This article is written by Mariya Paliwala of seventh semester, student at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan. This article throws light on the history of Indian constitution, its features and the hardships which came in.
The Indian constitution is regarded as the Fundamental Law of the Land, which elaborates on the institutions of states, organs of government, rights and duties of citizens and the mechanism of law and order of the nation. Further, it delineates the powers, functions and responsibilities of the various instrumentalities of the State, also by imposing reasonable limitations or restrictions on the powers and regulates the relationship between the State and its population.
Firstly, irrespective of the fact that the constitution is a single written document, the relationship between the State and the government is constantly changing with the changing time and inhabitants. For example, in the case of a rise in regional and coalition, there is a deep impact on the centre-state relationship.
Secondly, by duly considering the examples of countries like Britain, New Zealand and Israel we learn that it is not compulsory to consolidate the constitution in a single document as in the case with the U.S.A. and India.
Historical Retrospection of Constitutional Timeline
After the Revolt of 1857
After India lost Revolt of 1857, the East India Company handed over the governance of British India in the hands of the British government in 1858. Before 1858, the company was governing all its possessions in India at Central and provincial level through the Governor-General and his council at both levels.
Indian Councils Act, 1861
Indian Councils Act, 1861 brought several changes in the roles and functioning of the councils. However, no Indians were involved in it as they did not have any place in the councils.
Establishment of I.N.C.
In 1885, Indian National Congress (I.N.C.) was established because of which the enlightened Indians especially lawyers were given positions so that they can conceive and formulate that kind of constitutional arrangement which India can have under the British paramountcy and that idea of the constitutional arrangement must be submitted to British government in the form of petition. Before the end of the 19th century, this is how I.N.C. started discussing the constitutional designs and arrangements with the British government though much heed was not paid by the Britishers with regards to the proposals pertaining to the participation of Indians in the formulation of government and for the grant of basic rights to the Indian.
Indian Councils Act, 1892
After the emergence of the Indian Councils Act, 1892 Indians were included in the legislative council of the nation and not in the Executive council. However, these provisions did not satisfy the demand of Indians for participation in the government, which led to unrest among the people.
Minto-Morley Reforms, 1909
In order to avoid unrest and calm down the population in 1909, an Act was passed, which came to be known as Minto-Morley Reforms, 1909. Minto-Morley reforms were named after the then governor-general. The reforms were made in respect to legislative councils wherein the number of representatives was increased, and the powers were extended. However, no reforms were made with regards to the Executive councils. Further, the following changes were made:
- The number of legislative members at the central level was increased from 16 to 60.
- The elaborate scheme was prepared for the indirect election though the majority comprised of non-elected members in the legislatures.
- Power of the legislature was extended for a serious discussion on financial matters like the budget. The members may pass on any resolution, but the government was not bound by it.
- The Act also declared that any Indian could be the part of the Governor General’s council. However, it was never implemented.
Government of India Act, 1919
Seeing the unbreakable unity amongst Indians and the spirit of the institutions of self-governance the historic announcement was made by Montagu in the House of Commons in 1917.
After the announcement, Montagu (the then secretary of the State of India) along with Lord Chelmsford (the then Viceroy) toured whole India in order to analyze the political problems of India. In 1918, on the basis of the tour, they submitted a report which came to be known as Montagu-Chelmsford Report. They made this report on the basis of the Bill which was introduced in the parliament. The Bill was analyzed in a detailed manner by the Select committee and passed by it, leading to the Act of 1919.
This Act was perhaps the 1st comprehensive constitutional document in India. The Act consist of the following highlights:
- The Act for the 1st time had a preamble, which specifically emphasized the maximum autonomy of provinces. Ultimately leading to a step towards self-government.
- Provisions were made for classification of subjects into central and provincial subjects. So that there is no conflict with regards to the central and provincial subjects. The classification was done with the help of ‘Devolution Rules.’
- According to these devolution rules the subjects of common interests such as defence, coinage, foreign affairs, currency etc. are assigned to centre while the subject of local interest such as local self-governance, education, health, land revenue etc. are assigned to the provinces. However, the residuary subject came under the centre. Thereby, for the 1st time, the idea of the federal government came into the limelight.
Government of India Act, 1935
Every policy or law which come into force has some or the other flaws. Similarly, the Act of 1919 also has drawbacks because of which people were not satisfied, leading to the appointment of Reforms Enquiry committee in 1924 under the chairmanship of Sir Alexander Munddiman. The committee was supposed to submit a report on ways and means for efficient working of the Act. In 1925, the majority of the committee reported that a just and fair chance must be given for the fair trial of the Act. However, the minority in the committee voted against the Act and reported that the Act was inherently defective and the appointment of the Royal Commission was recommended so as to suggest the constitutional reforms. Earlier, minority view was neglected by the government, but later on, it has complied with the suggestion of appointment Royal Commission. In 1930 the report by the commission was submitted, which did not recommend any change in the federal structure.
However, the demand of the people pertaining to the federal and responsible government was put forth by the Nehru Committee report also the Indian princes expressed their willingness to join the federation.
In order to deliberately discuss the constitutional reforms, the British government organized 3 Round Table Conferences. However, the 1st two conferences failed, and in the 3rd one, the white paper was issued, which stated the following things:
- Establishment of strong federation with an autonomous province.
- Creation of government at the centre and province.
The paper was subjected to controversies, and in order to overcome and satisfy them, a Joint Select Committee was appointed under the Chairmanship of Marquess of Linlithgow. In 1934, a recommendation was made by the committee that Government of India Act, 1935 was passed by the British Parliament which received the Royal Assent in 1935.
The salient features of the Government of India Act, 1935 were:
Basic Features of Federalism
- While India was divided into two parts- one governor’s province, which was bound by the members of the federation and another was Indian states, which had the freedom to become such member by executing Instrument of Accession.
- The governance of Indian states was based on Instrument of Accession while provinces were governed by Uniform Constitutional status.
- There were about 600 Indian states, and every state had a different constitutional document as an Instrument.
- The subject of the legislation was broadly and exclusively divided into:
- Subjects governed by centre
- Subjects governed by provinces
- Concurrent subjects
- Residuary subjects
The system was unitarily biased as the centre had control over provinces.
Constitutional development after 1935
After the world war was declared congress ministers in 1939 registered themselves in the province. In 1940, the Viceroy announced that the operation of the federal part of the constitution was indefinitely postponed. At the same time, Muslim League raised the demand for Pakistan bypassing ‘Pakistan Resolution’ at Lahore. In this resolution, it was decided that Muslim majority areas will together form a sovereign Muslim state. In 1942, the British government appointed Sir Stafford Cripps to try and negotiate a settlement with Indian political parties.
Sir Safford Cripps in 1942 put forth the following proposals in front of Indian parties and communities:
- Under the British commonwealth, Indian Union will be made an independent federation.
- After curbing all the hostilities, steps will be taken to set up an elected body in India to frame a new constitution of India.
- Indian states will also be participating in the constitution-making body.
- After the constitution is made, it is subjected to the approval of the Queen of Britain.
- The members for the constitution-making body will be elected by an Electoral College of the legislatures through the system of proportional representation. Indian states will send their representatives in accordance with the proportion of the population of their states.
- Moreover, it was committed by the British government that the British government will retain control on the matters of defence until the constitution is framed.
Hence, I.N.C. agreed to cooperate on the terms that purely national cabinet must be appointed on the centre. However, the Muslim League rejected the proposal thoroughly, which ultimately led to the failure of the Cripps mission.
In 1942 ‘Quit India’ resolution was passed by Indian National Committee, which demanded absolute freedom from British rule.
The Wavell Plan
Lord Wavell, the then Viceroy in 1945 announced a proposal that the executive council would comprise of all Indians except for the Viceroy and Commander-in-chief. However, no consensus was arrived at leading to the failure of this plan.
The Cabinet Mission, 1946
After the end of the world war in 1945, very significant changes took place. As a result of the end of the war, the Labour Party came into power in Britain, which favoured Indian Independence. For this reason, the Viceroy went to London to talk in this regard and remained in constant touch with the government in this regard. Lord Pethick Lawrence, the then Secretary of State, made the announcement of Cabinet Mission Plan 1946, consisting of himself, A.V. Alexander and Sir Stafford Cripps and visited India to deliberate over the constitution of India with the help of Viceroy. The cabinet mission put forth the following proposals:
- Union of India should comprise of provinces and Indian States. Union of India should have the power to deal with the subject of foreign affairs, defence and communication along with the ancillary powers to raise funds to cater to the needs of the above subject.
- The union must take the representatives of the Indian State and British India as a part of legislature and executive.
- The powers pertaining to all the subjects except that of union subjects and residuary powers will rest in the hands of the province.
- The provinces would be free to make groups with legislators and executive.
- The constitution-making body will be elected indirectly. The indirect election was to be held following the criteria of proportional representation. From every province, there will be a representative who will represent the proportion of the population of that province.
- Further, the representatives were directed to meet at New Delhi as a constitution-making body or Constituent Assembly.
- There was a bifurcation made. The members of the Constituent Assembly were divided into three categories:
- Section A- Madras, Bombay, U.P., Bihar etc.
- Section B- North Western Frontier Province, Punjab, Sind.
- Section C- Bengal and Assam.
Every section of representatives is supposed to make the constitution for their own province.
- The dominance of the Britishers over India would lapse.
- Arrangements in the form of treaties must be made between the constituent assembly and the British government pertaining to the transfer of powers.
- The political party having the support of the majority would form the interim government until the constitution is framed.
This mission got majority support though the Congress did not agree upon the point of bifurcation. However, overall, everything seemed settled. The demand for Pakistan by Muslim League led to the idea of the emergence of a Sovereign Pakistan.
The Mountbatten Plan
In 1947, Mountbatten replaced Wavell as Viceroy. Lord Mountbatten stated that partition was the only solution to settle the problem between the communities. Thereby leading to the division of the constituent assembly, the members represent their respective territories either India or Pakistan. The boundaries of both the territories would be settled by the judicial commission. Therefore, the federal shape was given to the Mountbatten Plan by enacting the Indian Independence Act, 1947.
Indian Independence Act, 1947
This Act was passed by the British Parliament within a fortnight and received Royal assent on 18 July 1947. The main highlights of the Act are as follows:
- British India was divided into two independent dominions, i.e. India and Pakistan on 15 August 1947.
- The area of the whole British India was given India except that of which is of Pakistan i.n. West Punjab, Northwestern Frontier Province, West Sind, East Bengal and Baluchistan.
- The acceding of Indian states either in India or Pakistan was left on the will of the states.
- In each dominion, the governor-general will be appointed by the king.
- Every law enacted by both the dominion will be valid and even if it is in derogation with the laws of England.
- From 15 August, 1947, the British government will have no responsibility pertaining to British India.
- With the lapse of British paramountcy, the treaties would also lapse.
- The constituent assembly of both the dominion will have the power to exercise dominion legislature.
- The modified and adapted Government of India Act, 1935 will be in force until the constitution is not drafted.
Hence, this Act came into force on 15 August 1947, which marked the end of 182 years old British rule.
The Framing of the Indian Constitution
A sovereign body called Constituent Assembly was formed in 1946 and also under the Indian Independence Act 1947. In the history of the Indian constitution, the 1st sitting was marked on 9 December, 1946 even though the Muslim League boycotted the assembly. In its 1st meeting, Pandit Jawahar Lal Nehru moved his Objective revolution. The proposal of the objective revolution was highly appreciated by all the members and was discussed.
For the effective and efficient conduct of the business of constituent assembly appointed several committees such as drafting committee which was chaired by Dr B.R. Ambedkar, who undertook the task of drafting the constitution. Hence, the constitution was adopted on 26 November 1949.
Salient Features of Indian Constitution
1. Represents Herculean task
Making a constitution for a country which had diversities of all forms be it linguistic, religious, regional etc. was a hard nut to crack. In spite of facing lots of problems, our constitution makers successfully drafted it. The problems which came their way were:
- They had to provide a constitution to accommodate a population of over 300 million people. The people had cultural, linguistic, religious, diversities. Provisions of reservation in order to safeguard the interests of religious minorities, Dalits, backward classes, indigenous people etc.
- Next problem in the way was the merger of Princely states in the Indian Federation. Sardar Vallabh Bhai Patel who is called the Ironman of India, played a significant role in negotiating with the princes and rulers of the Princely State to merge into Indian Union.
- Communal problem was another concern which a newly independent nation has to face.
2. Comprehensive Document
The constitution of India is the most elaborate and comprehensive document. It is considered to be the world’s longest constitution which consists of 395 Articles, 22 parts and 12 schedules besides several additional articles and amendments. There were several factors which increased the bulk of the constitution:
- Our constitution provides rules for all Federal (union), states and local government.
- There are provisions relating to the interest of tribal communities and indigenous inhabitants.
- Special provisions for minorities, S.T.s, SC and O.B.C.s, are made.
- In order to ensure an easy transition from old to the new system and also to accommodate diversity, the transitional provisions were made.
- The constitution has also elaborated upon fundamental rights, directive principles of state policy, and fundamental duties.
3. Constitution as a living document
Just like a living being, this document responds to changing circumstances and situations arising from time to time. In fact, this document is a living being. Even after so many changes in society, the constitution continues to work efficiently because of this ability to be dynamic as it is open to the interpretations and the ability to respond to the changing situations. Indian constitution is neither too rigid nor too flexible. A thing which is too rigid is more likely to break and too flexible will leave a law authoritarian. Therefore, Article 368 empowers the parliament to make amendments (flexible) at the same time. Article 368 provides for a procedure which is hard to comply (rigid). This is because the lawmakers must not deviate from the basic structure of the constitution and at the same time make changes which are necessary for a collective good.
The preamble of the constitution is a short reflection of the intention of lawmakers and a brief of the constitution. Preamble plays the role of a goal settler at the same time. It consists of the following words:
- Secular (State will have no religion and will neither support nor oppose any religion)
- Socialist (resources will be owned and controlled by the government and to reduce the gap between rich and poor)
- Democratic (the government will be of the people, for the people, and by the people)
- Republic (elected representatives will hold offices and not the monarch)
- Equality (to promote equality in the opportunity and status)
- Justice (Social, economic and political justice)
- Liberty (freedom of thought, worship, expression, belief)
- Fraternity (spirit of brotherhood)
5. Directive Principles of State policy
Part IV of the constitution elaborates on the D.P.S.P., which is though not enforceable in a court of law, but it provides the guidelines and directs the State to work for a welfare society. The main aim of directive principles of state policy is to strive for the betterment of society as a whole. For example, equal pay for equal work for both men and women is a directive principle of state policy; this is non-enforceable. However, if the element ‘discrimination’ on the basis of gender/sex is proved, then it becomes fundamental right which is enforceable in the court of law. Therefore the primary aim of the directive principle of state policy is to make the government work for collective good rather than selective good.
6. Fundamental Rights
Fundamental rights are the basic rights which are granted to the people of India. These rights are enforceable, and on the infringement of these rights by the State, the person whose rights are violated may knock the doors of the court of law. For the violation of these rights, a person can directly approach the High Court under Article 226 and the Supreme Court under Article 32 of the Constitution of India. Fundamental rights can not be taken away by any amendment as it is the basic structure of the constitution which was time and again affirmed by the court.
7. Federal structure yet unitary biased
Indian constitution has federal structure which means that the powers are distributed among centre and State, but the centre is more empowered than the State that is why it is unitary biased, the laws are more inclined towards the centre. There are basically three lists in which powers are divided:
- Union list: There 97 subjects in the union lists which is of general importance like defence, atomic energy, foreign affairs, war and peace, banking, railways, post and telegraph, airways, ports, foreign trade, currency and coinage etc. The centre or union has the power to make rules in this regard.
- State list: It consists of 66 subjects which included agriculture, police, prison, local government, public health, land, liquor, trade and commerce, livestock and animal husbandry, state public service etc. The state government has the power to make rules and regulations on these subjects.
- Concurrent list: It comprises of 47 subjects such as education, rules pertaining to the transfer of property other than agricultural land, forests, trade union, adulteration, adoption and succession etc. On the subject pertaining to the concurrent list, both the State and centre can make laws. However, in the case of a dispute between the centre/ union and the State, the union laws prevail.
- Residuary powers.
All those subjects which are not included in any of the 3 lists are put in residuary powers, for example, cyber laws. Further, the Union legislature alone has the power to make laws under this head.
8. The supremacy of the constitution
This means that the constitution has the upper hand in the administration of the country. Both the center and State are bound by the constitution. Neither of the two must be in a position to override the constitutional provisions.
9. Distinctive Federation
Our constitution establishes federal polity, which is very strong as compared to other federal constitution. The features of Indian federal polity are as follows:
- Single citizenship
- Single constituent authority
- Minimizes legality and legalism
- At the time of emergency, the constitution can become unitary
- It maintains unity in a biased manner
- State and union are not rival; rather, they work in harmony to achieve the goal of public welfare
All is well when the ends well, after facing all sorts of hardship and difficulties, our constitution-makers successfully compiled a paramount law of the land. It took a span of 2 years 11 months and 18 days for our Constituent Assembly to compile this. Moreover, if we emphasise on the preamble, it starts with “WE THE PEOPLE OF INDIA …” which instills in us the spirit of patriotism. Further, the constitution-makers played primary role in making it but nowhere took any credit.
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