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enforcible

Constitution of India

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 the 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. It declares The Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty; the words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 395 articles , 12 schedules and 83 amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation. Being the supreme law of the country, every law enacted by the government must conform to the constitution.

History

The Cabinet Mission Plan

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.

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 1947.

The Constituent Assembly

The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some important figures in the Assembly. 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 Narasingh Rao 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. The members of the Constituent Assembly met for the first time in the year 1946 on December 9.

Drafting

In the August 14 1947 meeting of the Assembly, a proposal for forming various committees was 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. 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.

Structure of the Union Government

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

A democractic 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.
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.

Articles of the Constitution

The Constitution, in its current form, consists of a preamble, twenty-two parts, twelve schedules, ninety-four amendments, and five appendices.

Preamble

The Preamble states:

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

The preamble is not a part of the Constitution of India as it is not enforceable in a court of law. However, the Supreme Court has, in the case of Kesavananda Bharati vs. The State of Kerala, recognized that the Preamble is a part of the Constitution and 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.

An interesting side note concerns the words "SOCIALIST" and SECULAR in the preamble. The original drafting used the words "SOVEREIGN DEMOCRATIC REPUBLIC". The two additional words "SOCIALIST" and SECULAR were introduced by the controversial 42nd amendment. 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.

Interpretation

The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. In a majority of decisions, the Supreme Court of India has ruled that neither it nor any of its content is legally enforcible.

The first 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, such as socialism, secularism and national integration. Lastly, it lays down the date for the adoption of the Constitution - 26 November 1949.

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 (India). 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, everyone 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.

India has adopted a mixed economy and the government has framed many laws to achieve the aim.

Secular
The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during The Emergency (India). It implies equality of all religions and religious tolerance. 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 favour or discriminate against any religion. It must treat all religions with equal respect. 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 fesitivals 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.

However demand for Uniform civil code is generally perceived as anti-Secular and subsidizing religious schools or pilgrims is generally perceived as promoting secularism in India.

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, creed, 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 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.

Preamble plays pivotal role when there is ambiguity in provisions of any Article or interpretation becomes confusing, spirit of preamble becomes guiding factor. Preamble is stem, root and source of constitution.

Parts

  • Part XII - Finance, Property, Contracts and Suits
  • Part XIII - Trade and Commerce within the territory of India
  • Part XIV - Services Under the Union, the States and Tribunals
  • Part XV - Elections
  • Part XVI - Special Provisions Relating to certain Classes.
  • Part XVII - Languages
  • Part XVIII - Emergency Provisions
  • Part XIX - Miscellaneous
  • Part XX - Amendment of the Constitution
  • Part XXI - Temporary, Transitional and Special Provisions
  • Part XXII Short title, date of commencement, Authoritative text in Hindi and Repeals.

Schedules

Schedules can be added to the constitution by amendment. The twelve schedules in force cover the designations of the

  1. States and Union Territories;
  2. Emoluments for High-Level Officials;
  3. Forms of Oaths;
  4. Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
  5. Provisions for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions);
  6. Provisions for the administration of tribal areas in Assam;
  7. The Union (central government), State, and Concurrent (dual) lists of responsibilities;
  8. The Official Languages;
  9. Article 31B-Validity excluded from Court’s Review (land and tenure reforms; the accession of Sikkim with India);
  10. Anti-Defection provisions for Members of Parliament and Members of the State Legislatures;
  11. Panchayat Raj (Rural Development);
  12. Municipality (Urban Planning).

Amendments

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.

On paper, an amendment to the Constitution is an extremely difficult affair, and normally needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. However, the Constitution is one of the most frequently amended governing documents in the world; amendments average about two a year. The document outlines governmental powers in considerable detail, meaning that amendments are required to deal with matters addressed by ordinary statute in most other democracies.

In 1974, the Supreme Court of India in the landmark case of Kesavananda Bharati vs. The State of Kerala enunciated the Basic Structure Doctrine, which expanded the scope of judicial review to include the power to review Constitutional Amendments passed by the Legislature. 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 has repealed many of the provisions of the 42nd Amendment during Morarj Desai's Janata Party rule in 1977.

Since then, it has been established that the basic structure of the constitution cannot be amended by any means. The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi, 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 2006. It has now crossed the 100th mark. 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.

See also

Notes

References

*

  • Social Science – Part II: Indian National Council of Educational Research and Training textbook ISBN 81-7450-351-X

External links

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