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MODULE I: INTRODUCTION TO CONSTITUTION OF INDIA
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Introduction

The Constitution of India is the supreme law of India. It lays down the framework
defining fundamental political principles, establishes the structure, procedures, powers,
and duties of government institutions, and sets out fundamental rights, directive
principles, and the duties of citizens. It is the longest written constitution of any
sovereign country in the world, containing 448 articles in 25 parts, 12 schedules and 97
amendments. Besides the English version, there is an official Hindi translation.

The Constitution of a country sets out the fundamental canons of governance to be

followed in that country and also delineates the division of power, privileges and
responsibilities between different organs of government. The Indian Constitution,
prepared after hectic deliberations by the Constituent Assembly, is possibly the
lengthiest document of its kind in the world and has far more detailed provisions than
any other comparable document. The tradition of having a written constitution started
with the USA, which had adopted the first-ever written constitution in the world, after
the end of the Civil War there in 1776. Much water has flown down the Ganges since.
Still, England does not have a written constitution till date. The British judiciary and
other parts of the polity work on the basis of conventions that have been evolved after
centuries of collective experience.

The Indian Constitution is the outcome of the debate, deliberations and research of a
sovereign Constituent Assembly. Various Subject Committees like the Committee On
Fundamental Rights and Union Constitution Committee had submitted their respective
proposals and after a general discussion on all the proposals, a Drafting Committee
chaired by Dr. BR Ambedkar was appointed. The Drafting Committee had the full
authority to add, modify or delete any of the proposals submitted by the committees.
The finalized draft of he Indian Constitution got the signature of the President of the
Constituent Assembly, Dr. Rajender Prasad on Nov 26, 1949, which is referred to as the
Date of Passing. Since the Constituent Assembly, which finalized the Constitution was
duly elected by means of indirect election by the people of India, The Constitution of
India derives its authority from the people of India. The Constitution was thus enacted
by the Constituent Assembly on 26 November 1949, and came into effect on 26 January
1950. The date 26 January was chosen to commemorate the Purna Swaraj declaration of

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independence of 1930. With its adoption, the Union of India officially became the
modern and contemporary Republic of India and it replaced the Government of India
Act 1935 as the country's fundamental governing document.

The Indian Constitution has borrowed heavily from other constitutions of the world and
can be called a “beautiful patchwork”. India could not have afforded to experiment with
something entirely new at a crucial juncture in its history. So the founding fathers of the
Indian Constitution preferred to rely on the time-tested value of experience elsewhere
and adopted those provisions which had proved to be successful and workable in other
countries. Some of the prominent features, which have been borrowed, are as under.

Feature Source / Inspiration

1. Fundamental Rights USA

2. The Parliamentary System of Government UK

3. Directive Principles of State Policy Ireland (Eire)

4. Emergency Provisions Germany (Third

5. Amendment Procedure South Africa

6. Permeable To The Constitution of India France

7. Federal Model of Governance Canada

Salient Features of Constitution:

a. It is the longest written constitution in the world.

b. It proclaims India a Sovereign Democratic Republic.
c. Fundamental Rights are guaranteed to all citizens of India.
d. Directive Principles of State Policy are incorporated.
e. It established the parliamentary system of government, i.e., the President of the
Union is the constitutional head, the Council of Ministers or the Union Cabinet
is the real executive and is responsible to the Lok Sabha.
f. It is federal in form (in normal times) but unitary in spirit (in emergencies).

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g. It is neither too rigid (as some provisions can be amended by a simple majority)
nor flexible (as some provisions require special majority for amendment).
h. It declares India a secular state.
i. It guarantees single citizenship to all citizens.
j. It introduced adult franchise, i.e., every adult above 18 years has the right to
vote and the system of joint electorates.
k. It established an independent judiciary; the Supreme Court acts as a guardian of
the Constitution in place of the Privy Council.
Structure:

The Constitution, in its current form, consists of a preamble, 22 parts containing 395
articles, 8 schedules, 2 appendices and 122 amendments to date.

The Preamble: The draft of the Preamble was prepared by Jawaharlal Nehru and is
based on the American model. The 42nd Amendment added the words ``Secular and
Socialist'' and now the preamble reads as follows.

“We the People of India, having solemnly resolved to constitute India into a Sovereign
Socialist Secular 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 of the
nation;

In our Constituent Assembly, November 26, 1949, do hereby adopt, enact and give to
ourselves this constitution”.

The Preamble is, technically, not a part of the Constitution, but it contains the basic
philosophy of the whole Constitution and the ideals of the constitution-makers. It can be
used by the Courts to help them in interpretation of the Constitution in certain matters
where the Constitution itself is silent.

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Parts: The individual Articles of the Constitution are grouped together into the
following Parts:

§ Preamble
o Part I – Union and its Territory
o Part II– Citizenship
o Part III – Fundamental Rights
o Part IV] – Directive Principles of State Policy
o Part IVA – Fundamental Duties
o Part V – The Union
o Part VI – The States
o Part VII – States in the B part of the First schedule (Repealed)
o Part VIII– The Union Territories
o Part IX – The Panchayats
o Part IXA – The Municipalities
o Part IXB – The Cooperative Societies
o Part X – The Scheduled and Tribal Areas
o Part XI – Relations between the Union and the States
o Part XII – Finance, Property, Contracts and Suits
o Part XIII – Trade and Commerce within the territory of India
o Part XIV – Services Under the Union, the States
o Part XIVA – Tribunals
o Part XV – Elections
o Part XVI – Special Provisions Relating to certain Classes
o Part XVII – Languages
o Part XVIII – Emergency Provisions
o Part XIX – Miscellaneous
o Part XX – Amendment of the Constitution
o Part XXI – Temporary, Transitional and Special Provisions
o Part XXII – Short title, date of commencement, Authoritative text in Hindi and
Repeals

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The Federal System & Territory Of The Union

The Federal System:

Article 1 of the Indian Constitution describes India as a “Union of States”. The term
“Union” implies that

a. The Indian federation is not the result of a voluntary agreement by the states
themselves. As is well known, after India’s independence, more than 550 states
were integrated into the Union of India by the then Home Minister, Sardar
Vallabh Bhai Patel, leading to his being branded as the “Iron Man of India”. So
their inclusion in India is purely involuntary.
b. The components of the Indian Union have no freedom to secede from it. (unlike
the erstwhile USSR or the present-day USA where such freedom was/is vested
in the states).
The Indian federal system is unique in the sense that inspite of its being a federal set-up,
it still does not have many features characteristic of a typical federal set-up (like the
USA). In general, the Indianset-up has been mostly described as quasi-federal or semi-
federal due to the fact that the balance of power tilts heavily in favour of the Centre i.e.
the states enjoy comparatively lesser powers in most spheres as compared with the
Centre. Some of the noteworthy points of difference, which illustrate the predominant
role of the Centre Vs. States are as follows.

a. The States in India do not have any separate constitution of their own (except
Jammu and Kashmir which has a separate constitution as per the special
agreement signed at the time of its accession to India). They derive their
authority from the same Constitution of India.
b. The States are dependent on the Centre for grants-in-aid and plan assistance to
meet their development expenditures. The taxes collected by the States are not
wholly appropriated by them, but they are distributed among the States as per
the Finance Commission recommendations.
The States do not have any say in the matter of Constitutional amendments (except for
a few instances where their consultation may be obtained by the President or in certain
special matters where at least half of the States must ratify the legislation after being
passed by the Parliament). The Centre can alter, modify or change the boundaries, area

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or name of any state. There is no separate citizenship of a state (Single citizenship
prevails in India whichever state a person is living in India) unlike the US where every
state has a separate citizenship apart from the Union Citizenship (Double Citizenship).

The President may assume all executive and legislative powers of any state if he is
satisfied that the government of a state cannot be carried out according constitutional
provisions (Art. 356)

Territory of the Union

The territory of India comprises the entire geographical territory over which the
sovereignty of India, for the time being, prevails. On the other hand, the Union of India
includes only those component units, i.e., the states, which share power with the Centre.
The UTs are centrally administered areas governed by the President acting through an
Administrator appointed by him. As on date, the territory of India consists of 28 states,
6 UTs and 1 National Capital Territory of Delhi (NCT- Delhi is neither a full state nor a
UT). India is a federal constitutional republic governed under a parliamentary system
consisting of 28 states and 7 union territories. All states, as well as the union territories
of Pondicherry and the National Capital Territory of Delhi, have elected legislatures
and governments, both patterned on the Westminster model. The remaining five union
territories are directly ruled by the centre through appointed administrators. In 1956,
under the States Reorganisation Act, states were reorganised on a linguistic basis. Since
then, their structure has remained largely unchanged. Each state or union territory is
further divided into administrative districts.

The state and union territory capitals are sorted according to the administrative,
legislative and judicial capitals. The administrative capital is where the executive
government offices are located, the legislative capital is where the state assembly
convenes, and the judicial capital is the location of the state or territorial High Courts of
India.

The States Reorganization Act, 1956 reorganized the boundaries of different Indian
States in order to meet local and linguistic demands. Interestingly, the Union Parliament
can by passing a resolution in both Houses of Parliament to

i. form a new state

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ii. increase the area of any state
iii. diminish the area of any state
iv. alter the boundaries of any state
v. or alter the name of any state (Art. 4)

One of repeated criticism of the Indian constitution is that it is very little original and
mostly borrowed from other constitutions. Even Dr. Ambedkar admitted in the
Constituent Assembly that many elements were borrowed from foreign constitutions but
they were not “slavish imitations” but adoption of time-tested constitutional principles
like the “Rule of Law” or “Equality before Law” to serve the interests of the people.
The first feature of Indian constitution is the most voluminous constitution ever created
in human history. In its original shape the constitution had 395 articles and several
schedules. Our constitution have been amended from time to time. There are 122 odd
amendments (as on Sept.’ 2016) since 1950 only add to the bulk of the constitution.
When contrasted with the six effective articles and 27 ratified amendments of the U. S.
constitution, one appreciates how bulky our constitution is.

Again drafting of the constitution has not been in a very easy and lucid language. The
Constituent Assembly was pre-dominated by lawyers. The constitution is drafted in
legalistic terms making it a ‘lawyer’s paradise’. This stands in sharp contrast with the U.
S. constitution which is acclaimed as specimen of lucid constitutional drafting.
However, the fact that our constitution has endured for over sixty years and during
periods of acute crisis, shows its inherent strength and resilience. When constitutions of
neighboring countries like Pakistan, Burma or Bangladesh were crumbling like houses
of cards, our constitution stood steady like a rock. The great bulk of the Indian
constitution is due to several factors.

The framers of our constitution have borrowed some of the great constitutional
principles from the foreign constitutions. The loopholes of these foreign constitutions
were properly avoided to ensure healthy political life to the citizens. Thus, the
Parliamentary form of government were adopted from the British, the fundamental
rights from the U. S. constitution, the Directive principles from the Irish constitution
and the idea of emergency from the German Constitution and the Government of India
Act of 1935.

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Unlike other constitutions, the Indian constitution provides not only the basic law. It
also provides very detailed and minute administrative provisions. This was to prevent
subversion of the constitution through legislative process. The vastness of the country
and its population size and diversity, compelled the framers of the constitution to make
provisions for the protection and promotion of the interests of different regions and
groups in the country. Thus, the constitution has elaborate provisions for the minorities,
scheduled castes and tribes, etc.

Finally, the Indian constitution is an omnibus constitution. It is at the same time a

constitution for the whole nation as well as for the component states of the Union.

The Indian constitution is a federal constitution. The term federal has not been used in
the constitution. Instead India has been described as a “Union of States.” However all
the characteristics of a federation viz. two sets of government—national government
and a number of governments of the component units, and the division of powers
between the national government and the governments of the units. The constitution is
the supreme and both the centre and the state government derive its power from it.
There is a federal judiciary to act as the guardian of the constitution and to settle
disputes between the centre and the units—are all present in the Indian constitution.
However, the nature of the Indian federation is different from the nature of older
federations like the U.S.A.

The constitution provides for parliamentary form of government both at the centre and
in the states. This is borrowed from the Westminster model. The adoption of this model
is partly due to India’s long familiarity with it during the British rule. However, in the
face of existence of multiplicity of parties in India, some political scientists question the
wisdom of this step.

Though, India has a written constitution which is a federal necessity, India’s

constitution is far less rigid than a normal federal constitution. Truly, it is more flexible
than rigid. Because of this flexibility, it has been possible to amend the constitution 99
times in less than sixty-five years. By contrast the U. S. constitution could be amended
only 27 times in about 200 years.

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Like any modern written constitution Indian Constitution has a preamble before it. The
preamble is very lucid exposition of the philosophy of the constitution. The original
preamble declared India to be a Sovereign Democratic Republic. The 42nd amendment
makes India “a Sovereign, Secular Socialist Democratic Republic”.

Justice, liberty, equality and fraternity are set as the ideas to be achieved by India as a
nation. The preamble to the Indian constitution is praised by all critics for its lucid
exposition of lofty political ideals.

The constitution guarantees fundamental rights of the citizens. Rights to equality,

freedom, religion and constitutional remedies are the enumerated fundamental rights of
Indian citizens. Originally right to property was also a fundamental right. Subsequently
right to property was removed from the list of fundamental rights. Hence right to
property is now a legal rather than constitutional right. The status property has been
altered to give substance to India’s socialist aspirations.

Upholding secularism is another lofty aspect of our constitution. India is a secular

nation and does not have any state religion. In a country inhabited by people of all
faiths, it is essential that the state remains neutral between religions. Acceptance of
secularism as a political ideal was an act of wisdom and boldness particularly after the
traumatic experience of India’s partition on religious lines.

The Fundamental Rights are considered as one of the integral part of Indian
Constitution. The Fundamental Rights are defined as the basic human freedoms, which
every individual has a right to enjoy for a proper and harmonious development of
personality. Although many rights are considered as human rights a specific legal test is
used by courts to determine the limitations, which can be imposed on them. These rights
find their origin in many places such as England Bill of Rights, United States Bill of
Rights and France Declaration of Bill of Rights of Man.

The framing of Indian Constitution can be best known by browsing transcripts of

Constituent Assembly debate. The Constituent Assembly was composed of members
elected from various British Indian Provinces and nominated by the princely states.

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The framers if Indian Constitution had three things in mind – ensuring unity, democracy
and creating social revolution. The Constitution of India took nearly three years in its
formation and finally came into force on 26th January 1950.

The biggest challenge before the Constituent Assembly was to evolve a document that
would address the diversity amongst the population, create accountable governance and
an independent republic. The development of fundamental human rights in India was
due to exposure of students to the ideas of democracy, working of parliamentary
democracy and British political parties and was also inspired by the:-

• England Bill of Rights

• Us Bill of Rights

• France Declaration of the Rights of Man and

• Development of Irish Constitution.

The inclusion of a set of Fundamental Rights had its genesis in the forces that operated
in the national struggle during British rule. Ms. Annie Besant described the Constitution
of India Bill as ‘home rule bill’ in 1985. This bill envisaged for India a constitution
guaranteeing to every of her citizen freedom of expression, inviolability of ones house,
right to property, quality before law and in regard to public offences right to present
claims, petition and complains and rights to personal liberty. The Indian National
Congress at its Bombay session in August 1918 demanded the inclusion of declaration
of rights of the people of India as the British citizens in the new Government of India
Act. The Declaration Included amongst other things guarantees in regard to equality
before the law, protection in respect to liberty, life and property, freedom of speech and
press and right of association. In its December 1918 session the Indian National
Congress passed another resolution demanding for immediate repeal of all the laws,
regulations and ordinances restricting all the laws, regulations and ordinances restricting
the free discussion of political questions and conferring to the executive the power to
arrest, detain or arrest any British subject in India outside the process o f ordinary civil
or criminal law. The Common Wealth of India Bill finalized by the National
Convention of 1925 embodied a specific declaration of rights. The resolution passed by
Indian National Congress in 1927 at its Madras Session lay down that the declaration of

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Fundamental Rights should be the basis of future Constitution of India. The problems
faced by the minorities in India further strengthened the argument.

The Nehru Committee observed that the first care should be to have Fundamental
Rights guaranteed in such a manner which will not permit its withdrawal under any
circumstances. The Indian Statutory Commission refused to enumerate and guarantee
the demand of Fundamental Rights in the Constitution Act. Their refusal was based on
Simons Commission argument that abstract definition of such rights is useless unless
there existed the will and means to make them effective. The Indian National Congress
at its Karachi session in 1931 again demanded for a written guarantee for Fundamental
Rights in any future Constitutional setup in India. This demand was also emphasized at
the round table conference at London. A memorandum circulated by the Mahatma
Gandhi at the second session of round table conference demanded that the new
constitution should include a guarantee to the communities concerned to the protection
of their cultures, language, scripts, profession, education and practice of religion and
religious endowments and protect personal laws and protection of other rights of
minority communities. The Joint Select Committee of the British Parliament did not
accept the demand for the constitutional guarantee of Fundamental Rights to British
subjects in India. The Committee observed that:-

….there are also strong practical arguments against the proposal which may be put in
the form of a dilemma: for either the declaration of rights is of so abstract a nature that
it has no legal effect of any kind or its legal effect will be to impose an embarrassing
restrictions on the powers of the legislatures and to create a grave risk that a large
number of laws will be declared invalid or inconsistent with one or other of the rights so
declared….There is this further objection that the state has made it abundantly clear that
no declaration of fundamental rights is to apply to state territories and it would be
anomalous if such a declaration had legal force in part only of the area of the federation.

The committee conceded that there were some legal principles which could
approximately be incorporated in the new constitution. Accordingly sections 295, 297-
300 of Government of India Act 1935 conferred certain rights and forms of protection
on British subjects in India.

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By the Objective Resolution adopted on January 22, 1947 the constituent assembly
solemnly pledged itself to draw up for future governance a constitution wherein “shall
be guaranteed and secure to all the people of India justice, social, economical and
political, equality of status, of opportunity and before the law : freedom of thought,
expression, belief, faith, worship, vocation, association and action, subject to law and
public morality” and wherein adequate safeguards would be provided for minorities,
backward and tribal areas and depressed and other classes. Two days after the adoption
of the resolution the assembly elected Advisory Committee for reporting on minorities
fundamental rights and on the tribal and excluded areas. The advisory committee in turn
constituted on Feb 27, 1947 five sub-committees which would deal with fundamental
rights.

The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had
before it proposal of B.N.Rau to divide Fundamental Rights into two classes i.e.
justifiable and non justifiable.

An important question that faced the sub committee was that of distributing such rights
between the Provincial, the Group and the Union Constitution. In the early stages of its
deliberation the sub committee proceeded on the assumption of this distribution and
adopted certain rights as having reference only to union and certain rights as having
reference both to the union and to the constitutional units. However later it was felt that
if Fundamental Rights differed from group to group and from unit to unit or were for
that reason not uniformly enforceable, it was felt the Fundamental Rights of citizens of
the union had no value. This reorganization leads to the realization that certain
Fundamental Rights must be guaranteed to every resident. The sub committee
recommended that all the rights incorporated must be binding upon all the authorities
whether of the union or of the units. This was thought to be achieved by providing
definition in the first clause. The expression the state included the legislature, the
government of the union and the units of all local or other authorities within the
territories of the union that the law of union included any law made by the union
legislature and any existing Indian law as in force within the union or any part thereof.

The sub committee fully discussed various drafts submitted by its members and others
before formulating the list of Fundamental Rights. Dr. Ambedkar pointed out that the

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rights incorporated in the draft were borrowed from constitution of various countries
where the conditions are more or less analogous to those existing in India.

The draft submitted on April 3, 1947 was circulated to its members with the explanatory
notes on various clauses. The clauses contained in the draft report were thereafter
discussed in the sub committee in the light of the comments offered by the members and
the final report was submitted to the chairman of the advisory committee on April 16,
1947. Three days later the sub committee on the minority examined the draft clauses
prepared by the fundamental rights sub committee and reported on the subject of such
rights from the point of view of the minorities. The advisory committee deliberated on
the recommendations made by the two sub committee and accepted the
recommendations for

(1) Classification of rights into justifiable or non justifiable.

(2) Certain rights being guaranteed to all persons and certain other only to citizens

(3) All such rights being made uniformly applicable to the union and the units.

The committee also accepted the drafts of clauses 1 and 2 – the former providing the
definition of the state, the unit and the law of the union and latter for the laws or usages
inconsistent with the fundamental rights being void in the form recommended by the
sub committee also the word constitution was replaced by the word this part of the
constitution. The advisory committee incorporated these recommendations in its interim
report to the constituent assembly submitted on April 23, 1947. The interim report dealt
only with justifiable rights i.e fundamental rights. Later on August 25, 1947 the
advisory committee submitted a supplementary report mainly dealing with non-
justifiable rights i.e. the Directive Principles of State Policy or the Fundamental
Principles of Governance. A notable development took place on 10 December 1948
when the United Nations General Assembly adopted the Universal Declaration of
Human Rights and called upon all member states to adopt these rights in their respective
constitutions.

The various stages through which the various clauses on fundamental rights passed
were similar to other parts of the constitution. Firstly- the constitutional adviser
prepared a draft embodying a decision of the constituent assembly. This draft was

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considered exhaustively and in detail by the drafting committee, which prepared a
revised draft and published it in February 1948. The revised draft was then widely
circulated. The comments and suggestions received from all quarters were again
considered by the drafting committee and in light of these the committee proposed
certain amendments. Discussions in constituent assembly of the draft provisions took
place in November and December 1948 and August, September and October 1949.
During these meetings the committee considered the various suggestions for
amendment made on behalf of Drafting Committee as well as those proposed by the
individual members of the assembly. The provisions as passed by the assembly were
again scrutinized by the Drafting Committee and incorporated by the drafting changes
wherever necessary in the revised draft constitution. The revised draft was again placed
before the assembly at its final session held in November 1949.

The fundamental rights were included in the First Draft Constitution (February 1948),
the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26
November 1949) prepared by the Drafting Committee.

The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve
human dignity. The writers of the constitution regarded democracy of no avail if civil
liberties, like freedom of speech and religion were not recognized and protected by the
State. Some commentators consider the Indian Constitution to be an extremely lengthy
document that goes into excessive details about the structure and working of the
government machinery. Most of these rights are enforceable against the State by way of
their language, while some others are directed both against the State and private actors.
The most important feature however is that the fundamental rights gave the higher
judiciary a clear set of criteria to regulate relations between citizens and the government
(i.e. ‘vertical application of rights’) as well as among citizens themselves (i.e.
‘horizontal application of rights’). Furthermore, Indian Courts have interpreted these
rights not only in a ‘negative’ dimension (i.e. in terms of protection against violations)
but also in a ‘positive’ dimension (i.e. in terms of entitlements to benefits).

The right to freedom and personal liberty has a number of limiting clauses, and thus has
been criticized for failing to check the sanctioning of powers often deemed "excessive"

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The phrases "security of State", "public order" and "morality" are of wide implication.
The meaning of phrases like "reasonable restrictions" and "the interest of public order"
have not been explicitly stated in the constitution, and this ambiguity leads to
unnecessary litigation. Employment of child labour in hazardous job environments has
been reduced, but their employment even in non-hazardous jobs, including their
prevalent employment as domestic help violates the spirit and ideals of the constitution.

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