The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article is an attempt to comprehensively explore all the elements of constitutional design related to the Indian Constitution.

This article has been published by Shoronya Banerjee.

Introduction

The history of constitutional design in India is extremely complex and is rooted in the colonial era.  A holistic understanding of all the events that led up to the development of the Constitution might give a slight inkling as to what the Indian Constitution of 1950 aims to embody. The latter must be understood as at the heart of every constitutional decision lies the judiciary’s assessment of what the Constitution means, why it exists in the shape and form it does, and what injustices it is meant to remedy.

Path to the Constitution

While the Indian Constitution has come a long way and was heavily influenced by various legal and administrative documents that preceded it, a big aspect of its constitutional design lies in the administrative and legislative development of the British colonial era. The British influence was heavily felt especially after the Revolt of 1857 when the British Crown formally took over the sovereign control of India and the East India Company was dissolved. A series of acts and reforms shows how the demand for self-rule evolved and the British Parliament attempted to accommodate such interest while not relinquishing full control. All of this finally culminated in the Indian Independence Act of 1947, passed by the British Parliament that made India independent of the British Crown and asked for the setting up of an interim Constituent Assembly that would be tasked with drawing up the future Constitution of the country.

The British influence 

Indian Councils Act, 1861

This Act was the first one to give in to the demand for Indian representation within the centralised Legislative Council of India. Thus, the Executive Council of the Governor-General was expanded to include certain additional non-official members for the conduction of legislative matters. Within these non-official members, the Indians were included through nomination.  However, the Legislative Council was neither representative nor deliberative in any sense. 

The 1861 Act also decentralised the legislative powers of the Governor-General’s Council and vested them in the governments of Bombay and Madras by the creation of provincial councils. This decentralisation of power somehow echoed the principle of separation of powers. But the principle was enforced just in name and not in practice.

Indian Councils Act, 1892

This Act increased the number of members in the Legislative Council. The Council was allowed to even discuss financial matters like the budget causing a limited increase in the scope of law-making powers. However, maximum powers were retained by the Governor-General. 

A major development through this Act was that it tried to include representation of various classes and categories of the Indian population within the Legislative Council. For example, one non-official member had to be nominated from the Bengal Chamber of Commerce. Moreover, members had to be nominated from certain local bodies like universities, municipalities, zamindars, etc.

Morley-Minto Reforms, 1909

The size of the Legislative Councils both at the central and provincial levels was increased. An element of elections was introduced within the Legislative Council; it was a welcome move because appointment through nomination was not considered a proper method of implementing population representation. However, the election was an indirect form of election, not direct.

The Morley-Minto reforms were drastic in a very different aspect. For the very first time ever, a separate electorate was granted to Muslims. Thus, there was representation on communal lines which concretised the communal sentiments in the country. The seeds of the communal divide were sown as the British sought to govern by a “divide and rule” policy while at the same time creating discord between the Indians. The British felt that a rift would work in their favour to control the increasing nationalistic sentiment within India.

Government of India Act, 1919

The Government of India Act of 1919 introduced a bicameral system of Legislature, something that remained while the Constitution was being drafted and thus is seen even today. The Upper House was also known as the Council of States and the Lower House was called the Central Legislative Assembly. Both the houses had elected members. 

The subjects of administration were divided into two categories, i.e., central and provincial. The central subjects were those which were exclusively kept under the control of the central government. 

The provincial subjects were subdivided into ‘transferred’ and ‘reserved’ subjects. In the governance of the province came about the concept of “dyarchy” or dual government. The ‘transferred’ subjects were to be administered by the Governor with the provincial legislative council. The ‘reserved’ subjects, on the other hand, were to be administered exclusively by the Provincial Governor and their Executive Council, with no responsibility of the provincial legislature in this regard.

Through this Act, the provincial budget was separated from the central budget. The provincial legislature was empowered to present its budget and levy its taxes relating to the provincial sources of revenue. The Central Legislature retained the power to legislate for the whole country on any subject.

The Governor-General continued to be all-powerful and only responsible and accountable to the British Parliament. His prior sanction was required to introduce bills relating to certain matters; he had the power to veto or reserve any Bill passed by the Indian Legislature for the consideration of the Crown. He could also make ordinances in case of emergencies. 

There were multiple problems with the Government of India Act of 1919. The dyarchy envisioned by this Act was not welcomed by the general public. The Indian ministers could not satisfactorily influence much of the law-making function of the legislatures. The Act was followed by numerous protests which steam-rolled into the passing of the Rowlatt Act, further protests led to the Jallianwala Bagh massacre and finally satyagraha and the Non-Cooperation Movement by Gandhi.

The result of the 1919 Act was studied by the Simon Commission, which was constituted in 1927 and was headed by Sir John Simon. It gave its report in 1930 but was shelved eventually. However, it played a big role in the drafting process of the Government of India Act of 1935.

Government of India Act, 1935

The Government of India Act, 1935 was a landmark statute that influenced the Indian Constitution in such a way that in 1958, Justice Venkatarama Aiyer observed that the Indian Constitution ought to be interpreted in light of the 1935 Act. 

The 1935 Act, through a novel provision, introduced the concept of a federation. It prescribed the formation of a federation by incorporating the provinces and the Indian princely states as units within the federation of India. The princely states were supposed to have an option to join but since they did so voluntarily, the federation never came into existence. 

Apart from the creation of a federation, the 1935 Act had the following important provisions-

  1. Division of subjects of administration between Federal, Provincial and Concurrent Lists. The Federal List was under the purview of the Central Government, the Provincial under the provincial governments and the Concurrent under both, with the centre having supremacy. This system of division of powers was retained after independence with even the subjects of the different lists remaining the same in the lists of the Seventh Schedule.
  2. The system of dyarchy was abolished in the province and was brought about in the Centre. Reserved and transferred subjects were created within the federal list. 
  3. The Lower House of the Central Legislature was renamed Federal Assembly and it had a tenure of five years. The Upper House continued to be the Council of States with one-third of its members retiring every year. 
  4. Both the Houses had representation from the general population, the princely states and as well as on communal lines.
  5. A Federal Court was established but the Privy Council continued to remain as the highest level of appeal.
  6. The Governor-General continued to remain as the most powerful person in British India.

The Simon Commission in its recommendation had promised Dominion status to India. However, the same was not given any effect in this Act. 

Cripps Mission, 1942 and Cabinet Mission Plan, 1946

The commencement of the Second World War necessitated complete Indian support for Britain. But, demands for independence were at an all-time high in India. The British attempted to reconcile with the Indian leaders but all efforts failed. In 1942, Sir Stafford Cripps was sent, with a few proposals, to India. Called the Cripps Mission, it proposed the formation of an elected constituent assembly and the Dominion status to India, provided they were accepted by the Indian National Congress and the Muslim League.

The Indian leaders rejected the proposal for being conservative. They wanted complete independence and that could not be satisfied by just the dominion status. The Cripps Mission thus failed.

Finally in 1946 Lord Attlee sent a Cabinet Mission to India. The object of the mission was to help India achieve its independence as soon as possible and set up a Constituent Assembly. The Constituent Assembly was supposed to have 389 members who would be directly elected from the population through proportional elections.

The Cabinet Mission however rejected the idea of Pakistan. The Muslim League refused to accept the Cabinet Mission and finally through the Mountbatten Plan of 1947, the partition of India occurred. 

Indian Independence Act, 1947

India ceased to be part of the British crown and became an independent country. The Central Legislature of India ceased to exist and an interim Constituent Assembly was set up to draft the Indian Constitution. 

The Indian vision

Nehru Committee Report, 1928

In the All-Party Conference of 1928, the challenge to draft the Indian Constitution was accepted by the Indian political leaders. A small committee headed by Motilal Nehru drafted an excellent report that illustrated a few fundamental concepts for the future Indian Constitution. A few of the recommendations made were:

  1. This was the first Indian document that mentioned fundamental rights for the very first time. It proposed nineteen fundamental rights for the Indian citizens.
  2. It asked for the Dominion status of India.
  3. There was a discussion of equality of status for men and women.
  4. The report also spoke about voting rights and said that disqualification if any must be on reasonable grounds only.
  5. A federal structure of government was envisioned.
  6. Most importantly, the report emphasised on secularism. It said that there should be no connection between the state and religion. Thus, it rejected the demand for a separate electorate for Muslims. 

Fourteen Points of Jinnah, 1928

Even though Muslims were made part of the Nehru Report forming process, Jinnah felt that Muslims were not getting adequate powers. So the Muslim League created their report which had the following features:

  1. Demand for a separate electorate for Muslims. 
  2. If a separate electorate could not be granted then there was a mandatory requirement of one-third reservation of legislature seats for Muslims at both the central and provincial levels.
  3. Protection of religious rights and activities of the Muslims.

The other provisions of the ‘14 points of Jinnah’ were similar to the Nehru Report.

Karachi Resolution, 1931

This resolution was passed by the Indian National Congress in the backdrop of Mahatma Gandhi being released from the jail for his salt march, the end of the Civil Disobedience Movement through the signing of the Gandhi-Irwin Pact, and the execution of Bhagat Singh and two of his associates. 

The resolution reiterated the goal of “purna swaraj”. Moreover, along with the commitment to fundamental rights, the Indian leaders pledged to fulfill certain socio-economic liberties like removing child labour, free primary education, etc. This Resolution lit the flame of India as a social welfare state and made way to the genesis of the Directive Principles of State Policy or DPSPs in the Constitution of India.

The Constituent Assembly

The burden of the constitutional design was squarely on the Constituent Assembly. The Cabinet Mission envisaged the establishment of a Constituent Assembly that would frame a Constitution for the country. For that purpose, its members were elected by the provincial legislative assemblies.

Each province and each Indian state was allotted seats in proportion to its population. The seats were distributed among the main communities in each province.  While the Constituent Assembly, before the partition of India had 385 members, after the partition the Constituent assembly for India had 299 members. It took 2 years, 11 months and 18 days for the Constituent Assembly to finalise the Constitution. 

First, the Objectives Resolution was adopted after a month of discussion and it mainly reiterated the vision that had to be kept in mind while the Constitution was being drafted. 

After the third reading was completed the draft was considered ready and it was passed on 26th November 1949. The Constitution of India then came into effect the next year on 26th January 1950.

Guiding values of constitutional design

Mahatma Gandhi was not a part of the Constituent Assembly. However, in 1931, in the magazine ‘Young India’, he had spelt out what he believed should be the guiding ethos to the Indian Constitution. He wanted to fight for an India where everybody had a voice, there was no distinction between the high and the low class, untouchability was completely eradicated and women had the same rights as men.

Dr. B.R. Ambedkar, while sharing Gandhi’s vision of eliminating inequality, disagreed on how that inequality should be removed. Nonetheless, he played a big role in the formulation of the Indian Constitution, and might even be credited with the creation of the Preamble, a careful study of which makes it very clear what the vision for independent India was. The Objectives Resolution also gives a good idea of the values that guided the Constituent Assembly.

Objectives Resolution

It had the following points:

  1. To foster unity of the nation and to ensure its economic and political security, to have a written constitution and to proclaim India as a sovereign, democratic republic.
  2. To have a federal form of Government with the distribution of powers between the centre and states.
  3. To guarantee and secure justice, equality, freedom of thought, expression, belief, faith and worship, vocation, association and action to all the people of India.
  4. To provide adequate safeguards for minorities, backward and tribal areas and depressed and other backward classes.
  5. To maintain the integrity of the territory of the republic and its sovereign rights on land, sea and air according to justice and the law of civilised nations.
  6. To attain a rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

Preamble 

The basis for India’s democracy was laid by values that inspired and directed the liberation movement, as well as by values that were nourished by it. These values accumulated into a philosophy that is enshrined in the Preamble to the Indian Constitution. All of the Indian Constitution’s articles are guided by this philosophy. 

The Constitution opens with a brief description of the document’s fundamental values. This is the Preamble and it conveys certain vital sentiments, all of which will be discussed in this section.

We, the people of India

The Constitution has been created and enacted by the people of India through their representatives, and not handed down to them by a foreign authority. This establishes the supreme nature of the Constitution as it is created through the will of the people.

Sovereign 

Through a shift from the colonial era, sovereignty is placed at the hands of the people of India and not the British government. Thus, every aspect of governance and rule will be undertaken by the people of India itself.

Socialist

The aim of the government is not only to govern but ensure the holistic development of all sections of the society. Thus the state must function as a socialist, welfare state and actively aid in the eradication of socio-economic inequalities. 

Democratic

The establishment of a form of government where people enjoy equal political rights, elect their rulers and hold them accountable.  

Republic

The head of the state is an elected person and not a hereditary position. Thus, people will be governed by someone who they feel is appropriate and competent.

Justice

Establishes the basic idea that citizens cannot be discriminated against on the grounds of caste, religion, and gender. Social inequalities have to be reduced and the government should work for the welfare of all, especially of the disadvantaged groups.

Liberty

There are no unreasonable restrictions on the citizens on what they think, how they wish to express their thoughts and the way they wish to follow up their thoughts in action.

Equality 

All are equal before the law. The traditional social inequalities have to be ended. The government should ensure equal opportunity for all.

Fraternity

Fraternity is the link that helps in making true equality and liberty a reality. It helps in breaking down socioeconomic hierarchical relations and says that no individual should be considered inferior to another.

How and why does the Indian Constitution exist

A Constitution is a set of written or unwritten rules that governs the citizens of a nation. A constitution may be required for a lot of different things. They are required for clubs, cooperative societies as well as political parties. Similarly in a nation where there are so many conflicting interests, it is important to lay down certain rules to ensure that there is maximum harmony. This is what a constitution endeavours to do. In South Africa, a long negotiation between the conflicting interests of the whites and the black finally led to a compromise of rule by the majority, equal rights to the blacks and so much more.

As seen above, the Indian Constitution was a culmination of various imperial acts as well as certain ideas of liberty, fraternity, and equality that our Constitution makers believed that India deserved. The constitution was and is the supreme authority of our country. It does the following things:

  1. Generates a degree of trust between various stakeholders in the country.
  2. It specifies how the government will be constituted and who will have power.
  3. It limits the government and ascribes rights to the citizens of the country.
  4. It lays down the aspirations of people to create a good society.

However, to understand the truth of constitutional design it is important to answer two very fundamental questions:

  1. Why does the Constitution exist?
  2. In what way does the Constitution exist?

Gautam Bhatia eloquently attempts to answer these questions in his book ‘Transformative Constitutionalism’. He articulates two conflicting opinions about this aspect of the Indian Constitution. One school of thought suggests that the Indian Constitution is a conservative document that was a result of the constituent assembly functioning under the old political regime and slowly graduating into self-government. The Constitution, according to this opinion, essentially came about as a result of the transfer of power rather than an absolute transformation. This idea can be defended by the following arguments:

  1. The Constituent Assembly as a result of the Cabinet Mission of 1946 and thus was a product of a British institution.
  2. The Indian Constitution replicates 75% of the Government of India Act, 1935.
  3. The Indian Constitution replicated certain provisions which were a reason for protest before India got independence. For example, the emergency provisions can suspend the legal system of the country.
  4. The constitution-makers did give primacy to national integration, India’s place in the international sphere and national security rather than individual freedoms.
  5. The system of government that the constitution established was not novel. It was a Westminster form of parliamentary democracy, i.e., the one that was in existence in Britain.
  6. Finally, the Constituent Assembly was not an accurate representation of the entire country. During the national struggle for independence, the Indian National Congress was known to actively suppress any kind of movement that did not conform to their agenda.

The other school of thought regarding the idea of the Indian Constitution is that the latter was a transformative document. Bhatia argues in favour of this argument with the following:

  1. The Constituent Assembly might have owed its legal existence to the Imperial Government but one of its first acts after it was constituted was to declare itself as a sovereign body.
  2. Dr B.R. Ambedkar had defended the charge of the Constitution being a copied version of the 1935 Act by saying that they had simply borrowed some of the administrative aspects from the latter.
  3. The Indian Constitution attempted to renounce certain injustices by a two-pronged approach. One, it transformed the relationship between the state and individual by fundamental rights, universal adult franchise etc., something that was non-existent in the colonial era. Two, it reconstructed the state and society by bringing in a “layered sovereignty”, giving effect to the struggle of self-determination and attempting to erase socioeconomic hierarchies.

Institutional design

The point of the Constitution was not to just embody certain principles but also to realise those principles through the establishment of various institutions. Some of the main features of the Indian Constitution are discussed in this section.

Rule of law

Article 14 of the Indian Constitution talks about equality before the law and equal protection of the law; it also helps in checking the government when it attempts to wield arbitrary power. The concept of rule of law when applied to India states that Indian law, and by extension the Indian Constitution, is the supreme authority of the country. Thus, in a monarchy, where the monarch is the supreme authority whose word is the law, there is no rule of law per se. Because, in that situation, the monarch dictates what the law is and is above the law. However, if the monarch subjects themselves to the law, rule of law exists.

Rights and duties

The supremacy given to fundamental rights by the Constituent Assembly is quite apparent on a reading of the Constitution. Spanning from Article 12 to Article 35, Part III of the Indian Constitution is dedicated only to fundamental rights. 

All the rights provided can be clubbed together under 6 major categories of fundamental rights-

  1.  Right to equality
  2.  Right to liberty
  3.  Right against exploitation
  4.  Right to freedom of religion
  5.  Cultural and educational rights
  6.  Right to constitutional remedies

A very important feature of our constitution is that the rights given are based more on equity rather than equality. While Article 14 of the Constitution provides that the state shall not deny any person equality before the law or equal protection of the laws within the territory of India, the guarantee of equal protection is a guarantee of equal treatment of persons in equal circumstances. This permits differentiation in different circumstances.

The fundamental duties, given in Part IVA of the Constitution, were added in by the 42nd and 86th Constitutional Amendment Acts. There are a total of eleven fundamental duties and they enshrine certain moral and civic duties of the citizens of India. They do not, however, have legal sanctions.

Aspects of social welfare

India aspired to be a welfare state. It was evident from the Karachi Resolution 1931. In its commitment to give real effect to liberty, equality, and fraternity, the Indian Constitution departed from the default template of fundamental rights that was established by the United States of America in 1776. It laid down that to ensure fundamental rights to the citizens of a democratic self-governing country, there had to be limitations on the state and its power. However, that kind of system, called structural liberalism, created certain dichotomies like the public, where norms like liberty and equality were applicable, and the private sphere where such norms were inapplicable. Our Constitution makers realised that the private sphere was also an area where the domination of the weak took place and thus that had to be tackled through constitutional mechanisms. 

Thus, the limiting of state power could not be absolute, as the state had to have the responsibility to uplift the down-trodden and less-privileged. The Constitution attempted to view the State, not as a limiter of individual freedom but as a means of social transformation. Accordingly, Part IV containing the Directive Principles of State Policy was added, which enumerated certain principles that would facilitate and enable the legislators of India to ensure socio-economic justice.

The executive, legislature, judiciary

The Indian Constitution is the longest written Constitution especially because it lays down the government machinery at the central as well as state-level in complete detail. Our government machinery manifests “separation of powers”, a timeless principle given by Charles de Montesquieu. This system postulates the independence of the three organs of the government- executive, legislature and judiciary- from each other, creating as an effect a system of checks and balances.

Part V of the Constitution talks about ‘The Union’ in which Chapter I (Articles 5276)  is dedicated to ‘The Executive, Chapter II (Articles 79122) deals with ‘Parliament’ (the legislature) and Chapter IV (Articles 124144) with ‘The Union Judiciary’. The government machinery of the states is given in Part VI, spanning from Articles 152 to 237.

Federal in structure, unitary in spirit

The 1935 Act has shown that India never transformed into a federation. The Constituent Assembly, while creating a federal form of government steers clear of absolute federalism. India’s federal structure was created by the division of the territory of India into states instead of several states coming together to form a country as was the case for the United States. This inevitably asserted more power to the centre. Certain federal and unitary features of the Indian Constitution have been discussed below.

Federal features

  1. Subjects of administration have been divided between the Union and the states, through the Union, State and Concurrent Lists of the Seventh Schedule.
  2. The Eleventh and Twelfth Schedule, added by the 73rd and 74th Constitutional Amendment, gave authority and jurisdiction to Panchayats and Municipal Corporation over certain subjects. This deepened the federal nature of our country.
  3. The Constitution explains centre-state relations in-depth, to avoid conflicts and establish clear cut powers and duties of both the state and centre. 
  4. The bicameral system of the Central Legislature is also a method of reinforcing the federal equilibrium.

Unitary features

  1. While the Concurrent List allows for both the Centre and the states to make laws of subjects within that list, in case of conflicting laws, the Centre always has supremacy. Moreover, residuary subjects are under the purview of the Central Government.
  2. The emergency provisions are given in (Articles 352360) and show how the declaration of a national emergency can take away all the powers of the states.
  3. The Indian judiciary, although independent, is unified. 
  4. The control of the Union Territories (Part VIII) lies with the Centre.

Conclusion

The Indian Constitution is a living, breathing document because our constitution-makers meant for it to be one. The dynamic history that culminated into the longest, written Constitution in the world is quite historic and worthy of reverence. Values of equality, liberty, and fraternity were and are of great importance. Understanding the true aim of the Constituent Assembly assumes importance at times of utmost political turmoil. The constitutional design placed utmost importance on the citizens of the nation. But it also wanted to ensure that India as a unified nation would make a mark on the world map. 

References

  1. The Constitution of India, 1950
  2. Sumeet Malik, V. D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History 
  3. M.P. Jain, Outlines Of Indian Legal And Constitutional History
  4. Gautam Bhatia, Transformative Constitutionalism, Prologue

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