Background
Main article: Indian independence movement
The majority of the Indian subcontinent was under British colonial rule from 1858 to 1947. This period saw the gradual rise of the Indian independence movement to gain independence from foreign rule. The movement culminated in the formation of the Dominion of India on 15 August 1947, along with the Dominion of Pakistan. The constitution of India was adopted on 26 November 1949 and came into effect on 26 January 1950, proclaiming India to be a sovereign, democratic republic. It contained the founding principles of the law of the land which would govern India after its independence from British rule. On the day the constitution came into effect, India ceased to be a dominion of the British Crown.
Evolution of the Constitution
Acts of British Parliament before 1935
After the Indian Rebellion of 1857, the British Parliament took over the reign of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act of 1858 to this effect, setting up the structure of government in India. It established in England the office of the Secretary of State for India through whom Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, consisting of high officials of the British Government. The Indian Councils Act of 1861 provided for a Legislative Council consisting of the members of the Executive council and non-official members. The Indian Councils Act of 1892 established provincial legislatures and increased the powers of the Legislative Council. These acts increased the representation of Indians in the government, however their power remained limited. The Government of India Acts of 1909 and 1919 further expanded participation of Indians in the government.
Government of India Act 1935
Main article: Government of India Act 1935
The provisions of the Government of India Act of 1935, though never implemented fully, had a great impact on the constitution of India. Many key features of the constitution are directly taken from this Act. The federal structure of government, provincial autonomy, bicameral legislature consisting of a federal assembly and a Council of States, separation of legislative powers between the center and provinces are some of the provisions of the Act which are present in the Indian constitution.
The Cabinet Mission Plan
Main article: 1946 Cabinet Mission to India
In 1946, British Prime Minister Clement Attlee formulated a cabinet mission to India to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership as well as provide India with independence under Dominion status in the Commonwealth of Nations.[7][8] The Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by August 1946. The Constituent Assembly first met and began work on 9 December 1946.
Indian Independence Act 1947
Main article: Indian Independence Act 1947
The Indian Independence Act, which came into force on 18 July 1947, divided British Indian territory into two new states: India and Pakistan, which were to be dominions under the Commonwealth of Nations until their constitutions came into effect. The Constituent Assembly was divided into two for the separate states. The Act relieved the British Parliament of any further rights or obligations towards India or Pakistan, and granted sovereignty over the lands to the respective Constituent Assemblies. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. 26 November 1949 is also known as National Law Day.
Constituent Assembly
Main article: Constituent Assembly of India
The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies.[9] Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Dr Ambedkar, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee and Nalini Ranjan Ghosh, Balwant Singh Mehta were some important figures in the Assembly. There were more than 30 members of scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng represented the Gorkha Community. Prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur were important women members. The first president of the Constituent Assembly was Dr Sachidanand Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly.[9] The members of the Constituent Assembly met for the first time in 1946 on 9 December.[9]
Drafting
In the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr Ambedkar as the Chairman along with six other members. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947.
The architects of India’s constitution, though drawing on many external sources, were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court, and the adoption, albeit in modified form, of a federal structure (a constitutional division of power between the union [central] and state governments)
The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution.[6] After many deliberations and some modifications, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Santiniketan including Beohar Rammanohar Sinha and others. Two days later, the Constitution of India became the law of all the Indian lands.
The Constitution has undergone 94 amendments in the 60 years since its enactment.[3]
Structure
The Constitution, in its current form, consists of a preamble, 22 parts containing 395 articles, 12 schedules, 2 appendices[10] and 94 amendments to date.[3] Although it is federal in nature with strong unitary bias, in case of emergencies it takes unitary structure.
[edit] Parts
Parts are the individual chapters in the Constitution, focusing on specific issues of law.
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Schedules
Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.
- First Schedule (Articles 1 and 4) — States and Union Territories – This lists the states and territories on of India, lists any changes to their borders and the laws used to make that change.
- Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221) — Emoluments for High-Level Officials – This lists the salaries of officials holding public office, judges, and Controller and Auditor-General of India.
- Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219) — Forms of Oaths – This lists the oaths of offices for elected officials and judges.
- Fourth Schedule (Articles 4 and 80) – This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.
- Fifth Schedule (Article 244) – This provides for the administration and control of Scheduled Areas[Note 1] and Scheduled Tribes[Note 2] (areas and tribes needing special protection due to disadvantageous conditions).
- Sixth Schedule (Articles 244 and 275)— Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.
- Seventh Schedule (Article 246) — The union (central government), state, and concurrent lists of responsibilities.
- Eighth Schedule (Articles 344 and 351) — The official languages.
- Ninth Schedule (Article 31-B) - Articles mentione here are immune from judicial review.
- Tenth Schedule (Articles 102 and 191) — "Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.
- Eleventh Schedule (Article 243-G) — Panchayat Raj (rural local government).
- Twelfth Schedule (Article 243-W) — Municipalities (urban local government).
[edit] System of government
The basic form of the Union Government envisaged in the Constitution is as follows,
| “ | A democratic executive must satisfy three conditions: 1. It must be a stable executive, and 2. It must be a responsible executive. 3. It must be impartial to all religion, caste and community. Unfortunately, it has not been possible so far to devise a system which can ensure both conditions in equal degree. ..... The daily assessment of responsibility, which is not available in the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the parliamentary system of Executive has preferred more responsibility to stability.[19] | ” |
[edit] Federal Structure
The constitution provides for distribution of powers between the Union and the States.
It enumerates the powers of the Parliament and State Legislatures in three lists, namely Union list, State list and Concurrent list. Subjects like national defense, foreign policy, issuance of currency are reserved to the Union list. Public order, local governments, certain taxes are examples of subjects of the State List, on which the Parliament has no power to enact laws in those regards, barring exceptional conditions. Education, transportation, criminal law are a few subjects of the Concurrent list, where both the State Legislature as well as the Parliament have powers to enact laws. The residuary powers are vested with the Union.
The upper house of the Parliament, the Rajya Sabha, which consists of representatives of States, is also an example of the federal nature of the government.
Parliamentary Democracy
The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the Head of the State, and all the business of the Executive and Laws enacted by the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers.
The Prime Minister and the Council of Ministers exercise their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either house of the Parliament. Thus, the Parliament exercises control over the Executive.
A similar structure is present in States, where the directly elected Legislative Assembly enjoys control over the Chief Minister and the State Council of Ministers.
[edit] Independent Judiciary
The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates some provision of the Constitution.
Constitutional remedy against any action of the government is available in a High Court or the Supreme Court, if the action violates any of the fundamental rights of an individual as enumerated in the Constitution.
Original Unamended Constitution of India
The original constitution of India without any amendments can be found here: Original Unamended version of the Constitution of India
Changing the constitution
Main article: Amendment of the Constitution of India
Amendments to the constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a super-majority consisting of 2/3rd of the members present and voting, and half of the total membership of the House. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.
As of September 2010, there have been 108 amendment bills presented in the Parliament, out of which 94 have been passed to become Amendment Acts.[3] Most of these amendments address issues dealt with by statute in other democracies. However, the constitution is so specific in spelling out government powers that many of these issues must be addressed by constitutional amendment. As a result, the document is amended roughly twice a year.
The Supreme Court has ruled that not every constitutional amendment is permissible. An amendment must respect the "basic structure" of the constitution, which is immutable.
In 2000 the National Commission to Review the Working of the Constitution (NCRWC)[20] was setup to look into updating the constitution.
Judicial review of laws
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Judicial review is adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that
1. All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional law will not be in force until an amendment of the constitution relating to the same matter. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Theory of Eclipse[citation needed].
2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.
In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 228 and 246 provide a constitutional basis to the Judicial review in India
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