Constitution of Indian - An Introduction

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1Constitution: Philosophy and Objectives

onstitution of India

An IntroductionA constitution is essentially a formal representation of the basic ideas and organization of a government inone document. The constitution of any country is the most important piece of legislation. This is particularlyimportant because the polity of any country is the spinal cord of law of that country. It is a legal documenthaving a special legal sanctity, which sets out the framework and the principal functions of the organs of thegovernment of a state, and declares the principles governing the operation of those organs. It determines lawand rules, and describes the form of the government, the relationship between the citizens and the variousstructures of the government.

What is Constitution?

A constitution is a set of rules for the government to govern the country and defines the nature of polity of that country.

The polity lays down the relations between the legislature, executive and the judiciary apart from defining the basic structure of law, and the rights and obligations of both the state and the citizens. Without the constitution,there can hardly be any rule of law; leave aside other nuances like democracy, equality, freedom etc.

Need of a Constitution

The Modern State is considered to be a state for the welfare of the people. It is therefore, suggested thatit should have a government of a particular form with appropriate powers and functions.

The document containing laws and rules which determine and describe the form of the government, therelationship between the citizens and the government, is called a Constitution.

As such, a constitution is concerned with two main aspects: the relation between the different levels of government, and between the government and the citizens. A constitution is the basic fundamental law of a state. It lays down the objectives of the state which it has to achieve. It also provides for the constitutionalframework that is, various structures and organs of the government at different levels. In addition, itdescribes the rights and duties of the citizens. It is, therefore, considered to be the basis for the governanceof the country both in terms of goals and objectives as well as their structures and functions.

Functions of a Constitution

The constitution is a political structure, whether it is written or not and followed or not. They have severalfunctions:

a) Expression of Ideology: it reflects the ideology and philosophy of a nation state. For example: theideology of Indian Constitution is based on a socialist and secular social system. On the other hand, theU.S.A. follows the ideal of a capitalist social order.

b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced througha process called extra-ordinary procedure of amendment. There is a special law also which usually focusesupon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, thepress, property and so on.

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2 Constitution: Philosophy and Objectives

c) Organizational frame work: It provides organizational framework for the governments. It defines thefunctions of the legislature, executive and judiciary, their inter-relationship, restrictions on their authorityetc.

d) Levels of Government: Constitution generally explains the levels of different organs of the government.Whether it is federal, co federal or unitary, will be described by the constitution. They delineate the power levels of national and provincial governments.

e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degreeof accuracy, there must be sufficient provisions for amendment of the constitution. It should contain aset of directions for its own modifications. The system might collapse if it lacks in scope for modification.An inherent capacity to change according to changing times and needs, help any system to survive andimprove.

Ideology vs. Methodology

Ideology provides an orientation on which any principle or a set of rules is laid. It does not provide aframework; it acts only as a central idea for a course of action. Methodology determines how the goal isachieved. It gives a number of methods that can be applied to a particular case to arrive at a certain result.However, it should not be confused with methods as it is not concerned with finding the solutions. It justcodifies how certain things should be done.

For example: Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set-up. The American Constitution is more of an expression of governmental organizationmethodology and a guideline for the power relationship of the regime than an expression of the philosophyof the regime.

Classification of Constitutions:

Constitutions are broadly classified on the basis of two features

1. Nature of polity whether unitary or federal.

2. Nature of the document whether written or unwritten.

A. Unitary Constitution: This type of constitution establishes a single, central organ of government withoutdividing powers between two separate entities. For example, the British Constitution is a unitary constitutionwhich recognizes only one central organ i.e., the British Parliament and the central government. In Englandwe have no state type legislatures or governments. There may be other legislative and executive authoritiesunder a unitary constitution but they enjoy only delegated powers and not constitutionally granted powers.

B. Federal Constitution: This type of constitution is based on power sharing between two distinct entitiesnamely, the federal or the union government and the state governments. These two levels of governmentenjoy coordinate authority and none is inferior to each other as both derive their respective authoritiesdirectly from the constitution. Countries with large population, geographical size, social, cultural andlinguistic diversities generally adopt federal form of constitution to allow autonomy of governance to theconstituent states. For example, the US, Canadian, Australian Constitutions are federal constitutions.

C. Written Constitution: A written constitution is one which is subjected to systematic presentation in black & white. Written constitution is contained in one document, such as of Soviet Union or Constitutionof India or Swiss Constitution. Some constitutions are found in several documents, such as CanadianConstitution which include a 'Constitution Act', as well as several pieces of the legislation and historicaldocuments. Thus a written constitution has to be prepared by a body called the Constituent Assembly


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which is elected by the people for whom the constitution is being written. The federal constitutions aregenerally written ones because they involve two partners viz., the union and the states. A written constitutionis thus, quite clear and above doubt and dispute.

Significance of a Written Constitution Constitution as a Positive Law

A constitution derives its authority from itself. It is, therefore, future oriented. As a body of supreme lawsthe constitution takes precedence not only over all other laws but also, over all customs, traditions andfaiths. Such customs and traditions, etc., are valid as long as they do not conflict with the constitution. Inother words, no provision of the constitution can be challenged on the plea that it is inconsistent with thetradition, belief and faith inherited from the past.

Contractual Nature

A democratic Constitution is a kind of contract among the people or, at least, the bulk of the people. It

is based on consensus - a product of bargain among several persons and groups. Such a contract cannotsatisfy all persons fully. But it does satisfy most of them partly. In other words, it is a kind of commonminimum programme of a majority of the people which does not harm the minority interests.

Philosophy of a Constitution

Every democratic constitution has a philosophy and a vision which can be summed up as growth withstability. These two concepts are inter-related. Without growth no stability can be ensured and withoutstability no growth can be achieved.

Constitution and Justice

Integrally connected with the concept of growth with stability is the concept of justice. No unjust system

can make people happy. And an unhappy person cannot work either for stability or for growth of a country.

D. Unwritten Constitution: An unwritten constitution, unlike a written one, is not committed to systematicwriting by a particular constituent assembly. It is based on evolution of a number of customs, usages,parliamentary acts and traditions. There are nations without constitution, yet administered by constitutionalgovernments because they have limited government, which can be called constitutional regimes. TheBritish Government does not possess a document called 'Constitution'. There are number of differentdocuments that are part of the body of what is referred to as British Constitutional Law. The Britishconstitution has evolved on the basis of all these over a period of many centuries.

Constitutionalism

One needs to know the 'Constitutionalism' and "Constitutional Law" before understanding the philosophyof Constitution of India. Having a constitution itself is not constitutionalism. Even a dictator could createa rulebook calling it constitution, which never meant that such a dictator had any faith in constitutionalism.Recognizing the need for governance, the constitutionalism equally emphasizes the necessity of restrictingthose powers.

The Constitutional Law means the rule, which regulates the structure of the principal organs of the governmentand their relationship to each other, and determines their principal functions. The rules consist both legalrules enacted or accepted as binding by all who are concerned in government. All the constitutions are theheirs of the past as well as the pioneers of the future. Constitution of Indian Republic is not the productof a political revolution but of the research and deliberations of a body of eminent representatives of thepeople who sought to improve the existing system of administration.


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Thus the constitutionalism, in brief, is specific limitations on general governmental powers to prevent exerciseof arbitrary decision-making. Unlimited powers concentrated in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people. These powers have to be checked and balanced withequally powerful alternatives in a system, where it will be nearly impossible for dictators to emerge. In oneword 'Limited Governance' is the constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the constitutionalism. Thelisted fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independentpowers besides broad based legislative check on the executive are the reflections of such constitutionalism.From these essential characters the doctrines of judicial review, rule of law, separation of powers, universalfranchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated.

At the same time, the rulebook has a responsibility to check anarchy and possibility of people misusingfreedom to resort to violent means of overturning the constitutionally governing institutions. That responsibilityis undercurrent in the reasonable restrictions placed on the exercise of fundamental rights of the people. Thefounding fathers of the constitution made restrictions specific while the rights appear in general terms, pavinga way for independent judiciary to expand the scope of freedom and reading emerging rights into the sacred

statements of rights under fundamental rights chapter. At the same time specification of restrictions operateas powerful restraints on the powers of the rulers.

The right as the individual power in the hands of people and authority as the ruling power in the hands of institutions cannot go arbitrary and anarchic undermining the democratic peace. The democratic constitutionalismis three pronged in Indian Constitution, one- guaranteeing freedoms, two- restricting governing institutions,three- empowering the independent arbiter of judiciary with power to review the executive and legislativeorders affecting the interests of people in general or afflicting basic norms of rule of law.

Indian Constitution

The constitution of independent India was framed in the background of about 200 years of colonial rule, a

mass-based freedom struggle, and partition of the country amid widespread communal violence. Therefore, theframers of the constitution were concerned about the aspirations of the people, integrity and unity of thecountry and establishment of a democratic society. Amongst the members there were some who held differentideological views. There were others who were inclined to socialist principles; still others holding Gandhianthinking but nothing could act as any kind of impediment in the progress of the Assembly's work because allthese members were of liberal ideas. Their main aim was to give India a 'Constitution' which will fulfill thecherished ideas and ideals of the people of this country.

Conscious efforts were made to have consensus on different issues and principles and thereby avoid disagreement.The consensus came in the form of the 'Objectives Resolution' moved by Jawahar Lal Nehru in the ConstituentAssembly on December 17, 1946 which was almost unanimously adopted on January 22, 1947. In the lightof these 'Objectives' the Assembly completed its task by November 26, 1949. The constitution was enforced

with effect from January 26, 1950. From that day India became a Republic. Exactly twenty years before thefirst Independence Day was celebrated on Jan. 26, 1930 as decided by the Lahore session of the Congress onDec. 31, 1929. Hence, January 26, 1950 was decided as the day to enforce the constitution.

Salient Features of Indian Constitution

The constitution of India is an elaborate document which is considered to be one of the lengthiest constitutionsin the world. In spite of incorporating the features from other constitution, India included certain uniquefeatures of its own, which added to the length and complexity to it.

Like every other Constitution, the Indian Constitution also seeks to establish the fundamental organs of government and administration, lays down their structure, composition, powers and principal functions, defines


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the inter-relationship of one organ with another, and regulates the relationship between the citizen and the state,more particularly the political relationship. The states have reasserted certain principles of law through writtenconstitutions.

As a democratic constitution, the Indian masterpiece also reflects the fundamental political values in substantiveways by guaranteeing fundamental rights to the citizens, and in procedural ways by providing remedies. Itmirrors basic values about who shall govern, and in what direction. Constitution means the structure of a body,organism or organization, or we can also say what constitutes it or what it consists of. Being one of the biggestnations of the world with multicultural people, India needs an expressly written code of governance, morespecifically when the people chose to have different institutes, estates, mechanisms and levels of sovereignty.And thus we have the longest written constitution, which is one of the essential features of democraticfederation.

Structure of Indian Constitution

Originally contained 395 Articles divided into 22 parts and 8 Schedules. At present it contains 448 Articles

and 12 Schedules as a result of 98 amendments effected (out of 122 amendment bills) in the constitutionsince 1950.

1. Parliamentary Democracy: India has a parliamentary form of democracy. This has been adopted fromthe British system. In a parliamentary democracy there is a close relationship between the legislature andthe executive. The Cabinet is selected from among the members of legislature. The Cabinet is responsibleto the latter. In fact the Cabinet holds office so long as it enjoys the confidence of the legislature. In thisform of democracy, the Head of the State is nominal. In India, the President is the Head of the State.Constitutionally the President enjoys numerous powers but in practice the Council of Ministers headed

by the Prime Minister, which really exercises these powers. The President acts on the advice of the PrimeMinister and the Council of Ministers.

Parliamentary democracy has three important characteristics namely:

i. the executive is responsible to the Lower House;

ii. the Lower House has a democratic basis (i.e. it is elected by the people; and

iii. the ultimate legislative and financial control is vested in this Lower House.

2. A combination of Federal and Unitary Government: The Constitution of India, unlike the Constitutionof the USA and Australia, embodies provisions relating to both union and state governments. Though itdid not mention 'federal state' anywhere but it adopted a federal structure with a union government.Hence, it is an indestructible union with destructible states.

3. Special Provisions for Certain Sections: Special provisions are made for certain backward classes of people like SCs, STs, OBCs and minorities. Many provisions had to be included in the nature of transitionalprovisions like provisions for the state of J & K.

4. Fundamental Rights, Fundamental Duties, and Directive Principles of State Policy: The constitutionembodies a list of fundamental rights, and a number of directive principles of state policy. The fundamentalduties were incorporated in the constitution by the 42nd amendment. The fundamental rights incorporatedin the constitution are not absolute in nature, but are subject to the limitations which are expressly defined

by the constitution itself. The DPSPs are the guidelines provided by the constitution to the states regardingvarious issues of governance. However, it is non-justifiable in nature.


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5. Rigid and flexible at the same time: The Indian Constitution is a unique example of combination of rigidity and flexibility. A constitution may be called rigid or flexible on the basis of its amending procedure.In a rigid constitution, amendment of the constitution is not easy. The Constitutions of USA, Switzerlandand Australia are considered rigid constitutions. While the British Constitution is considered flexible

because amendment procedure is easy and simple, the Constitution of India provides for three categoriesof amendments. In the first category, amendment can be done by the two houses of Parliament by simplemajority of the members present and voting before sending it for the President's assent. In the secondcategory, amendments require a special majority. Such an amendment can be passed by each House of Parliament by a majority of the total members of that House as well as by the 2/3rd majority of themembers present and voting in each house of Parliament and send to the President for his assent whichcannot be denied. In the third category, besides the special majority mentioned in the second category, thesame has to be approved also by at least 50% of the State legislatures. Thus, you see that the IndianConstitution provides for the type of amendments ranging from simple to most difficult procedure dependingon the nature of the amendment.

6. One of the longest written Constitution: Detailed provisions, relating to the working of variousinstitutions set up under the constitution, have been included mainly with a view to avoid difficulties whicha newly born democratic republic might have experienced in working the constitution efficiently.

7. Detailed provisions on distribution of Power: Among the various parts of the government, detailedprovisions with respect to the exercise of executive and administrative powers are laid down because theconstitution makers were not sure about the strength of democracy then and its capacity to effectivelyregulate those powers.

8. Independent and Integrated Judicial System: The judiciary system is kept free from the influence of the executive and the legislature. As an integrated system, India has the Supreme Court as the apex court

below which High Courts come. The High Courts in turn supervise the lower courts.

9. Single Citizenship: In a federal state, usually the citizens enjoys double citizenship as is the case in theUSA. In India, there is only single citizenship. It means that every Indian is a citizen of India, irrespectiveof the place of his/her residence or place of birth. He/she is not a citizen of the Constituent State likeJharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen of India. Allthe citizens of India can secure employment anywhere in the country and enjoy all the rights equally inall the parts of India.

10. Universal Adult Franchise: Indian democracy functions on the basis of 'one person one vote'. Everycitizen of India who is 18 years of age or above is entitled to vote in the elections; irrespective of caste,sex, race, religion or status. The Indian Constitution establishes political equality in India through themethod of universal adult franchise.

Form of Government (Parliamentary Vs Presidential)Following the British Westminster model, we have adopted parliamentary form of government both at thecentre and the states. However, we have made two departures from the British model. One, Britain is monarchywhile India is a republic and two, Britain has a unitary form of government while India has a federal form of parliamentary government. Of late, there has been a debate over the form of government in India. It has beenargued that going by the past experience, the parliamentary form of government, as it operates in India, hasfailed to deliver the goods. Therefore, there is a strong case for switching over to the Presidential form of government. This debate between the two systems of government is rooted in the unstable governments bothin the centre as well as states due to lack of majority of a single party in a coalition era. It is argued that apresidential form of government can provide stability which is a must for development and good governance.


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Features of the Presidential Type of Government:

(a) The President is the head of the State and also the head of the Government. He is not only the headof the political system but also of the national life. He is the real executive and not merely notional

executive. The powers vested in him are in practice actually exercised by him.

(b) All executive powers are vested in the President. The Cabinet appointed by President is merely to advisehim. He is not bound by their advice. He may obtain their advice and yet may choose to act on his own

judgment.

(c) The President is elected directly by the people who constitute the electorate. The term of the office of the President is not dependent on the will of the legislature. The legislature does not elect the Presidentand the legislature cannot seek to oust him from office.

(d) The President and the members of the Cabinet are not members of legislature. The President has nopower to dissolve the legislature before the expiry of its term. The legislature cannot terminate the termof the President except by way of impeachment. In this way the President and the legislature are electedfor fixed terms and are independent from each other.

The advantages of Presidential systems are:

(a) Stability - In a presidential form of government, the President remains in office for a fixed term and isnot dependent on the legislature for continuing in office. This provides stability to government.

(b) Faster decision making - All executive powers are vested in one individual who is the President. In timesof war or emergency or any other national crisis, he can arrive at a decision quickly. He does not haveto apply his energy in obtaining consent of his cabinet.

(c) Role of experts - The President is free to select such persons as he may deem proper to be his advisors.He may select experts to head several departments. These heads would constitute his Cabinet. In aparliamentary form, the ministers are appointed not because of their administrative ability or expertisein a particular area but on the grounds of political expediency.

(d) Party divisions are not prominent - After assuming office, the President is accepted as a leader of thenation and not merely of a party. He views each problem as national problem and not from a party angle.This provides greater unity and cohesion to the nation. In a parliamentary form of government, the partydivisions are never eliminated. The Prime Minister always identifies himself as belonging to a particular party.

(e) Separation of legislative and executive powers - Presidential form of Government is based on thedoctrine of separation of powers and provides for checks and balances to keep the different organs withintheir allotted areas. This provides better protection to liberty. In a parliamentary form, the legislative andexecutive powers are concentrated in the Council of Ministers headed by the Prime Minister, which maysometime pose a threat to human rights.

Drawbacks of the Presidential Form of Government:

1. Concentration of power: In a presidential form of government, the only person who is responsible for thinking and planning for the whole nation is the President.

This concentration of power sometimes paves the way for dictatorship.


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2. Lack of Collective leadership

Collective leadership has built-in capability of correcting itself. This is lacking in the Presidential form.

3. Conflict between the President and the Parliament

The President may have to deal with a legislature, which may not be very friendly and accommodating.In the Parliamentary form of government, the policies laid down by the Prime Minister are to be followed

by the legislature. If the Parliament rejects the policy the result would be either a new Prime Minister or a new Parliament. In the Presidential form of government, the legislature is not the rubber stamp of thepresidential policies.

The President has to make effort to persuade the legislature to follow his line. The tension and differences between the President and legislature is a source of weakness.

4. Lack of accountability

In the presidential system the assessment of responsibility is periodic. The people may review it onlywhen the election of a new President is due. In the parliamentary form, the assessment is on a daily basis

because the Government has to justify its action before the legislature in every session.

Essentials of Parliamentary Form of Government

a) Presence of a nominal executive (i.e. the President) who acts only on the advice of the Cabinet.

b) A Cabinet form of government led by the Prime Minister which has the support of the majority in thelegislature.

c) The Prime Minister's dominant position in the Cabinet.

d) Collective responsibility of the Council of Ministers to the Lok Sabha.However, India has adopted the parliamentary form of government particularly because of the followingreasons:

a) It is a system with which India had grown familiar during the British Rule.

b) It can provide effective leadership during emergencies.

c) It is based on fusion between the executive and legislature and thereby ensures harmonious relationship between the two.

d) It provides for accountability of the government to the legislature.

e) It ensures representation of all sections of people both in legislatures and government.

Basically the debate between the parliamentary & presidential forms of government is a debate betweenaccountability and stability. No doubt the presidential form of government can provide more stability thanthe parliamentary form of government in India in its present form. But it is accountability which is moreimportant than stability. With all its stability, the presidential form is not an accountable form of government.It can lead to dictatorship in a country like India. Because of its diversity in culture, religion and socialmoorings, the presidential form of government would be less representative and might lead to concentrationof power in a few sections of society. Therefore, even with its inherent defects, the parliamentary form of government is still more suitable for India. What is more important is not the form of government but howwe run that system.


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Model Questions

Question 1: When some states are functioning successfully without constitution, then why there is a pressingneed to have constitution as displayed by newly independent countries?

Question 2: Why can't constitution makers define and codify a constitution at one go, instead of providingfor detailed provisions for the amendments later on?

Question 3: What are some unique features of the Indian Constitution?

Question 4: Indian Constitution contains unnecessary administrative provisions, even including the detailedunit level provisions and is an unusually long combination of administrative law and constitutionallaw. Critically evaluate.

Question 5: India adopted the parliamentary system only because of familiarity factor, as it was alreadyintroduced to the same, through various 'Government of India' Acts introduced by British.Critically analyze.


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he Evolution of

Indian Constitution

The Constitution of India is the modern sacred text of the contemporary India. It reflects the new aspirationsand values of the people of India and testifies how the people of India are the supreme masters in all mattersconcerning the welfare of Indians. A galaxy of learned wise men interested in the longevity of the emergingnation of India framed the constitution in its present form after a thorough debate and discussion of eachproposal. The nationalists consciously, popularized the concepts of parliamentary democracy, republic, civilliberties, social and economic justice which happen to be the most basic tenets of the constitution.

The Indian Constitution is a marathon effort to translate philosophical rule of law into practical set up dividedinto three significant estates checking each other exercising parallel sovereignty and non-egoistic supremacy intheir own way. Apart from excellent separation of powers to avoid the absolute concentration, the Constitutionof India envisages a distinct distribution of powers between two major levels of Governments- central andprovincial with a fair scope for a third tier - the local bodies. However, the operation of the system came incontrast with men and their manipulations leading to different opinions and indifferent options. Whatever may be the consequential aberrations, the system of rule of law is perfectly reflected in framing of the Constitutionalnorms codifying the best governing mechanisms tested and trusted in various democratic societies world over.The development of such an elaborate code of law was not just a result of Constituent assembly debates andsessions only, rather it was process that begun centuries ago before India became independent in 1947.

Legal and Administrative system in Ancient and Medieval India

The land was governed by the laws since Vedic age and time to time different codes evolved, which include

Manusmriti, Dharmashastra, Nyayashstra, Arthashastra, among others. Though they are not exactly legalcodes in modern sense, they were more of social commentaries which also included tales and anecdotes about justice, apart from some dedicated legal description in parts. These still affect the moral code and socialcustoms in India apart from the Hindu Personal law, which has a legal status. These, however, were not effectivefor a modern political system and civil administration system, as most of these were not strictly codified andlacked several dimensions of justice. Thus, when British introduced their laws in India, they brought in anabsolutely new dimension to civil law in India.

' Dharmashastra

is an example of Smriti. They are Sanskrit written texts on religious and legal duties. Dharmashastras arevoluminous and there are hundreds of such texts. The two most important features of the Dharmashastrasare that they provide rules for the life of an ideal householder and they contain the Hindu knowledge aboutreligion, law, ethics and so on.

(a) Topics covered in the Dharmashastra: Dharmashastra contains three categories or topics. The first isthe Âchâra , which provides rules on daily rituals, life-cycle rites, as well as specific duties and properconduct that each of the four castes or varnas have to follow. Âchâra also provide rules for duties forall the ashrama. Ashrama are the four stages of life that include:Brahmacharya (the student life), Grahastha(the householder), Vanaprashta (the forest dweller), and Sanyasa (the renouncer). The second topicenumerated in the Dharmashastra is the'Vyavâhara' . These are laws and legal procedures. They includethe 'rajadharma' or the duties and obligations of a king to organize court, listen and examine witnesses,

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decide and enforce punishment and pursue justice. The third category is called the'Prâyaschitta', whichlays down rules for punishments and penances for violating the laws of dharma. They are understoodto remove the sin of committing something that is forbidden.

(b) Textual Hermeneutics:Traditional hermeneutics deals with the study of interpreting written texts in theareas of religion, law and literature. The Dharmashastra tradition uses the textual hermeneutics knownas 'Purva-Mimamsa' to interpret its texts. Purva-Mimamsa provides in detail the knowledge of how tointerpret the Vedic texts, including the Dharmashastra text.

(c) Important Dharmashastra Texts: There are literally hundreds of texts that fall under the category of the Dharmashastra texts. Dharmasutra are the first four texts of the Dharmashastra. The Sanskritmeaning of Dharma-sutra is righteousness-thread or string. The written format of the Dharmasutra is theprose style. They deal with the subject matter of dharma and are like guidebooks on dharma with rulesof conduct and rites. The most important Dharmasutra texts are the sutra of Apastamba, Gautama,Baudhayana and Vaisistha, and they come from various geographical locations in India and are composedat different times between 600 and 100 BC approximately.

Some of the most prominent Dharmashastra texts are Manusmriti; Yajnavalkya Smriti; Naradasmriti;Visnusmriti; Brhaspatismriti; and Katyayanasmriti. These texts were often used for legal judgments andopinion. It is not clear if single or multiple authors wrote these texts. They differ in format and structurefrom the Dharmasutra and are written in the verse form.

Commentaries and Digests:Commentaries were written by commentators to interpret and provide meaningto the Dharmasutra texts and Smriti, and each commentary devoted itself to one particular text. Forexample, there are commentaries exclusively on 'Manusmriti' and on 'YajnavalkyaSmriti' and so on. Thedigests were not restricted to one text, but were arranged by topic or theme or subject matter and drew upon

many different Dharmashastra texts or Smriti to explain the topic. For example, there are digests on thetopics of the role of king, inheritance of property, religious rites and rituals, adoption, litigation and judicialprocedures.

However, same is not true for theAdministrative Laws and it was quite well developed and structured;Kautilya's Arthashastra contains a detailed account of the then administrative system, which was quite welldeveloped. The system then continued to evolve under different empires that ruled India and became quitecomplex and diverse during the rule of Gupta Empire. The decentralization process started in ancient India.As a result of this, empires were divided into provinces, provinces into districts and districts into urban andrural centres from administrative angle. During the ancient period state administration was divided into numerousdepartments. In Vedic times the number of such departments was limited. Gradually, the number of suchdepartments increased and their jurisdiction extended. For this, many references can be obtained from Vedicliteratures and subsequent sources.

The revenue collection and the civil administration reached its peak during the rule of Sher Shah Suri, underwhom, the currency was standardized; administrative divisions were made standard and predecessors of modern district and sub-division came into being. Mughals later adopted the same system and implementedit throughout Indian Empire. British also didn't change the administrative system much and just introduced thenew land revenue system within same administrative structure. Thus, while administrative law has continuallyevolved from ancient times and has been retained, civil and constitutional law has specifically evolved duringBritish rule.


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Evolution of the Constitution of India

A reference to the history of British rule and Indian Independence struggle provide basic idea of self-governancethat emerged into a people's participative democracy. The merchants who came for tea and other such thingswere granted not only the business rights but the revenue power to collect their dues from the clients. Aftersome years the Company also got power of administering justice within its colony and started applying thelaw to establish sovereignty over India. This means the power of governance and the civil administration. Thenimperialistic interests improved making it a sovereign with active support of the British Crown.

When the officers of the company looted the innocent people and cheated the company too, the Britishadministrators realized that it was no longer good to leave the Indian nation in the hands of company andconveniently took over the reins of governance. It encouraged the independent princely states if the princessubjugate to British, and if not, they won them over in battles fought by Indian born Crown soldiers backed by English captains.

The first introduction of modern constitutional law in India was made by British throughThe Regulating Actin 1773. It went through many developments and changes over the time as British empire expanded in India.The final constitutional law passed by British in India wasGovernment of India Act, 1935.

Till 1947 they tried to create several states within India and gave them all courage to opt out of acceding toIndian Union apart from inciting communal dissentions. Unification of scattered Indian states within the sub-continent was Herculean task, which made the present Indian Union possible after a violent partition into threepieces. The framers of the Constitution intended to secure the hard-won freedom with integrity and preferreda strong union within a federation, which otherwise appear contradictory. Mahatma Gandhi wrote in January1922 under the caption 'Independence' in his weekly, 'Young India,' 'Swaraj therefore will not be a free gift of the British Parliament. It will be expressed through an Act of Parliament is true. But it will be merely acourteous ratification of the declared wish of the people of India.' This statement clarifies the doubts about'independent' origin of independence of India, if any.

Phase - 1: 1773-1813• The Regulating Act, 1773

• Amending Act of 1781

• Pitt's India Act of 1784

• Act of 1786

• Charter Act of 1793


Phase - 2: 1833-1853• Charter Act of 1833


Phase - 3: 1858-1909• The Government of India Act, 1858

• Indian Councils Act, 1861


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• Indian Councils Act, 1892

Phase - 4: 1909-1935• Indian Councils Act, 1909 (Morley-Minto Reforms)

• Indian Councils Act, 1919 (Montagu-Chelmsford Reforms)

• Government of India Act, 1935

Phase - 5: 1940- 1950• August Offer (1940)

• Cabinet Mission Plan (1946)

• Drafting of Constitution (1946-1950)

Phase I: (1773 - 1813)

The phase one marked the rise in power of Governor of Bengal and the exclusive monopoly of East IndiaCompany over trade and administration in India. This period was marked by massive corruption and increasedmarginalization of Indian population. Also, there was a general absence of rule of law to begin with.

I. The Regulating Act of 1773The Regulating Act was the first landmark of the British legislation in India. The following circumstances ledto the enactment of Regulating Act-

1. Massive corruption among company officials.

2. Payment of ever increasing dividends to the share-holders of the company.

3. The financial imprudence of the company, which compelled it to apply to the British government for aloan to get out of its difficulties.

Major Provisions of the Act

1. The members of the Court of Directors were to be elected for four years with one-fourth of their number being elected every year. The objective of this provision was to strengthen: (A) the authority of the courtof Directors and (B) to prevent instability in the councils and measures of the company.

2. The Act forbade any conclusive transfer of any stock of the company for the purpose of voting at anyelection.

3. Provision for the establishment of the Governor-General's council which consisted of four counsellors andthe Governor-General. The Governor-General was givien a casting vote in case of a tie. They were to holdtheir offices for five years.

4. Mandate of Governor of Bengal was increased, and he becameGovernor-General of British territoriesof India.

5. The Act provided for the establishment of Supreme Court at Fort William, Calcutta. This Supreme Courtwas to consist of a chief justice and three other judges with specific qualifications.

6. The act directed the company to pay annual salaries to the Governor-General and council, the Chief Justice of the Supreme Court and other judges.


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II. Amending Act of 1781Major Provisions of the Act

1. Actions of public servants of the Company in their official capacity were exempted from the jurisdictionof Supreme Court.

2. Jurisdiction of Supreme Court was defined. SC had to take into consideration and respect the religiousand social customs and usages of the Indian while enforcing its decrees and processes.

3. The rules and regulations made by GG-in-Council were not to be registered with SC.

4. The act provided that the Governor-General and council of Bengal were not to be subject to the jurisdictionof the Supreme Court.

5. The Supreme Court was not to have or exercise any jurisdiction in matters concerning the revenue or theregulations formed by the Governor-General and council.

6. The act empowered the Governor-General and council to frame, from time to time, regulations for theprovincial courts and councils.

III. Pitt's India Act of 1784British Prime Minister Pitt, moved his India Bill in January 1784 which became law in August 1784 and wasknown as Pitt's India Act. It was a response to the defects in the Regulating Act of 1773, as Britain wantedto tighten its grip around colonies, in wake of on-going American struggle for Independence.


1. The act established a Board of six commissioners called Commissioners for the affairs of India, popularlyknown as the Board of Control. This consisted of the Chancellor of the Exchequer, a secretary of state

and four privy counselors.2. The court of directors was required to appoint, from amongst its own members, a secret committee,

consisting of not more than three members.

3. The Board of control was not to have any power of nominating or appointing any of the servants of thecompany. The power of filling a vacancy was vested through the act in the court of directors.

4. The members of the Governor-General's council were reduced to three, one of whom was to be thecommander-in-chief. Only covenanted civil servants were appointed as members of the council.

5. The act prohibited the company to pursue 'Schemes of conquest and extension of dominion in Indiawithout the consent of the court or the secret committee.

6. It made elaborate provisions for the prevention and punishment of corruption, misgovernment ordisobedience on the part of the company's servant in India.

Implications of the Act

Except in respect of the power of appointment to offices in India and the management of the company's trade,the act virtually made the Board of control the supreme authority in regard to the affairs of the company inIndia and placed the company in direct and permanent subordination to a body representing the BritishGovernment.

`A unity of system' in the Indian part of the company's administration went a long way towards producinga unified and a centralized system of Government in this country.


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IV. Act of 1786Major Provisions of the Act

The act of 1786 was brought in response to American Independence. The act empowered the Governor-

General with the discretionary power to override his council in certain circumstances and act on his ownresponsibility. It enabled the offices of Governor-General and commander in chief to be united in the sameperson if this was considered necessary.

V. Charter Act of 1793Major Provisions of the Charter Act of 1793

1. The company's charter and exclusive trading privileges (Monopoly over Indian Trade) were renewed fortwenty years.

2. A 'Legal code' was mandated for the government functions, which was to be interpreted by the court. Alllaws were printed in the Indian language so that the people should become familiar with the rights,privileges and immunities.

The most important feature of the act of 1793 was that it laid the foundation of government by written lawsand regulations in British India.

VI. Charter Act of 1813The long continuance of the Napoleonic war had caused a marked decline in British Trade. The Britishmerchant's persistent demand that the company's trade should be opened to all private traders led to thepassing of the charter Act of 1813. The important features of the act included.

1. The company's monopoly rights over Indian Trade were renewed for twenty years.

2. The act retained to the company its monopoly of trade with China and also into trade in tea, but threwopen for all British subjects the rest of the trade with India, subject to some conditions.

3. The act also declared that the Government's duty was to promote the interest and happiness of thenative inhabitants of India.

4. Lastly, the Governor-General was authorized to spend not less than a lakh of rupees a yearon promotionof education. The provision represents the first attempt on the part of the British Government atimposing an obligation on the company of fostering education in this country. A committee of PublicInstruction was formed in 1823 to give effect to this provision.

Phase II: (1833 - 1853)

This phase was marked with decline in power of East India Company and its officials. The administrationcame into hands of trained bureaucrats, which were to be selected through an open examination. The companylost its monopoly over trading rights and became just an administrative body during the period. There was alsoan attempt to provide a responsible government, though in a limited sense only.

VII. Charter Act of 18331. It redesignated the Governor-General of Bengal as the Governor-General of India. Under this provision

Lord William Bentinck became the first Governor-General of India.

2. It ended the activities of the British East India Company as a commercial body and became a purelyadministrative body. In particular, the Company lost its monopoly on trade with China and other partsof the Far East.


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3. It attempted to introduce a system of open competitions for the selection of civil servants. However thisprovision was negated after opposition from the Court of Directors who continued to hold the privilegeof appointing Company officials.

4. The territorial possessions of the company were left in its possessions for a further period of twenty years.

5. The act provided for the 'Codification of law' in India. It empowered the Government to appoint a Lawcommission which had to codify the 'Indian penal code' and 'Codes of civil and criminal laws' from theprevalent English laws, presidency regulations, Hindu law, Muslim law, customary law, etc.

VIII. Charter Act of 18531. It was provided that the East India Company would manage the British Indian territories for an indefinite

period, till the pleasure of British Parliament.

2. The number of Directors was reduced from 24 to 18 of whom six were to be nominated by the crown.

3. Separation of the executive and legislative functions was further carried out.

4. The Act appointed a law commission in London for the codification of Indian laws. The commissiondrafted the Code of Civil Procedure (1859) and the Code of Criminal Procedure (1861).

5. All vacancies in India were to be filled in by competitive examination (barring the Indians). Lord Macaulaywas appointed the president of the committee.

6. The legislation, for the first time was treated by the government as a special function requiring specialmachinery and special procedure.

7. Laid foundation of Parliamentary system of Government, and the executive and legislative were separated.Legislative Assembly functioned in the model of British Parliament.

Phase III: (1858 - 1892)IX. The Government of India Act, 1858

While the provisions in charter act of 1853, clearly mentioned that administrative powers with the companywas not fixed, and the crown could step in anytime and take over the administration. The First FreedomStruggle made sure that a trading company will not be allowed to continue as a political power.


1. The Act transferred the administrative control over India from the company to the crown. The Act laiddown that henceforth 'India shall be governed by and in the name of the Queen, and all the territorial

and other revenues of (or arising in) India shall be received for and in the name of 'Her Majesty'.a. Additional designation of viceroy was conferred to the Governor-General of India.

b. It also provided for the transfer of all military and naval forces of the company to the crown.

2. The Crown was empowered to appoint a Governor-General and the Governors of the Presidencies.

3. The Court of Directors and the Board of Control were abolished and their place was taken over by theSecretary of State for Indian Affairs and the India Council.

4. Secretary of State for India was to be a member of the British Cabinet and was responsible to the BritishParliament.


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5. Extensive powers were given to the Secretary of State for Indian Affairs and the Indian Council consistedof 15 members. The Council was made to assist him but only had an advisory role.

6. Doctrine of Lapse was discarded under this Act.

7. The system of 'Dual Government' introduced by the Pitt's India act of 1784 was finally abolished.Drawbacks

(1) The changes brought about by the act of 1858 were formal rather than substantial. Infact all the realpowers had long been passed to the President of the Board of control appointed by the British Governmentand the directors of the company had been reduced to the position of an advisory council.

(2) Indians were not benefited from the transfer of the Government and revenues of India from the companyto the crown.

(3) The act did not bring about any fundamental change and the administrative system was made highly

centralized.Implications

(1) The act meant that nearly two and half decade old British East India Company lost its possessions andpowers. The Company remained in existence in vestigial form, continuing to manage the tea trade on behalf of the British Government until the East India Stock Dividend Redemption Act 1873 came intoeffect, on 1 January 1874.

(2) The abolition of Dual Government has some good effects.

(3) The office of secretary of state for India became more responsible and dignified.

Queen Victoria's Proclamation (1858)(1) It assured the people of India that no discrimination will be made on the basis of caste, colour, race and

creed.

(2) It assured the Princes that their rights, dignity and honour will be respected and there shall be noencroachment in their territorial possessions.

(3) It declared unconditional pardon and general amnesty.

X. Indian Councils Act, 1861

Why the need was felt for a new law, when last act was passed, barely 3 years ago.1. Inclusion of native population - The 1857 freedom struggle alarmed the British government and made it

amply clear that no government can be secure in its seat by antagonizing the native population.

2. Problems regarding legislation - The legislative council of the Governor-General could not work satisfactorily.It lacked native representation and consist only foreign bureaucrats who had no sympathies with thepeople.

3. Need for Decentralization - Charter act of 1833 had brought about the centralization of legislative powerswith a view of securing uniformity of laws in the whole country but it proved defective due to complexdiversity of India.


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1. The act for thefirst time associated Indians with the law-making process. It provided that the Viceroyshould nominate some Indians as non-official members of his expanded council.

2. The 1861 Act restored the legislative power taken away by the Charter Act of 1833. The legislativecouncil at Calcutta was given extensive authority to pass laws for British India as a whole.

3. The Viceroy got the right to allocate one or more portfolios to every member of his executive council.

4. The Viceroy was empowered to change the boundaries of the provinces or create a new province foradministrative ease and appoint lieutenant governors and legislative councils for small provinces.

5. The Viceroy was empowered to issue ordinances during an emergency. The life of such ordinance was sixmonths.

6. It provided that the Governments of Bombay and Madras be given power of nominating the Advocate-General and not less than 4 and not more than 8 additional members were to hold office for two years.

XI. Indian Councils Act, 1892Increased demand by Indians, particularly by, Indian National congress for more representative institutionsacted as an important precursor to the Act. The Indian Council Act of 1892 was an amending act to the IndianCouncil Act of 1861. It did not introduce any significant changes in the existing set up.


1. It increased the number of additional members in the Legislative Councils and enlarged their functions.The number of additional members of the Central Legislative Council was increased to minimum 10 andmaximum 16.

2. The powers of the Legislative councils was increased which included.a. The members could ask questions on domestic matters with the prior permission of Governor-General.

b. The members were authorized to discuss the Budget but without a right to vote on it.

c. The members were allowed to ask questions on public interest.

3. The additional members in the central as well as the provincial legislative councils were increased but theofficial members still formed the majority.

4. To elect the members of the councils the system of indirect elections was introduced. The universities,district board, municipalities, zamindars, and chambers of commerce were empowered to recommendmembers to provincial councils.

Phase IV: (1909 - 1935)

XII. Indian Councils Act, 1909 (Morley-Minto Reforms)Major Provisions of the Act

1. The member of the Legislative Councils, both at the Center and in the provinces, were to be of fourcategories, i.e.,Ex-Officio Members (Governor General and the members of their Executive Councils),Nominated Official Members(those nominated by the Governor General and were government officials),Nominated Non-Official Members (nominated by the Governor General but were not government officials)and Elected Members (elected by different categories of Indian people).


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2. The maximum number of nominated and elected members of the Legislative Council at the Center wasincreased from 16 to 60. The number did not include ex-officio members.

3. The maximum number of nominated and elected members of the provincial legislative councils under agovernor or lieutenant-governor was also increased. It was fixed as 50 in Bengal, Bombay, Madras, UnitedProvinces, and Eastern Bengal and Assam, and 30 in Punjab, Burma, and any lieutenant-governor provincecreated thereafter.

4. The right ofseparate electoratewas given to the Muslims, Chamber of Commerce, Universities, PresidencyCorporations and the Land holders.

5. Official members were to form the majority but in provinces non-official members would be in majority.

6. The members of the Legislative Councils were permitted to discuss the budgets, suggest the amendmentsand even to vote on them; excluding those items that were included as non-vote items. They were alsoentitled to ask supplementary questions during the legislative proceedings.

7. Two Indians were nominated to the Council of the Secretary of State for Indian Affairs. The Governor-General was empowered to nominate one Indian member to his Executive Council.

Evaluation of the act

The Act of 1909 was important for the following reasons:

It effectively allowed the election of Indians to the various legislative councils in India for the first time.Previously some Indians had been appointed to legislative councils. Leaders like Gokhale had utilised thediscussions in the councils demanding universal primary education, attacking the repressive policies of governmentand drawing the plight of Indian workers in South Africa.

The introduction of the electoral principle laid the groundwork for a Parliamentary system even though this

was contrary to the intent of Morley.However, the reforms of 1909 afforded no answer to the Indian political problem. They were basically aimedat to placate the moderates and Muslims against the rising tide of nationalism and to sabotage the genuineaspirations of the Indians for self government. The system of election is too indirect that no meaningfulrepresentation could be made. Further, they too had very limited role to play in the councils.

Muslims had expressed serious concern that a British type of electoral system would leave them permanentlysubject to Hindu majority rule. The Act of 1909 stipulated, as demanded by the Muslim leadership:

• that Indian Muslims be allotted reserved seats in the Municipal and District Boards, in the ProvincialCouncils and in the Imperial Legislature;

• that the number of reserved seats be in excess of their relative population (25 percent of the Indianpopulation); and,

• that only Muslims should vote for candidates for the Muslim seats ('separate electorates').

These concessions were a constant source of strife (1909-47) and finally led to the partition of India and bloodbath that succeeded. British statesmen generally considered reserved seats as regrettable in that theyencouraged communal extremism as Muslim candidates did not have to appeal for Hindu votes and vice versa.As further power was shifted from the British to Indian politicians in 1919, 1935 and after, Muslims were evermore determined to hold on to, and if possible expand, reserved seats and their weightage. However, Hindupoliticians repeatedly tried to eliminate reserved seats as they considered them to be undemocratic and tohinder the development of a shared Hindu-Muslim Indian national feeling.


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The reforms gave a shadow than the substance to the people of India and failed to satisfy the Indian NationalCongress which was demanding for "the system of government obtaining in Self-Governing British Colonies.

XIII. Government of India Act, 1919 (Montagu-Chelmsford Reforms)

On August 20, 1917, the British Government declared, for the first time, that its objective was: increasingassociation of Indians in every branch of administration; the gradual introduction of responsible governmentin India. The Government of India Act of 1919 came into force in 1921. The Act is also known as Montagu-Chelmsford Reforms (Montagu was the Secretary of State for India and Lord Chelmsford was the Viceroy of India).

Montague Declaration

1. Montague's Declaration of 1917 promised that the Indians would be increasingly associated with theadministration and self-governing institutions would be gradually developed.

2. It stated that responsible government in India as an integral part of British Empire was the final goal of

the government and this would be achieved in stages and the British Governments and the Governmentof India would be, the sole authority to judge the time and measure of each advancement and in this,they would be guided by the responsible Indian leaders and their capability to handle responsibility.

3. The famous declaration closed one chapter in the constitutional history of India and opened another.

4. With this declaration benevolent despotism was dead and India's right to Swaraj was admitted anddespotism was to give place to constitutional government.

5. So all its ifs-and-buts were ignored and the announcement was welcomed by almost all political parties.

6. The greatest importance of the declaration perhaps lay in the fact that every Indian was feeling convincedthat self-government for India was within the domain of possibility.

Major Provisions of the ActThe Government of India Act of 1919, made many far reaching changes in the administration of India.

1. The Act provided for a bicameral legislature consisting of two houses, viz., the Central LegislativeAssembly and the Council of State (instead of Imperial Council in the Centre consisting of one Housethat existed formerly).

2. The Central Legislative Assembly consisted of 145 members. Among them 105 were elected and the restwere nominated. Of the nominated members 25 were officials and the rest non-officials. Out of the 105elected members 53 were elected by the general constituencies and 52 by communal constituencies.

3. The Council of State consisted of 60 members. Among them 34 were elected and 25 were nominated by the Governor-General.

4. The term of the Central Legislative Assembly was 3 years and that of the Council of State was 5 years.

5. Indirect election was recommended to the Central Assembly. But later it was changed to direct electionsfor both Houses of the Central Legislature, while the franchise was restricted.

Who was entitled to Vote

i. People having property (rental value), taxable income and paid land revenue of Rs. 3000.

ii. Past experience in a legislative council of India.


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ii. Membership of university senate.

iv. Holding of certain offices in local bodies.

iv. Holding of some specified titles.

6. Members were given the right of putting questions and supplementary questions. As regarding the CentralBudget, the Government submitted proposals for the appropriation in the form of Demands for Grant to be vote in the Indian Legislative Assembly.

7. Further, the Act of 1919, provided for two Lists of subjects. They were Central List and Provincial List.

8. Dyarchy was introduced in the Provinces. There were two kinds of Subjects in the provinces. They wereTransferred and Reserved Subjects. The Transferred subjects were administered by the Governor with thehelp of his ministers. They were Local Self-Government, Public Health, Education of Indians, PublicWorks, etc. The Reserved subjects were administered by the Governor with the help of the Executive.These include Administration of Justice, Police, Irrigation and Canals, Drainage and Embankments, WaterStorage and Water Power, Land Revenue Administration, etc.

9. Apart from this the Act provided that in future the Secretary of State was to be paid out of the Britishrevenues. A High Commissioner for India was to be appointed by the Government of India. He acted asthe agent of the Governor-General in Council. Some of the functions of the Secretary of State for Indiawere taken away from him and given to the Commissioner.

Evaluation of the Act

These reforms represented the maximum concessions the British were prepared to make at that time. Thefranchise was extended, but still very limited. Though increased representation and authority was given tocentral and provincial legislative councils, but the Viceroy remained responsible only to London. In otherwords, at the Centre, the legislature had no control over the Governor Generals Executive Council. The

allocations of seats in Central Legislature were not based on population, but on the importance of theprovinces- for example Bombay's commercial importance and punjab's military importance.

In the provinces, the two parallel governments administering different subjects defied logic and was unworkable.The provincial ministers had no real powers as main subjects were reserved and their good work could benegated by the Governor. They were not consulted on important matters also.

The communal and class based electorate was consolidated.

The Indian National Congress has declared that the reforms are disappointing and unsatisfactory and demandedeffective self government in India.

Simon Commission, (1928-1930)

In Government of India Act, 1919 there was a provision, that to examine the constitutional reforms andto know the reaction of Montage-Chelmsford reforms after ten years a government will appoint a commissionwho will make recommendations for adequate amendment.

In, 1927 Lord Irwin appointed a commission under instruction of British government which was consist of seven members under Sir John Simon. All the members of commission were British; even they did notinclude a single Indian member. Thus, there were widespread protests against it.

There were following recommendations on Commissions report:

• The Diarchy system in the provinces should be abolished and all the portfolios should be handed overto the provincial ministers.


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• The power of the central government and the provincial governors should be reduced.

• Federal system of government should be introduced in India.

• The right to vote should be extended to more people.

• An expert committee should be constituted regarding the separation of Sindh from Bombay. The separationof Sindh was not granted in principal. First there would have to be a close and detailed enquiry into thefinancial consequences which would follow such a step.

The outcome of the Simon Commission and the subsequent round table conferences was the Government of India Act 1935, which established representative government at the provincial level in India and is the basisof many parts of the Indian Constitution.

XIV. Government of India Act, 1935Following the release of Simon Commission Report, the Indian leaders rejected it. Subsequently the BritishGovernment declared, that the Report was not final and in order to resolve the constitutional deadlock, thematter would finally considered after consulting representatives of all the Indian communities.Thus, a Round Table Conference was organized in London. After holding three sessions of Round TableConference in 1930, 1931 and 1932 respectively, their recommendations were embodied in a White Paperpublished in 1933, which was considered by a Joint Select Committee of the British Parliament. The governmentalso constituted a committee of 20 representatives from British India and 7 from Indian States including 5Muslims. The committee went in session from April 1933 to December 1934 for deliberation and submittedits report to Parliament in the end of 1934. The Parliament debated the report and passed a bill in February1935, which got royal assent on July 24th, 1935, and it was enforced on April 1, 1937 with the name of Government of India Act 1935.

The Government of India Act 1935 contained 32 Sections 14 Parts and 10 Schedules and consisted of 2 Major

Parts.Major Provisions of the Act

Introduction of Federalism: The India Act 1935 proposed to set up All Indian Federation comprising of theBritish Indian Provinces and Princely States. The States were absolutely free to join or not to join the proposedFederation.

Division of Federal Subjects: The scheme of federation and the provincial autonomy necessitated proper divisionof subjects between the centre and the provinces. The division under 1919 Act was revised and the 1935 Actcontained three lists, i.e., Federal, Provincial and Concurrent Legislative Lists.

Introduction of Dyarchy at the Centre: The India Act 1935 introduced Dyarchy at the centre. The FederalSubjects were divided into two categories, the Reserved and the Transferred. The former included defence,ecclesiastical affairs, external affairs and administration of Tribal Areas. These were to be administered by theGovernor General with the help of executive councilors not exceeding three in number. The rest of thesubjects were Transferred ones. These were to be administered by the Governor General with the help of aCouncil of Ministers, the number of which was not to exceed 10. The ministers were responsible to GovernorGeneral and the legislature. The Governor General by his special powers and responsibilities could dominatethe ministers.

Minority Appeasement: A very significant provision was the safeguards for the minorities. It was argued that theminorities needed protection from the dominance of the majority community. But the so-called provisions inthe Act relating to safeguards were merely a trick to empower the Governor General and the Governors tooverride the ministers and the legislators.


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Introduction of Bicameral Legislature: The proposed federal legislature was bicameral body consisting of theCouncil of States (Upper House) and the Federal Assembly (Lower House). The strength of the Upper Housewas 260 out of which 104 nominated by the rulers were to represent the Indian States, 6 by the GovernorGeneral and 150 were to be elected. The lower House was to consist of 375 members, out of which 250 wereto be the representatives of the British India and 125 of the Indian States. The members from the British Indiawere to be indirectly elected as the members of the Lower Houses of the Provincial Legislatures but were to be nominated by the rulers in case of the Indian States. Its life was 5 years unless dissolved earlier by theGovernor General. 6 out of 11 provinces were given bicameral system of legislature. The Act not onlyenlarged the size of legislature, it also extended the franchise, i.e., the number of voters was increased andspecial seats were allocated to women in legislature.

Establishment of a Federal Court: The India Act 1935 also provided for the establishment of a Federal Courtto adjudicate inter-states disputes and matters concerning the interpretation of the constitution. It was however,not the final court of appeal. In certain cases the appeals could be made to the Privy Council in England.

Communal and Separate Electorate: The Act not only retained the separate electorate but also enlarged its scope.The Anglo-Indians and the Indo-Christians were also given separate electorate.

Separation of Bombay and Bengal: The Act provided for the creation of two new provinces of Sindh fromerstwhile Bombay and Orissa from Bengal.

Abolition of Dyarchy in Provinces: In the provinces Diarchy was abolished. There was no Reserve Subjects andno Executive Council in the provinces.

Reserved Amendment Powers: No Indian legislature whether federal or provincial was authorized to modify oramend the constitution. The British Parliament alone was given the authority to amend it.

Separation of Myanmar (Burma) and Aden from India: Another important feature of the Act was that Burmawas separated from India with effect from April 1937. Aden was also transferred from the administrativecontrol of the Government of India to that of the colonial offices.

Abolition of the Indian Council of the Secretary of State: The Government of India Act 1935 abolished theCouncil of the Secretary of State for India, which was created in 1858. The Secretary of State was to haveadvisers on its place. With the introduction of the provincial autonomy the control of the Secretary of Stateover Transferred Subjects was greatly diminished. His control, however, remained intact over the powers of Governor General and Governors.

Evaluation of the Act:

1. It didn't contain a Preamble, unlike the Act of 1919. This was done to avoid the mentioning of DominionStatus as demanded by Indian Nationalist leaders.

2. No provisions of Basic Rights on the line of Bill of Rights, as demanded by INC.

3. Numerous 'safeguards' and special responsibilities of the Governor-General worked as brakes in properfunctioning of the Act and the provinces too, the Governor still had extensive powers.

4. Only 14 per cent of British Indian population was eligible to vote.

5. The extension of the system of communal electorates and representation of various interests promotedseparatist tendencies which culminated in partition of India.

6. The Act provided a rigid Constitution with no possibility of internal growth. Right of amendment wasreserved with the British Parliament.

7. The diarchy system with two governments is illogical and difficult to work with.


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8. The indirect election for Lower House and direct election to the Council of states sans meaning and logic.It was alien to the known constitutions at that point of time.

9. The 1935 Act was condemned by nearly all sections and unanimously rejected by the Congress. TheCongress demanded convening of Constituent assembly elected on the basis of adult franchise to framea constitution for independent India.

Phase V: 1940-1950

The idea of a Constituent Assembly for India was put forward for the first time in 1934 by M. N. Roy. It became an official demand of the Indian National Congress in 1935. The demand was later accepted by theBritish in August 1940.

Provisions of August Offer, 1940

1. After the war, a representative Indian body to be set up to frame a constitution for India.

2. Viceroy's Executive Council would be expanded without delay.

3. The minorities were assured that the government will not transfer power 'to any system of governmentwhose, authority is directly denied by large and powerful elements in Indian national life'.

Later under the Cabinet Mission Plan of 1946, elections were held for the first time for the ConstituentAssembly. The Constitution of India was drafted by the Constituent Assembly, and it was set up under theCabinet Mission Plan on 16 May, 1946. The members of the Constituent Assembly were elected by theProvincial assemblies by means of a single transferable vote system of proportional representation.

The Cabinet Mission, 1946

The Mission suggested that:

1. There should be a Union of India embodying both British India and the States and with exception of certain reserved subjects, all subjects were to be retained by the States.

2. The paramountcy of Crown was to lapse.

3. For the purpose of framing a new Constitution, a Constituent Assembly was to be elected.

4. An interim Goverment was to be set up having the support of major political parties.

5. The proposals were accepted and in July 1946 elections to Constituent Assembly took place.

Constituent Assembly (1946 - 1950)

Constituent Assembly was convened for the purpose of writing the constitution. This legal code had to liveup to the aspirations of the people who had been exposed to several centuries of injustice, social exploitation,and discrimination, as well as two centuries of colonial dominance. Moreover, if it were to be applicable andacceptable to diverse religious, political and regional sections, it had to embody their interests. The motto withwhich the constitution-making exercise was undertaken was 'consensus', rather than the 'majority principle'. Inorder to achieve consensus, representatives from diverse ideological backgrounds, and several of them with alegal background, worked together.

The roots of the formation of the Constituent Assembly and the framing of the Constitution are relevant tounderstand its philosophy and evolution. The Constituent Assembly was formulated under the Cabinet MissionPlan prior to independence. The elections to the Constituent Assembly were conducted under the system of


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separate electorate based on the community. After such an election too, it could not become a sovereign body,as the sovereignty still lied with British Crown. Thus its authority was limited in respect of the basic principlesand procedure. The Constituent Assembly was expected to work within the framework of the Cabinet Missionscheme alone. However, these limitations were removed by the Indian Independence Act, 1947 under which

it was made free to frame any constitution it pleased.After the independence the Drafting Committee was appointed by the Constituent Assembly in accordancewith the decisions of the Constituent Assembly on the reports made by the various Committees. Dr. B.R.Ambedkar was appointed the chairman of the Drafting Committee. Several eminent personalities were electedto the Constituent Assembly through the indirect method of elections from the members of the Provinciallegislatures. Except Gandhi and Jinna almost all prominent public figures figured in the assembly.

Objectives Before Constituent Assembly

1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an IndependentSovereign Republic and to draw up for her future governance a Constitution:

2. Wherein the territories that now comprise British India, the territories that now form the Indian States,and such other parts of India as are outside India and the States as well as other territories as are willingto be constituted into the independent sovereign India, shall be a Union of them all; and

3. Wherein the said territories, whether with their present boundaries or with such others as may bedetermined by the Constituent Assembly and thereafter according to the law of the Constitution, shallpossess and retain the status of autonomous units together with residuary powers and exercise all powersand functions of Government and administration save and except such powers and functions as arevested in or assigned to the Union or as are inherent or implied in the Union or resulting there from; and

4. Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of

Government are derived from the people; and5. Wherein shall be guaranteed and secured to all the people of India 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; and

6. Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressedand other backward classes; and

7. Whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights onland, sea and air according to justice and the law of civilized nations; and

8. This ancient land attains its rightful and honoured place in the world and makes its full and willingcontribution to the promotion of world peace and the welfare of mankind.

Dr. Sachchidananda Sinha was the first President (temporary chairman) of the Constituent Assembly when itmet on 9 December, 1946. Later, Dr. Rajendra Prasad was elected as the President of the ConstituentAssembly, and later become the first President of India.

The Assembly's work was organized into five stages:

(1) Committees were asked to present reports on basic issues.

(2) The constitutional adviser, B.N. Rau, prepared an initial draft on the basis of these committees and hisown research into the constitutions of other countries.


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(3) The drafting committee, chaired by Dr. B.R. Ambedkar, presented a detailed draft constitution that waspublished for public discussion and comments. The draft Constitution was published in January 1948 andthe people of India were given 8 months to discuss it and suggest changes. On November 4, 1948, thegeneral discussions on the draft commenced in the Constituent Assembly and continued for five days.

(4) The draft constitution was discussed and amendments were proposed and enacted. There was a thoroughdiscussion clause by clause for about 32 days. As many as 7635 amendments were proposed and 2473were actually discussed before a third reading was given for another 12 days. The Constitution of Indiawas adopted and signed by the Chairman Dr Rajendra Prasad on November 26, 1949. The draft wasconsidered for 114 days and the Constituent Assembly sat for 2 years 11 months and 18 days.

(5) Initially some important Articles came into existence, but the entire Constitution came into force fromJanuary 26, 1950. A committee of experts led by the Congress Party, called the Congress Assembly Party,played a critical role. Glanville Austin wrote:'With the adoption of the Constitution by the members of the Constituent Assembly on November 26, 1949, India became the largest democracy in the world. By this act of strengthand will, Assembly members began what was perhaps the greatest political venture since that originated in Philadelphiain 1787' .

The Indian Independence Act, 1947

The Act provided for creation of two independent Dominions. (India and Pakistan)

• Each Dominion was to have a Governor-General who was to be appointed by the King.

• The Constituent Assemblies of both Dominions were empowered to frame laws for their respective

territories till the new constitution came into force.• After August 15, 1947 the British Government was not to control the Dominion or the Provinces.

Inspirations to the Constitution

The Constituent Assembly became sovereign body after Indian Independence Act, 1947 was enacted and itwas freed from limitations and restrictions imposed by British Parliament earlier under different Acts andplans. The sole task of the Constituent Assembly was framing of the Constitution for independent India. Thesearch for providing a legal frame and incorporating important systems relevant to India began. The framerslooked forward to international documents, progressive democratic constitutions, and constitutional doctrines

prevailing in Britain.The British has an unwritten unitary constitution based on two fundamental doctrines:

1. Doctrine of supremacy of the Parliament.

2. Cabinet form of Government with a Monarch as its head.

What the framers drew from UK was the Westminster model of Cabinet Government as the system to governIndia, according to Supreme Court. This model increasingly demands a high standard of character and conductfrom members of Legislative, Judiciary and higher Civil Service.


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18 Constitution: Philosophy and O

Documents

Constitution of Indian - An Introduction