Introduction to the Constitution of India, 1950

By | May 9, 2019
Constitution

The Constitution of India which was brought into force on 26 January 1950 announcing the birth of a new republic to the entire world. It is the Supreme Lex, it reflects upon the struggle and aspirations of the people of a country which was subjected to the oppressive rule of a colonial power for more than two centuries. The Constitution of India is also known as the father of all laws i.e., grundnorm as all the other existing laws get the effect and drive their force from the constitution itself.

It took almost three years (two years, eleven months and eighteen days to be precise) to complete the historic task of drafting the Constitution for Independent India. The Constitution of India was adopted on 26 November 1949 and the Hon’ble members appended their signatures on it on 24 January 1950.

A Constitution means a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the Government of a State and declares the principles governing the operation of those organs.[1] Constitutional law in the generally accepted terms means the rule which regulates the structure of the principal organs of the Government and their relationship to one another and determines their principal functions. The rules, consist both of legal rules in the strict sense and of usages, commonly called conventions, which without being enacted are accepted as binding by all who are concerned in the Government.[2]

The Constitution is the very basis on which the laws of the country gain sanctity. The Constitution is the living document, whose interpretation may change as the time and circumstances change.[3] It is an elaborate document and contains 395 articles (divided into 22 parts) and 12 Schedules. A Constitution may be written or unwritten. A written Constitution is one, which is written down in the form of a Constitutional document whereas the British Constitution is characterized as an unwritten Constitution because it is not embodied in one comprehensive constitutional document. The constitution may also be classified into Unitary and Federal. With regard to India, the Constitution is a Quasi Federal Constitution.

SOURCES OF THE CONSTITUTION

The Constitution of India incorporates the best features of each of the Constitutions of different jurisdictions across the world, by suitably modifying them in such a way so as to avoid any uncertainty or shortcomings that existed in the said Constitutions. It can also be labelled as “borrowed” Constitution. In the Constituent Assembly, Dr B. R. Ambedkar stated that ‘there is nothing to be ashamed of in borrowing what suits us best’.

  • Our Constitution embodies the Independence of Judiciary, Fundamental Rights and Judicial Review, based upon the American Constitution.
  • The Parliamentary form of Government, Cabinet system and the Rule of law are adopted from the United Kingdom.
  • The Provisions relating to the emergency from the German Reich and the Government of India Act, 1935 along with the federal scheme.
  • The Federal system with a strong Centre was acquired from Canada.
  • The Directive Principles of State Policy were other remarkable features imbibed from the Constitution of Eire.

SALIENT FEATURES OF THE CONSTITUTION OF INDIA

  1. WRITTEN CONSTITUTION: Indian Constitution is a written Constitution. It took 2 years, 11 months and 18 days for drafting it. t is an elaborate document and contains 395 articles (divided into 22 parts) and 12 Schedules. A Constitution may be written or unwritten. A written Constitution is one, which is written down in the form of a Constitutional document whereas the British Constitution is characterized as an unwritten Constitution because it is not embodied in one comprehensive constitutional document.
  2. LONGEST CONSTITUTION: The Constitution is the longest Constitution of the world. This is due to the inclusion of elaborate provisions regarding center and state relations, the inclusion of various concepts like fundamental Rights, Directive principles of state policy, parliamentary system, emergency provisions and provisions related to the safeguarding of interests of various communities, castes and groups like Schedule Castes, Schedule Tribes, Backward Classes etc.
  3. PARTLY RIGID AND PARTLY FLEXIBLE: the Constitution of India is partly rigid and partly flexible. The procedure laid down in the Indian Constitution strikes a golden mean by avoiding extreme rigidity and extreme 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 the USA, Switzerland and Australia are considered rigid constitutions. While the British Constitution is considered flexible because the amendment procedure is easy and simple. There are three approaches via which the amendment in the Constitution is made: a) Through simple majority: amendment can be done by the two houses of Parliament simple majority of the members present and voting of before sending it for the President’s assent. b) Through special majority: 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 the members present and voting in each house of Parliament and send to the President for his assent which cannot be denied. c) Through ratification: besides the special majority mentioned in the second category, the same has to be approved also by at least 50% of the State legislatures, this process is called amendment through ratification.
  4. SOCIALIST STATE: prior to the 42nd Amendment of Constitution, the word ‘Socialist’ was not mentioned in the Preamble. It was only after the 42nd amendment in 1976, the expression ‘socialist’ was added to the Preamble. The word Socialism is used in democratic as well as socialistic Constitutions. It has no definite meaning. In general, however, it means some form of ownership of the means of production and distribution by the State. The degree of State control will determine whether it is a democratic State or socialistic State. India has however chosen its own brand of socialism i.e., mixed economy. [4] The Supreme Court has in a number of its decision referred to the concept of Socialism and has used this concept along with the Directive Principles of State Policy to assess and evaluate economic legislation. According to the Supreme Court, the principal aim of socialism is to eliminate inequality of income and standards of life and to provide a decent standard of life to the working people[5] the Court has laid emphasis on social justice so as to attain a substantial degree of social economic and political equality. Social justice and equality are complementary to each other.[6] By reading the word ‘socialist’ in the Preamble with the Fundamental Rights contained in Arts. 14 and 16, the Supreme Court has deduced the Fundamental Right to equal pay for equal work and compassionate appointment.[7]
  5. SECULAR STATE: India is a country with many religions but the Constitution stands for a secular state of India. The word ‘secular’ was not originally present in the Preamble. It was added thereto by the 42nd Constitutional Amendment in 1976. The term ‘Secularism’ means a State which has no religion of its own as recognised religion of the State. Secularism in India does not mean an irreligious or an anti-religious state. It only means: (i) there is no official religion for India and the Parliament has no right of imposing a particular religion as an official religion, (ii) It also means that all citizens, irrespective of their religious beliefs, are to be considered and treated as equal and (iii) no discrimination is to be shown by the State against any person on account of his/her religion either for participation in political affairs or entry into government service or admission into educational institutions. The Constitution ensures equal freedom for all the religions and provides that the religion of the citizen has nothing to do in socio-economic matters. “Though the Indian Constitution is secular and does not interfere with religious freedom, it does not allow religion to impinge adversely on the secular rights of the citizens or the power of the State to regulate socio-economic relations.”[8]
  6. WELFARE STATE: India is a welfare state. The Indian Constitution incorporates the principles of social welfare and social justice so as to achieve the ultimate object of the state i.e., to render social services to the people and promote their general welfare. The Preamble also clearly depicts the existence of such a welfare state, which is for the common good of the people.
  7. SOVEREIGN, DEMOCRATIC, REPUBLIC: Sovereign, mean supreme and independent. India is internally and externally a Sovereign State. Thus, the citizens enjoy the sovereign power to elect the representatives and the State is also free from any external control or foreign power. Democracy is generally known as the government of the people, by the people and for the people. It signifies that the real power emanates from the people. In India, the election is carried out by the process of the universal adult franchise so as to elect their representatives for the Parliament and State Legislature. The Preamble declares India as a Republic. It means that the head of the State is not a hereditary ruler rather is indirectly elected for a fixed tenure. The President of India is elected by an electoral college for a term of five years.
  8. FEDERAL STATE WITH UNITARY BIAS: India’s Constitution is a quasi-federal in nature. India has assumed a Federal structure. It establishes a dual polity, a two-tier governmental system i.e., one Central Government and the State Government for each State. Further, like all the federations, India also has a written Constitution. Also, the Supreme Court acts like a guardian of the Constitution, which is independent of the other organs of the Country. The Indian federal Scheme while incorporating the advantages of a federal structure, yet seeks to mitigate some of its usual weaknesses of rigidity and legalism.                                                                                                                                        There are certain characteristics, which exhibit a unitary bias in the Indian Constitution. Within the Constitutional framework, the Central Government has a more dominant role to play than the State. The Concurrent list which contains the subject of the common interest of both the Centre and State, the word of the Central Government is final. Further, the residuary subjects have also been given to the Centre. Even during the emergency, the Union becomes more powerful. Thus, this is the most remarkable and unique feature of the Constitution of India as it has conferred a federal system with the strength of Unitary Government.[9]                                                                                                                                              Instead of the word “federation” the word “Union” was deliberately selected by the Drafting Committees of the Constituent Assembly to indicate two things viz. (a) that the Indian Union is not the result of an agreement by the States and (b) the component states; have no freedom to secede from it. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.[10]
  9. INDEPENDENCE OF JUDICIARY: A notable feature of the Constitution is that it accords a dignified and crucial position to the judiciary. A well-ordered and well- regulated judicial machinery has been introduced in the Country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very broad. It is the general court of appeal from the High Courts, the ultimate arbiter in all the Constitutional matters and enjoys an advisory jurisdiction. It can hear appeals from any court or tribunal in the country and can issue writs for enforcing the Fundamental Rights. There is thus a good deal of truth in the assertion that the Supreme Court of India has wider powers than the highest court in any other federation.  Judiciary is an independent organ from the legislature and the executive as it has been assigned with a crucial role. It acts as an adjudicator between disputes of not only two persons but also between a person and a state. Further, it is entitled to scrutinize the governmental orders and interpret the Constitution. There are various provisions included in the Constitution to ensure the impartiality and independence of the judiciary. Judges once appointed cannot be removed at the will of the executive, they hold their office till the superannuation age. Also, for the removal of the judges, a special procedure is laid down in the Constitution.
  10. SINGLE CITIZENSHIP: Another important feature of our Constitution is single citizenship. All the Indians irrespective of their domicile enjoys single citizenship of India so as to foster strong bonds of social and political unity among the people of India who are divided on various grounds.
  11. FUNDAMENTAL RIGHTS, FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY: Fundamental Rights are the basic rights, which is entitled to every citizen of India. They have been the most justiciable and inviolable rights is included as the part of basic structure doctrine by the Supreme Court. But it is not absolute, there are certain reasonable restrictions imposed on the fundamental rights to curtail the unlimited powers to the citizens. The fundamental duties were added to the Constitution after the 42nd Amendment in 1976. Article 51 A was inserted as Part IVA of the Constitution. The citizens along with enjoying the Fundamental Rights have to perform certain obligations i.e., duties. However, they are not judicially enforceable. Along with fundamental rights and duties, there are certain principles which are contained in Part IV of the Constitution and are in nature of directives to Government to provide social and economic justice to the citizens.[11]
  12. EMERGENCY PROVISIONS: Centre has the power to take complete control of the State in the following 3 situations:  i) An act of foreign aggression or internal armed rebellion (Art 352) ii) Failure of constitutional machinery in a state (art 356) iii) Financial Emergency (art 360) In all the above cases, an elected state government can lose control of the state and a central rule can be established. In the first case, it is very clear that such a provision is not only justified but necessary to protect the existence of a state. A state cannot be left alone to defend itself from outside aggression. In the third case also, it is justified because a financial emergency could cause severe stress among the population, plunge the country into chaos and jeopardize the existence of the whole country. Such provisions exist even in the USA. The second provision is the most controversial. It gives the center the power to take over the control of a state. However, such an action can be taken only upon the advice of the governor and such an advice is not beyond the purview of the Supreme Court. In a recent case, the Supreme Court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.
  13. UNIVERSAL ADULT FRANCHISE: Indian democracy functions on the basis of ‘one person one vote’. Every citizen 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 the method of universal adult franchise.
  14. PARLIAMENTARY DEMOCRACY: India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy, there is a close relationship between the legislature and the executive. The Cabinet is selected from among the members of the legislature. The cabinet is responsible for the latter. In fact, the Cabinet holds office so long as it enjoys the confidence of the legislature. In this form 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 Prime Minister and the Council of Ministers.

By- Monika Sharma,

Amity Law School

[1] Wade and Philips- Constitutional Law, p.1 (4th Ed.)

[2] J.N. Pandey, Constitutional Law, p.1 (51st Ed.)

[3] Constituent Assembly Debates, Vol. XI, delivered on 26th November 1949

[4] Constituent Assembly Debates, Vol. VIII, pp. 494-95

[5] D.S.Nakara v. Union of India, AIR 1983 SC 130: (1983) 1 SCC 305

[6] Air India Statutory Corporation v. United Labour union, AIR 1997 SC 645

[7] Balbir Kaur v. Steel Authority of India, AIR 2000 SC 1596

[8] I.L.I. SECULARISM: ITS IMPLICATIONS FOR LAW AND LIFE IN INDIA, 4-5(1996); Also, V.P. LUTHRA, CONCEPT OF THE SECULAR STATE IN INDIA (1964)

[9] Lauv Kumar and Radhika Gupta, Constitutional law- I, ed. 1, pp.6-7

[10] Hinsa Virodhak Sangh v. Mirzapur Moti Juresh Jamat, (2008) 5 SCC 33

[11] Lauv Kumar and Radhika Gupta, Constitutional law- I, ed. 1, pp.8-9


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