Evolution and Philosophy

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PHILPHILPHILPHILPHILOSOPHY BEHINDOSOPHY BEHINDOSOPHY BEHINDOSOPHY BEHINDOSOPHY BEHIND

INDIAN CONSTITUTIONINDIAN CONSTITUTIONINDIAN CONSTITUTIONINDIAN CONSTITUTIONINDIAN CONSTITUTION

Chronicle IAS Academy [3]

EVOLUTION AND

PHILOSOPHY BEHIND

INDIAN CONSTITUTION

CHRONICLEIAS ACADEMYA CIVIL SERVICES CHRONICLE INITIATIVE

Constitution is the fundamental and organiclaw of a nation, establishing the concepts,character and organization of its Governmentas well as prescribing the extent of Government,sovereign power & manner of its exercise. It isthe supreme law of the land. All other laws &customs in order to be legally valid must confirmto the provisions of the Constitution.

It also possesses ideas and aspirations of thepeople of a country. It enjoys special legalsanctity. Organic law is the one that establishesan administrative agency in the form of Unionand State Executive and Enjoys special legalsanctity: because it derives it power andauthority from people directly. Other law enjoyslegal sanctity but not special sanctity. Thus,Constitution is superior to all other laws. Otherlaws stress their source to legislature. Parliamentdraws authority from Constitution.

MAKING OF THE CONSTITUTION1. Indian Constitution was adapted and

enacted by a Constituent Assembly(CA), which was formed under CabinetMission Plan, 1946.

2. Members of CA were indirectly electedby the members of the ProvincialLegislative Assembly (Lower Houseonly), in ratio of 1 member per 1 millionpopulations. Representation was alsogiven to Princely States.

3. The seats in each province weredistributed among the three maincommunities- Muslim, Sikh, andGeneral, in proportion to theirrespective population.

4. Members of each community in theProvincial Legislative Assembly electedtheir own representatives by the methodof proportional representation by meansof single transferable vote.

5. The method of selection in the case ofrepresentatives of Indian States was tobe determined by nomination.

6. CA, which had been elected forundivided India held its first sitting on9th December 1946. Out of total 389members 296 were elected from BritishProvinces and rest 93 were nominatedby Princely States.

7. But as a result of the partition underthe Plan of June 3, 1947, a separateConstituent Assembly was set up forPakistan. The representatives of Bengal,Punjab, Sind, North-Western FrontierProvince, Baluchistan and Sylhet districtof Assam (which had joined Pakistanby a referendum) ceased to be membersof the Constituent Assembly of India,and there was a fresh election in thenew Provinces of West Bengal and EastPunjab.

8. Hence, when the Constituent Assemblyreassembled on 31st October 1947, themembership of the House was reducedto 299.

9. Of these 284 were actually present on26th November 1949 and appendedtheir signatures to the Constitution asfinally passed.

Date Line of Constituent Assembly

9th December 1946: First meeting of the CAunder interim President Sachinanda Sinha

11th December 1946: Dr Rajendra Prasadelected as Presidetnt of CA

13th December 1946: Pt. Jawaharlal Nehrumoved Objective Resolution

29th August 1947: Drafting Committee wasappointed under Dr. B.R. Ambedkar

October 1947: First draft of the Constitutionwas prepared.

26th November 1949: People of Indiathrough CA adopted the Constitution

24th January 1950: CA members finallysigned the Constitution


26th January 1950: Constitution wascommenced.

PHILOSOPHIES IN THECONSTITUTION

The Preamble of the Indian Constitution isthe best part where we can find a glimpse of themajor philosophical influences guiding theConstitution.

Regarded as an introduction or prelude tothe constitution, the Preamble is modeled on USsconstitution Preamble. The Supreme Court saysthat the Preamble is nothing but the theme ofthe Constitution which is also said to be thephilosophy of the Constitution and thisphilosophy is largely co-terminus with the idealsand aspirations of the people of India which werebasically drawn from the freedom movement ofIndia. The ideals listed in the Preamble are

Sovereignty Socialism SecularismDemocracy and Republic while the aspirationsto be achieved are mentioned as Justice LibertyEquality and Fraternity. These ideals andaspirations are however related to each other inthe sense that the ideals are more or lessestablished but aspirations are to be achieved byapplying the instruments of these ideals. Furtheras there is no end to achievements, aspirationsare ever evolving goals and we have to constantlystrive for them.

Ideals in the Preamble

The ideals listed in the Preamble mainlyconstitute the essentials of an independent,strong and welfare oriented State: Sovereignty: This is inspired mainly from

the concept of State which is fundamentalto all civilizations thus is an attribute of theState. This is denoted by the supreme

Important committees of the Constituent Assembly & their Chairman

Committee Chairman

1. Steering Committee Dr Rajendra Prasad

2. Rules of Procedure Committee Dr Rajendra Prasad

3. Committee for Negotiating with States Jawaharlal Nehru

4. Union Constitution Committee Jawaharlal Nehru

5. Union Power Committee Jawaharlal Nehru

6. Provincial Constitution Committee Sardar Patel

7. Committee on Fundamental Rights & Minorities Sardar Patel

8. Fundamental Rights Sub-Committee J.B. Kripalani

9. Minorities Sub-Committee H.C. Mukherjee

10. Committee to examine Draft Constitution Sri Alladi Krishnaswamy Iyer

11. Order of Business Committee K.M. Munshi

12. House Committee Sitaramayya Pattabhi

13. Ad-hoc committee on National Flag Dr Rajendra Prasad

Composition of Drafting Committee1. Dr. B.R. Ambedkar (Chairman)

2. N. Gopalaswami Ayyangar

3. Alladi Krishnaswamy Iyer

4. K. M. Munshi

5. Mohammed Sadullah

6. B.L. Mittar (replaced by N. Madhav Rao)

7. D.P. Khaitan (who died in 1948 and replaced by T.T. Krishnamachari)


political power of a state which is unlimited.It means the country does not acknowledgeany political power outside its boundariesas supreme. Sovereignty means that thecountry is supreme internally andindependent externally. In a democracysovereignty lies with the people.

Socialism: The Constitution provides forFabian Socialism also called as democraticsocialism, rather than Marxian socialism,and envisages to build a society on socialistprinciples. The thrust over socialistic goalsplaced in the Constitution is evident fromthe provisions listed under the Directiveprinciples of State Policy. The ideal ofbuilding a socialist society is thefundamental principle behind the welfarenature of the State.

Secularism: A very important tenet of theIndian Constitution, secularism in theIndian context is different from thecommon idea of secularism in the West. Inthe Indian context it implies that the Stateshall be neutral on religious questions butshall be positively a-religious in itsfunctioning. The term a-religious impliesthat the State shall be neither religious noranti-religious nor irreligious but only non-religious. Secularism means that the Statedoes not recognize any particular statereligion instead it recognizes the rights ofall religions which have made India as theirhome and their right to co-exist on the soilof India. The concept is one of the stabilizingfactors which help our society to sustainand perpetuate itself despite infinitediversity.

Democracy: The idea of democracy in itsrepresentative sense as it exist in Indiatoday, is mainly borrowed from the Westand owes its origin to the Magna Carta inthe English history. It implies that peopleare paramount and the State exists for thepeople, by the people and of the people.People in India enjoy representativedemocracy in India.

Republic: One of the terms borrowed fromthe French revolution and implies that thehead of the State in India shall be electedfor a fixed period of time.

Aspirations in the Preamble: Mainlyborrowed from the charter of the FrenchRevolution and the American Revolution. Fourof them are listed in the Preamble.

Justice: It is a very wide term which impliessocial, economic as well as political justice.Article 326 which provides for universaladult franchise or Article 19 which providesfor basic freedoms or the chapter onfundamental rights provides for politicaljustice. Economic justice has to be achievedby implementing the provisions of theDirective Principles of State Policy over aperiod of time while social justice is ensuredby provisions such as the Article 17 whichprovides for a prohibition of practices likeuntouchability.

Liberty: It implies freedom from arbitraryor undue restraints especially by thegovernment or the freedom to do what anindividual thinks is best for him, providedhe does not violate others rights. Thereforeliberty means responsibility as well. Libertyis necessary for intellectual and mentaldevelopment of the citizens and is essentialfor a democracy to function.

Equality: Equality of status and opportunitywithout discrimination to all citizens. Thisaspect is enforced by provisions like theArticle 15 and 16 which promises equalityof opportunity to all citizens in matters ofpublic employment free from any kind ofdiscrimination on any grounds of caste,religion, place of birth, gender, language,ethnicity, etc.

Fraternity: Sense of brotherhood whichshould prevail among the people of Indiaand is essential for the promotion ofnational integration and can be achievedby providing secularism, justice, liberty,democracy, equality, etc.

Apart from these there are other importantinspirations to the Constitution as well. Thefollowing list gives a non exhaustive account ofthese features:

I. Government of India Act 1935:Conceived primarily by the British, tillJan 26 1950, this was the code whichused to run the government of India.Even the present Constitution, almost60% provisions are borrowed from theGoI Act 1935.

Federal scheme

Office of the Governor


Powers of the Federal Judiciary

Emergency powers

II. Constitution of the UK:

Parliamentary form of government

Law making procedures

Rule of law

Single citizenship

Office of the Comptroller and AuditorGeneral.

Writ Jurisdiction of the SC and the HCs

Civil Services

III. Constitution of USA:

Fundamental Rights

Independence of Judiciary

Judicial Review

Removal of Judges of the SC and HCs

Preamble

Role of Vice President

IV. Constitution of Canada:

Federation with a strong Centre andweak States

Residuary powers with the Centre

V. Constitution of Ireland:

Directive Principles of State Policy

Election of President method

Nomination to Rajya Sabha

VI. Weimar Constitution of Germany (1921):

Emergency Provisions

Suspension of fund requirements duringEmergency

VII. Australian Constitution:

Concept of Cooperative Federalism

Concept of Concurrent List

Freedom of inter-state trade andcommerce

VIII. Constitution of South Africa:

Amendment procedure

Election of members of Rajya Sabha.

NATURE OF THE INDIANCONSTITUTION

Nature of the Indian Constitution meanswhether it is Federal, Unitary or Qausi-Federal.

Federal - There are two set of Governmentat Central and Provincial level with cleardistribution of powers under a writtenConstitution.

Unitary - Only one set of Government at theCenter; Provinces are only sub-ordinate ofCenter. All power vested with the Center.

Quasi-Federal Comprising features of bothfederal and unitary government;

Constitution Drafting Committee headed byDr. Ambedkar called it federal. Supreme Courtalso said it federal. Scholars like AppleAlexander also described it federal. However,western scholar led by Prof. Wheare called itqausi-federal. On the other hand Prof. Tripathicalled it unitary. U.S. Constitution is the oldestFederal constitution in the world, so scholarskeep it as a model of federal form of constitution.Thus whether Indian Constitution is federal orunitary is a question of degree and not of kind.Therefore, whether it is federal or not is to bedecided by number of federal or unitary featuresit contains.

Federal Features of the Indian Constitution:

1. Division of Powers: Existence of a dualpolity, which means existence of twosets of government i.e. one at Center(Union Government) and other atProvincial level (State Governments).Powers and authority is dividedbetween Central & State Governments.Further, Center & State Governmentsare not sub-ordinate to each rather theyare co-ordinate bodies, each originatingin and controlled by the Constitution.Each one is independent in its allottedsphere of activity.

2. Supremacy of the Constitution: (Art 13of the Indian Constitution explicitlytalks about its supremacy.) Supremacyin the context of federation means it isbinding on Central as well as StateGovernments. Neither Center nor StateGovernment alone is in a position toamend constitutional provision


regarding separation of powers betweenCenter and States. It can be onlyamended by joint effort of both theCenter and States Governments.

3. Written Constitution: For cleardistribution of powers between Unionand States, a written Constitution is verynecessary.

4. Rigidity of the Constitution: Provisionsof the Constitution that requires aspecial procedure for amendment

(a) Arts. 53 & 54- Election of the President.(b) Art. 73- Extent of Executive power of

the Union.(c) Art. 162- Extent of Executive powers of

the States.(d) Art. 241 High Courts for Union

Territories(e) Union Judiciary (Arts. 124-147)(f) High Courts (Arts. 214-231)(g) Legislative relationship between Center

and States (Arts. 245-255 & VIIth

Schedule)(h) Representation of the States to Lok

Sabha and Rajya Sabha(i) Art. 368- Procedure of Amendment to

the Constitution

It is corollary of supremacy of theConstitution.

5. Authority of Courts: It includes twothings:

(a) Establishment of an authorityindependent of Central and Stategovernment to resolve any disputes thatmay arise between Center and State oramong States on issues relating todistribution of power.

(b) Courts shall be given power to finallyinterpret the Constitution, which isbinding on both Center & States.

Indian Constitution bears all the abovefederal features. However, on the basis of suchfederal features can we conclude that IndianConstitution is federal? That requires a close lookof certain unitary features in the Constitution.

Unitary features of Indian Constitution:

1. States do not have separateConstitution: Consequence of this factis single citizenship. State govt. cannot

confer special rights on its inhabitantswho are ordinarily residents of thenation. It also meant that Stateadministration can be brought underCentre under certain circumstances.

2. Art. 352: It empowers the President toproclaim a National Emergency undercertain circumstances. During suchEmergency, the provisions regardingdistribution of power between Centerand State remain suspended. Therefore,Constitution starts functioning as if it isunitary. Thus Constitution is designedto function as a federal in ordinarycircumstance and unitary in extra-ordinary situations whereas in U.S. theConstitution always works as federal.

3. Art. 4: It empowers the Parliament tochange area, name and boundary of theState even without the consent of theState. So States do not enjoy theterritorial equality whereas in U.S. thereis territorial equitability among all units.

4. VIIth Schedule: Distribution of legislativesubjects under VIIth Schedule are heavilyin favour of the Center [97 subjects in UnionList]. All most important legislativesubjects are under the Union List. Alltaxes of importance are also in the UnionList. The Parliament has exclusivelegislative jurisdiction over subject underUnion List.

Most important subjects under Union Listare: Defence; Atomic Energy; Foreign Affairs;War and Peace; Citizenship; Railways; Airways,Air Craft, Air Navigation; Post & Telegraph;Currency, Coinage and Foreign Exchange;Reserve Bank of India; Inter-state Trade &Commerce; Banking; Stock Exchages; All IndiaServices; Election to Parliament and StateLegislature; Union Duties & Taxes, etc.

On the other hand State List includes 61subjects of local importance. In revenue mattersales tax is the only important subject under StateList. Therefore, States are financially dependenton Center.

Most important subjects under State Listare: Public Order; Police; Prisons andReformatories; Local Government; Public Health& Sanitation; Fisheries; Market and Fairs;Agriculture; State Taxes & Duties, etc.


But States also do not enjoy exclusivelegislative jurisdiction on the subjects placedunder State List. Parliament can legislate onState List under 5 conditions.

(a) Art. 249 If Rajya Sabha passes aresolution supported by not less than2/3 of its members present and voting,it is necessary and expedient for theParliament to legislate on one or moresubject specified in State List in nationalinterest. Under such provisionParliament has jurisdiction to legislateon State List for a period of one year ateach time it passes such resolution.Rajya Sabha can pass any number ofresolutions to this effect.

(b) Art. 250 - When National Emergency isin force then Parliament assumesconcurrent legislative powers. ThusState List becomes Concurrent List andUnion can legislate on State List.

(c) Art. 252 When two or more Statespassed resolutions authorizingParliament to legislate on one or moresubjects in State List then Parliamentshall have power to legislate. Law so,passed shall be binding on Statesconcern. The laws will remain inoperation till it is repealed byParliament. For example, in 1976,Punjab & Haryana Urban Land CeilingRegulation Act. (ULCRA-1976), it wasrepealed in 1995.

(d) Art. 253 Parliament can legislate onState List in order to give effect tointernational treaty or agreement evenagainst the wishes of the States.

(e) Art. 356. When Presidents Rule isimposed in a State then President mayauthorize Parliament to legislate onsubject under State List for theconcerned State.

Concurrent List: Though Concurrent List(includes 47 items) provides equal power toCenter and State, Parliament is prior andsuperior. Although both Union and State canenact law over Concurrent List, laws enactedby Parliament prevail over State laws.

Most important subjects under ConcurrentList are: Criminal Law and Procedure; CivilProcedure; Marriage and Divorce; Contracts;

Ports; Trusts and Trustees; Welfare of Labourand Trade Union; Social Security; Economic andSocial Planning; Population Control and FamilyPlanning; Education; Forests and Wild Life, etc.

5. Residuary Power: (That is the powerto legislate with respect to any matternot enumerated in any one of the threeLists.) Art. 248 of the Constitution talkabout residuary power, which belongsto the Center in India whereas in USAit belongs to the State.

6. Appointment of Governor: Under Art.155, Governors are appointed by thePresident and holds office during thepleasure of the President. Presidentneed not have to consult the concernedState while appointing the Governor.Governor enjoys immense powerincluding discretionary powers.(Discretionary powers refer to powerexercised by head of the State withoutadvice of the Council of Ministers.)Besides, Governor is not accountable tothe State Legislature. He is onlyaccountable to the President. So bycontrolling Governor, Centre caninfluence State and even stall a Billpassed by the State Legislative Assembly.

7. Administrative Directions: Under Arts.256-257, Center can issue administrativedirection to the State indicating themanner in which properties of railwaysand means of communication shall bemaintained by State government. Thesedirections are binding on the State. IfStates ignore it, Union can assume thatconstitutional machinery has beenbroken down in the State and thereforeit can proclaim Art 356 in that State.

8. Financial Emergency: Under Art 360,Center can impose a FinancialEmergency and during such perioddistribution of financial resourcesbetween Center and State remainssuspended. President can direct theState to carry out certain financialdiscipline including reduction of salariesof civil servants and Judges of SupremeCourt and High Courts. He also candirect the Governors to reserve allFinancial Bills for his consent passed byLegislative Assemblies of the States.


9. Presence of All India Services: Art 312provides for an All India Servicesincluding creation of new All IndiaServices e.g. IAS, IPS and IFS. Officersof these three services can functionunder both Center as well as State butmostly work at State level. They occupythe top civil post in the StateGovernment and carry out theadministration for the state. However,they are recruited by Center and theState governments have no disciplinarycontrol over them except suspending.

10. Single Election Commission: ElectionCommission of India holds all electionsin whole India including Parliamentaryand State Legislative Assemblieselections.

11. Single Unified Judiciary: There is asingle and unified judiciary in Indiabeing the Supreme Court at the apexlevel. Below the Supreme Court thereare High Courts in State level. However,High Court Judges are appointed andtransferred by the President of India inconsultation with the Center.

12. Amendments to Constitution: Most ofthe provisions of the Constitution areamended by Parliament alone. States donot play any significant role inamendment procedure except somespecial provisions.

13. Unequal Representation of State inRajya Sabha: States are represented inthe Rajya Sabha on the basis of theirpopulation. So principle of equality ofStates is not followed.

The above provisions clearly indicate thatIndian Constitution has a strong bias towardsthe Center. Thus it can be concluded that Indiais a federation having strong unitary character.It is Federation Sui Genesis (Of its own kind).

THE DOCTRINE OF THE BASICSTRUCTURE OF THE CONSTITUTION

The process of evolution of this aspectdawned with the opening of the Shankari PrasadVs Union of India case in 1951 in which the SCheld that the Parliament enjoyed two types oflegislative powers: ordinary legislative powersand the constituent legislative powers. Further

any enactment passed by virtue of its ordinarylegislative power is a law. Power of thelegislature under Article 368 is comparable tothe creative power of the constituent assembly.Any enactment under Article 368 cannot betermed as law as per Article 13(2). So theParliament cannot make or amend by a simplemajority. The main inference drawn from theruling was that fundamental rights were subjectto the constitutional amendments.

However in the Golaknath Vs the State ofPunjab case (1967) the SC overruled its earlierruling and held that the Parliament enjoyed onlyone type of legislative power i.e. ordinarylegislative power and not the constituentlegislative power because Article 368 was theprocedure to amend the Constitution and doesnot confirm the power of the legislature to amendit. Further the FRs have been given atranscendental position and therefore no organfunctioning under the Constitution can amendthe FRs and thus FRs were unamendable orcould be amended only by establishing a newconstituent assembly.

As a response to this judgment, thegovernment in 1971 passed the 24th AmendmentAct 1971 and amended Article 13 andintroduced Art 13(4) which states that Nothingin Article 13 shall apply to a constitutionalamendment passed under Article 368. The 24thamendment act also amended Article 368 of theConstitution which replaced the wordprocedure with the word power i.e. the Actnow reads as Notwithstanding anything in thisConstitution, Parliament may in exercise of itsconstituent power amend by way of addition,variation or repeal any provision of thisConstitution in accordance with the procedurelaid down in this article. It also introducedArticle 368 (3) which stated that nothing inArticle 13 shall apply to an amendment madeunder this Article.

The excerpts of this judgment were onceagain challenged under the KeshvanandaBharati Vs the State of Kerala (1973) case inwhich the SC upheld the constitutional validityof the 24th Amendment Act i.e. the Parliamentenjoys the powers to amend any part of theConstitution including the fundamental rights.However it also stated that the amendingpowers of the Parliament are limited to the extentof not destroying the basic structure of theConstitution.


The essence of this landmark judgment wasonce again challenged by the 42nd Amendmentact which introduced Article 368(4) which statedthat no amendment of this Constitution shall becalled in question in any court of law. AnotherArticle 368(5) was introduced which stated thatfor removal of doubts it is hereby declared thatthere shall be no limitation whatsoever to theconstituent power of the Parliament to amendthe Constitution under this Article.

These features introduced by the 42ndAmendment were once again subjected tojudicial scrutiny in the Minerva Mills Vs UoI case1980. In this case, SC held that the Clauses 368(4)and 368(5) were extra-constitutional. Further,

the power of judicial review is a part of the basicstructure of the Constitution, therefore Article368(5) was void and therefore the power toamend is subject to not destroying the basicstructure of the Constitution.

The verdict in the Minerva Mills case not onlyasserted the indestructibility of the basic structureof the Constitution but also reinstated thesupremacy of the ideas represented by the basicstructure over legal and constitutionalentanglements in the form of amendments,verdicts and legal pronouncements whichultimately fail to eclipse the spirit of truth andfreedom which is a characterstic of the largerIndian culture.

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Evolution and Philosophy