Making of the Indian Constitution

The Indian Constitution, which came into effect on 26 January 1950, holds the distinction of being one of the lengthiest Constitutions in the world.

Constituent Assembly

After the World War II, which ended in 1945, India's independence from the British rule was around the corner. During the winter of 1945-46, general elections for India's provincial legislatures or assemblies were held. These legislatures elected the members of the Constituent Assembly that would draft the Constitution of India. Although, in December 1946, the Constituent Assembly was ready in place in New Delhi, the Muslim League's demand for a separate Pakistan delayed its work of creating the new Constitution.

On August 15, 1947, after the last Viceroy of British-India Lord Louis Mountbatten declared India and Pakistan as two independent countries, the Constituent Assembly continued with its mandate to create the new Constitution for India.

The Constituent Assembly had members mostly from the Congress Party with a few Communists and Independents. In 1885, Allan Octavian Hume, an Englishman had formed the Congress Party to enable Indian participation in the less popular British Government. In 1921, post World War I, Mohandas Karamchand Gandhi, (Mahatma Gandhi), assumed the leadership of the Congress Party and led the movement for India's independence. Although the Constituent Assembly was largely a one-party body, the Congress Party had arranged for a dozen of persons distinguished in law and public affairs to be elected to the Constituent Assembly to contribute to the making of the Constitution. India's first law minister, Bhimrao Ramji Ambedkar, was appointed the Chairman of the Constitution Drafting Committee.

Therefore, Dr. Ambedkar has been termed as the principal architect of the Indian Constitution. The Constituent Assembly had two roles to play - governance and the framing of the Constitution. In the mornings, it dealt with the governance matters and in the afternoons, it drafted the Constitution.

Sources of the Constitution

The framers of the Indian Constitution (the Constituent Assembly) drew upon three sources to draft the Constitution. The first source was the foundation document or the base text - the Government of India Act of 1935, which was passed by the Parliament in London. This Act was the basis for the government and was in force in India from 1935 until 1950 when the Indian Constitution was adopted.

The salient features of the 1935 Act were:

It provided for a parliamentary system (but the ultimate power was kept with the British)
It included a wide ranging administrative aspects for the structure of government.
It created a centralized federal system; and it provided for elections to provincial legislatures or assemblies.

The second source was the constitutions of other countries. They were used mostly with respect to the two chapters of the Constitution namely, the Fundamental Rights and the Directive Principles of State Policy. Fundamental rights largely deal with civil and political rights of citizens (for example: right to life, freedom of speech and expression) and the directive principles deal largely with the economic, social and cultural rights of the citizens (for example: right to health, and livelihood).

The third source was the Objectives Resolution adopted in the December 1949 Assembly session. The Constitution derived its spirit from this source. The Objectives Resolution laid down the philosophy and the Constitution expressed it through its many lengthy and detailed provisions. Jawaharlal Nehru, the first Prime Minister of India, had drafted the Objectives Resolution drawing upon the Congress Party documents of the previous two decades.

The Objectives Resolution called for the integrity of the Indian Union and that its authority and power were derived from the Indian people. It stated that all the people should be secured with regards to justice, social, economic and political - equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality. Furthermore, the Objectives Resolution provided for adequate safeguards for minorities, depressed and backward classes, and underdeveloped and tribal areas. The Objectives Resolution can be summarized to consist of three interdependent salient features:

protecting and enhancing national unity and integrity
establishing the institutions and spirit of democracy
promoting a social revolution for the betterment of the citizens

Description of the Indian Constitution

The Indian Constitution was adopted on January 26, 1950. It consists of a preamble, 395 articles and twelve schedules. The preamble is the introductory statement in the constitution. Articles are the provisions or rules and the schedules are like the annexures providing details on specific issues. The Constitution is detailed and lengthy and covers the entire nation and the central government and has uniform provisions for all the state governments.

The provisions for both the central government and the state governments are consistent and based on the parliamentary systems. The President is the Head of the State of India. The President appoints Governors in each state.

Preamble

The Constitution begins with an introductory statement called the preamble. Based on the Objectives Resolution, it lays down the guiding principles and the philosophy for the Constitution. It provides for unity and integrity of the country. India was established as an 'Union of States' with a highly centralized federal structure with a strong center in relation with the states.

The original preamble provided that India shall be a 'sovereign democratic republic'. It was later, in 1976, that the words 'socialist' and 'secular' were added to the Preamble. The Constitution provides for adult suffrage to allow the citizens to vote and elect their representatives and the government. Other features of the Constitution - like creation of democratic political institutions and processes of the parliamentary system, creating an independent judiciary, and stipulating for civil and political, and economic and social rights for people - fulfil the democratic essence and social transformation agenda of the Preamble.

Fundamental Rights and the Directive Principles of State Policy

In the Indian Constitution, the human rights provisions are set out in two chapters. Part III of the Constitution provides for Fundamental Rights, largely of political and civil nature, which are enforceable by a court of law.

The Directive Principles of State Policy are included in Chapter IV of the Constitution. These are the guiding principles governing state policies in the social sector. They are interpreted as economic and social rights and are classically socialist in nature and fulfil the social revolution agenda of the preamble. The provisions are not enforceable by any court of law, but provide guidance in carrying out and drafting laws regarding human and social development.

Houses of the Parliament

The Parliament of India follows a bicameral legislative system and has two houses: the lower house is the Lok Sabha or the 'House of the People' and the upper house is called the Rajya Sabha or the 'Council of States'.

The Constituent Assembly adopted the bicameral legislature system, as it believed that a federal system, with a stronger central union in comparison to the states, was the most feasible form of government for a massive and greatly diverse country like India and a unicameral system would not be adequate to meet the country's challenges.

The maximum strength of the Lok Sabha is 552 members. 550 members of the Lok Sabha are elected directly by adult suffrage where citizens who are eighteen years of age and above can vote. The remaining two are the nominated members from the Anglo-Indian community. The Rajya Sabha has 250 members, of which 238 members are elected indirectly by state legislatures and the President nominates the remaining 12 members.

Center-State Relations

Various articles and schedules of the Constitution lay down rules about the powers of the central and the state governments as well as the relations between them. The Seventh Schedule contains three legislative lists: Union list, State list, and the Concurrent list. These three lists define the legislative jurisdictions. The central government has the exclusive legislative authority to frame laws over matters listed in the Union list. There are 99 items in the Union list that include foreign affairs, defense, armed forces, communications, posts and telegraph, foreign trade etc.

The state governments ordinarily have the authority on matters stated in the State list. There are exceptional situations however, such as emergency, national interest, and international trade when the Centre can legislate on matters of the State list. There are 61 subjects in the State list that include public order, police, administration of justice, prison, local governments, agriculture and so on.

Both Parliament and State legislatures have powers over matters enumerated in the Concurrent list. However, the Parliament has supremacy in this list. It comprises of 52 items and includes criminal and civil procedure, marriage and divorce, economic and special planning, trade unions, electricity, newspapers, books, education, population control and family planning and so on.

Emergency

The 'Emergency Provisions' are provided in Part XVIII of the Constitution. These provide that during emergency the central government may supersede the state governments and rule the country, or one or more states, in a unitary fashion. The President, who is advised by the Cabinet of ministers at the center, proclaims the state of emergency. The grounds for emergency are: threats to the nations from internal or external sources, failure of the constitutional machinery of the state and situations of financial crisis.

Accordingly, the President is concerned to declare three types of emergencies: national emergency, state emergency, and financial emergency. During the period of emergency, the President may override many provisions of the Constitution, including the fundamental rights.

Judicial System

The judicial system includes the Supreme Court, the High Courts, and the Subordinate Courts. The Supreme Court is the highest court or the apex court in India. It has original, appellate and advisory jurisdiction. High Courts exist in most states, but some high courts have jurisdiction over more than one state.

A number of subordinate courts exist in every state and fall under complete control and supervision of the respective high courts. The prominent subordinate courts are civil and criminal courts and exist at district levels and below. Other special subordinate courts include family courts, labour courts, land revenue courts, and so on. Tribunals are the various bodies that act judicially in a specific area, or a seat of judgement for arbitration , e.g., income tax tribunals.

Miscellaneous

There are various other matters on which the Constitution provides rules. To name a few rules are made for: provisions on the national civil service, language, elections, finance, and trade and commerce. Unlike some other countries, in India, citizenship is based on nationality and not state. Further, the Constitution provides for one citizenship, i.e. Indian.

Amendments to the Constitution

Since its adoption in 1950, the Indian Constitution has been amended more than ninety-seven times. Since the Constitution was adopted with full of administrative detail, most of the amendments relate to administrative matters. Other amendments relate to debates about the ideals stated in the Preamble. Here, Right to Education is an example, which was included in the fundamental rights chapter through an amendment to fulfil the social revolution or transformation agenda. The Constitution has gone through so many changes with respect to amendments as well as interpretations, in the rapidly changing Indian society, that it has been termed as a living document.