This article is written by Madhuri Pilania, a second year student of BBA.LLB at Symbiosis Law School, Noida.
Table of Contents
Introduction
The Constitution is a fundamental and organic law of the nation that establishes the conception, character, and organisation of the government of the nation and establishes the extent of the power of the government and the manner in which such power can be utilised. For the establishment of the Constitution, a Constituent Assembly was formed. M N Roy, the pioneer of socialist development gave the possibility that India must have a Constitution.
The Constituent Assembly of India was a sovereign body which was made on the recommendation of the cabinet mission plan which was made in 1946 to draft the Constitution for the country.
Indian Constitution came into existence on 26th November 1949. Soon after its formation the Chairman of the drafting committee, Dr B.R. Ambedkar called it the “Bag of Borrowings”. He referred to it as a bag of borrowings as it is majorly taken from the world’s constitution. The framers of the constitution thought it as very unrealistic and unreasonable to draft a completely unique constitution, so they aimed to make a functional constitution that would help in the smooth running of the administration.
A major part of the constitution was taken from the “Government of India Act, 1935”. This Act was passed by the parliament of the United Kingdom and it received the royal assent in August 1935. The Act was passed in response to the raised demands of the Indian leaders for democracy.
Regardless of the criticism being given to the constitution as it has been borrowed from different countries, it is like a bouquet of best flowers plucked from different gardens. The borrowings have been well justified by the constitution-makers, in the words of Dr. BR Ambedkar “Nobody holds any patent rights in the fundamental ideas of the Constitution”.
The Constitution of India is drawn from sources including the Acts of Government and other nations. Thus, the borrowed provisions helped the Constitution to build on the collective learning of humanity.
Historical Background
The constitutional history of India is traced from the time of the entry of East India Company in the early 17th century apart from some exceptions. The British government took over the governance of India from the “East India Company in the year 1858”. The making of the constitution was not an easy task as they had to unite over three hundred million people. The difficulty was that provisions which were to be made had to be in consonance with the minorities, dalits, backward classes and other indigenous people.
The Britishers decided to examine the possibility of allowing independence to India in the year 1946. Hence, a British Cabinet mission was consigned to India to hold discussions with the representations of the British India in contemplation of agreeing on the framework for writing a constitution for India. The Britishers had their restored and adopted decentralisation of powers between the state and the region. The “Government of India Act, 1919” brought the legislative councils into existence in all the provinces. After this Act, our constitution adopted the quasi-federal; and bicameral structure.
The demonstration of the discretionary standard laid down the foundation for a parliamentary framework in India. The Muslims worried if our constitution was made similar to that of British Constitution then it would abandon the greater part of Hindu.[3] After this, a Constituent Assembly was formed by the provincial legislatures including 278 representatives and 15 women. This assembly served as the first ‘Parliament’ of our independent India. The strength of the Constituent Assembly was 389 which was divided into 2 broad parts i.e 296 from British India and 93 from princely states. The seats of the Constituent Assembly were allotted in the proposition to the respective population of the state. The Constituent Assembly was headed by Dr Rajendra Prasad (President) under the chairmanship of Dr BR Ambedkar. There were conferences held in 1930, 1931 and 1932 in London which gave voice to other groups who were interested. These groups represented the Anglo-Indians and led to the Government of India Act, 1935 which contributes a lot in our constitution. The Constitution was drafted with the help of the Constitutions of the other countries as well as from the Government of India Act, 1935.
The sources of the Indian Constitution
Now let us understand thoroughly the sources of our Indian Constitution:
Government of India Act, 1935
This Act was passed by the Parliament of Britain. Many key features have been taken from this Act. It was passed to provide a framework for our government and in response to the demands of the leaders of India for democracy. It is an extensive report having three hundred and twenty-one areas and ten plans. This Act conveys to the foundation of an All India Federation. This Act abolished diarchy and presented commonplace self-rule.
The office of governor, federal scheme of government, Public Service Commissions, the system of judiciary and the provisions of emergency are borrowed by our Constitution. In the Federal legislature, this act proposed that the legislature will have two houses- “the council of states and a federal assembly”. Our structure is Quasi-federal which means Federal with unitary proclivity. The upper house is the council of states for a period of three years and comprises two hundred and sixty members.
The lower house is the federal assembly with a period of five years comprising two hundred and fifty members. The Act authorised the Provincial governments to be responsible only to the provincial legislatures and helped them to get free from any external control and intrusion. The provincial autonomy provided three lists- the federal list with fifty nine items for the Centre, the Provincial list with fifty four items for provinces and the Concurrent list with thirty six items for both centre and the provinces.
British Constitution
Our constitution borrowed the rule of law, Bicameralism, Single citizenship, Cabinet system and the Parliamentary System. The system of writs which are Articles 226 and 32 have also been taken from British Constitution. The Supreme Court and the High Courts in our country have the power to issue writs to make the Right to Constitutional Remedies available to the citizens of India. Some more features like the Law-making techniques, Institution of the Speaker and his part and the parliamentary arrangement of Government and leader of the state are great import from Britain.
The parliamentary form of government is basically where a country is governed by a cabinet of ministers which is governed by the Prime Minister. This form of government basically ensures that one or more opposition parties are there to keep a check on the ruling party and its functioning. “Rule of law” states that a state cannot be governed by the people or the representatives of people but only by the law of that country. The rule of law is codified under Article 14 of the Indian Constitution. The idea of single citizenship basically implies that a person who is born or migrated to India may enjoy political or civil rights of India but not of any other country. Hence, India does not allow dual citizenship.
US Constitution
An important part of our constitution which is Part III, fundamental rights have been taken from the US Constitution. These rights are the “basic human rights” which are given to the citizens of India (Articles 12 to 32). These rights assure them that they have an equal stance in the society. Apart from the fundamental rights, the Position of the Vice President, the System of Judicial Review, Removal of judges of Supreme Court and High Court and the Impeachment of the President is also taken. Article 124 mentions the removal of judges of the Supreme Court and the High Court.
Judicial Review is an important part of our constitution. It gives the judiciary an upper stake in interpreting the Constitution. Thus, the Judiciary can annul any order passed by the legislature or the executive if the order is in conflict with the Constitution of the country.
The Basic Structure Doctrine asserts the power of the parliament that it can amend up to a limit which means some features of our constitution cannot be amended. In 1975, the then Prime Minister of the country, Indira Gandhi violated the Doctrine with imposing emergency in the country to prevent her prosecution by the 39th amendment. After that, a review judgement was made by calling a bench of thirteen judges. This judgement struck down the 39th and 41st amendment.
The case of Kesavananda Bharati vs State of Kerela, is a landmark ruling where the judgement ruled that the Constitution cannot be amended as far as it is affecting the basic structure of the constitution. This judgement was in variance with the earlier judgement given in the Golaknath case. This case concluded that the Parliament cannot amend the Fundamental rights of a citizen. The court observed that the constitutional amendments are to be done keeping in mind the basic structure of the constitution.
In Golaknath vs the State of Punjab, the judges held that the parliament cannot amend the constitution so as the fundamental rights of the citizens are taken. This case is the best elucidation of the rule of law which says that even the “makers of law are not above the law i.e. there is a supremacy of law”.
In the case Marbury vs Madison, the court said that the Judicial review gives the courts the power to look into the laws of local, state & national government & they can repeal them if the court violates the guidelines mentioned under the constitution. This case was the first time when judicial review was exercised in the United States. After the judgment of this case, India adopted Judicial Review. Judgement of the case came in 1803 and the Supreme Court of US held that it had the power to invalidate the legislation.
In the case of Brij Bhushan v. State of Delhi, the Hon’ble court held that the Fundamental Right, the “freedom of speech and expression” has been taken from the 1st Amendment Act of the USA which is the freedom of speech or the press and in India the freedom of press is embodied in the Article 19 of the Indian Constitution itself and hence, there is no requirement for a separate head for the Freedom of Press in the Indian Constitution.
Irish Constitution
Part IV, Directive Principles of State Policy (DPSP), the method of election of President, candidature to Rajya Sabha and the mandate standards of state strategy have been adopted from the constitution of Ireland.
Canadian Constitution
An interesting point here is that the same British parliament which passed the Government of India Act, 1935 also made the constitutional laws for Canada. So, borrowing laws from Canada means taking the same laws from Britain. The provisions regarding the Federation, the appointment of governors by the centre, advisory jurisdiction of the Supreme Court under Article 143, necessary obligations under article 51-A and the residuary powers with the centre under Article 248 have been sourced from Canada.
Australian Constitution
Indian Constitution has not taken much from Australia but “freedom of trade and commerce”, the Concurrent list and joint sitting of the two houses of Parliament has been sourced. The provisions of freedom of trade and commerce are put down in the Articles 301-307 of the Indian Constitution. Other features like the flexibility of exchange and business inside the country and between the states have also been borrowed.
Weimar Constitution
It is the constitution of Germany and the suspension of fundamental rights during emergency has been borrowed from Germany.
Soviet Constitution
India has borrowed the principles like fundamental duties and the ideals of social, economic and political justice found in preamble. It is known for its socialism and since India is a welfare state it borrowed from Soviet constitution.
French Constitution
The ideals of liberty, equality and fraternity which in preamble is taken from France. Apart from these Republic characters from the Constitution, balance and brotherhood and beliefs of freedom is also taken from the constitution of France.
Current Scenario of our constitution
The laws of our constitution have been amended over ninety times which is one of the most amended constitutions in the world. Originally our constitution had 395 articles, 22 parts and 12 schedules. Our constitution is also one of the lengthiest constitutions in the world with 448 articles, 25 parts and 12 schedules. Some of the constitutional rights came only after the constitutional amendments. One was the right to education which came with the 86th amendment in 2002, inserted in Article 21-A. At the time of making the constitution the fundamental rights included right to property. But with the 44th amendment right to property is no longer a fundamental right.
Conclusion
Dr. B.R. Ambedkar called our Constitution a “bag of borrowing”. Now we can see why he named it. Our constitution was inspired by several constitutions of the world. However, most of the constitution is inspired from the Government of India Act, 1935. The impact from the world constitutions has helped our constitution in obtaining important parts such as the fundamental rights and duties, the judicial review, the ideas for preamble, the basic structure doctrine and so on. It helped us obtain the rule of law which gave us no monarchy or fascism or subjection of any single party.
Our Constitution gives us equal protection of laws and equal treatment before the law. The constitution separates and delegates the three branches of the government which are legislature, executive and the judiciary. The rules of the constitution which has established a parliamentary form of democracy has been associated with a better economy in India. It was a study of 2004 by two economists Torsten Persson and Guido Tabellini.
References
- M.P. Jain, Indian Constitutional Law, 1178 (8th Ed., 2019)
- V.N. Shukla, The Constitution of India (13th Ed., 2019)
- Jstor
- HeinOnline
- SCC Online
- The Hindu
- The Indian Express
[1] Constituent Assembly Debate, By Dr. B.R. Ambedkar
[2] V.N. Shukla, The Constitution of India (13th Ed., 2019)
[3] Dr. Naresh Mahipal, A study on the Impact of the World Constitutions on the Framing of Indian Constitution, 3, Issue 1, January- March 2018
[4] Uma Narayan, Sources if Indian Legal Information, 7 LIM 133 (2007)
[5] M.P. Jain, Indian Constitutional Law, 1178 (8th Ed., 2019)
[6] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
[7] Golaknath v. the State of Punjab, AIR 1967 SC 1643
[8] Marbury v. Madison, (1803) 5 US 137
[9] Brij Bhushan v. State of Delhi, AIR 1950 SC 129
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