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Part of a series on the
Constitution of India
Preamble
Parts
I ∙ II ∙ III ∙ IV ∙ IVA ∙ V ∙ VI ∙ VII
VIII ∙ IX ∙ IXA ∙ IXB ∙ X ∙ XI ∙ XII ∙ XIII ∙ XIV
XIVA ∙ XV ∙ XVI ∙ XVII ∙ XVIII ∙ XIX ∙ XX ∙ XXI
XXII
Schedules
First ∙ Second ∙ Third ∙ Fourth ∙ Fifth
Sixth ∙ Seventh ∙ Eighth ∙ Ninth
Tenth ∙ Eleventh ∙ Twelfth
Appendices
I ∙ II ∙ III ∙ IV ∙ V
Amendments
List ∙ 1 ∙ 2 ∙ 3 ∙ 4 ∙ 5 ∙ 6 ∙ 7 ∙ 8 ∙ 9 ∙ 10 ∙ 11 ∙ 12 ∙ 13 ∙ 14 ∙ 15 ∙ 16 ∙ 17 ∙ 18 ∙ 19 ∙ 20 ∙ 21 ∙ 22 ∙ 23 ∙ 24 ∙ 25 ∙ 26 ∙ 27 ∙ 28 ∙ 29 ∙ 30 ∙ 31 ∙ 32 ∙ 33 ∙ 34 ∙ 35 ∙ 36 ∙ 37 ∙ 38 ∙ 39 ∙ 40 ∙ 41 ∙ 42 ∙ 43 ∙ 44 ∙ 45 ∙ 46 ∙ 47 ∙ 48 ∙ 49 ∙ 50 ∙ 51 ∙ 52 ∙ 53 ∙ 54 ∙ 55 ∙ 56 ∙ 57 ∙ 58 ∙ 59 ∙ 60 ∙ 61 ∙ 62 ∙ 63 ∙ 64 ∙ 65 ∙ 66 ∙ 67 ∙ 68 ∙ 69 ∙ 70 ∙ 71 ∙ 72 ∙ 73 ∙ 74 ∙ 75 ∙ 76 ∙ 77 ∙ 78 ∙ 79 ∙ 80 ∙ 81 ∙ 82 ∙ 83 ∙ 84 ∙ 85 ∙ 86 ∙ 87 ∙ 88 ∙ 89 ∙ 90 ∙ 91 ∙ 92 ∙ 93 ∙ 94 ∙ 95 ∙ 96 ∙ 97 ∙ 98 ∙ 99 ∙ 100 ∙ 101 ∙ 102 ∙ 103 ∙ 104 ∙ 105 ∙ 106
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The Constitution of India (Hindi: भारतीय़ संविधान, see names in other Indian languages) is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. Passed by the Constituent Assembly on November 26, 1949, it came into effect on January 26, 1950.[1] The date 26 January was chosen to commemorate the declaration of independence of 1930. It declares the Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty; the words "socialist", "secular" and "integrity" were added to the definition in 1976 by constitutional amendment.[2] India celebrates the adoption of the constitution on January 26 each year as Republic Day.[3] It is the longest[4] written constitution of any sovereign country in the world, containing 448 articles, 12 schedules and 94 amendments[5], for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation. After coming into effect, the Constitution replaced the Government of India Act 1935 as the governing document of India. Being the supreme law of the country, every law enacted by the government must conform to the constitution.

History

Government of India Act 1919

Main article: Government of India Act 1919

The Government of India Act 1919 (9 & 10 Geo. V c. 101) was an Act of the Parliament of the United Kingdom. It was passed to expand participation of the natives in the government of India. The Act embodied the reforms recommended in the report of the Secretary of State for India, Sir Edwin Montagu, and the Viceroy, Lord Chelmsford. The Act covered ten years, from 1919 to 1929.

Government of India Act 1935

Main article: Government of India Act 1935

The Government of India Act 1935 was the last constitution of the British Raj.

The Cabinet Mission Plan

Main article: 1946 Cabinet Mission to India
File:Cabine Mission1946 Meeting.png
The 1945 British Parliamentary Delegation in India.

In 1946, at the initiative of British Prime Minister Clement Attlee, a cabinet mission to India was formulated to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership and providing India with independence under Dominion status in the Commonwealth of Nations.[6][7]

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. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body and began work on 9 December 1946.

The 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.[8] Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad,Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee Nalini Ranjan Ghosh were some important figures in the Assembly.

File:Constituent assembly in session.jpg
Constituent Assembly in session.

There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi and R. K. Sidhwa. 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 Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly.[8] The members of the Constituent Assembly met for the first time in the year 1946 on December 9.[8]

File:Nehru signing Indian Constitution.jpg
Jawaharlal Nehru signing the Constitution of India.

Drafting

In the August 14, 1947 meeting of the Assembly, a proposal for forming various committees were presented. Such committees include Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On August 29, 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 November 4, 1947.

The Assembly met, in sessions open to public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution.[3] After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document (one each in Hindi and English) on the January 24, 1950. Two days later, the Constitution of India became the law of all the Indian lands.

The Indian Constitution has undergone 94 amendments in less than 60 years of enactments.

Structure of the Union Government

File:Ambedkar0.jpg
Dr. Bhimrao Ramji Ambedkar as chairman of the Constitution Drafting Committee, was the Chief Architect of Indian Constitution.

The basic form of the Union Government envisaged in the Constitution was introduced by Dr. Ambedkar as follows,

A democratic executive must satisfy two conditions:

1. It must be a stable executive, and
2. It must be a responsible executive.

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.[9]

India, thus adopted a Parliamentary form of government, with the President as the nominal head of the Executive and the Prime Minister and the Council of Ministers wielding actual power.

Structure of the Constitution

The Constitution, in its current form, consists of a preamble, twenty-two parts containing four hundred and forty eight articles, twelve schedules, five appendices and over 108 amendments till date

Preamble

Main article: Preamble to the Constitution of India

The Preamble states:

The original Preamble to the Constitution of India.

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST[Note 1] SECULAR[Note 1] DEMOCRATIC REPUBLIC and to secure to all its 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[Note 1] of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The preamble delineates the basic structure of the Constitution of India. It does not contain laws enforceable in a court, but no law can be enacted or amended in a manner that violates the spirit of the preamble. The Supreme Court, in the case of Kesavananda Bharati vs. The State of Kerala, recognized that the Preamble may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there is an ambiguity in the article itself and should not be treated as a rights bestowing part of the Constitution.

The original draft of the constitution, as it came into effect in 1950, had the words SOVEREIGN DEMOCRATIC REPUBLIC in the first line. The words SOCIALIST and SECULAR were inserted by the controversial 42nd amendment. Through the same amendment, the words unity of the nation were changed to unity and integrity of the nation. The amendment was pushed through by Indira Gandhi in 1976, when she had dictatorial powers. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience.[Note 2]

Interpretation

The Preamble reflects the basic structure and the spirit on which the Constitution of India is based. Even though the Preamble does not bestow any rights to individual or entity; it serves as a guiding tool for the interpretation of the Constitution in its entirety.[Note 2]

The beginning words of the Preamble - "We, the people" - signifies that power is ultimately vested in the hands of the people of India. It also tells that the constitution is made by & made for the people of India and not given to them by any outside powers.The Preamble lays down the most important national goals which every citizen and the government must try to achieve — justice, liberty, equality, and fraternity.

Sovereign

The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people...

Socialist

The word socialist was added to the Preamble by the 42nd amendment act of 1976, during the emergency. It implies social equality, and does not connote any economic or political ideology. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality all are equal before law and has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the opportunities available to its citizens equitable, and each citizen is to have every right to improve his or her condition, on his or her own efforts and merits. This is not to emphasise a commitment towards the formation of a welfare state, as evidenced by the Indian government's decision to open public business schools, known formally as the Indian Institutes of Management, around the same time as the enactment of this amendment.

Secular

The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during emergency. It implies separation of state and religion. It means the state will make laws without regards to any religion. India, therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favor or discriminate against any religion. It must treat all religions equally. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and festivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.

Democratic

India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he/she abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President Of India is not hereditary. Every citizen of India is eligible to become the President of the country.

Parts

Parts are the individual chapters in the Constitution, focused in single broad field of laws, containing articles that addresses the issues in question. Template:MultiCol

| class="col-break " |

Template:EndMultiCol

Schedules

Schedules are lists in the Constitution that categorizes and tabulates bureaucratic activity and policy of the Government.

First Schedule(Articles 1 and 4)— States and Union Territories;

The first schedule 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;

The second schedule lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of India.

Third Schedule(Articles 75,99,124,148,164,188 and 219)— Forms of Oaths;

The third schedule lists the oaths of offices for elected officials and judges.

Fourth Schedule(Articles 4 and 80)— Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
Fifth Schedule(Article 244)— Provisions for the administration and control of Scheduled Areas[Note 3] and Scheduled Tribes[Note 4] (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;
Seventh Schedule(Article 246)— The Union (central government), State, and Concurrent (dual) lists of responsibilities;
Eighth Schedule(Articles 344 and 351)— The Official Languages;
Ninth Schedule(Article 31-B)- (land and tenure reforms; the accession of Sikkim with India);The Courts can review this[10]
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 Development);
Twelfth Schedule(Article 243-W)— Municipality (Urban Planning).

Changing the Constitution

Amendments

Main article: List of amendments to the Constitution of India

Article 368 of the Constitution provides that amendments to the Constitution can take place in three ways. These are;

  • By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.
  • By special majority of the Parliament: Amendments can be made in this category by a two-thirds majority of the total number of members present and voting, which should not be less than half of the total membership of the house.
  • By special majority of the Parliament and ratification by at least half of the state legislatures by special majority. After this, it is sent to the President for his assent.
Constitutional amendments per decade.[11]

In theory, an amendment to the Constitution is an extremely difficult affair. However, the Indian Constitution is one of the most frequently amended governing documents in the world; amendments average about two a year. This is a consequence of the Indian Constitution spelling out governmental powers in considerable detail. Amendments are required to deal with matters addressed by ordinary statute in most other democracies.

Since 1967, the Supreme Court has interpreted Article 13 of the Constitution to mean that the document's "basic structure" cannot be altered by any means. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being in violation of the Basic Structure of the Constitution. Some noted authors of Constitutional law, such as HM Seervai, have argued that this is an usurpation of amending power by the judiciary, which was never intended by the framers of the Constitution. However, it can be argued that this doctrine is necessary to protect basic human rights from being legislated away. The 44th Amendment [12] carried out during Morarj Desai's Janata Party rule in 1978 repealed many of the freedom curtailing provisions of the 42nd Amendment.[2]

The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi,[13] Minerva Mills, Bonded Labour, Bhopal Gas tragedy case etc. The method of amendment was borrowed from South African constitution. The constitution laid down three lists of subjects for law-making - namely; Union, State and Concurrent. The Union law is more powerful compared to the State law, but, if the president has given assent to the State law, then it prevails over the Union Law.

There have been a total of 94 Amendments to the constitution of India, as of 2009. One of the major amendments (74th) was to reserve one third of PRI seats for women. It was a landmark amendment legislating affirmative action for women. After 1994, more than a million women are able to enter politics to share power with men.

List of Major Amendments

The List of Major Amendments is listed below in terms of the types, and impact rather than chronological order.

Restrictions on Fundamental Rights

The most important and frequent reason for amendments to the Constitution is the curtailment of Fundamental Rights. This is achieved by boxing laws violating Fundamental Rights into Schedule 9 of the Constitution. The Schedule 9 protects such laws by making them open to limited judicial review.

The typical areas of restriction include laws relating to property rights, affirmative action in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes etc.

However, in a Landmark ruling on the 11th of January 2007, the Supreme Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution. Chief Justice of India Yogesh Kumar Sabharwal noted: "If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated."[14][15]

Territorial Changes

Changes in the territory of India due to incorporation of former French Colony of Pondicherry, Former Portugese Colony of Goa and minor exchange of territories with Pakistan impacted external boundaries of India.

Littoral rights over Exclusive Economic Zone of 200 Miles also necessitated constitutional amendment.

Formation of new states and Union Territories by reorganization of existing states also needed constitutional amendments.

Transitional Provisions

The Constitution provides for Transitional Provisions applicable for limited period until the situation normalizes. These need to be renewed periodically.

Amendments to continue reservation in parliamentary seats for Scheduled Castes and Tribes is extended every ten years.

President's rule was imposed in Punjab for extended period of time in blocks of six months until the Khalistan Movement and insurgency subsided.

Strengthening Democratic Institutions & Procedures

New checks and balances have been incorporated over a period of time to further strengthen democratic set-up of the country.

Amendments of this nature include:

Creation of National Commission for Scheduled Castes

Creation of National Commission for Scheduled Tribes

Creation of mechanisms for Panchayati Raj (Local Self Governance)

Disqualification of Members switching party allegiance

Restrictions on size of Cabinet

Restrictions on imposition of Internal Emergency

Judicial Review

Judicial review is actually adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt under Article 13. Judicial Review actually refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 deals that

1. All the post constitutional laws, after the coming into force of constitution, if differs from it in all or some of its provisions then the provisions of constitution will prevail & the provisions of that post constitutional law will hide till any amendment in constitution relating to the same matter. In such situation the provision of that law will again come into force this is called the Theory of Eclipse.

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 to be void.

NCRWC

In 2001 the National Commission to Review the Working of the Constitution (NCRWC)[16] was setup to look into updating the constitution of India.

Notes

  1. ^ a b c Added through the 42nd Amendment in 1976
  2. ^ a b Kesavananda Bharati v. The State of Kerala AIR 1973 SC 1461
  3. ^ Scheduled Areas are autonomous areas within a state, administered federally, usually populated by a predominant Scheduled Tribe.
  4. ^ Scheduled Tribes are groups of indigenous people, identified in the Constitution, struggling socio-economically.

See also

References

  1. ^ "Introduction to Constitution of India". ==. Ministry of Law and Justice of India. July 29, 2008. Retrieved 2008-10-14.{{cite web}}: CS1 maint: extra punctuation (link)
  2. ^ a b "Forty-Second Amendment to the Constitution". Ministry of Law and Justice of fishys. August 28, 1976. Retrieved 2008-10-14. Cite error: The named reference "42_amend" was defined multiple times with different content (see the help page).
  3. ^ a b Template:''cite book
  4. ^ Pylee, M.V. (1997). India's Constitution. S. Chand & Co. p. 3. ISBN 812190403X.
  5. ^ "Constitution of India". Ministry of Law and Justice of India. July, 2008. Retrieved 2008-12-17. {{cite web}}: Check date values in: |date= (help)
  6. ^ Mansergh, Nicholas (1977). The Transfer of Power 1942-7 . Vol. Vol VII. Her Majesty's Stationery Office, London. ISBN 9780115800825. {{cite book}}: External link in |publisher= (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
  7. ^ "Parliamentary Archives: HL/PO/1/595/11". Parliament and India, 1858-1947. British Parliamentary Archives. Retrieved 2008-10-15.
  8. ^ a b c "The Constituent Assembly Debates (Proceedings):(9th December,1946 to 24th January ,1950)". The Parliament of India Archive. Retrieved 2008-02-22.
  9. ^ Ahir, D.C. (1990). The legacy of Dr Ambedkar (10th ed.). South Asia Books. pp. 75–76. ISBN 978-8170186038.
  10. ^ http://in.rediff.com/news/2007/jan/11indira.htm
  11. ^ Sharma, Dinesh (2002). Indian Constitution at Work. Political Science, Class XI. NCERT. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  12. ^ "Forty-Fourth Amendment to the Constitution". Ministry of Law and Justice of India. May 9, 1978. Retrieved 2008-10-14.
  13. ^ Maneka Gandhi Case (AIR 1978 SC 597)
  14. ^ BBC News - India court opens laws to review (Retrieved on 11th January 2007)
  15. ^ Rediff.com - Laws violating Constitution's framework open to review: SC (Retrieved on 11th January 2007)
  16. ^ http://ncrwc.nic.in/

Bibliography

  • Baruah, Aparajita (2007). Preamble of the Constitution of India : An Insight & Comparison. Eastern Book Co. ISBN 9788176299960. {{cite book}}: Check |isbn= value: checksum (help)
  • Basu, Durga Das (1965). Commentary on the constitution of India : (being a comparative treatise on the universal principles of justice and constitutional government with special reference to the organic instrument of India). Vol. 1–2. S. C. Sarkar & Sons (Private) Ltd.
  • Basu, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0836410971.
  • Basu, Durga Das (1981). Shorter Constitution of India. Prentice-Hall of India. ISBN 9780876922002.
  • Das, Hari Hara (2002). Political System of India. Anmol Publications. ISBN 8174886907.
  • Dash, Shreeram Chandra (1968). The Constitution of India; a Comparative Study. Chaitanya Pub. House.
  • Ghosh, Pratap Kumar (1966). The Constitution of India: How it Has Been Framed. World Press.
  • Jayapalan, N. (1998). Constitutional History of India. Atlantic Publishers & Distributors. ISBN 8171567614.
  • Khanna, Hans Raj (1981). Making of India's Constitution. Eastern Book Co. ISBN 9788170121084.
  • Basu, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0836410971.
  • Pylee, M.V. (1997). India's Constitution. S. Chand & Co. ISBN 812190403X.
  • Pylee, M.V. (2004). Constitutional Government in India. S. Chand & Co. ISBN 8121922038.
  • Sen, Sarbani (2007). The Constitution of India: Popular Sovereignty and Democratic Transformations. Oxford University Press. ISBN 9780195686494.
  • Sharma, Dinesh (2002). Indian Constitution at Work. Political Science, Class XI. NCERT. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • "The Constituent Assembly Debates (Proceedings):(9th December,1946 to 24th January ,1950)". The Parliament of India Archive. Retrieved 2008-02-22.

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