Study Notes on the Constitution of India

Historical Background to the Framing of the Indian Constitution

• Introduction to the Narrative: The journey toward the Indian Constitution is described as a narrative woven through years of struggle, aspirations, and the history of India. The chapter highlights critical historical events, national movements, and various influences that shaped the document.

• Pre-British and Early Colonial Period:

  • Indigenous Administrative Systems: Before British rule, India possessed organized governance. Early empires like the Mauryas and Guptas established sophisticated administrative structures with defined laws and advisory councils. The Mughal Empire utilized a blend of centralized and regional governance.

  • Colonial Encounters: The arrival of the British East India Company in the $17^{th}$ century marked a significant turning point. Initially a commercial entity, the Company dismantled traditional systems, prioritizing British interests. This disruption fueled the quest for independence.

• Evolution of Constitutional Developments under British Rule:

  • Regulating Act of $1773$: Imposed regulations on the East India Company, laying the groundwork for parliamentary oversight and establishing a precedent for constitutional governance.

  • Pitt's India Act of $1784$: Established a dual government system. The British government took greater control over major decisions, while the Company managed daily affairs.

  • Government of India Act, $1858$: Enacted after the $1857$ Revolt. It dissolved the East India Company and established direct British Crown control through a Viceroy.

    • Key Principles of $1858$ Act:

      • Centralized Governance: Strengthened British control by ensuring the British government had the final say, leading to a uniform structure.

      • Direct British Rule: Set the groundwork for authority in local governance, eventually leading to political unrest.

      • Role of the Viceroy: Introduced as the representative of the British Crown to oversee Indian affairs.

  • Indian Councils Acts ($1861$, $1892$, $1909$):

    • Introduced limited Indian participation in governance.

    • Councils were advisory bodies with no real power to implement laws; ultimate authority remained with British officials.

    • Elections were restricted to a small segment of the educated elite.

  • Morley-Minto Reforms of $1909$:

    • Introduced separate electorates for Muslims, effectively sowing seeds of division and communal identity.

    • Legislative Authority: Remained with British officials despite Indian participation in discussions.

    • Financial Control: British maintained control over taxation and budgets.

  • Montagu-Chelmsford Reforms $1919$ / Government of India Act, $1919$:

    • Introduced the concept of "Dyarchy" (Two Authorities) in provincial governance.

    • Governance was shared between Indian ministers and British officials, but the British retained control over revenue, law, and order.

  • Government of India Act, $1935$:

    • Provided a comprehensive framework introducing provincial autonomy and the concept of an All-India Federation.

    • British supremacy was maintained over revenue and defense.

• Nationalist Movements and the Demand for Self-Rule:

  • Indian National Congress (INC): Formed in $1885$. Leaders like Mahatma Gandhi, Jawaharlal Nehru, and Sardar Vallabhbhai Patel emphasized the need for a constitution ensuring fundamental rights.

  • Key Movements:

    • Non-Cooperation Movement ($1920-22$): Boycott of British goods and institutions.

    • Civil Disobedience Movement ($1930-34$): Characterized by the Salt March against British salt laws.

    • Quit India Movement ($1942$): Massive uprising demanding an immediate end to British rule; highlighted that post-colonial government must be based on democracy and equality.

  • Nehru Report $1928$: An effort by Indians to draft a constitution. Proposed dominion status, a parliamentary system with bicameral legislature, and universal adult suffrage.

  • Round Table Conferences ($1930-1932$): Discussions in London to address reforms and federalism.

  • Cripps Mission ($1942$): Promised dominion status after WWII; rejected by major parties like the INC as it failed to meet the demand for full independence.

  • Cabinet Mission Plan of $1946$: Proposed a federal structure with provincial autonomy. Led to the establishment of the Constituent Assembly despite disagreements between the INC and the All-India Muslim League.

  • Mountbatten Plan of $1947$: Led to the partition of India into two nations: India and Pakistan, accompanied by significant communal violence and displacement.

  • Indian Independence Act of $1947$: Officially transferred power to Indian leaders.

General Idea about the Constituent Assembly of India

• Introduction: The Indian Constitution, adopted on January $26$, $1950$, is the longest written constitution in the world. November $26$ is celebrated as Constitution Day or Savidhan Divas.

• Meaning of Constituent Assembly: A body of representatives formed to draft or frame a country's constitution, defining the structure of governance, citizen rights, and legal principles.

• Establishment and Membership:

  • Formed: Under the Cabinet Mission Plan of $1946$.

  • Proposed by: M.N. Roy in $1934$.

  • Membership Count: Originally $389$ members, reduced to $299$ after partition.

  • Diversity: Included leaders from different regions, political ideologies, religions, and social groups elected from British Indian provinces.

• Timeline of Key Sessions:

  • First Session (December $9$, $1946$): Dr. Sachchidananda Sinha served as temporary chairman.

  • Second Session (December $11$, $1946$): Dr. Rajendra Prasad elected permanent President.

  • Adoption: November $26$, $1949$.

  • Enforcement: January $26$, $1950$.

• Key Personalities and Contributions:

  • Dr. B.R. Ambedkar: Chairman of the Drafting Committee; prioritized social justice, equality, and protection of marginalized communities.

  • Sardar Vallabhbhai Patel: Instrumental in the integration of princely states and federal principles.

  • Jawaharlal Nehru: Delivered the "Objectives Resolution."

  • Dr. Rajendra Prasad: President of the Assembly.

  • Women Members ($15$): Included Sarojini Naidu, Hansa Mehta, Dakshayani Velayudhan, Rajkumari Amrit Kaur, and Durgabai Deshmukh.

• Committees:

  • Drafting Committee: Chaired by Dr. Ambedkar.

  • Fundamental Rights Committee: Safeguarding individual liberties.

  • Union Powers Committee: Dealt with the distribution of powers between central and state governments.

• Inspirational Sources (Global Models):

  • British System: Parliamentary democracy, bicameralism, collective responsibility.

  • U.S. Constitution: Fundamental Rights (Bill of Rights), Federalism, Separation of Powers.

  • Irish Constitution: Directive Principles of State Policy (DPSP).

  • Canadian Constitution: Federal system with strong central authority.

  • South African Constitution: Emphasis on equality and social justice.

  • German Constitution: Fundamental Duties and Emergency Provisions.

Preamble of the Constitution of India

• Definition: A brief introductory statement (preface) outlining the spirit, fundamental principles, and objectives of the Constitution.

• Historical Basis: Based on the "Objective Resolution" moved by Jawaharlal Nehru on December $13$, $1946$.

• Legal Status: Initially held not to be a part of the Constitution in the BeruBari case, but later recognized as an integral part in the $1973$ Kesavananda case and the $1995$ LIC of India case.

• The Text of the Preamble:     > "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all the citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation…"

• Key Concepts and Implications:

  • "We the People of India": Sovereignty lies with the people; the Constitution is not a gift from the British Parliament but a creation of the people.

  • Sovereign: Freedom from external control; internal supremacy within the country.

  • Socialist (Added by $42^{nd}$ Amendment, $1976$): Aimed at a welfare state, equitable distribution of wealth, and upliftment of the poor (Indian brand of socialism doesn't abolish private property but controls it).

  • Secular (Added by $42^{nd}$ Amendment, $1976$): The state protects all religions equally and has no official "state religion."

  • Democratic: A representative polity accountable to the electorate through periodic elections ("one man, one vote").

  • Republic: The Head of State (President) is elected, not hereditary.

  • Justice:

    • Social: Absence of privileged classes; no discrimination based on caste/religion.

    • Economic: End of monopolistic control; equal pay for equal work.

    • Political: Universal adult franchise and equal political rights.

  • Liberty: Absence of restraints; freedom of thought, expression, belief, and worship (guaranteed in Part III).

  • Equality: Banishment of inequality; equality before law (Art. $14$) and abolition of untouchability (Art. $17$).

  • Fraternity: A sense of brotherhood; ensuring the dignity of the individual and the unity/integrity of the nation (added by $42^{nd}$ Amendment).

Salient Features of the Indian Constitution

• Longest Written Constitution:

  • Original: $395$ Articles, $8$ Schedules.

  • Current (Sept $2024$): $448$ Articles, $12$ Schedules, $106$ Amendment Acts.

  • Factor for Size: Incorporating experiences from other constitutions, including both Union and State details, civil service provisions, and special provisions for regional problems (e.g., Artikles $370$ to $371-F$).

• Rigidity and Flexibility: Article $368$ provides for amendments. Some require simple majority, others a two-thirds majority, and federal amendments require state ratification.

• Supremacy of the Constitution: It is the supreme law; parliamentary supremacy is limited by the written document.

• Quasi-Federal System with Unitary Bias (K.C. Wheare): Describes India as a "Union of States" (Art. $1$) with features like single citizenship and emergency powers favoring the center.

• Parliamentary Form of Government: Executive is accountable to the legislature; President is ceremonial head, Prime Minister is the real head.

• Independent Judiciary: Integrated hierarchy (Supreme Court at top, High Courts, Subordinate Courts). Features security of tenure for judges.

• Fundamental Rights and Directive Principles: Justiciable rights versus non-justiciable guiding principles.

• Independent Bodies: Election Commission, Comptroller and Auditor General (CAG), and UPSC.

Fundamental Rights (Part III, Articles $12-35$)

• Introduction: Described as the "Conscience of the Constitution" (Granville Austin). They are basic human freedoms essential for development.

• Nature: Justiciable (enforceable in court); not absolute (subject to reasonable restrictions).

• Suspension: Can be suspended during National Emergency (except Articles $20$ and $21$).

• Kinds of Fundamental Rights:

  1. Right to Equality (Articles $14-18$):

     • Art. $14$: Equality before law.

     • Art. $15$: Prohibition of discrimination; includes "protective discrimination" for women, children, SCs, and STs.

     • Art. $16$: Equality of opportunity in public employment.

     • Art. $17$: Abolition of untouchability.

     • Art. $18$: Abolition of titles (except military/academic).

  2. Right to Freedom (Articles $19-22$):

     • Art. $19$: Six specific freedoms (Speech, Assembly, Association, Movement, Residence, Profession).

     • Art. $20$: Protection against arbitrary punishment; no self-incrimination; no double punishment.

     • Art. $21$: Protection of life and personal liberty. Expanded to include right to clean environment, health, and privacy ($2017$ ruling).

     • Art. $21A$: Right to Education (added by $86^{th}$ Amendment, $2002$).

     • Art. $22$: Protection against arrest and detention (custody limited to $24$ hours without magistrate permission).

  3. Right Against Exploitation (Articles $23-24$):

     • Art. $23$: Prohibition of human trafficking and 'begar' (forced labor).

     • Art. $24$: Prohibition of child labor (under $14$ years) in hazardous industries.

  4. Right to Freedom of Religion (Articles $25-28$):

     • Art. $25$: Freedom to profess, practice, and propagate religion.

     • Art. $27$: No taxes for the promotion of a particular religion.

  5. Cultural and Educational Rights (Articles $29-30$): Protection of minorities' culture and their right to establish educational institutions.

  6. Right to Constitutional Remedies (Article $32$): Dr. Ambedkar called this the most significant right. It allows citizens to move the Supreme Court to enforce rights through Writs.

• Types of Writs:

  • Habeas Corpus: "You may have the body"; against illegal detention.

  • Mandamus: "We command"; directs a public official to perform a duty.

  • Prohibition: Forbids inferior courts from exceeding jurisdiction.

  • Certiorari: Transfers a case from an inferior court to a superior court.

  • Quo Warranto: "By what authority"; questions the right of a person to hold a public office.

Directive Principles of State Policy (Part IV, Articles $37-51$)

• Nature: Non-justiciable (not enforceable by courts but fundamental to governance). Inspired by the Irish Constitution.

• Objective: Building a welfare state and social/economic democracy.

• Classification:

  1. Socialistic Principles:

     • Art. $38$: Social order based on justice.

     • Art. $39$: Adequate livelihood, equal pay for equal work.

     • Art. $39A$: Free legal aid.

  2. Gandhian Principles:

     • Art. $40$: Organization of Village Panchayats.

     • Art. $43$: Promotion of cottage industries.

     • Art. $46$: Upliftment of weaker sections (SCs, STs).

     • Art. $47$: Prohibition of intoxicating drinks/drugs.

     • Art. $48$: Prohibition of slaughter of cows and calves.

  3. Liberal-Intellectual Principles:

     • Art. $44$: Uniform Civil Code.

     • Art. $45$: Early childhood care/education.

     • Art. $50$: Separation of judiciary from executive.

     • Art. $51$: Promotion of international peace.

Fundamental Duties (Part IVA, Article $51A$)

• Addition: Added by the $42^{nd}$ Amendment Act, $1976$. Duty number $11$ (Education for children) was added by the $86^{th}$ Amendment, $2002$.

• Nature: Moral obligations; lack legal sanctions for violation.

• List of Duties:

  1. Abide by the Constitution; respect Flag and Anthem.

  2. Follow noble ideals of the freedom struggle.

  3. Uphold sovereignty, unity, and integrity of India.

  4. Defend the country.

  5. Promote harmony and common brotherhood; renounce practices derogatory to women.

  6. Value and preserve composite culture.

  7. Protect natural environment.

  8. Develop scientific temper and humanism.

  9. Safeguard public property; abjure violence.

  10. Strive for excellence.

  11. Provide opportunities for education to children between ages $6$ and $14$.

Constitutional Institutions and Authorities

The Central Legislature (Parliament of India)

• Structure: Bicameral; consists of the President and two Houses.

• Lok Sabha (House of the People):

  • Composition: Max $550$ members ($530$ from states, $20$ from UTs). Anglo-Indian nominations abolished by $104^{th}$ Amendment, $2019$.

  • Term: $5$ years (unless dissolved earlier).

  • Speaker: Head of Lok Sabha; decides if a bill is a Money Bill.

  • Powers: Exclusive authority over Money Bills; collective responsibility of CoM to it.

• Rajya Sabha (Council of States):

  • Composition: Max $250$ members ($12$ nominated by President, $238$ elected by state assemblies).

  • Term: Permanent house; one-third retire every $2$ years; term of individual member is $6$ years.

  • Chairperson: Vice-President of India is the ex-officio Chairperson.

The Central Executive

• Dual Executive: President (Ceremonial/Nominal) and Prime Minister/Council of Ministers (Real).

• President of India:

  • Election: Indirectly by an Electoral College (Elected MPs and MLAs) via single transferable vote.

  • Powers: Executive (appointments), Legislative (veto, ordinances), Judicial (pardons for death sentences), Military (Supreme Commander), Emergency (Arts $352$, $356$, $360$).

  • Impeachment: Removal for violation of the Constitution; involves $14$ day notice and two-thirds majority in both houses.

• Prime Minister: Real administrative head. Responsible for formation of the Cabinet, policy-making, and crisis management.

State Legislature and Executive

• Governor: Appointed by President; agent of the center. Has executive, legislative (ordinances), and discretionary powers.

• State Legislature:

  • Legislative Assembly (Vidhan Sabha): Lower house, $5$ year term, directly elected. (Maharashtra: $288$ members).

  • Legislative Council (Vidhan Parishad): Upper house; permanent. Exists in $6$ states (Andhra Pradesh, Telangana, Maharashtra, Bihar, Uttar Pradesh, Karnataka). (Maharashtra: $78$ members).

• Chief Minister: Leader of the majority party in Vidhan Sabha. Real executive head of the state.

Higher Judiciary

• Supreme Court of India:

  • Composition: CJI + $33$ Judges. Retirement age: $65$.

  • Jurisdictions:

    1. Original: Center-state or state-state disputes.

    2. Appellate: Constitutional, civil, and criminal appeals.

    3. Advisory: Advice to the President.

  • Public Interest Litigation (PIL): Allows anyone to seek justice for marginalized communities.

• High Courts: Highest judicial authority at state level. Total $25$ High Courts in India. Retirement age: $62$. Writ jurisdiction under Article $226$.

Questions & Discussion (Sample Answers)

• Question: What is the significance of the Government of India Act, $1935$?

• Answer: It provided a comprehensive framework introducing provincial autonomy and the concept of an all-India federation. It reflected the impact of nationalist movements on British policy but maintained British supremacy over revenue and defense.

• Question: Discuss the role of Dr. B. R. Ambedkar in shaping the Constitution.

• Answer: He chaired the Drafting Committee, focusing on principles of equality, social justice, and protecting marginalized communities. His leadership was pivotal in adopting measures for social equity.

• Question: Why was January $26$ chosen as Republic Day?

• Answer: To honor the "Poorna Swaraj" Resolution of $1930$, which had declared complete independence as India's goal.

• Question: What is the formula for calculating the value of an MLA's vote in Presidential elections?

• Answer: $\text{Value of vote of an MLA} = \frac{\text{Total population of state}}{\text{Total number of elected MLAs}} \times \frac{1}{1000}$