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Introduction:

At the stroke of midnight hour on 15th of August 1974, when the world sleeps, India will awake to life and freedom[1], With these lines India as a free nation started towards the life of liberty. Every country whether big or small need guidance in the form of set principles which lays down the ideology of the state and people who cherish these principles. Every nation whether runs by Monarch or government needs a set of rule and regulations which must guide the citizens of that land to prosperity, respect and belief. As India became a free nation, comes the question of what kind of rules must be created and what must be the entire objective of Such rules. After 15th August 1947, India was free and its people can form their own form of government or rules which suits their need and requirement, to form any kind of governance there was a core need of strong ideals. Being that kept in consideration a few great minds came together to form, draft and frame a Constitution for its people. A constituent assembly was formed by Jawaharlal Nehru and Dr B.R. Ambedkar for drafting of Constitution, Constituent assembly was first coined by M.N. Roy in the year 1934. On 9th December 1946 with the constituent assembly took 4th draft and almost 3 years to finalize the constitution. On 1949 26th November, the constitution was adopted by the Constituent Assembly and made it the Supreme Law signed and accepted by all the members of the house. The constitution of India has a Preamble, 22 Parts and 12 schedules all of these put together formed the true essence of law governing all.

Constitution: The Basic Law

A “Constitution” is not a mere document but sacred legal text which defines the frame-work, ideas and the principal objectives of government with the State as a whole and proclaim the principles governing the operation of those organs. The ‘Constitutional Law’ refers to the rules which regulate structure, functions and interrelations of governmental organs. These rules include conventions along with legal aspect. A country can be controlled by a dictator may have its own constitution but that does mean it is constitutionalism in that state. The true essence of the constitution is constitutionalism, they both are connected and linked to its core. A Constitution ought not merely to confer powers on various organs of government, but also seek to restrain those powers. Constitutionalism recognises the need for the government but insists upon limitations being placed upon government powers. it envisages checks and balances and put powers of legislature and executive under some restrain, otherwise it would jeopardise freedom of people and lead to an authoritarian, oppressive government. Therefore, a constitution with constitutionalism should be established to keep a check on the concentration of powers at one entity thus it can preserve the basic human rights of the citizens maintaining and protecting the dignity of every individual. The Constitutionalism connotes, in essence, the ‘limited government’. it’s the antithesis of arbitrary power. only Constitution of a country’ seek to decentralise power and also impose other restrains, does a rustic have both- Constitution and Constitutionalism.

According to Schwartz: “Constitutions spring from a belief in limited government. Constitution means a written organic instrument, under which government powers are conferred and circumscribed. This stress upon grant and limitation of authority is prime.”

“Western institutional theorists have concerned themselves with the problem of ensuring that existence of state power, which is important to the realisation of values of their societies, should be controlled so as that it shouldn’t itself be destructive of values it absolutely was intended to market.”[2]

Following are the principles and norms which promote Constitutionalism in an exceedingly country: a written Constitution, federalism, free elections, independent judiciary with the review, fundamental rights, the doctrine of rule of law and separation of powers [Rule of Law implies the absence of arbitrary power, equality before the law, and individual liberties].

The Constitution is that the supreme law of the land, and every one governmental organ, which owe their origin to the Constitution and derive their powers from its provisions, must function within the framework of Constitution and no action can be initiated of any nature under any circumstance beyond the purview which is in violation or inconsistent with provisions of Constitution.

Source of Constitution: The Preamble

The Preamble is the source which indicates the Constitution the origin viz. the people of India. it’s ordained by the people of India through their representatives assembled in a very sovereign Constituent Assembly. The preamble declares clearly that it’s the people of India who have adopted, enacted and given to themselves the Constitution. The preamble sets out the aims and aspirations of individuals, and these are translated into various provisions of the Constitution. The people will be continued to be governed under the Constitution goodbye because it is appropriate to them and its provisions promote their aims and aspirations. Following the course of Indian history and pattern of Indian politics, it’s going to be said that, unlike the western society, it’s the elite of Indian society instead of individuals themselves had set the stronghold for recreation and reformation of society. as an example, in field of legislative activity, enactment of a law isn’t led to as a culmination of urges of individuals reflecting changes in socio-economic order, but a measure which was enacted and adopted by Constituent Assembly which took the lead in projecting a system to be identified with aims and aspirations of individuals. (Though Constituent Assembly wasn’t directly elected by people, it doesn’t necessarily mean that it didn’t project the sensation of people). The Constitution came into force in 1949, even though not ratified by people.

Besides the fact that the preamble provides it’s the people of India who have enacted and given to themselves the Constitution, the successful working of the Constitution and its continued acceptance by people over the years, results in no other conclusion that the binding force of Constitution is that the sovereign will of individuals of India. If at any stage of history, the people find that Constitution isn’t serving the requirements of society, they will set in motion a machinery which provides for a system suited to aims and aspirations of individuals. It may, therefore, be rightly observed that the sovereignty lies with the people of India – Preamble declares that source of authority under the Constitution is that the People of India

Sovereignty isn’t located in Parliament, because it is bound by Constitution which in an exceeding sense may appear to be sovereign because it is Supreme Law. However, it’s the people that have given Constitution.

Utility of Preamble

  • It indicates the source of the Constitution.
  • an announcement of its objectives – which the legislation is meant to attain[3]
  • It is a challenge to the people to stick to the ideals enshrined in it[4].
  • it’s a form of introduction to the statute and plenty of times very helpful to know the policy and legislative intent.
  • Several decisions of the Supreme Court found out the importance and utility of it by itself, it’s not enforceable in a ‘Court of Law, yet it states objects and aids legal interpretation of the Constitution, where the language is ambiguous. a construction which inserts the preamble may be preferred (However, the preamble can’t override the express provisions of an Act).

The value of preamble to this Constitution is as mentioned in points (iv) and (v) above.

Amendment of Preamble

The Supreme Court held that Preamble isn’t an element of Constitution and thus not a source of any substantive powers and doesn’t import any limitations[5]. Later on, in the 1970s the Hon’ble Supreme court in one the Most important Judgment of entire Judiciary the Hon’ble Court held that preamble is a component of Constitution and it’s of maximum importance; and Constitution should be read and interpreted within the light of grand and noble vision expressed in preamble. after all the Preamble was relied on in imposing implied limitations on an amendment under the Art. 368. Held that since preamble is an element of Constitution, it is amended, but ‘basic features’ m it cannot be amended. As edifice of our Constitution relies upon these features and if they removed, it’ll not be the ‘same’ Constitution. Amending power can’t change the Constitution in such some way that it ceases to be a ‘Sovereign Democratic Republic'[6]. What makes the Constitution a document separate, unique and supreme above all, can be found back in the time of suppression era on 24th April 1973, largest bench of judiciary sat in the apex court this bench of 13 judges was specially constituted to hear and decide fiercely controversial question as to whether parliament can execute the power of constituent in nature and with the requisite of or 2/3rd majority was eligible to amend the provision of the constitution of India. That bench was led by the Chief Justice Sikri, it was a discordant one as there was ill-feeling amongst the judges they could not even decide, the government argued for unbridled power of amendment but it lost with a narrow gap of 7:6. Thus, Article 268 does not enable Parliament to alter, change or exercise any imposition on the basic framework of the constitution and section 3 of the 25th amendment of the constitution held valid.

India’s Federalism

India adopted a federal structure as the various parts of the country were at different stages of development and it’d are difficult to regulate from one centre and to make sure minorities their due place. However, the Indian federalism is exclusive due to its mode of formation i.e. from Union to States (creation of autonomous units then combining them into a federation), and not the other way around. it’s to be noted that the term Union of States’ and not ‘federation’ is employed within the Constitution. Also, the units don’t have any right to secede (as during a confederation). The Constitution of India is a mix of federal and unitary state is neither purely unitary nor purely federal, but it follows both combined. it’s a union of composite States of a unique type. Neither the Parliament is absolute nor the State legislation holds the sovereign authority because each being constrained by the Constitutional provisions limiting their affect in the distribution of powers. The Constitution enshrines the principle that in spite of federalism, the national interest must be paramount. Thus, the Indian Constitution is unique as it safeguards the right and protects, enforces unity and growth of the country. The scope of application of federal principle in India is shown by the scope of state legislatures. However, Indian federation isn’t defective; the defect is political because there’s a conflict between opposition-party ruled States and also the central Government. Also, federalism isn’t dead in India, as evidenced by the very fact that new regions are demanding statehood and union has yielded, thus States like Manipur, Tripura, Goa, etc. are created. Moreover, in spite of various conflicts of interest, the states with ruled by opposition-party do exist.

The Supreme Court observed that a truly federal form of Government envisages an agreement between independent and sovereign units to surrender partially their authority in the common interest and vesting it in a Union and retaining the residue of authority’ in the constituent units. Except for constituents which are surrendered to the union, the constituent unit has its own constitution to govern all matters in their jurisdiction which is primarily operated by them. upon the administration of the units. Our Constitution was not resulted of any such agreement: units, constituting a unitary State, which were non-sovereign were transformed by the abdication of power into a Union. The normal corporate existence of States entitles them to enter into contracts and invests them with power to carry on trade and business, and the States have the right to hold property. But, having regard to certain basic features of Constitution, the restrictions on their powers – executive, legislative and powers of taxation – and dependence for finances upon the Union, it would not be correct to maintain that absolute sovereignty remains vested in the States[7].

The main characteristic of a federal Constitution is that the distribution of powers between the Centre and also the States. The Indian Constitution provides for a brand new quite federalism to fulfil India’s peculiar needs. within the matter of distribution of powers, the Framers followed the pattern of the govt of India Act, 1935. The Parliament holds the power over state or assemblies by holding dominance over the distribution of legislative powers, these are distribution are subject in three lists under the Constitution of India. legislative powers cannot contravene the basic rights (Fundamental Rights) and other provisions of the Constitution. There are three Lists which offer for distribution of legislative powers (under 7th Schedule to the Constitution):

(1) Union List (List I)- It contains 97 items and comprises of the topics which are of national importance and admit of uniform laws for the entire of the country. Only the Union Parliament can legislate with reference to these matters e.g. Defence, Foreign Affairs, Banking, Currency, Union Taxes, etc.

(2) State List (List II)- It contains 66 items and comprises of subjects of local or State interest and thus lie within the legislative competence of the State Legislatures, viz. Public Order and Police, Health, Agriculture, Forests, etc.

(3) Concurrent List (List III)- It contains 47 items, with relevance which, both 4 Union Parliament and therefore the State Legislature have concurrent power of legislation. The Concurrent List (not found in any federal Constitution) was to function a tool to avoid excessive rigidity to a two-fold distribution. it’s a ‘twilight zone’, as for not so important matters, the States can take initiative, while for the important matters, the Parliament can do so. Besides, the States can make supplementary laws so as to amplify the laws made by the Union Parliament[8].

Judicial Powers

In order to keep up the supremacy of the Constitution, there must be an independent and impartial authority to choose disputes between units of the federation. The Apex Court i.e. Supreme Court formed under our Constitution is such an arbitration. it’s the protector and ultimate guardian of our constitution with an interpretation of Constitution, this keeps the free spirit, liberty and democratic structure of the country intact, by preventing the prejudicial use of authority by governmental safeguarding the overall rights of citizens. it’s the guardian of fundamental rights.

However, many powers which are strictly judicial are excluded from the purview of the courts e.g. elections. Adjudication by the executive bodies has, in recent times, emerged as an alternative to traditional courts. However, the functioning of such adjudicating bodies is basically determined by the chief. Though independence of the judiciary is secured by our Constitution in several ways (e.g.in appointing a Supreme Court judge, President is required to consult chief justice, the removal of judges could be a difficult and special process; discussion of the conduct of a judge in Parliament is not allowed), but independence of the judiciary is eroded by Union control over supreme courts within the sort of ‘transfer’ of High Court judges. there’s a general atmosphere of distrust, favouritism in appointments and promotions which led to the development of feeling that if they deliver anti judgements, they would be transferred. Several vacancies of judges not filled by the govt. because search isn’t for ‘merit’ except for ‘committed’ judges – which tall in with the official line.

Philosophy of review is rooted within the principle that Constitution is that the fundamental law, all governmental organs must not do anything which is inconsistent with the provisions of Constitution; and therefore, the theory of limited government. When a contradiction between the Constitution and enacted law; exists, it’s the duty of judges to resolve it. Thus, the review makes the Constitution legalistic. during a federal system, it’s a necessary consequence to possess an independent and impartial judiciary to resolve disputes. Judicial review means the judiciary can declare a law or legislation as unconstitutional if it’s beyond the competence of legislature in keeping with the distribution of powers under Article 246, or it’s in contravention of fundamental rights or any of the mandatory provisions of the Constitution (e.g. Article 301 304). Even within the absence of such express constitutional provisions, the court can invalidate a law which contravenes any right or is ultra vires, for such power of review can be initiated as it is the very core of the Constitutional law. Thus, under Article 132, the substantial question of law on the interpretation of the Constitution has remarked the Supreme Court. The ‘reasonable restrictions’ just in case of fundamental rights are subject to the court’s supervision. Judicial review is the restrain on the legislative powers from using any absurd action causing the violation of constitutionality and it also acts as an executive organ of the Government’.

The facility of the review was firmly established and also the limitations for its exercise were clearly enunciated[9]. In India, the position of the judiciary is somewhere in between the courts in England and therefore the U.S. In England, a law duly made by Parliament cannot be challenged in any court. country Courts must interpret and apply the law; they need no authority to declare such a law illegal or unconstitutional. In the U.S, the Supreme Court is supreme and might declare any law unconstitutional on the bottom of its not being in “due process of law”. Our Constitution, unlike the English Constitution, recognises the court’s supremacy over the legislative authority, but such supremacy may be a very limited one, for its confined to the sector, the constitution itself puts a limitation on the exercise of power where the legislative power interferes with due process of law. Within this restricted field, the court may, on scrutiny of law or fade by the legislature, declare it void if it’s found to possess transgressed the Constitutional limitations. Unlike the U.S.A. Constitution, the courts in India haven’t any authority to question the wisdom or policy of the law duly made by the legislature.

Conclusion

In pursuance of the Indian Independence Act, the govt. of India Act, 1935, was amended by the difference Orders, both in India and Pakistan, so on supply an interim Constitution to each of the two Dominions until the Constituent Assembly could draw up the long-term Constitution. The following were the foremost results of such adaptations: (a) Abolition of the Sovereignty and Responsibility of the British Parliament. As has been already explained, by the govt. of India Act, 1858, the Government of India was transcended from the East Indies Company to the Crown. By this Act, parliament became the direct guardian of India, and so the office of the Secretary of State for India was created for the administration of Indian affairs, that the Secretary of State was to take the charge of Parliament Notwithstanding substantial reduction of control, All the Governor Governors remained gradually under the direct control of the Secretary of State including General of India and Provincial, until the Indian Independence Act, 1947, so that in constitutional theory, the govt. of India can be a subordinate official Government under His Majesty s Government. It is declared that with effect from the 15th August 1947 (referred to because the ‘appointed day), India ceased to be a Dependency and also the suzerainty of nation Crown over the Indian States and also the treaty relations with Tribal communities and their Areas will also lapse from this date onwards. The Crown no longer the source of authority. The Constitution is a unique document, is not a mere pedantic legal text; it embodies human values, cherished principles, and spiritual norms. It upholds to the dignity of a man being the law above all empowered the citizens and creates a government to protect the rights of individuals, maintain the sovereignty of the country[10].


References:

[1] A tryst with Destiny – Jawaharlal Nehru

[2] According to Prof. Vile

[3] Implementation of Directive Principles Art. 51

[4] Justice, Liberty, Equality, Fraternity

[5] Berubaris’ case (AIR 1960 SC 858)

[6] Keshavanand Bharti case (AIR 1973 SC 1467)

[7] State of West Bengal v. Union of India (AIR 1963 SC 1241)

[8] J.K. Jute Mills v State of U.P. (AIR 1961 SC 1534)

[9] A.K. Gopalan v State of Madras (AIR 1950 SC 27)

[10] Bachan singh v. State of Punjab (A.I.R 1982 S.C. 1325)


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