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What is a Constitution?

A constitution is a basic law of the land which establishes the relations between various organs of the government and also defi nes the nature and polity of that country.

Types of Constitution?

Broadly speaking, constitution can be based on:

The nature of document:1.

Written Constitution Unwritten Constitution

That Constitution in which all its provisions are Systematically and serially arranged in Parts, Articles and Schedules is known as Written Constitution.

Its provisions are not systematically and serially arranged.

It is codifi ed and compiled in One Book form.

It is also codifi ed but not compiled in a book form.

It is formulated by a Constituent Assembly formed for this purpose only.

It is formulated by laws passed by the Parliament.

Constitution is Supreme and all the three organs of the Government - Legislature, Executive and Judiciary are subordinate to the Constitution.

Principle of Parliamentary Supremacy is found. Hence Judiciary and Executive are subordinate to the Parliament.

Legislature, Executive and Judiciary are equivalent to each other. They derive their functions and powers in the polity from the Constitution.

Parliament itself decides what shall be the Constitution and according to that functions and authority of Executive and Judiciary are determined

Consequently, Right to Judicial Review is found i.e. the Judiciary can declare a piece of legislation null and void if it is not in accordance with the substance and spirit of the Constitution.

Judiciary does not have this right and the laws passed by the Parliament are absolute and ultimate. Thus the Parliament is fi nal though fallible.

LEGISLATURE = EXECUTIVE = JUDICIARY and all of the three work under the authority of the Constitution.

Parliament is Supreme and what it says becomes the Constitution under which comes the Executive and Judiciary.

CONSTITUTION & IT’S TYPES 1

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The relations between the Central Government and its unit.2.

Federal Features

Dual Government

Division of Powers

Bicameral Legislature

Supremacy of Constitution

Rigidity

Independent Judiciary

Unitary Features

Residuary Power

Inequality of State Representation

Single Constitution

Flexibility of Amendment

Emergency Powers

Union’s Power over the State

Functions of the Constitution?

The constitution whether written or unwritten, is a political structure having several functions:

Expression of Ideology: It refl ects the ideology and philosophy of a nation state

Expression of Basic Law: Constitution present basic laws which could be modifi ed or replaced through a process called extra-ordinary procedure of amendment.

Organizational framework: It provides organizational framework for the governments. It defi nes the functions of the legislature, executive, and judiciary, their inter-relationship, restrictions on their authority etc.

Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be suffi cient provisions for amendment of the constitution. It should contain a set of directions for its own modifi cations. The system might collapse if it lacks in scope for modifi cation.

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EVOLUTION OF THE CONSTITUTION

The origin and growth of the Indian Constitution has its roots in Indian history during the British period. The British came to India in the 17th century as traders. From 1773 onwards, various Acts were passed by the British Government for the governance of India. None of them however satisfied Indian aspirations mainly because they were imposed by the alien rulers.

The Company Rule (1773–1858)

Regulating Act, 1773

Designated the Governor of Bengal as the ‘Governor-General of Bengal’ - First GG of Bengal was Lord Warren Hasting (Later in 1833 Charter Act, Governor General of Bengal become Governor General of India)It subordinated Governors of Bombay and Madras to Governor General of Bengal. (Earlier, they were independent of one another.)Created an Executive Council of four members to assist him

Established Supreme Court at Calcutta (1774) comprising one Chief justice and three other judges. (Its jurisdiction was over all British subjects including the provinces of Bengal, Bihar and Orissa.)Sir Elijah Imphey was the fi rst Chief Justice of this Supreme Court.

Prohibited EIC servants from taking any gifts

Made it mandatory for Court of Directors (governing body of the Company) to report on its revenue, civil, and military affairs in India.

Amending Act, 1781

To rectify the defects of the Regulating Act of 1773, the British Parliament passed the Amending Act of 1781, also known as the Act of Settlement or Declaratory Act, 1781.The key provision of this act was to demarcate the relations between the Supreme Court and the Governor General in Council.

It settled the question of jurisdiction of Supreme Court.

SIGNIFICANCE

1 st step taken by the British Government to control and regulate the affairs of the EIC

1 st statute that recognizes the company as fulfi lling functions other than those of trade.

First time differentiated the political and administrative functions of the Company

Centralization of Administration started in India.

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Pitt’s India Act, 1784

Indian affairs came under direct control of British Government in Britain.

Distinguished between the commercial and political functions of the Company.

Allowed the Court of Directors to manage the commercial affairs and created a new body called Board of Control (6 members) to manage the political affairs. Thus, it established a system of dual government.

Empowered the Board of Control to supervise and direct all operations of the civil and military government or revenues of the British possessions in India.

Act of 1786

Governor-General to be the Commander-in-Chief of Indian Forces.

In 1786, Lord Cornwallis was appointed as Governor-General and commander in chief in India.

Charter Act, 1793

Company given monopoly of trade for 20 more years.

Expenses and salaries of the Board of Control to be charged on Indian Revenue.

The Governor-General was given more powers. He could override his council’s decision under certain circumstances.

Charter Act, 1813

Charter act of 1813 ended the monopoly of the EIC in India except company’s monopoly in “trade with china” and “trade in tea with India”. (Thus, trade with India for all commodities except tea was thrown open to all British subjects. This lasted till 1833 when the next charter abolished the trade of the company)

The company debt was to be reduced and dividend was fi xed @10.5% per annum.

There was also a provision that Company should invest Rs. 1 Lakh every year on the education of Indians.

This act also empowered the local governments to impose taxes on the persons subject to the jurisdiction of the Supreme Court.

Nothing substantial was changed in terms of governance in India.

SIGNIFICANCE

Company’s territories in India were for the fi rst time called the ‘British possessions in India’.British Government was given the supreme control over Company’s affairs and its administration in India.

SIGNIFICANCE

Charter Act 1813 for the fi rst time explicitly defi ned the constitutional position of the British territories in India.

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Charter Act, 1833

Final step towards Centralization.GG of Bengal became Governor-General of India (Lord William Bentick was the fi rst governor-general of India).

GG was vested with all civil and military powers.The Governor General of India was given exclusive legislative powers for the entire British India. It deprived the governor of Bombay and Madras of their legislative powers. (This powered was returned by Indian Council Act of 1861).The laws made under the previous acts were called as Regulations while laws made under this act were called as Acts. It ended the activities of the EIC as a commercial body, which became a purely administrative body.It attempted to introduce a system of open competition for selection of civil servants. However, this provision was negated after opposition from the Court of Directors. (It was Charter Act of 1853 which introduced open competition for civil services).

Charter Act, 1853

Separated the legislative and executive functions of the Governor General’s council.

Provided for addition of six new members called legislative councilors to the council known as the Indian (Central) Legislative Council.It introduced, for the fi rst time, local representation in the Indian (Central) Legislative Council. Introduced an open competition for civil services. The covenanted civil service was thus thrown open to the Indians also.

THE CROWN RULE (1858–1947)

Government of India Act, 1858

Also known as the Act for the Good Government of India.Rule of company was replaced by rule of crown.Changed the designation of the Governor-General of India to that of Viceroy of India (fi rst viceroy: Lord Canning). He (viceroy) was the direct representative of the British Crown in India.

SIGNIFICANCE

Governor General of India

Centralization which started in 1773 Regulating Act , got completed.Ended EIC’s commercial function too. (Political function got ended after Pitt’s India Act 1784.)

Introduced law member (Macaulay) in Governor General’s Council.

SIGNIFICANCE

Known as the Last Charter Act Separate legislative body created

Open Competition for Civil Services.

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Viceroy became the agent of the crown.Created a new offi ce, Secretary of State for India (Charles wood ,the last president of the Board of Control was made SoS for India), vested with complete authority and control over Indian administration. The secretary of state was a member of the British cabinet and was responsible ultimately to the British Parliament. Established a 15-member Council of India to assist the secretary of state for India. Constituted the secretary of state-in-council as a body corporate, capable of suing and being sued in India and in England.

Indian Councils Act, 1861

Initiated the process of decentralization by restoring legislative powers to Bombay and Madras. (These powers were taken away through Charter Act 1833).Introduced representative institutions in India by associating Indians with the law-making process.Viceroy nominated some Indians as non-offi cial members of his expanded council. Three Indians nominated were —the Raja of Banaras, the Maharaja of Patiala and Sir Dinkar Rao. It empowers Viceroy to issue ordinances during Emergency. The life of such ordinances was 6 months.Empowered Viceroy to frame Rule of Business (the same power is given to President of India under Art 77).Statutory recognition to portfolio system. Member in charge of his department could issue fi nal orders with regard to matters which concerned his department.Establishment of new legislative councils for Bengal, NWFP and Punjab.

Indian Councils Act, 1892

The act made a limited and indirect provision for the use of election, Viceroy still had power to nominate members.Viceroy could nominate members of Central Legislative Council on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce.Governors could nominate members of Provincial legislative councils on the recommendation of the district boards, municipalities, universities, trade associations, zamindars and chambers.

SIGNIFICANCE

Rule of crown started

This act abolished the dual government of the Pitt’s India Act.

This act also ended the doctrine of lapse.Abolished Board of Control and Court of Directors

SIGNIFICANCE

Initiated the process of decentralization.

Introduced Indian in legislature; they were nominated

Seed of Parliamentary system sown in India

SIGNIFICANCE

Indirect Elections Powers to discuss budget and ask questions (but not supplementary questions which was given under Indian Council Act 1909).

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The word “election” was, however, not used in the act. It increased the number of additional (non-offi cial) members in the Central and provincial legislative councils, but maintained the offi cial majority in them.

Enlarged functions of legislative councils. They had power to discuss the budget and address questions to the executive (without having power to vote).

Indian Councils Act, 1909

It considerably increased the size of the legislative councils, both Central and provincial.

It retained offi cial majority in the Central Legislative Council but allowed the provincial legislative councils to have non-offi cial majority.The elected members were elected indirectly. The local bodies elected an electoral college who would elect members of the provincial legislative councils. These members would, in turn, elect the members of the Central legislative council.

In the provincial councils, non-offi cial members were in a majority. However, since some of the non-offi cial members were nominated, in total, a non-elected majority was there.

It enlarged the deliberative functions of the legislative councils at both the levels. For example, members were allowed to ask supplementary questions, move resolutions on the budget, and so on.

It provided for the fi rst time, association of Indians with the Executive Councils of the Viceroy and Governors. (Satyendra Prasad Sinha became the fi rst Indian to join the Viceroy’s Executive Council. He was appointed as the law member).It introduced Separate Electorate for Muslims.

Under this, the Muslim members were to be elected only by Muslim voters. Thus, the Act ‘legalized communalism’ and Lord Minto came to be known as the Father of Communal Electorate. It also provided for the separate representation of presidency corporations, chambers of commerce, universities and zamindars.

Government of India Act, 1919

It relaxed the Central control over the provinces by demarcating and separating the central and provincial subjects. Provincial subjects were divided into two parts—transferred and reserved. The transferred subjects were to be administered by the governor with the aid of ministers responsible to the legislative Council. The reserved subjects, on the other hand, were to be administered by the governor and his executive council without being responsible to the legislative Council. This dual scheme of governance was known as ‘Dyarchy’ —a term derived from the Greek word di-arche which means double rule.

SIGNIFICANCE

Also known as Morley Minto ReformsMembers were allowed to ask supplementary questions, move resolutions on the budget, and so on.

Introduced Separate Electorate

ReservedAdministered by Governor and his executive council

without any responsibility to

legislature

TransferredAdministered by

governor with the aid of Ministers responsible to

legislature

Subjects

CentralProvincial

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It introduced bicameralism and direct elections in the country. Thus, the Indian Legislative Council was replaced by a bicameral legislature consisting of an Upper House (Council of State) and a Lower House (Legislative Assembly). Required that the 3 of the 6 members of the Viceroy’s executive Council (other than the commander-in-chief) were to be Indian. Extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans. ( 1909 – To Muslims only, 1935 – Extended to Schedule Castes and Women and Labors)Granted franchise to a limited number of people on the basis of property, tax or education. Provided for the establishment of a public service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants.Separated provincial budgets from the Central budget and authorized the provincial legislatures to enact their budgets. Extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans. Provided for the appointment of a statutory commission to inquire into and report on its working after ten years of its coming into force. Local Self-Government became provincial and transferred subjects under a responsible Indian Minister.

Simon Commission

The Simon Commission was a group of 7 MPs from Britain which was sent to India in 1927 to study constitutional reforms and make recommendations to the government. The Commission was originally named the Indian Statutory Commission. It came to be known as the Simon Commission after its chairman Sir John Simon.Clement Atlee was a member of this Commission. He later became Britain’s Prime Minister during Indian independence and partition in 1947.Commissions’ Recommendations were published in May 1930. They were as follows: 1. Diarchy in the provinces should be abolished.2. The Governor was to retain the special powers for the safety and tranquility of the province and

for the protection of the minorities.3. The Franchise was to be extended and legislatures were to be enlarged.

SIGNIFICANCE

Also known as Montagu Chelmsford Reforms.Introduced Diarchy in provinces. (Through GOI Act 1935 Dyarchy in provinces was abolished and Dyarchy at centre was introduced).Created Centre State Relations.

Introduced Bicameralism in centre Two houses of legislature (Note: Bicamera-lism in Provinces was introduced through 1935 Act)

Direct elections introduced

Extended the principle of Communal Representation

Provided for the establishment of Public Service Commission.

Provincial Centre

Introduced in GOI Act 1919

Abolished in GOI Act 1935

Introduced in GOI Act 1935

Diarchy

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4. At the centre, a Federal assembly would be constituted on the basis of representation of the provinces and other areas as per the population.

5. The Council of State would continue as the Upper House but its members would be chosen not on the basis of direct election but on the basis of indirect election by the Provincial councils.

6. No change in the central executive.

7. The All India federation was not considered practical idea for immediate execution.

8. Burma should be separated from the British India and should be provided a constitution of its own. (The British separated Burma Province from British India in 1937).

Government of India Act, 1935

Provided for the establishment of an All-India Federation consisting of provinces and princely states as units. (Note: Princeley States did not join and so Federation didn’t come into existence)

3 lists of subjects —

Federal List1. (for Centre)

Provincial List2. (for Provinces)

Concurrent List3. (for Both).

Residuary powers were given to the Viceroy.

Abolished diarchy in the provinces and introduced ‘provincial autonomy’ in its place.

Introduced responsible government in provinces.

Introduced Bicameralism in six out of eleven provinces.

Extended the principle of communal representation by providing separate electorates for depressed classes (scheduled castes), women and labor (workers). (1909 – Only for Muslims, 1919 – extended for Sikhs, Indian Christians, Anglo-Indians and Europeans.)

Abolished the Council of India, established by the Government of India Act of 1858.

The Secretary of State for India was provided with a team of advisors.

Established Reserve Bank of India to control the currency and credit of the country.

Established Federal Public Service Commission, Provincial Public Service Commission and Joint Public Service Commission for two or more provinces.

Provided for the establishment of a Federal Court, which was set up in 1937.

SIGNIFICANCE

To study Constitution Reforms.Diarchy should be scrapped, extension of responsible Govt in the provinces.Federal Union including British India and Princely States.

Franchise should be extended.Continuation of Communal Awards.

SIGNIFICANCE

Concurrent List added Abolished diarchy in the provinces (which was introduced in Indian Council Act 1919).

Abolished the Council of India Established Reserve Bank of India Introduced Bicameralism in six out of eleven provinces.Established Federal Court. Established Federal Public Service Commission.

BICAMERALISM

ProvincesIntroduced in GOI Act 1935

Centre Introduced in GOI Act 1919

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Indian Independence Act, 1947

Declared India as an independent and sovereign state from August 15,1947. Provided for creation of two independent dominions of India and Pakistan with the right to secede from the British Commonwealth. (Governor General of Each to be appointed by King on advice of Dominion Cabinet)Empowered the Constituent Assemblies of the two dominions to frame and adopt any constitution and to repeal any act of the British Parliament, including the Independence act itself.Abolished the offi ce of the secretary of state for India and transferred his functions to the secretary of state for Commonwealth Affairs. It assigned dual functions (i.e. constituent and legislative) to the Constituent Assembly formed in 1946. It declared this dominion legislature as a sovereign body.Granted freedom to the Indian princely states either to join the Dominion of India or Dominion of Pakistan or to remain independent.

Factual information about the Making of Indian Constitution)

The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were indirectly elected from British India and 93 seats were nominated by the Princely States. (Thus, Constituent assembly had nominated as well as elected members.)Each province and princely state (or group of states in case of small states) was to be allotted seats in proportion to their respective population. The representatives of princely states were to be nominated by the heads of the princely states.It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.The constituent assembly met for the fi rst time in New Delhi on 9th December,1946 in the constitution Hall which is now known as Central Hall of parliament house. 207 representatives, including 9 women were present.Although the Constitution Assembly was not directly elected by the people of India on the basis of adult franchise, the Assembly comprised representatives of all sections of Indian Society - Hindus, Muslims, Sikhs, Parsis, Anglo - Indians, Indian Christians, SCs, STs included women of all these sections. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi.Sachchidananda Sinha ,the oldest member, was elected as the temporary president of the assembly following the French practice.The Muslim League boycotted the Constituent Assembly. Due to the boycott of Muslim League, it was attended by only 211 elected members of the congress. Constituent assembly was not a sovereign body as it was brought about by British Government and could be abolished by it.Later, Dr. Rajendra Prasad was elected as the President of the assembly. similarly, both H.C.

SIGNIFICANCE

Till 1947, Government functioned under the provisions of GOI Act 1919 because the provisions of GOI Act 1935 relating to federation and diarchy at centre did not come into operation.

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Mukherjee and V.T Krishna-machari were elected as Vice- Presidents of the assembly.Sir B. N. Rau was appointed as the constitutional advisor to the assembly.The historic objective resolution was moved by Pt. Jawaharlal Nehru on Dec. 13,1946 which was later accepted in its modifi ed form as the preamble of the constitution.This resolution was unanimously adopted by the assembly on Jan 22, 1947. It infl uenced the eventual shaping of the constitution.On the 26 th November, 1949 constitution was declared as passed after the signature of the president of the assembly. Thus on 26th November 1949 the constitution of India was adopted.The constituent Assembly took 2 years, 11 months and 18 days to complete its historic task of drafting the constitution for Independent India. During this period, it held eleven sessions covering a total of 165 days.As to its composition, members were chosen by indirect election by the members of the provincial legislative assemblies, according to the scheme recommended by the Cabinet Mission.On 29 August, 1947, the Constituent Assembly set up a Drafting Committee under the chairmanship of Dr. B. R. Ambedkar to prepare a Draft Constitution for India. 284 members actually signed the Constitution.The provisions relating to the following were given effect from 26th November 1949(a) Citizenship, (b) Election,(c) Provisional parliament, (d) Temporary provisions, The rest of the constitution came into force on the 26th January, and date is referred to in the constitution as the date of its commencement (to commemorate the Independence day celebrated since 1930 after the passage of Purna Swaraj resolution).On January 24, 1950 the constituent assembly held its last session. However, it continued as the provisional parliament of India from 26 January, 1950 till the formation of new Parliament after the fi rst general elections in 1951-52.The fi rst Draft ‘constitution in India’ was published in Feb 1948.

Dr. B. R. Ambedkar is recognized as father of the Indian constitution.

1934

In 1934 the idea of a Constituent Assembly for making the constitution was fi rst mooted by

M. N. Roy

1935

In 1935 for the fi rst time INC offi cially demanded the formation of constituent assembly.

1940

Under “August offer” the demand for constituent assembly was accepted fi rst time by British.

1942

The “Cripps Mission” proposal envisaged the framing of constitution of India by an elected constituent assembly of the Indian people. It failed due to disagreement between Congress and

Muslim league.

1946

Finally, in November 1946, under the provisions of Cabinet Mission Plan, a constituent assembly was

formed.

THINGS TO REMEMBER

In addition to the making of the constitution and enacting of ordinary laws, the constituent assembly also performed following functions:

It ratifi ed India’s membership of the Commonwealth in may 1949.

It adopted the national fl ag on 22 July 1947.

It adopted the national anthem and national song on January 24, 1950.

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Important Committees of the Constituent Assembly and their Chairman

COMMITTEE NAME CHAIRMAN

Committee on the Rules of Procedure Rajendra Prasad

Steering Committee Rajendra Prasad

Finance and Staff Committee Rajendra Prasad

AD hoc Committee on the National Flag Rajendra Prasad

States Committee Jawaharlal Nehru

Union Powers Committee Jawaharlal Nehru

Union Constitution Committee Jawaharlal Nehru

Credential Committee Alladi Krishna swami Ayyar

House Committee B. Pattabhi Sitaramayya

Order of Business Committee K.M. Munsi

Committee on the Functions of the Constituent Assembly G.V. Mavalankar

Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas

Vallabhbhai Patel

Minorities Sub-Committee H.C. Mookherjee

Fundamental Rights Sub-Committee J.B. Kripalani

North-East Frontier Tribal Areas and Assam, Excluded and Partially Excluded Areas Sub-Committee

Gopinath Bardoloi

Excluded and Partially Excluded Areas-other than those in Assam Sub- Committee

A.V. Thakkar

Drafting Committee B.R. Ambedkar

Drafting Committee was entrusted with the task of making the new constitution. It consisted of seven members. They were:1. Dr. B. R. Ambedkar (Chairman)2. N. Gopalaswamy Ayyangar3. Alladi Krishnaswamy Ayyar4. Dr. K. M. Munshi5. Syed Mohammad Saadullah6. 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)

Some facts related to Constitution of India

The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.

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Indian Constitution is known as a bag of borrowings.All the 284 members of the Constituent Assembly signed the documents on January 24, 1950.

The constitution came into effect on January 26, 1950.The national emblem of India was adopted on the same day.

Elephant was adopted as the symbol (Seal) of the Constituent Assembly.

Sir B.N Ram was appointed the Constitutional advisor (legal advisor) to the Constituent Assembly.

H.V.R Iyengar was the Secretary to the Constituent assembly.

S.N. Mukherjee was the Cheif dratsman of the Constitution in the Constituent Assembly.

Prem Behari Narain Raizada was the Calligrapher of the Indian Constitution. The original constitution was hand written by him in a fl owing italic style.

The original version was beautifi ed & decorated by artists from Shantiniketan including Nandlal Bose and Beohar Rammonohar Sinha.

The Calligraphy of the Hindi version of the orginal Constitution was done by Vasant Krishan Vaidya & elegantly decorated & illuminated by Nandlal Bose.

Beohar Rammanohar Sinha illuminated, beautifi ed & ornamented the original preamble calligraphed by Prem Behari Narain Raizada.

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