This article is written by Janhavi Arakeri, a student of Symbiosis Law School, Noida. She discusses the sources of Indian Constitution.
The Indian Constitution, originally titled as Bharatiya Samvidhana has been effective since 26th January 1950. It is the longest constitution in the world, and fairly enough since it has been influenced by the constitutions of different countries. Considering the diversity of culture, religion and languages present in the country, the constitution was made leaving nobody out of the frame.
As we know our constitution is the lengthiest written constitution, one factor contributing to it is the fact that it has been drawn from many different sources. The constituent assembly assessed many constitutions and drafted one taking all the provisions that best applied to India’s diversity. Dr. B R Ambedkar rightly claimed it to be framed after “ransacking” the known constitution.
Why did Dr. B.R.Ambedkar call the Indian Constitution a “bag of borrowing?”
It has borrowed heavily from the world constitutions. However, taking inspiration doesn’t make it second handed. Moreover, there was hardly a model available, to have drawn from. Chola Administration was available in history books but, it was for that particular time in history. However, some influence appears, like Administration at village level etc.
Why is the Indian constitution influenced by so many other countries?
The makers of the Constitution aimed at making a functional one and not an original one. Likewise, every obtained thing has been adjusted according to India to help run a smooth administration.
It was unrealistic to make entirely new arrangements of guidelines and upset the entire framework, as this was neither reasonable nor essential.
Adhering to qualities and conventions from the past, taking this inheritance and clearing route for a brilliant future in present, and improving a future than today is the objective of life.
Inspiration from other Constitutions have helped us obtain:
- Women’s voting rights.
- Fundamental rights and duties.
- Autonomy to States in their daily affairs, to run a smooth business, at the same time their subordination to center to maintain unity and integrity of India.
- Prevalence of constitution that is Rule of Law. (Thus no monarchy no fascism or subjection of any single party).
- Decentralization of forces to avert ascent of any autocracy.
- Equal protection of Law and equal treatment before the law.
How have other constitutions influenced the Indian Constitution?
Government of India Act, 1935
- The Federal Scheme
The Federalism in India discusses the distribution of legal authority over national, state and neighborhood governments in India. It is installed from the Canadian model of federalism. The Constitution of India sets up a bureaucratic structure to the Indian government, proclaiming it to be a “Union of States”.
- Office of Governor
Article 153 of the Constitution of India requires a governor to be designated for each state in India. Like the President is for the Union, the governor is the chief executive leader of a state. The governor is neither directly chosen by individuals nor, similar to the president, chosen by a specially constituted Electoral College.
Chapter IV under Part V of the constitution (Union) deals with The Union Judiciary. The constitution and jurisdiction of the Supreme Court is stated in detail from articles 124-147. The Judiciary in India is integrated unlike the Legislature or the Executive branches.
- Public Service Commissions
Articles 315 to 323 in Part XIV of the Constitution of India provides for the establishment of Public Service Commission for the Union and a Public Service Commission for each State. Each state has its own Public Service Commission with functions similar to the Union Public Service Commission.
- Emergency provisions
Emergency Provisions are contained in Part Eighteen of the Constitution of India. The President of India has the power to impose emergency rule in any or all the Indian states if the security of part or all of India is threatened by “war or external aggression or armed rebellion”.
- Administrative details
This section provides an insight into Indian governance and administration at the Central, state as well as local level. Information about the Constitution of India, Parliament and Legislature, Union administration, state, district and local administration is given.
- Parliamentary government
India’s modern parliamentary institutions originate from the British colonial administration but developed organically as a result of increasing Indian demand for greater representation in government. India’s federal legislative branch consists of the President, the Rajya Sabha (Council of States) as the upper house, and the Lok Sabha (House of the People) as the lower house.
- Rule of Law
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law.
- Legislative procedure
The Legislative procedure in India for the Union Government requires that proposed bills pass through the two legislative houses of the Parliament of India, i.e. the Lok Sabha and the Rajya Sabha.
- Single citizenship
The conferment of a person, as a citizen of India, is governed by Articles 5 to 11 (Part II) of the Constitution of India. Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli (citizenship by right of birth within the territory).
- Cabinet system
The term comes from the name for a relatively small and private room used as a study or retreat. Phrases such as “cabinet counsel,” meaning advice given in private to the monarch, occur from the late 16th century, and, given the non-standardized spelling of the day, it is often hard to distinguish whether “council” or “counsel” is meant.
- Prerogative Writs
A prerogative writ is a writ (official order) directing the behavior of another arm of government, such as an agency, official, or other courts. It was originally available only to the Crown under English law and reflected the discretionary prerogative and extraordinary power of the monarch.
- Parliamentary privileges
Parliamentary privileges are defined in Article 105 of the Indian Constitution. The members of Parliament are exempted from any civil or criminal liability for any statement made or act done in the course of their duties.
The Parliament of India is the supreme legislative body of the Republic of India. It is a bicameral legislature composed of the President of India and the two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People)
- Directive Principles of State Policy
Part IV of the Indian Constitution deals with Directive Principles of our State Policy (DPSP). The provisions contained in this Part cannot be enforced by any court, but these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws
- Nomination of members to Rajya Sabha
The nomination of eminent members to Rajya Sabha. As per Article 80 (Part V) of the Constitution, the President can nominate 12 members in the Council of States (Rajya Sabha). These persons should have special knowledge or practical experience in the field of Art, Science, Literature and Social Service.
- Method of election of the president
Method of Election of the President: The Constitution lays down that President of India is to be elected indirectly by an electoral college in accordance with the system of proportional representation by means of a single transferable vote system and secret ballot
United States of America
- Impeachment of the president
Article 61 mentions the procedure for impeachment of the President. When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament. Such resolution has to be passed by a majority of not less than two-thirds of the total membership of the House.
- Functions of president and vice-president
Only one function is assigned to the VP by the Indian Constitution. The VP of India acts to function as ex-officio chairman of the council of states. Acts as acting President if there is vacancy due to the death, resignation or impeachment of the President till a new President is elected.
- Removal of Supreme Court and High court judges
Per Article 124(4) of the constitution, President can remove a judge on proved misbehaviour or incapacity when parliament approves with a majority of the total membership of each house in favour of impeachment and not less than two-thirds of the members of each house present
- Fundamental Rights
The six fundamental rights recognised by the Indian constitution are the:
i. Right to equality.
ii. Right to freedom.
iii. Right against exploitation.
iv. Right to freedom of religion.
v. Cultural and Educational Right, and
vi. Right to constitutional remedies.
- Judicial review
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void if it finds them in conflict the Constitution of India.
- Independence of judiciary
Independence of Judiciary led by the Supreme Court. The Indian Constitution protects citizens from any partial judgment. And, this gives the power to the judiciary to make decisions based on the rules of the law, in case of any dispute. The independence of judiciary calls for ‘separation of powers’.
- Preamble of the constitution
The preamble gives the intention of the drafting committee, intention to create a welfare state with secular beliefs. The objectives before the Constituent Assembly were to Constitute India into a “sovereign democratic republic” and to secure its citizens “justice liberty, equality, and fraternity”.
- Federation with a strong Centre
The Constituent Assembly members were convinced that a vast country like India could not be efficiently governed from a single Centre and thought it desirable to adopt a federal system of government. The diversity of race, religion, and language also impelled them to go for federal policy, because it could ensure unity of the country while assuring autonomy in matters of local importance.
- Vesting of residuary powers in the Centre
Foreseeing the possibility of a situation in which legislation might be required on matters that are not mentioned in any of the three Lists, the Founding Fathers made residuary provisions in Article 248 of the Constitution and Entry 97 of the Union List. The residuary powers of legislation are vested in the Centre.
- Appointment of state governors by the Centre
The Governor of a State shall be appointed by the President by warrant under his hand and seal (Article 155). A person to be eligible for appointment as Governor should be a citizen of India and has completed the age of 35 years (Article 157)
- Advisory jurisdiction of the Supreme Court
The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Indian Constitution.
- Concurrent List
The Concurrent List or List-III(Seventh Schedule) is a list of 52 items (though the last item is numbered 47) given in the Seventh Schedule to the Constitution of India. It includes the power to be considered by both the central and state government.
- Freedom of trade
Part XIII of the constitution contains provisions relating to the freedom of trade, commerce and intercourse within the territory of India. While the general rule of freedom of trade and intercourse is enunciated in article 301, it may be subjected to restrictions laid down in articles 302-305
- Commerce and intercourse
Article 302 empowers parliament to impose restrictions on the freedom of trade, commerce and intercourse between one state and another, or within any part of the territory of India, in the public interest. The state legislatures are given the power to regulate trade and commerce under Article 304 subject to Article 303.
- Joint sitting of the two Houses of Parliament
The Parliament of India is bicameral. The joint sitting of the Parliament is called by the President (Article 108) and is presided over by the Speaker or, in his absence, by the Deputy Speaker of the Lok Sabha or in his absence, the Deputy-Chairman of the Rajya Sabha.
Soviet Constitution (USSR, now Russia)
- Fundamental duties
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties set out in Part IV–A of the Constitution, concern individuals and the nation.
- The ideal of justice (social, economic and political) in the Preamble
Justice, as mentioned in the preamble of the Indian constitution, means that all people no matter their race, caste, religion, gender or reputation will be seen as equals when they stand before the law.
- The ideals of Republic in the Preamble
In a republican form of government, the head of state is elected and not a hereditary monarch. Thus, this word denotes a government where no one holds public power as proprietary right As opposed to a monarchy, in which the head of state is appointed on a hereditary basis for life or at least until abdication, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. Thus, India has a President who is elected and has a fixed term of office.
- The ideals of Liberty in the Preamble
The idea of Liberty refers to the freedom on the activities of Indian nationals. This establishes that there are no unreasonable restrictions on Indian citizens in term of what they think, their manner of expressions and the way they wish to follow up their thoughts in action. However, liberty does not mean freedom to do anything, and it must be exercised within the constitutional limits.
- The ideals of Equality in the Preamble
This envisages that no section of the society enjoys special privileges and individuals are provided with adequate opportunities without any discrimination: all are equal before the law
- The ideals of Fraternity in the Preamble
This alludes to a sentiment of fellowship and a feeling of having a sense of belonging to the nation among its kin. It holds onto mental just as regional components of National Integration. It rules out regionalism, communalism, casteism and so forth., which prevents the solidarity of the State.
Weimar Constitution of Germany
- Suspension of Fundamental Rights during Emergency
National emergency under Article 352. Amid a national emergency, numerous Fundamental Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are consequently suspended. Conversely, the Right to Life and Personal Liberty can’t be suspended by the original Constitution.
South African Constitution
- Procedure for amendment of the Constitution
Part XX of the Constitution of India has only one article mentioning that is Article 368 that deals with the amendment of the Constitution. As per this article, Parliament may include, amend or repeal any provision of the constitution according to the procedure set down for this reason.
- Election of members of Rajya Sabha
The greater part of the members from the House is indirectly chosen by the members of States and Union Territories of India state and regional legislatures utilizing single transferable votes through Open Ballot, while the President can select 12 individuals for their contribution to art, literature, science, and social services. Members sit for terms enduring six years, with a third of the members up for the elections every 2 years.
- Concept of “procedure established by Law”
Procedure built up by law implies that a law that is appropriately authorized by legislature or the concerned body is substantial in the event that it has pursued the right procedure. Following this doctrine implies that, an individual can be denied of his life or individual freedom as indicated by the procedure built up by law.
Since independence, the constitutional history of the country represents the tension between the texts of democracy and justice with hostility between Parliament and the judiciary. Parliament continued to use its power to amend the Constitution to overrule the decisions of the judiciary until 1973, when the Supreme Court declared that the amending power of the Parliament could not violate the basic structure of the Constitution.
Yet, all in all, an equilibrium has been established between the constitution’s democratic and justice texts.
Finally, the Constitution is addressed not only to the government or the courts but to the people to imbibe the essence of their democracy. Electoral democracy in India is a relentless election marathon In the midst of many hardships, it is a testament to the Indians, a kind of civic religion that the Indians have embraced. The miracle is continuing.