MAKING OF THE CONSTITUTION

MAKING OF THE CONSTITUTION

DEMAND FOR A CONSTITUENT ASSEMBLY

• It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time by N. Roy, a pioneer of communist movement in India.
• In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise’.
• The demand was finally accepted in principle by the British Government in what is known as the ‘August Offer’ of 1940.
• In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a draft proposal of the British Government on the framing of an independent Constitution to be adopted after the World War II.
• The Cripps Proposals were rejected by the Muslim League which wanted India to be divided into two autonomous states with two separate Constituent Assemblies.
• Finally, a Cabinet Mission was sent to India. While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.

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COMPOSITION OF THE CONSTITUENT ASSEMBLY

The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.

The features of the scheme were:

1. The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats to the Princely States. Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces and four from the four chief commissioners’ provinces, one from each.
2. Each province and princely state (or group of states in case of small states) were to be allotted seats in proportion to their respective population. Roughly, one seat was to be allotted for every million population.
3. Seats allocated to each British province were to be divided among the three principal communities—Muslims, Sikhs and general (all except Muslims and Sikhs), in proportion to their population.
4. The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote.
5. The representatives of princely states were to be nominated by the heads of the princely states.
6. The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces) were held in July–August 1946. The Indian National Congress won 208 seats, the Muslim League 73 seats, and the small groups and independents got the remaining 15 seats. However, the 93 seats allotted to the princely states were not filled as they decided to stay away from the Constituent Assembly.

WORKING OF THE CONSTITUENT ASSEMBLY

The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. The meeting was thus attended by only 211 member.

Dr. Rajendra Prasad was elected as the President of the Assembly.

Objectives Resolution

On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure. It read:

1. “This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution:
2. Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside India and the States as well as other territories as are willing to be constituted into the independent sovereign India, shall be a Union of them all; and
3. wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units together with residuary powers and exercise all powers and functions of Government and administration save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom;
4. wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of Government are derived from the people; and
5. wherein shall be guaranteed and secured to all the people of India justice,social, economic and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
6. wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
7. whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and
8. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.”

This Resolution was unanimously adopted by the Assembly on January 22, 1947. It influenced the eventual shaping of the constitution through all its subsequent stages. Its modified version forms the Preamble of the present Constitution.

Changes by the Independence Act

The representatives of the princely states, who had stayed away from the Constituent Assembly, gradually joined it. On April 28, 1947, representatives of the six states  were part of the Assembly.

After the acceptance of the Mountbatten Plan of June 3, 1947 for a partition of the country, the representatives of most of the other princely states took their seats in the Assembly.

The members of the Muslim League from the Indian Dominion also entered the Assembly. The Indian Independence Act of 1947 made the following three changes in the position of the Assembly:

1. The Assembly was made a fully sovereign body, which could frame any Constitution it pleased.
2. The Assembly also became a legislative body. In other words, two separate functions were assigned to the Assembly, that is, making of a constitution for free India and enacting of ordinary laws for the country.

Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body it was chaired by G V Mavlankar. These two functions continued till November 26, 1949, when the task of making the Constitution was over.

3. The Muslim League members (hailing from the areas included in the Pakistan) withdrew from the Constituent Assembly for India.

Other Functions Performed

In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly also performed the following functions:

1. It ratified the India’s membership of the Commonwealth in May 1949.
2. It adopted the national flag on July 22, 1947.
3. It adopted the national anthem on January 24, 1950.
4. It adopted the national song on January 24, 1950.
5. It elected Dr Rajendra Prasad as the first President of India on January 24,

1950.

COMMITTEES OF THE CONSTITUENT ASSEMBLY

The Constituent Assembly appointed a number of committees to deal with

Major Committees

1. Union Powers Committee – Jawaharlal Nehru
2. Union Constitution Committee – Jawaharlal Nehru
3. Provincial Constitution Committee – Sardar Patel
4. Drafting Committee – Dr. B.R. Ambedkar
5. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel. This committee had the following five sub-committees:

(a) Fundamental Rights Sub-Committee – J.B. Kripalani

(b) Minorities Sub-Committee – H.C. Mukherjee

(c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bardoloi

(d) Excluded and Partially Excluded Areas (Other than those in Assam)Sub-Committee – A.V. Thakkar

(e) North-West Frontier Tribal Areas Sub-Committee

6. Rules of Procedure Committee – Dr. Rajendra Prasad
7. States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
8. Steering Committee – Dr. Rajendra Prasad

Minor Committees

1. Finance and Staff Committee – Dr. Rajendra Prasad
2. Credentials Committee – Alladi Krishnaswami Ayyar
3. House Committee – B. Pattabhi Sitaramayya
4. Order of Business Committee – Dr. K.M. Munshi
5. Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad
6. Committee on the Functions of the Constituent Assembly – G.V. Mavalankar
7. Ad-hoc Committee on the Supreme Court – S. Varadachari (Not an Assembly Member)
8. Committee on Chief Commissioners’ Provinces – B. Pattabhi Sitaramayya
9. Expert Committee on the Financial Provisions of the Union Constitution – Nalini Ranjan Sarkar (Not an Assembly Member)
10. Linguistic Provinces Commission – S.K. Dar (Not an Assembly Member)
11. Special Committee to Examine the Draft Constitution – Jawaharlal Nehru
12. Press Gallery Committee – Usha Nath Sen
13. Ad-hoc Committee on Citizenship – S. Varadachari

Drafting Committee

Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was thiscommittee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:

1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
7. T T Krishnamachari (He replaced D P Khaitan who died in 1948)

• The motion on Draft Constitution was declared as passed on November 26, 1949, and received the signatures of the members and the president.
• The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.
• He was known for his logical, forceful and persuasive arguments on the floor of the Assembly. He is recognised as the ‘Father of the Constitution of India’.
• This brilliant writer, constitutional expert, undisputed leader of the scheduled castes and the ‘chief architect of the Constitution of India’ is also known as a ‘Modern Manu’.

ENFORCEMENT OF THE CONSTITUTION

• Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949 itself.
• The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the Republic Day.
• January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated.

Constitutionalism

Constitutionalism 

• One needs to know the ‘Constitutionalism’ and “Constitutional Law” before understanding the philosophy of Constitution of India. Having a Constitution itself is not Constitutionalism.

• Even a dictator could create a rule-book calling it Constitution, which never meant that such a dictator had any faith in Constitutionalism. 
• Recognizing the need for governance, the Constitutionalism equally emphasizes the necessity of restricting those powers.
• The Constitutional law means the rule, which regulates the structure of the principal organs of the Government and their relationship to each other, and determines their principal functions.
• The rules consist both of legal rules enacted or accepted as binding by all who are concerned in Government. 
• All the Constitutions are the heirs of the past as well as the testators of the future.
• Constitution of Indian Republic is not the product of a political revolution but of the research and deliberations of a body of eminent representatives of the people who sought to improve the existing system of administration.
• Thus the Constitutionalism, in brief, is specific limitations on general governmental powers to prevent exercise of arbitrary decision-making.
• Unlimited powers concentrated in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people.
• These powers have to be checked and balanced with equally powerful alternatives in a system, where it will be nearly impossible for dictators to emerge.
• In one word ‘Doctrine of Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state.
• Constitution of India is the Constitutional Law incorporating the Constitutionalism
• The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism.
• From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated.

At the same time, the rule-book has a responsibility to check anarchy and possibility of people misusing freedom to resort to violent means of overturning the constitutionally governing institutions.That responsibility is undercurrent in the reasonable restrictions placed on the exercise of fundamental rights of the people. The founding fathers of the Constitution made restrictions specific while the rights appear in general terms, paving a way for independent judiciary to expand the scope of freedoms and reading emerging rights into the sacred statements of rights under fundamental rights chapter. At the same time specification of restrictions operate as powerful restraints on the powers of the rulers.

The right as the individual power in the hands of people and authority as the ruling power in the hands of institutions cannot go arbitrary and anarchic undermining the democratic peace. The democratic constitutionalism is three pronged in Indian Constitution, one- guaranteeing freedoms, two- restricting governing institutions, three- empowering the independent arbiter of judiciary with power to review the executive and legislative orders affecting the interests of people in general or afflicting basic norms of rule of law.

Basic Philosophy of Indian Constitution

Mr. Justice H. R. Khanna in his ‘Making of Constitution said: “The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grass roots”.

 A Constitution at the same time has to be a living thing, living not for one or two generations but for succeeding generations of men and women. It is for that reason the provisions of the Constitution are couched in general terms, for the great generalities the Constitution have a content and significance that very from age to age and have, at the same time transcendental continuity about them.

A constitution states, or ought to state, not the rules of the passing hour, but the principles for an expanding future.The Indian Constitution is based on the philosophy of evolving an egalitarian society free from fear and bias based on promoting individual freedom in shaping the government of their choice. The whole foundation of constitutional democracy is building a system of governance in systematic machinery functioning automatically on the wheels of norms and regulations but not on individual whims and fancies. It is easy to dream such a system of rule of law than framing a mechanism for it.

The Indian Constitution is a marathon effort to translate philosophical rule of law into practical set up divided into three significant estates checking each other exercising parallel sovereignty and non-egoistic supremacy in their own way. Apart from excellent separation of powers to avoid the absolute concentration, the Constitution of India envisages a distinct distribution of powers between two major levels of Governments- central and provincial with a fair scope for a third tier – the local bodies. However, the operation of the system came in contrast with men and their manipulations leading to different opinions and indifferent options. Whatever may be the consequential aberrations, the system of rule of law is perfectly reflected in framing of the Constitutional norms codifying the best governing mechanisms tested and trusted in various democratic societies world over.

Functions of the Constitution 
The Constitution is a political structure, whether it is written or not and followed or not. They have several functions.
a) Expression of Ideology: it reflects the ideology and philosophy of a nation state.
b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on.
c) Organizational frame work: It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc.
d) Levels of Government: Constitution generally explains the levels of different organs of the Government. Whether it is federal, con-federal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments.
e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve.
Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime.

Doctrine of Basic Structure

 Introduction:

• The basic structure doctrine has traveled some ways since it was first articulated by the Indian Supreme Court in the case of Kesavananda Bharati v State of Kerala.The doctrine imposes substantive limits on constitutional amendment powers.
• It holds that while the legislature has power to amend the constitution according to stated procedure, such power is subject to an implied limitation that the amendment must not destroy the “basic structure” or “basic features” of the constitution.
• A key characteristic of the doctrine is that it is judicially developed. The judiciary deduces certain core characteristics of the constitutional order from the text, underlying philosophy, and history, and declares these to be unamendable.

Evolution of Basic structure:

1. The “basic features” principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.
2. In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. It also declared any amendment that “takes away or abridges” a Fundamental Right conferred by Part III as unconstitutional.
3. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. State of Kerala.Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
4. The basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment.
5. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.The Supreme Court’s position on constitutional amendments laid out in its judgement is that Parliament can amend the Constitution but cannot destroy its “basic structure

Features of Basic Structure:

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principles (or essence) underlying fundamental rights.
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142
20. Powers of the High Courts under Articles 226 and 227

The Government of India Act,1935

THE GOVERNMENT OF INDIA ACT OF 1935

• The Act marked a second milestone towards a completely responsible government in India.
• It was a lengthy and detailed document having 321 Sections and 10 Schedules.

FEATURES OF THE ACT

1. It provided for the establishment of an All-India Federation consisting of provinces and princely states as units. The Act divided the powers between the Centre and units in terms of three lists—Federal List (for Centre, with 59 items), Provincial List (for provinces, with 54 items) and the Concurrent List (for both, with 36 items). Residuary powers were given to the Viceroy. However, the federation never came into being as the princely states did not join it.
2. It abolished dyarchy in the provinces and introduced ‘provincial autonomy’ in its place. The provinces were allowed to act as autonomous units of administration in their defined spheres. Moreover, the Act introduced responsible governments in provinces, that is, the governor was required to act with the advice of ministers responsible to the provincial legislature. This came into effect in 1937 and was discontinued in 1939.
3. It provided for the adoption of dyarchy at the Centre. Consequently, the federal subjects were divided into reserved subjects and transferred subjects. However, this provision of the Act did not come into operation at all.
4. It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal, Bombay, Madras, Bihar, Assam and the United Provinces were made bicameral consisting of a legislative council (upper house) and a legislative assembly (lower house). However, many restrictions were placed on them.
5. It further extended the principle of communal representation by providing separate electorates for depressed classes (scheduled castes), women and labour (workers).
6. It abolished the Council of India, established by the Government of India Act of 1858. The secretary of state for India was provided with a team of advisors.
7. It extended franchise. About 10 per cent of the total population got the voting right.
8. It provided for the establishment of a Reserve Bank of India to control the currency and credit of the country.
9. It provided for the establishment of not only a Federal Public Service Commission but also a Provincial Public Service Commission and Joint Public Service Commission for two or more provinces.
10. It provided for the establishment of a Federal Court, which was set up in 1937.

The Government of India Act,1919

• The Government of India Act of 1919 was thus enacted, which came intoforce in 1921.
• This Act is also known as Montagu-Chelmsford Reforms(Montagu was the Secretary of State for India and Lord Chelmsford was the Viceroy of India).

FEATURES OF THE ACT

1. It relaxed the central control over the provinces by demarcating and separating the central and provincial subjects. The central and provincial legislatures were authorised to make laws on their respective list of subjects. However, the structure of government continued to be centralised and unitary.
2. It further divided the provincial subjects into two parts—transferred and reserved. The transferred subjects were to be administered by the governor with the aid of ministers responsible to the legislative Council.

• The reserved subjects, on the other hand, were to be administered by the governor and his executive council without being responsible to the legislative Council.
• This dual scheme of governance was known as ‘dyarchy’—a term derived from the Greek word di-arche which means double rule. However, this experiment was largely unsuccessful.

3. It introduced, for the first time, bicameralism and direct elections in the country. Thus, the Indian Legislative Council was replaced by a bicameral legislature consisting of an Upper House (Council of State) and a Lower House (Legislative Assembly). The majority of members of both the Houses were chosen by direct election.
4. It required that the three of the six members of the Viceroy’s executive Council (other than the commander-in-chief) were to be Indian.
5. It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.
6. It granted franchise to a limited number of people on the basis of property, tax or education.
7. It created a new office of the High Commissioner for India in London and transferred to him some of the functions hitherto performed by the Secretary of State for India.
8. It provided for the establishment of a public service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants.
9. It separated, for the first time, provincial budgets from the Central budget and authorized the provincial legislatures to enact their budgets.
10. It provided for the appointment of a statutory commission to inquire into and report on its working after ten years of its coming into force.