Lecture 1: Historical background and some related issues

Historical Background of the Constitution of India

1. Introduction

• The Constitution of India is the supreme law of the country, establishing the framework
for political principles, procedures, and powers of government institutions.
• Adopted on 26th January 1950, the Constitution has its roots in India's long struggle for
independence and is influenced by various historical documents and events.

2. Colonial Rule and Early Reforms

• East India Company (1600-1858): Initial phase of British control, marked by the
exploitation of resources and consolidation of power.
• Regulating Act of 1773: First step towards parliamentary control over the East India
Company.
• Pitt's India Act of 1784: Established dual control of India by the British government
and the East India Company.
• Charter Acts (1813, 1833, 1853): Progressively brought administrative reforms and
laid foundations for the Indian Civil Services.

3. The Revolt of 1857 and Crown Rule

• Revolt of 1857: Also known as the First War of Independence; led to significant
changes in British policy.
• Government of India Act 1858: Transferred control from the East India Company to
the British Crown, initiating direct rule.

4. Indian National Movement and Constitutional Developments

• Indian Councils Act of 1861 and 1892: Introduced limited Indian representation in
legislative councils.
• Partition of Bengal (1905): Sparked widespread protests and was later reversed in
1911.

5. Reform Acts and the Push for Greater Autonomy

• Morley-Minto Reforms (1909): Introduced separate electorates for Muslims,

increasing communal representation.
• Montagu-Chelmsford Reforms (1919): Introduced diarchy in provinces, laying
groundwork for greater Indian participation in governance.
• Government of India Act 1935: Proposed provincial autonomy and federal structure,
though not fully implemented.

6. Towards Independence

• Quit India Movement (1942): Mass protest demanding an end to British rule, led by
the Indian National Congress.
 • Indian Independence Act 1947: Partitioned India and Pakistan, ending British rule
and setting the stage for the creation of the Constitution.

7. Constituent Assembly

• Formation: Established in 1946 to draft the Constitution of India; included members

from various regions and communities.
• Drafting Committee: Chaired by Dr. B.R. Ambedkar, tasked with drafting the detailed
text of the Constitution.
• Adoption: The Constitution was adopted on 26th November 1949 and came into effect
on 26th January 1950.

8. Influences on the Indian Constitution

• Government of India Act 1935: Provided a significant framework for the Constitution.
• British, American, and Other Constitutions: Influences from parliamentary
democracy, federal structure, and the Bill of Rights.
• Philosophical and Ethical Ideals: Reflected the aspirations for justice, liberty,
equality, and fraternity.

9. Key Features of the Constitution

• Preamble: Declares India as a Sovereign, Socialist, Secular, Democratic Republic.

• Fundamental Rights and Duties: Ensures basic rights to citizens and specifies their
duties.
• Directive Principles of State Policy: Guidelines for the government to achieve social
and economic democracy.
• Federal Structure: Distribution of powers between the central and state governments.
• Independent Judiciary: Ensures the rule of law and protects constitutional provisions.

Framing and Development of the Constitution of India

1. Formation of the Constituent Assembly

• Establishment: The Constituent Assembly was formed in 1946 under the Cabinet
Mission Plan to draft the Constitution of India.
• Membership: Initially, the assembly consisted of 389 members, later reduced to 299
after the partition. Members included representatives from provinces, princely states,
and various communities.
• Key Figures:
o Dr. B.R. Ambedkar: Chairman of the Drafting Committee, often referred to as
the "Father of the Indian Constitution."
o Dr. Rajendra Prasad: President of the Constituent Assembly.
o Jawaharlal Nehru: Integral member and first Prime Minister of India.
o Sardar Vallabhbhai Patel: Played a crucial role in integrating princely states.
o Maulana Abul Kalam Azad: A prominent freedom fighter and scholar.
2. Drafting Process

• Drafting Committee: Consisted of seven members, including Dr. B.R. Ambedkar,

K.M. Munshi, Alladi Krishnaswami Ayyar, and others.
• Debates and Discussions: The Assembly met for 165 days spread over nearly three
years, debating various provisions.
• Adoption: The final draft was adopted on 26th November 1949, and the Constitution
came into effect on 26th January 1950.

3. Inspirations for the Indian Constitution

• Government of India Act 1935: Provided a significant framework, particularly for

federal structure and administrative details.
• British Constitution: Parliamentary system, rule of law, and legislative procedures.
• United States Constitution: Fundamental Rights and judicial review.
• Irish Constitution: Directive Principles of State Policy.
• Canadian Constitution: Federation with a strong central government.
• Australian Constitution: Concept of concurrent powers and the idea of a federal court.
• French Constitution: Ideals of liberty, equality, and fraternity.

4. Key Features of the Indian Constitution

• Preamble: Declares India as a Sovereign, Socialist, Secular, Democratic Republic, and

outlines objectives like Justice, Liberty, Equality, and Fraternity.
• Fundamental Rights: Enshrines the basic rights guaranteed to all citizens, including
the Right to Equality, Freedom, Against Exploitation, to Freedom of Religion, Cultural
and Educational Rights, and Constitutional Remedies.
• Fundamental Duties: Specifies duties of citizens towards the nation.
• Directive Principles of State Policy: Non-justiciable guidelines for the government to
ensure social and economic welfare.
• Federal Structure: Division of powers between the Union and State governments, with
a strong center.
• Parliamentary System: Bicameral legislature (Lok Sabha and Rajya Sabha), Prime
Minister as the head of government, President as the head of state.
• Independent Judiciary: Supreme Court at the apex, ensuring the protection of the
Constitution and fundamental rights.
• Secularism: Equal treatment of all religions by the state.
• Socialism: Commitment to reducing inequality in wealth and status.
• Single Citizenship: All citizens of India enjoy the same rights irrespective of the state
they belong to.
• Emergency Provisions: Allows the central government to take control during times of
emergency.

5. Significant Amendments and Interpretations

• First Amendment (1951): Addressed land reform and protected against challenges to
agrarian reform laws.
• 42nd Amendment (1976): Known as the "mini-constitution," it brought significant
changes, including the addition of the words "Socialist" and "Secular" to the Preamble.
 • 44th Amendment (1978): Reversed many changes made by the 42nd Amendment,
particularly those enhancing the powers of the central government during an
emergency.

Written Constitution vs. Unwritten Constitution

Advantages of a Written Constitution

1. Clarity and Precision:

o Defined Document: A written constitution is a single, consolidated document,
providing clear and precise guidelines on the functioning of the government.
o Accessible Reference: Citizens, lawmakers, and judges can easily refer to a
specific document for understanding their rights and duties.
2. Stability and Predictability:
o Consistent Framework: Provides a stable and predictable legal and political
framework, reducing ambiguities in the interpretation of laws.
o Formal Amendment Process: Changes to the constitution are made through a
well-defined process, ensuring stability.
3. Protection of Rights:
o Codified Rights: Fundamental rights and liberties are explicitly stated, offering
robust protection against government encroachment.
o Judicial Review: Courts can strike down laws and actions that violate the
constitution, ensuring the protection of individual rights.
4. Limitation of Government Power:
o Checks and Balances: Clearly defines the separation of powers among the
legislative, executive, and judicial branches, preventing abuse of power.
o Rule of Law: Ensures that all actions of the government are subject to legal
constraints.
5. Transparency and Accountability:
o Public Awareness: The written constitution enhances public awareness and
understanding of the fundamental laws governing the country.
o Government Accountability: Provides a benchmark against which
government actions can be measured and held accountable.

Advantages of an Unwritten Constitution

1. Flexibility:
o Adaptability: Unwritten constitutions can evolve more easily over time
through customs, judicial decisions, and statutes, allowing for quicker
adaptation to new circumstances.
o Incremental Changes: Changes can be made incrementally without the need
for formal amendments, making the constitution more responsive to societal
changes.
2. Pragmatism:
o Practical Application: Allows for practical and flexible governance based on
current needs and situations rather than being constrained by a rigid document.
o Customary Practices: Relies on established customs and conventions that have
been tested over time.
3. Simplicity:
 o
Ease of Understanding: Less complexity in understanding the basic principles
of governance, as they are based on long-standing traditions and judicial
interpretations.
o Integration of Laws: Integrates constitutional principles with ordinary laws,
providing a cohesive legal system.
4. Continuity:
o Historical Continuity: Preserves historical traditions and practices, ensuring
continuity in governance.
o Common Law Development: Leverages the development of common law to
address new issues and challenges.

Comparison of Written and Unwritten Constitutions

Aspect Written Constitution Unwritten Constitution

Based on statutes, conventions, and
Nature Codified in a single document
judicial decisions
Clarity High clarity and precision Ambiguous, relies on interpretations
Provides stability and
Stability Flexible and adaptable
predictability
Explicit protection of Rights protection through evolving
Rights Protection
fundamental rights conventions
Amendment Informal, through legislative and
Formal, structured process
Process judicial changes
Government Clearly defined separation of
Relies on conventions and traditions
Limitation powers
High due to a single reference May be lower due to reliance on
Public Awareness
document various sources
Less flexible, requires formal
Flexibility Highly flexible, evolves with society
amendments

Both written and unwritten constitutions have their own strengths and weaknesses. A written
constitution provides clarity, stability, and explicit protection of rights, making it a strong
framework for governance. On the other hand, an unwritten constitution offers flexibility and
adaptability, allowing a legal system to evolve organically with changing societal norms and
needs. The choice between a written and unwritten constitution often depends on the historical
context, legal traditions, and specific needs of a country.