The Constitution: Framing and Commencement

Introduction:

The Indian Constitution is the country’s supreme law. It establishes the government’s core political principles, methods, practices, rights, authorities, and responsibilities. It confers constitutional supremacy rather than parliamentary supremacy because it was drafted by a constituent assembly and ratified by the people with a declaration in the preamble. It is impossible for Parliament to override it.

The Indian constitution is the world’s longest constitution. It began with 395 articles divided into 22 divisions and eight schedules. It has around 145,000 words, making it the world’s second-largest active constitution. There is now a preface, 25 parts with 12 schedules, 5 appendices, 448 articles, and 101 amendments in the document.

History

Before 1947, India was divided into two primary entities: British India, which consisted of 11 provinces, and the Princely States, which were administered by Indian princes under a policy of subsidiary alliance. Although the two entities combined to form the Indian Union, many of the legacy systems from British India are still in use today. Many regulations and actions passed before India’s independence can be traced back to the historical foundations and evolution of the Indian Constitution.

The Indian Administrative System

Indian democracy is a Parliamentary democracy, which means that the executive is accountable to the legislature. The Loksabha and Rajyasabha are the two houses of Parliament. Also, the government is federal, meaning there is a separate administration and legislature at the federal level and the state level. At the municipal government level, we have self-governance as well. The British administration is responsible for all of these systems. Let us look at the history of the Indian Constitution and how it has evolved through time.

Regulating Act of 1773

1. The British Parliament took the first step towards controlling and regulating the East India Company’s operations in India.
2. It named the Governor-General as the Governor of Bengal (Fort William) (of Bengal). 
3. The first Governor-General of Bengal was Warren Hastings.
4. The Governor-Executive General’s Council was founded (Four members).  A separate legislative council did not exist.
5. The Governors of Bombay and Madras were subordinated to the Governor-General of Bengal.
6. In 1774, the Supreme Court was created as the Apex Court in Fort William (Calcutta).
7. It made it illegal for company servants to engage in any private trade or receive bribes from natives.
8. The company’s revenue should be reported by the Court of Directors (the company’s governing body).

Pitt’s India Act of 1784

1. Differentiated between the company’s commercial and political functions.
2. For commercial activities, there is a Court of Directors, and for political concerns, there is a Board of Control.
3. The Governor General’s Council has been reduced to three members.
4. The British government was given direct control over Indian affairs.
5. The company’s Indian possessions were dubbed “British possession in India.”

In Madras and Bombay, the governor’s councils were constituted.

Charter Act of 1813

The Company’s monopoly on Indian trade was lifted, and all British subjects were free to trade with India.

Charter Act of 1833

1. The Governor-General (of Bengal) was elevated to the position of Governor-General of India.
2. Lord William Bentick was the first Governor-General of India.

In British India, this was the penultimate step toward centralization.

• The legislation also took away the legislative rights of the provinces of Bombay and Madras, resulting in the formation of a central legislature for India.
• The East India Company’s activities as a commercial entity were curtailed by the Act, and it was reduced to a purely administrative entity. The Governor-General (of Bengal) was elevated to the position of Governor-General of India.
• Lord William Bentick was the first Governor-General of India.
• In British India, this was the penultimate step toward centralization.
• The legislation also took away the legislative rights of the provinces of Bombay and Madras, resulting in the formation of a central legislature for India.
• The East India Company’s activities as a commercial entity were curtailed by the Act, and it was reduced to a purely administrative entity.

Charter Act of 1853

1. The Governor-legislative General’s Council’s and executive duties were separated.
2. The Central Legislative Council has six members. The temporary governments of Madras, Bombay, Bengal, and Agra appointed four of the six members.

Government of India Act of 1858

1. In India, the rule of the Company was superseded by the rule of the Crown.
2. The Secretary of State for India was to exercise the British Crown’s powers.
3. The Board of Control and the Court of Directors have been abolished.

Indian Councils Act of 1861

It was the first time that Indians were represented in institutions such as the Viceroy’s executive and legislative council (non-official).  Three Native Americans were elected to the Legislative Council.

India Council Act of 1892

1. Indirect elections were introduced (nomination). 
2. The size of the legislative councils has been increased.

Indian Councils Act of 1909

1. The Morley-Minto Reforms are another name for this act.
2. Direct elections to legislative councils were the first attempt to include a representative and popular element in the legislative process.
3. )

Government of India Act of 1919

1. The Montague-Chelmsford Reforms are another name for this act.
2. The Central topics were divided from the Provincial subjects by a dividing line.

Government of India Act of 1935

1. The Act called for the formation of an All-India Federation with Provinces and the Princely States as units, but the federation never materialized.
2. There are three lists: The Federal List, the Provincial List, and the Concurrent List were used to divide the powers between the Centre and the units under the Act.

Indian Independence Act of 1947

1. It declared India to be a sovereign and independent nation.
2. At the federal level and in the provinces, accountable governments have been established.

Sources of the Constitution

Government of India Act 1935

The Government of India Act 1935 left a legacy that culminated in the Constitution of 1950. With 321 sections and 10 schedules, this was the British government’s longest legislation. [1]

The United Kingdom

Many of the themes and aspects of the Indian Constitution have their origins in the United Kingdom. Here are a few examples:

1. Parliamentary type of administration: The country is governed by a cabinet of ministers led by the Prime Minister in this form of government.
2. Rule of Law: This asserts that a state is ruled solely by the laws of that country, not by its representatives or its people. The rule of law notion emphasizes that everyone is equal in front of the law, including those who make it. The rule of law is codified in Article 14 of the Indian Constitution.

The United States of America

The following are some of the characteristics that have been borrowed from the United States:

1. Fundamental Rights: The Indian Constitution contains all of the fundamental rights in Articles 12 to 32. Fundamental rights are basic human rights granted to citizens of a country in order to ensure that they have an equal footing in society.
2. Judicial Review: The Judicial Review provision empowers the judiciary to interpret the Constitution. Any order by the legislative or administration that violates the country’s Constitution can thus be overturned by the judiciary.

Ireland

The provision of the Directive Principles of State Policy is the key component inherited from the Irish Constitution (DPSP).  The DPSP is enumerated in Part IV of the Indian Constitution, which indicates that it is the State’s responsibility to adopt these principles throughout the legislative process.

Canada

The provisions of a strong central government, the Centre’s residuary powers, the Centre’s nomination of State governors, and the Supreme Court’s advisory authority have all been borrowed from the Canadian constitution.

France

The values of Liberty, Equality and Fraternity were adopted from the French Constitution by the Indian Preamble. In the lineage of the French Constitution, the Indian state became known as the “Republic of India.”

Australia

The Australian Constitution gave us guarantees for freedom of trade and commerce both within Australia and between states.

South Africa and Germany

While the South African Constitution provided for amending procedures and the election of Rajya Sabha members, the German Constitution provided for the suspension of fundamental rights during times of emergency.

The Constituent Assembly

1. The Cabinet Mission Plan of May 1946 provided for the formation of the Constituent Assembly of India. Its mission was to draught a constitution or constitution to facilitate the transfer of sovereign sovereignty from British to Indian hands.
2. Existing provincial legislatures and princely realms were to have proportional representation in the Assembly. The majority of these elections were completed by the end of July 1946, under the supervision of the Governor General’s Reforms Office (Viceroy). 
3. Punjab and the North-West, Bengal-Assam, and the Rest of India were to be represented in the Assembly.
4. The Constitutions for the Indian Union, each Section, and each of the Provinces within it were to be drafted. Because the Muslim League, which had won the majority of the 80 Muslim seats and controlled two smaller Sections, refused to participate, the Assembly never convened in sections.
5. Assembly held 12 sessions, or rounds of sittings:[2]
6. December 9-23, 1946,
7. January 20- 25, 1947,
8. April 28- May 2, 1947,
9. July 14- 31, 1947,
10. August 14- 30, 1947,
11. January 27, 1948,
12. November 4, 1948-January 8, 1949,
13. May 16- June 16, 1949,
14. July 30-September 18, 1949,
15. October 6-17, 1949,
16. November 4-26, 1949,
17. January 24, 1950.
18. Apart from resignation and death, the Assembly’s membership constantly changing for a variety of reasons. Many famous people expressed interest in joining the Assembly, although it was criticized by certain parties such as the Muslim League, Communists, and Socialists. These sentiments shifted as well. After the British Parliament passed the Indian Independence Act, it was decided that members who wanted to keep their positions in the provincial legislature would have to leave their seats in the Assembly.  The announcement of the Partition of India produced the most significant shift in membership. Certain members, including Dr. Ambedkar, who were elected from the Dominion of Pakistan regions, lost their seats. After partition, Muslim League members elected from the United Provinces, Bihar, and elsewhere took up their seats. On several occasions, such members were humiliated, and Patel even advised them to relocate to Pakistan. After a period of apathy, the princely kingdoms began negotiating for representation with a committee of the Assembly. Hundreds of princely states were merged together into bigger associations over time, and mechanisms were developed for them to elect representatives to the Assembly. New members kept coming in until the very final day of the Assembly. Hyderabad did not send anyone until the very last minute. No official or academic has ever determined the total number of people who have ever sat as members of the Assembly. According to records, the Assembly’s maximum membership at the end of its term was 307. [3]

Drafting Committee

The Constituent Assembly established a Drafting Committee on August 29, 1947, under the chairmanship of Dr. B.R. Ambedkar, to draught a draught constitution for India. Out of a total of 7,635 amendments presented, the Assembly moved, considered, and voted on 2,473 of them throughout its deliberations on the draught Constitution. The assembly moved, debated, and voted on 2,473 changes while deliberating on the draught Constitution. [4]

Members of the Constitution’s Drafting Committee

C Rajagopalachari

C Rajagopalachari was an Indian lawyer, politician, and writer who was active in the fight for independence. After Lord Mountbatten left India, he became the first Indian Governor General of India. C Rajagopalachari was born in the Tamil Nadu town of Thorapalli in the year 1878.

Rajendra Prasad

Prasad was a politician, lawyer, and journalist who also served as India’s first President. He was a close friend of Mahatma Gandhi and the president of the Indian National Congress during the noncooperation agitation for independence. He worked as a lawyer at the Calcutta High Court.

Jawaharlal Nehru

Jawaharlal Nehru, often known as Pandit (teacher) Nehru, was born in Allahabad on November 14, 1889. He was India’s first prime minister, and he was a key figure in the country’s war for independence in 1947. Our parliamentary government was also formed by Nehru. As a debater, lawyer, leader, and politician in the Constituent Assembly, Jawaharlal Nehru was instrumental in the formation of the Indian Constitution.

Vallabhbhai Patel

Vallabhbhai Patel was an Indian political and social leader who was instrumental in the country’s fight for independence and directed its unification into a cohesive, independent nation. He was dubbed the “Indian Iron Man.” He was known as Sardar throughout India and throughout the world.

Kanaiyalal Maneklal Munshi

Munshi earned his law degree and began practicing in the Bombay High Court. Sri Aurobindo Ghosh, his teacher when he was a student, was a huge inspiration to him. The Indian liberation warrior Kanaiyalal Maneklal Munshi entered politics as a member of the INC’s Subjects Committee.

B R Ambedkar

Dr. Bhimrao Ramji Ambedkar was a politician, a jurist, and a social reformer. He is also recognized as the Indian Constitution’s Father. As a well-known politician, he made great attempts to abolish social ills such as untouchability and casteism.

Ganesh Vasudev Mavalankar

Ganesh Vasudev Mavalankar was the Lok Sabha’s first Speaker. He was a pro-independence campaigner who served as President of the Central Legislative Assembly from 1946 to 1947 before becoming Speaker of the Indian Constituent Assembly.

Abul Kalam Azad

Azad was born in Mecca, Saudi Arabia, to an Indian Muslim scholar and his Arabic wife. In his late teens, Azad became involved in major journalism, and in 1912, he launched Al-Hilal, a weekly Urdu-language newspaper in Calcutta.

Shyama Prasad Mukherjee

Shyama Prasad Mukherjee was a prominent member of the Congress party during Jawaharlal Nehru’s prime ministership. He was the son of distinguished educationist and Calcutta University Vice-Chancellor Ashutosh Mukherjee. Mukherjee was a stalwart supporter of education who was well-liked even in British circles.

Balwantrai Mehta

Balwantrai Mehta was an Indian politician who served as the state of Gujarat’s second Chief Minister. He was a member of the independence movement and afterward served in several government positions. Due to his significant contributions to democratic decentralization and policy, he is also known as the “Architect of Panchayati Raj.”

The Difficulty of Writing the Constitution of India

Caste prejudice is imposed in India via a caste system that is practiced in God’s name. Making a Constitution for a people that belief in such a corrupt god is tough, yet Dr. Ambedkar succeeded. Based on Buddhism, he drafted the Constitution. Gautama Buddha was the first person to preach Love, Compassion, Liberty, Equality, Fraternity, and Justice in the history of mankind. Dr. Ambedkar is known as the Architect of India because he amended the Constitution to abolish the caste system and grant equal rights to all Indians.[5] The meetings of the Constitution Drafting Committee lasted 114 days. Dr. Ambedkar continued to work on his draught for another two years, eleven months, and eighteen days. Direct expenses totaled 63 lakh, 96 thousand, 729 rupees. He responded to a total of 7635 notices over the Constitution’s framing. It was difficult to construct the Constitution in a way that considered the different religious groups and ensured that everyone agreed on the norms and laws. Dr. Ambedkar studied all Indians’ brains and religions. He was a visionary who crafted a Constitution that, even after 60 years, continues to serve us all well.

Commencement of Indian Constitution

The Constituent Assembly formally accepted the new Constitution on November 26, 1949, completing the framing of the Constitution. The Constitution was signed on January 26, 1950, and went into effect on January 26, 1950. [6]

The Amenability Of The Preamble

In the well-known case of Kesavananda Bharati v. State of Kerala[7], the Supreme Court debated whether the preamble to India’s constitution can be altered or not. Y.V. Chandrachud, J. noticed an interesting argument offered in this case that the Preamble is a part of the Constitution but not a provision of the Constitution, and hence we cannot modify the Constitution to remove the Preamble. Chandrachud, J., dismissed the arguments, holding that it was impossible to accept the argument that the Preamble is not a constitutional provision. The Preamble was placed to a vote and was voted on to become a part of the Constitution, as evidenced by the proceedings. The argument is that the Preamble, like a sunbeam, preserves certain incandescent thoughts and notions of history and that it is unamendable by its nature since no present or future, no matter how powerful, can assume the capacity to change the genuine facts of the previous history. The 42nd Amendment Act, 1976, introduced the phrases “Socialist,” “Secular,” and “Integrity” to the preamble of the Indian constitution in order to achieve economic fairness and the eradication of income and standard of living disparities. Secularism indicates that all religions are equal and that religious tolerance is acceptable, but it does not recognize any state religion. The word integrity secures one of the preamble’s primary aims and objectives: the state’s fraternity and unity.

Conclusion

The Indian Constitution is a perfect blend of all the laws, and the provisions and articles alone make it the supreme law of the country. In implementing and interpreting any clause of the constitution, the Constituent Assembly’s soul must always be considered. The framers of the constitution attempted to include all significant provisions in the constitution so that there would be no ambiguity about how a country’s governance would be carried out, and this is one of the characteristics of the Indian Constitution that makes it a complete and comprehensive document in and of itself.

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References:

[1] https://blog.ipleaders.in/government-of-india-act-1935-2/amp/

[2] https://www.downtoearth.org.in/coverage/governance/making-of-constitution-a-simplified-brief-56529

[3] https://en.wikipedia.org/wiki/Constituent_Assembly_of_India

[4] https://www.edexlive.com/happening/2019/jan/24/who-drafted-the-constitution-heres-a-look-at-some-of-the-most-important-members-of-the-drafting-co-5136.html

[5] https://velivada.com/2016/04/20/challenges-faced-by-dr-ambedkar-to-write-the-constitution-of-india/

[6] https://www.india.gov.in/my-government/constitution-india

[7] (1973) 4 SCC 225; AIR 1973 SC 1461