Unit I

The Indian Constitution – An

Introduction
 Constitution and
Constitutional Law

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What Is a Constitution?
 The vast majority of contemporary Constitutions describe the basic
principles of the state, the structures and processes of
government and the fundamental rights of citizens in a higher
law that cannot be unilaterally changed by an ordinary legislative
act.
 This higher law is usually referred to as a Constitution.
 A constitution is a set of fundamental legal-political rules that:
 (1) are binding on everyone in the state, including ordinary
lawmaking institutions;
 (2) concern the structure and operation of the institutions of
government, political principles and the rights of citizens;
 (3) are based on widepread public legitimacy;
 (4) are harder to change than ordinary laws;
(5) as a minimum, meet the internationally recognized criteria for a
democratic system in terms of representation and human rights. 3
The Functions of a Constitution
 Constitutions can declare and define the boundaries of the political
community. These boundaries can be territorial (the geographical
borders of a state, as well as its claims to any other territory or
extra-territorial rights) and personal (the definition of citizenship).
 Constitutions can declare and define the nature and authority of
the political community. They often declare the state’s fundamental
principles and assumptions, as well as where its sovereignty lies.
 Constitutions can declare and define the rights and duties of
citizens. Most constitutions include a declaration of fundamental
rights applicable to citizens.
 Constitutions can establish, define and regulate the political
institutions, prescribe their composition, powers and functions.
 Constitutions can divide or share power between different layers
of government. Many constitutions establish federal processes for
the sharing of power between provinces.
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 This means that the institutions of government created by the
Constitution have to function in accordance with it.
 Any exercise of power outside the Constitution is
unconstitutional.
 The government being the creature of the Constitution,
Constitution delimits the powers of governmental organs and
any exercise of power beyond the constitutional parameters
becomes unauthorized.
 Therefore, any law made by the Legislature, any action taken
by the Executive, if inconsistent with the Constitution, can be
declared unconstitutional by the courts.

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Constitutional Law
 The Constitutional law of a country consists of both legal, non-
legal norms as well as judicial interpretations.
 Legal norms are enforced and applied by the courts and if any
such norm is violated, courts can give relief and redress.
 On the other hand, non-legal norms arise in course of time as a
result of practices followed over and over again. Such norms are
known as conventions, usages, customs, practices of the
Constitution.
 Constitutional Law is further concerned with the judicial
interpretation of the Constitution.
 It is the obligation of the judiciary to see that the Constitution is
not violated by any governmental organ and hence the judiciary
is called as the guardian and protector of the Constitution.
 Legal (written in Constitution) + Non-legal norms (Constitutional
Customs) + Court’s interpretation of Constitution =
Constitutional Law
Written & Unwritten
Constitutions
 A Constitution may be written or unwritten.
 A written Constitution is one which is written down in the form
of a Constitutional document.
 The British Constitution is characterised as ‘unwritten’ because
it is not embodied in one comprehensive Constitutional
document. It is interspersed in several statutes which define
some Constitutional principles; in court decisions; in common law
principles and in conventions and usages.
 The central doctrine of the British Constitution is Sovereignty of
Parliament which means that Parliament can make or unmake
any law and no distinction is drawn between an ordinary law and
the Constitutional law.
 Most of the modern Constitutions are of the written type. The
U.S.A. wrote its Constitution in 1787, Canada in 1867 and
Australia in 1900. 7
8
Constitutionalism

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 Constitutionalism
 Modern political thought draws a distinction between
‘Constitutionalism’ and ‘Constitution’.
 A country may have the ‘Constitution’ but not necessarily
‘Constitutionalism’. For example, a country with a dictatorship,
where the dictator’s word is law, can be said to have a
‘Constitution’ but not ‘Constitutionalism’.
 The underlying difference between the two concepts is that a
Constitution ought not merely to confer powers on the various
organs of the government, but also seek to restrain those powers.
Constitutionalism recognises the need for government but insists
upon limitations being placed upon governmental powers.
Constitutionalism envisages checks and balances and putting the
powers of the legislature and the executive under some restraints
and not making them uncontrolled and arbitrary.
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 A written Constitution, independent judiciary with
powers of judicial review, the doctrine of rule of law
and separation of powers, free elections to legislature,
accountable and transparent democratic government,
Fundamental Rights of the people, federalism,
decentralisation of power are some of the principles
and norms which promote Constitutionalism in a
country.

Video: We Don't Need a Written Constitution but Const
itutionalism: Faizan Mustafa

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Rule of Law

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 Rule of Law

The doctrine of Rule of Law is ascribed to A.V. DICEY whose writing in 1885 on the
British Constitution included the following three distinct though kindered ideas in Rule of
Law:

(i) Absence of Arbitrary Power: No man (person) is above law. No man is punishable except
for a distinct breach of law established in an ordinary legal manner before ordinary courts. The
government cannot punish any one merely by its own fiat. Persons in authority in Britain do not
enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion
there is room for arbitrariness.

(ii) Equality before Law: Every man (person), whatever his rank or condition, is subject to
the ordinary law and jurisdiction of the ordinary courts. No man (person) is above law.

(iii) Individual Liberties: The general principles of the British Constitution and especially the
liberties of the individual, are judge-made, i.e., these are the result of judicial decisions
determining the rights of private persons in particular cases brought before the courts from
time to time.
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 DICEY’S thesis has been criticised by many from various angles but, the
basic tenet expressed by him is that power is derived from and is to be
exercised according to law.
 In substance, DICEY’S emphasis, on the whole, in his enunciation of Rule of
Law is on the absence of arbitrary power, and discretionary power,
equality before Law, and legal protection to certain basic human
rights.
 These ideas remain relevant and significant in every democratic country
even to-day.
 Rule of Law does not mean rule according to statutory law because such a
law may itself be harsh, inequitable, discriminatory or unjust. Rule of law
connotes some higher kind of law which is reasonable just and
nondiscriminatory.
 The Indian Constitution by and large seeks to promote Rule of Law through
many of its provisions. For example - Parliament and State Legislatures are
democratically elected on the basis of adult suffrage. The Constitution
makes adequate provisions guaranteeing independence of the judiciary.
Article 14 of the Constitution guarantees right to equality before law.
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Historical Perspective –
Towards Constitution
Making

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The Indian Renaissance
 The Constitution of India, the precursor of the new Indian
renaissance, became effective on January 26, 1950.
 Before the advent of the Constitution, India was part of the British
Empire; sovereignty of the British Crown prevailed over the country.
 The British came to India in 1600 as traders, in the form of East
India Company, which had the exclusive right of trading in India
under a charter granted by Queen Elizabeth I.
 In 1765, the Company, which till now had purely trading functions
obtained the ‘diwani’ (i.e., rights over revenue and civil justice) of
Bengal, Bihar and Orissa. This started its career as a territorial
power.
 In 1858, in the wake of the first war of independence (sepoy
mutiny), the British Crown assumed direct responsibility for the
governance of India.
 This rule continued until India was granted independence on
August 15, 1947. 16
 THE COMPANY RULE (1773–1858)
 Regulating Act of 1773
 Pitt’s India Act of 1784
 Charter Act of 1833
 Charter Act of 1853

 THE CROWN RULE (1858–1947)

 Government of India Act of 1858
 Indian Councils Act of 1861, 1892 and 1909
 Government of India Act of 1919
 Government of India Act of 1935
 Indian Independence Act of 1947
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Government of India Act, 1935
 Only two major features of the Act need be mentioned here.
 First, the Act conferred only a very limited right of self-government on the
Indians. The executive authority in a Province was vested in the Governor
appointed by the Crown.
 They were to act ordinarily on the advice of the Ministers who were to be
responsible to the Provincial Legislature which was elected on a limited
franchise.
 But the Governor could exercise certain functions ‘in their discretion’ or
‘individual judgment’ in which case they were not bound by the ministerial
advice and was subject to the control of the Governor-General.
 The executive authority at the Centre too was vested in the Governor-General
appointed by the Crown.
 Though ordinarily the Governor-General would act on ministerial advice, they
could discharge certain functions ‘in their discretion’ or ‘individual judgment’
in which case they were not bound by ministerial advice but was subject to the
control of the Secretary of State for India who was a member of the British
Cabinet.
 Defence and external affairs, among others, fell in this category.
19
Making of the Constitution - Constituent Assembly
Demand
 Video:
The First Step – Cabinet Mission to Objective Resolution (Episode 1),
Samvidhan Series, Rajya Sabha TV
 It was in 1934 that the idea of a Constituent Assembly for India was put
forward for the first time by M. N. Roy, a pioneer of communist
movement in India.
 In 1935, the Indian National Congress (INC), for the first time, officially
demanded a Constituent Assembly to frame the Constitution of India.
 In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the
Constitution of free India must be framed, without outside interference,
by a Constituent Assembly elected on the basis of adult franchise’.
 The demand was finally accepted in principle by the British Government
in what is known as the ‘August Offer’ of 1940.
 In 1942, Sir Stafford Cripps, a member of the cabinet, came to India
with a draft proposal of the British Government on the framing of an
independent Constitution to be adopted after the World War II.
 The Cabinet Mission Plan
The Cabinet Mission Plan was a statement made by the Cabinet Mission and the Viceroy, Lord
Wavell, on May 16, 1946, that contained proposals regarding the constitutional future of India in
the wake of Indian political parties and representatives not coming to an agreement.
The members of the Cabinet Mission were: Lord Penthick-Lawrence, Secretary of State
for India, Sir Stafford Cripps, President of the Board of Trade, and A.V Alexander, First
Lord of Admiralty.
In September 1945, the new elected Labour government in Britain expressed its
intention of creating a Constituent Assembly for India that would frame India’s
Constitution; the Cabinet Mission was sent to India in March 1946 to make this happen.
The Mission had to deal with a major obstacle: the two main political parties – the Indian
National Congress and the Muslim League – had fundamental differences over India’s
future.

While the Muslim League wanted the Muslim majority provinces of India to constitute a
separate sovereign state of Pakistan, the Congress wanted a united India.

The Mission, at the Shimla Conference, attempted to facilitate an agreement between the
Muslim League and the Congress. When this failed, the Mission came out with its own
proposals known as the Cabinet Mission Plan.
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 The Grouping
The Cabinet Mission Plan proposed a three-tiered structure with a federal system for
India, dividing the British Indian provinces into three groups based on religious
demographics.

1. The Union

2. Group A would consist of Hindu-majority provinces (Madras, Bombay, Central

Provinces, United Provinces, Bihar and Orissa).

3. Groups B would be made up of Muslim-majority provinces (Parts of Punjab, North-

West Frontier Province (Khyber Pakhtunkhwa), Sind and Baluchistan at one hand and
parts of Bengal and Assam).
The plan aimed to maintain a united India while granting provinces significant
autonomy, with the central (union) government handling defense, foreign affairs,
and communications.

Princely states were free to form groups under the Union, having a legislature and
executive, enjoying significant autonomy.

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 The Plan was initially accepted by the Muslim League and the
Congress Party.
 However, the Congress Party soon rejected the ‘grouping’ part
of the plan; specifically, it was concerned about and opposed the
grouping of provinces on the basis of religion.
 The Muslim League was not open to changing any part of the
Plan and so any consensus between the Congress and the
Muslim League broke down.
 Further attempts by the Cabinet Mission at reconciliation failed.
 Nonetheless, the proceedings of the Constituent Assembly
began and an interim government, with Jawaharlal Nehru as the
Prime minister, was set-up.
 The Muslim League refused to be part of both; it initiated
‘Direct Action Day’ triggering large-scale violence across the
country.
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 Composition of the Constituent Assembly
 The Constituent Assembly was constituted in November 1946 under the
scheme formulated by the Cabinet Mission Plan.
 The total strength of the Constituent Assembly was to be 389.
 Of these, 296 seats were to be allotted to British India and 93 seats to the
Princely States.
 Each province and princely state (or group of states in case of small states)
were to be allotted seats in proportion to their respective population.
 Roughly, one seat was to be allotted for every million population.
 Seats allocated to each British province were to be divided among the three
principal communities - Muslims, Sikhs and general (all except Muslims and
Sikhs), in proportion to their population.
 The representatives of each community were to be elected by members of that
community in the provincial legislative assembly and voting was to be by the
method of proportional representation by means of single transferable vote.
 The representatives of princely states were to be nominated by the heads of
the princely states.
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26
Working Of The Constituent Assembly
 The Constituent Assembly held its first meeting on December
9, 1946.
 The Muslim League boycotted the meeting and insisted on a
separate state of Pakistan.
 The meeting was thus attended by only 211 members. Dr
Sachchidanand Sinha, the oldest member, was elected as the
temporary President of the Assembly, following the French
practice.
 Later, Dr. Rajendra Prasad was elected as the President of the
Assembly. Similarly, both H.C. Mukherjee and V.T.
Krishnamachari were elected as the Vice-Presidents of the
Assembly.
 Objectives Resolution: On December 13, 1946, Jawaharlal
Nehru moved the historic ‘Objectives Resolution’ in the
Assembly. It laid down the fundamentals and philosophy of the
constitutional structure (later a revised become preamble). 27
 Committees Of The Constituent Assembly

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
(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
 Drafting Committee
 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)
Working Of The Constituent Assembly
 The Drafting Committee, after taking into consideration the
proposals of the various committees, prepared the first draft of
the Constitution of India, which was published in February
1948.
 The people of India were given eight months to discuss the
draft and propose amendments.
 In the light of the public comments, criticisms and suggestions,
the Drafting Committee prepared a second draft, which was
published in October 1948.

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Enactment of the Constitution

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Salient Features of the
Indian Constitution

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Salient Features
MODERN CONSTITUTION: The fact that the Indian Constitution was
drafted in the mid-twentieth century gave an advantage to its makers in
so far as they could take cognisance of the various constitutional
processes operating in different countries of the world and thus draw
upon a rich fund of human experience, wisdom, heritage and traditions
in the area of governmental process in order to fashion a system suited
to the political, social and economic conditions in India.
WRITTEN CONSTITUTION: India’s Constitution is a lengthy, elaborate
and detailed document. Originally it consisted of 395 Articles arranged
under 22 Parts and 8 Schedules. Today, after many amendments, it has
450+ Articles and 12 Schedules.
PREAMBLE: Unlike the Constitutions of Australia, Canada or the U.S.A.,
the Constitution of India has an elaborate Preamble. The purpose of the
Preamble is to clarify who has made the Constitution, what is its source,
what is the ultimate sanction behind it; what is the nature of the polity
which is sought to be established by the Constitution and what are its
goals and objectives? The Preamble does not grant any power but it
gives a direction and purpose to the Constitution. It outlines the 33
objectives of the whole Constitution.
SOCIALIST STATE: The word “socialist” was not there originally in the Preamble.
It was added to the Preamble by the 42nd Amendment of the Constitution in 1976.
Thus, the concept of “socialism” has now been made explicit. Democratic socialism
aims to end poverty, ignorance, disease and inequality of opportunity. In India, the
government accepts the policy of mixed economy where both public and private
sectors co-exist side by side.
WELFARE STATE: The Constitution embodies a distinct philosophy of government
and explicitly declares that India will be organised as a social welfare state, i.e., a
state which renders social services to the people and promotes their general welfare.
This concept of a welfare state is further strengthened by the Directive Principles of
State Policy which set out the economic, social and political goals of the Indian
Constitutional system.
SECULAR STATE: India is a country of religions. There exist multifarious religious
groups in the country but, in spite of this, the Constitution stands for a secular state
of India. The word ‘secular’ was not present originally in the Preamble. It was added
thereto by the 42nd Constitutional Amendment in 1976. What was implicit in the
Constitution until then became explicit. Even before 1976, the concept of secularism
was very much embedded in the Indian constitutional jurisprudence as many court
cases of this era would testify.
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 RESPONSIBLE GOVERNMENT: To give reality and content to the
democratic ideals propounded in the Preamble, the Constitution
establishes parliamentary form of government both at the Centre and
the States, in which the executive is responsible to an elected
legislature.
 FUNDAMENTAL RIGHTS: The Indian Constitution guarantees to
the people basic human rights and freedoms. A person can claim
Fundamental Rights against the state subject to the state imposing
some permissible restrictions in the interests of social control. The
grounds for impositing these restrictions on Fundamental Rights are
expressly mentioned in the Constitution itself.
 MINORITIES AND BACKWARD CLASSES: The Indian society
lacks homogeneity as there exist differences of religion, language,
culture, etc. There are sections of people who are comparatively
weaker than others—economically, socially and culturally. To promote
a sense of security among the Minorities, to ameliorate the conditions
of the depressed and backward classes, the Constitution contains a
scheme of safeguards to Minorities, Backward Classes and Scheduled
Castes.
ELECTIONS: India has adopted adult suffrage as a basis of
elections to the Lok Sabha and the State Legislative Assemblies.
Every citizen, (across caste/class/gender), who has reached the
age of 18 years or over, has a right to vote without any
discrimination.
JUDICIARY: A notable feature of the Constitution is that it
accords a dignified and crucial position to the judiciary. A well-
ordered and well-regulated judicial machinery has been
introduced in the country with the Supreme Court at the apex.
FEDERAL CONSTITUTION: India’s Constitution is of the
federal type. It establishes a dual polity, a two-tier governmental
system, with the Central Government at one level and the State
Government at the other. (later three – panchayats and
municipalities via 73rd and 74th Constitutional Amendment).
Preamble – Sovereign, Socialist,
Secular, Democratic, Republic

Justice, Liberty, Equality, Fraternity

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Separation of Power

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The theory of separation of powers is a model of government that divides state
authority among different branches: the legislative, executive, and judicial.
(division of the legislative, executive, and judicial functions of government).
Each branch has distinct functions and is intended to operate independently to
prevent any one branch from becoming too powerful and to safeguard against
tyranny.
Article 50 says that states shall take steps to separate the Judiciary from the
Executive.
The Indian Constitution lays down the structure and defines and determines the
role and functions of every organ of the State and establishes norms for their
inter-relationships and checks and balances.
Legislature Control:
On Judiciary: Impeachment and the removal of the judges. Power to amend
laws declared ultra vires by the Court and revalidating it.
On Executive: Through a no-confidence vote it can dissolve the Government.
Power to assess works of the executive through the question hour and zero
hour.
Executive Control:
On Judiciary: Making appointments to the office of Chief Justice
and other judges.
On Legislature: Powers under delegated legislation. Authority
to make rules for regulating their respective procedure and
conduct of business subject to the provisions of this
Constitution.
Judicial Control:
On Executive: Judicial review i.e., the power to review executive
action to determine if it violates the Constitution.
On Legislature: Unamendability of the constitution under the
basic structure doctrine pronounced by the Supreme Court in
Kesavananda Bharati Case 1973. (Judicial Review)
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Is the Constitution of
India Federal or Unitary?

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 India’s Constitution is of the federal type.
 It establishes a dual polity, a two tier governmental system, with the
Central Government at one level and the State Government at the
other.
The Constitution marks off the sphere of action of each level of
government by devising an elaborate scheme of distribution of
legislative, administrative, and financial powers between the Centre
and the States.
Under Schedule VII it provides for Union List, State List and
Concurrent List.
 Instead of the word “federation” the word “Union” was deliberately
selected by the Drafting Committees of the Constituent Assembly to
indicate two things:
(a) that the Indian Union is not the result of an agreement by the states
(b) the component states; have no freedom to secede from it.
Though the country and the people may be divided into
different States for convenience of administration, the country
is one integral whole, its people a single people living under a
single imperium derived from a single source.
Within a federal framework, the Indian Constitution provides
for a good deal of centralisation.
The Central Government has a large sphere of action and thus
plays a more dominant role than the States.
There is a long Concurrent List containing subjects of common
interest to both the Centre and the States.
The emergency provisions provide a simple way of transforming
the normal federal fabric into an almost unitary system so as to
meet national emergencies effectively.
Salient features of American
Constitution, British
Parliament, Canada
Executive and Parliament,
Federation of Australia

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Thank you.