Sindhi was added by the 21st Amendment Act 1967;
Konkani, Manipuri and Nepali were added by the 71st Amendment Act 1992;
Bodo, Dogri, Maithili and Santhali were added by the 92nd Amendment Act 2003.
Ninth Schedule: It contains certain Acts and regulations of State Legislature dealing with land reforms and abolition of the Zamindari system. These Acts and regulations are protected from judicial review. At the end of 1995 this Schedule contained 285 such Acts [Article-3IB].
Tenth Schedule: It was added to the Constitution in 1985 by the52nd Amendment Act and contains provisions regarding disqualification on grounds of defection.
Eleventh Schedule: It enumerates the powers and functions of Panchayat Raj
Institutions and was inserted by the 73rd Amendment Act, 1993. It has 29
Twelfth Schedule: This Schedule lists 18 matters which are the responsibility of the municipalities. It was added by the 74th Amendment Act.
The Preamble in its present form reads:
“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 twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”
Sovereign: The word ‘sovereign’ implies that India is neither a dependency nor a dominion of any other nation, but an independent state. There is no authority above it, and it is free to conduct its own affairs (both internal and external). Being a sovereign state, India can either acquire a foreign territory or cede a part of its territory in favour of a foreign state.
Secular: It was also added by the 42nd Constitution Amendment Act, 1976. It means India is a Secular state. It does not mean that India is non-religious or irreligious or antireligious but simply that the state in itself is not religious and follows the ancient Indian principle of “Sarva Dharma Samabhava”.
Socialist: Indian brand of socialism is a “democratic socialism” and not a “communistic socialism” (also known as “state socialism”) which involves the nationalisation of all means of production and distribution and the abolition of private property. Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism.
Democratic: A democratic polity, as
stipulated in the Preamble, is based on the doctrine of popular sovereignty,
that is, possession of supreme power by the people.
Democracy is of two types—Direct and Indirect.
In Direct democracy, the people exercise their supreme power directly as is the case in Switzerland. There are four devices of direct democracy, namely, Referendum, Initiative, Recall and Plebiscite.
In Indirect democracy, on the other hand, the representatives elected by the people exercise the supreme power and thus carry on the government and make the laws. This type of democracy, also known as representative democracy, is of two kinds - parliamentary and presidential.
The Indian Constitution provides for rep-representative parliamentary democracy under which the executive is responsible to the legislature for all its policies and actions. Universal adult franchise, periodic elections, rule of law, independence of judiciary, and absence of discrimination on certain grounds are the manifestations of the democratic character of the Indian polity. The term ‘democratic’ is used in the Preamble in the broader sense embracing not only political democracy but also social and economic democracy.
Republic: A democratic polity can be classified into two categories—monarchy and republic. In a monarchy, the head of the state (usually king or queen) enjoys a hereditary position, that is, he comes into office through succession, e.g. Britain. In a republic, on the other hand, the head of the state is always elected directly or indirectly for a fixed period, e.g., USA.
Justice: The term ‘Justice’ in the Preamble encompasses three distinct forms—social, economic and political. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. Economic justice denotes the non-discrimination between people on the basis of economic factors. It involves the elimination of glaring inequalities in wealth, income and property. Political justice implies that all citizens should have equal political rights, equal access to all political offices and equal voice in the government.
Liberty: The term ‘liberty’ means the absence of restraints on the activities of individuals, and at the same time, providing opportunities for the development of individual personalities. The Preamble secures to all citizens of India liberty of thought, expression, belief, faith and worship, through their Fundamental Rights, enforceable in court of law, in case of violation.
Equality: The term ‘equality’ means the absence of special privileges to any section of the society, and the provision of adequate opportunities for all individuals without any discrimination. The Preamble secures to all citizens of India equality of status and opportunity. This provision embraces three dimensions of equality—civic, political and economic.
Fraternity: Fraternity means a sense of brotherhood prevailing amongst all the sections of the people. This is sought to be achieved by making the state, guaranteeing fundamental and other rights equally to people of all sections and protecting their interest. The Preamble declares that fraternity has to assure two things—the dignity of the individual and the unity and integrity of the nation.
Berubari Union (1960): Preamble is not a part of the Constitution.
Kesavananda bharathi (1973): The Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution.
LIC India case (1995): The Supreme Court again held that the Preamble is an integral part of the Constitution.
Berubari Union (1960): The Preamble cannot be amended as it is not a part of the Constitution.
Kesavananda Bharati (1973): The Court stated that the opinion tendered by it in the Berubari Union (1960) in this regard was wrong, and held that the Preamble can be amended, subject to the condition that no amendment is done to the ‘basic features’.
Lengthiest Written Constitution: Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution. The Constitution of India is the lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed document.
Drawn From Various Sources: The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act5 of 1935. Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after clearly studying many of the constitutions of the world. e.g.: US – Fundamental Rights, Rule of law – Britain.
Blend of Rigidity and Flexibility: A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution. A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.
Article 368 provides for two types of amendments:
(a) 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 per cent), of the total membership of each House.
(b) Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states
Federal System with Unitary Bias: The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, supremacy of Constitution, and Constitution also contains a large number of unitary or non-federal features, viz.,a strong Centre, single Constitution, single citizenship, flexibility of Constitution.
Indian Constitution has been variously described as
‘federal in form but unitary in spirit’, ‘quasi-federal’ by K C Wheare,
‘bargaining federalism’ by Morris Jones,
‘co-operative federalism’ by Granville Austin,
‘federation with a centralising tendency’ by Ivor Jennings.
Parliamentary Form of Government: The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of cooperation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs. In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.
The doctrine of sovereignty of Parliament is associated with the British Parliament while the principle of judicial supremacy with that of the American Supreme Court. The framers of the Indian Constitution have preferred a proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy.
The Indian Constitution establishes a judicial system that is integrated as well as independent. The Supreme Court stands at the top of the integrated judicial system in the country. The Independent Judiciary is at all the levels of the hierarchical system. The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution.
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship. In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them excepting in few cases like tribal areas, Jammu and Kashmir, and so on.