Comprehensive Essay on the Indian Constitution

The Constitution of India was drawn up by a Constituent Assembly established in accordance with the cabinet Mission Plan initially summoned on Dec. 9, 1946 under the presidentship of Sachidanand Sinha for undivided India.

On July 1, 1947 the British Parliament passed the Indian Independence Act to divide it into India and Pakistan. With the partition of India the representative of East Bengal, West Punjab, Sindh and Bluechistan, N. West frontier province and Sylehet District of Assam which joined Pakistan ceased to be members of Constituent Assembly. On the demise of Sinha, Dr. Rajendra Prasad became president of Constituent Assembly known as Sovereign Constituent Assembly for the Dominion of India. A draft Constitution was published in February 1948.284 out of 299 members appended their signature to the constitution and finally adopted it on 26th November 1949. It came into effect on 26th Jan. 1950.

Constitution of Drafting Committee—the work started with the presentation of the Objective Resolution (the underlying ideology) moved by Pandit Jawaharlal Nehru and adopted on January 22, 1947. The Committee for the draft constitution and suggesting amendments were formed on Aug 29, 1947. The draft was realised by Feb. 1948. The Constituent Assembly met thrice to read the draft clause by clause in November 1948. October 1949 and November 1949. After the third reading it was signed by the President and adopted on November 26, 1949. In fact a committee on Rules of Procedure was in place as early as December 1946.

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Members of Constituent Assembly were Alladi Krishna Swami Ayyar, N. Gopalswami Ayyangar, Dr. K. M. Munshi, T. Syed Mohd. Sadullah, B. L. Mittera (Was replaced by Madhav Ro) and D.P. Khaitan (replaced by T.T. Krishnaswami).

The Indian Constitution closely follows British Parliamentary model but differs from it in one important respect that is the constitution is supreme not parliament. So the Indian courts are vested with the authority to adjudicate on the constitutionality of any law passed by parliament.

The Constitution consists of the following:

1. The Preamble

2. Parts 1 to XXII covering Articles 1 to 395.

3. Schedules 1 to 12 and

4. An Appendix part IX the Panchayat Schedule XI Article (43 G) have been incorporated under 73rd Constitution Amendment Act 1992.

The Preamble:

“We the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens justice, social, economic and political; Liberty of thought, expression, belief, faith and worship, equality of status and opportunity and to promote among them all; Fraternity assuring dignity of the individual and the unity and integrity of the Nation.”

In our Constituent Assembly this twenty sixth day of November 1949 do hereby adopt enact and give to ourselves this constitution.

The words “socialist, secular and the unity and integrity of the Nation” were added to the Constitution by 42nd Amendment Act 197.

The Union and Its Territory:

1. Name and territory of the Union:

(a) India that is Bharat shall be a union of states (Art 1)

(b) The States and Territories thereof shall be as specified in the first schedule Art (2)

(c) The territories of India shall comprise—

(i) The territories of the states

(ii) The union territories

(iii) Such other territories as may be acquired

2. Admission or establishment of new states.

3. Formation of new states and alteration of areas, boundaries or names of existing states.

Distribution of Powers—The Union has exclusive power to make laws on all matters in list I of the Seventh Schedule (Union List), The States have exclusive powers to make laws on all matters in List II (State List). The Union and States have concurrent powers to legislate as any matter enumerated in List III (Concurrent List) Art 246.

Residuary Powers—The Union has exclusive power to make laws on any matter not enumerated in the Concurrent List or States List (Art 248).

Overriding Powers—In case of any conflict between Union Laws and State Laws the Union laws shall prevail (Art 254). Part ti—Citizenship

Indian Constitution though federal in character provides only single citizenship to the people of India, citizenship rights, according to the ‘Citizenship Act 1955’ are acquired:

(a) By birth i.e. born on after 26th Jan, 1950.

(b) By descent i.e. either of whose parents was born in India even if the person is born outside India on or after 26th Jan. 1950.

(c) By registration i.e. who have been residing in India for 5 years (as required by the citizenship act 1986) can acquire if by registering before the prescribed authority.

(d) By naturalisation, i.e. a foreigner can apply to the GOI for naturalisation.

(e) By incorporation of territory when new territory became part of the country. GOI shall specify the citizenship of people living there.

Citizenship could be lost on the ground of (a) surrender—voluntarily surrendering it when the person possess dual citizenship, (b) termination— when one acquires foreign citizenship, (c) deprivation—when acquired by fraud, etc.

Fundamental Rights:

Fundamental Rights are granted to citizens under Art 12 to 35 of the constitution. They are :

1. Right to equality—before law on the ground of religion race, caste, sex or place of birth employment; abolition of untouchability and titles.

2. Right to freedom —of speech and expression; assembly peaceably and without arms; to form associates of unions; to move freely throughout the territory of India; to reside and settle in any part of India; to practice and profession or to carry on any occupation, trade or business; of protection in respect of conviction for offences, of protection of life and personal liberty, and of protection against arrest and detention in certain cases.

Art 32 (1) to move Supreme Court by appropriate proceeding for enforcement of the rights conferred by this part is guaranteed.

3. Right against Exploitation: Prohibition of traffic in human beings and forced labour; prohibition of employment of children in factories etc.

4. Right to Freedom of Religion—Conscience and free profession practice and propagation of religion right to manage religious affairs; non­payment of taxes for promotion of any particular religion; attendance of religious institutions or religious worship in certain educational institutions.

5. Cultural and educational Rights protection of interests of minorities, to establish and administer educational institutions.

6. Right to constitutional Remedies (a) all citizens are guaranteed the right to move the Supreme Court or the High Court by appropriate proceedings for the enforcement of Fundamental Rights.

The Supreme Court can issue directions/orders/writs such as habeas, corpus, mandamus orders, prohibition, quo warrant and certiorari, for the enforcement of any rights conferred by this part.

The right guaranteed by this article can not be suspended except as otherwise provided for by the constitution.

The 16th and 24th Amendments have considerably limited the exercise of Fundamental Rights.

Habeas Corpus—is an order calling on person who has detained another to produce the latter before the court in order to let know on what ground he has been confined and to set him free if there is no legal justifi­cation for the imprisonment.

Mandamus—Commands a person to whom it is addressed to perform some public or quasi public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.

Certiorari—is an order issued against a court or tribunal to quash their decision intended to secure the jurisdiction of an inferior court tribunal.

Quo-warranto—is a proceeding where by the court enquires into the legality of the claim which a party has to a public office, and to oust him, from its enjoyment if the claim not well proved. Part IV—the Directive Principles of State Policy

Article 36 to 51 of the constitution (Part IV) lays down 19 objectives. Directive Principles of State Policy enjoin the State to undertake within its means a number of welfare measures. These are intended to assure citizens an adequate means of livelihood, raise the standard of living, improve public health, provide free and compulsory education for children and assure that the operation of the economic system does not result in the concentration of wealth and means of production to the detriment of the common good. These are not enforceable by law like fundamental rights. Nevertheless they have been declared fundamental to the governance of the country.

Schedules

First Schedule under Article 1 and 4 gives a list of the States and Territories comprising the Union.

Second Schedule under Article 59 (3), 65 (3), 75 (6) 97 (125), 148 (3), 158 (3) consists of 5 part A to E.

Part A fixes the remuneration and emoluments payable to the president and governors. Part B has been deleted by the constitution (Seventh Amendment Act of 1956). Part C contains provisions as to the speaker and the Deputy Speaker of the House of the people and chairman and the Deputy Chairman of the Council of States and the Speaker of Legislative Assembly. Part D contains provisions as to emoluments of the judges of the Supreme Court and of the High Court. Part E contains provisions as to the comptroller and Auditor General of India.

Third Schedule under Arts 75 (4), 99, 124 (6), 148 (2), 164 (3) (188 and 219) contains forms and oaths and affirmation.

Fourth Schedule under Art 4 (1) and (20) allocates seats for each States and Union territory in the Council of States.

Fifth Schedule under Art 244 (1) provides the administration and control of schedules areas. This schedule provides for amendments by a simple majority of parliament and takes it out of the ambit of Art 368 (Amendment of the Constitution).

Sixth Schedule—Under Arts 214 (2) and 275 (1) provides for the administration of Tribal Areas in Assam, Meghalaya and Mizoram. This is lengthy schedule which goes into detail of the administration in the Tribal Areas concerned. This schedule can also be amended by a simple majority of parliament.

Seventh Schedule under Art 246 gives three list (1) union list contains 97 contains 97 subjects in which the union government has exclusive authority of state governments (3) concurrent list contains 47 subjects where the union and states have concurrent powers.

Eight Schedule under Art 344 (1) and 351 (1) gives a list of 18 languages recognised by the constitution 1 Assamesse, Bengali, Gujrati, Hindi, Kannada, Oriya, Kashmir, Malyalam, Marathi, Punjabi, Sanskrit, Sindhi, Tamil, Telgu, Urdu, Konkani, Manipuri, Nepali, Dogri, Maithali and Santhali.

Ninth Schedule under Art 31 (b) was added by the constitution (First Amendment) Act 1951. It contains Acts and order relating to land tenures land tax railway government and union government which are beyond the jurisdiction of civil court.

Tenth Schedule under Article 243 (G) mention functions areas or subjects that are necessary for implementation of schemes for economic development and social justice in each panchayat. To mention a few agricul­tural, social forestry small scale industry roads, rural housing, PDS education, health and sanitation, poverty alleviation non-conventional energy resources.

Twelfth Schedule mentions three type of municipal committee, Nagar Panchayats for transitional area municipal council for smaller urban areas and Municipal Corporation for large urban area. Directive Principles of State Part IV, Art 36 to 51.

Policy:

The Directive Principles of State Policy constitute the Fourth part of the constitution and are unique and novel in so far as they depict the ambitions and aspirations of the founding fathers of the constitution. The Directive Principles have not been classified in the constitution. Yet they can be conveniently divided into following categories.

Economic Principles (i) equal distribution of wealth and material resources among all classes of people so as to prevent its concentration in few hands

(ii) Provision of adequate means of livelihood to all citizens of the states.

(iii) Equal pay for equal similar work for both men and women.

(iv) To ensure just and human conditions to work, a decent standard of living, full enjoyment of leisure and social and cultural opportunities.

(v) Maintenance and protection of health and strength of all citizens.

(vi) To make provisions for public assistance in case of unemployment old age, sickness, disability and other cases of undeserved want.

(vii) To raise the level of nutrition and standard of living.

Gandhian Principles (1) Prohibition of intoxicating drink and drugs

(2) To establish village Panchayats.

(3) Free and compulsory education for children up to the age of fourteen.

(4) The state shall promote with special care the educational and economic interests of the weaker sections of the people particularly scheduled castes and scheduled tribes and shall protect them form social injustice and all forms of exploitation.

(5) Prohibition of the slaughter of cows and calves and other milch and drought cattle and to promote animal husbandry for improving their breed.

Principles for the Promotion of International Understanding

(1) To promote international peace and security.

(2) To maintain just and honourable relations between nations

(3) To foster respect for international law and treaty obligations in dealings of organised people with one another.

(4) To encourage settlement of international disputes by arbitration. Miscellaneous—(1) To separate judiciary form the executive.

(2) To protect monuments and historical buildings

(3) The state shall endeavour to secure for the citizens uniform civil code throughout the territory of India.

Provisions Borrowed From Constitutions of Different Countries

Note 1:

Fundamental Rights under Article 15, 16, 19 and 30 exclusively apply to citizens of India.

Note 2:

Special Provisions for certain states

1. Jammu & Kashmir Article 370

2. A.P., Gujrat and Maharashtra Article 371

3. Nagaland Article 371 A

4. Assam Article 371 B

5. Sikkim Article 371 F

Note 3:

Fundamental Rights for Any person on soil of India are Art 14, 20, 21, 23, 25 and 27.

Note 4:

President’s Election (Article 55)

(i) The formula for the value of vote on MLA

Population of the State Elected Members of the Legislative Assembly x 1000

(ii) The formula for value of the vote on an MP

Total number of votes assigned to all elected MLAs Total number of elected MP The quota of votes required for a candidate to win Number of votes polled + 1 2

Note 5:

Government of the Union has three organs:

(i) Judiciary

(ii) Council of Ministers (Executive) + President

(iii) Legislature (both Houses of Parliament)

Note 6:

The Preamble: The Preamble specifies three points is the source of authority:

(i) The source of authority

(ii) The system of Government

(iii) Objectives to be attained by Political System

(iv) Date of Adoption

“We, The people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens Justice, Social, Economic and Political Liberty of thought expres­sion, belief, faith and worship.” Equality of status and of opportunity and to promote among them all fraternity assuming the dignity of and the unity and integrity of the Nation. In our constituent Assembly this twenty sixth day of November 1949 do hereby ADOPT, ENACT, and Give to OURSELVES this Constitution.

Note 7: Legislature has three parts:

(i) President,

(ii) Lok Sabha

(Both houses of Parliament) (in) Rajya Sabha

Note 8:

Executive consists of three components:

President

Vice president

Council of Ministers headed by Prime Minister.

Parts of the Constitution: The Constitution of India is divided into 12 parts.

Parts Subjects Matter and Articles Covered

I The union and its territory (1 to 4)

II Citizenship (5 to 11)

III Fundamental Rights (12 to 35)

IV Directive Principles (36 to 51)

V The Union Government (52 to 151)

VI The States Government 152-237

VII the States in Part B of the First Scheduled (Now Repealed) (238)

VIII the Union Territories (239-242)

IX the Panchayats (243 to 243)

IXA the Municipalities (243 P to 243 G)

X The scheduled and Tribal Areas (244-244 A)

XI Relations between Union and States (245 to 255)

XII Financance, Property, Contracts and Suits (264 to 300 A)

XIII Trade Commerce and Intercourse with in the territory of India (294 to 300)

XIV Service under the Union and States (301 to 307)

XIV A Tribunals (323 A-323 B)

XV Elections (324 to 329 A)

XVI Special provisions related to STs, SCs and OBCs Anglo Indians (330-342)

XVII Official Language (343 to 351)

XVIII Emergency Provisions (352-360)

XIX Miscellaneous (361-367)

XX Amendment of the Constitution (368)

XXI Temporary, Transitional and Special Provisions (369-392)

XXII Short title, Commencement, Authoritative Text in Hindi (393 to 395) Replaced