UNIT - 1

Indian Constitution

1.1 Evolution of the Indian Constitution

1. In 1938, Jawaharlal Nehru, on behalf of the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected based on the adult franchise’.

2. The demand was finally accepted in principle by the British Government in what is known as the’ August Offer’ of 1940. In the 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 adopt after World War II.

3. 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 sent to India. It rejected the idea of two Constituent Assemblies, it put forth a schemes for the Constituent Assembly which is more or less satisfied the Muslim League.

4. It was under the Cabinet Mission Plan of 1946 that the Constituent Assembly was constituted to frame a Constitution for India: The Constituent Assembly, which had been elected for undivided India and held its first sitting on December 9, 1946, reassembled on August 14, 1947, as the sovereign Constituent Assembly for the Dominion of India.

5. It was elected by indirect election by the members of the Provincial Legislative Assembly (Lower House only), according to the scheme recommended by the Cabinet Delegation. The essentials of the scheme are as follows –

• The Provinces elected 292 members while the Indian States were allotted a maximum of 93 seats.
• The seats in each province were distributed among the three main committees Muslim, Sikh, and General, in proportion to their respective population.
• Members of each community in the Provincial Legislative Assembly elected their representatives by the method of proportional representation with a single transferable vote,
• The method of selection in the case of representatives of Indian States was to be determined by consolation. As a result of Partition under the Plan of June 3, 1947, a separate Constituent Assembly was set up for Pakistan. The representatives of the Bengal, Punjab, Sind, North-Western Frontier Province, Baluchistan and the Sylhet district of Assam (which had joined Pakistan by a referendum) ceased to be members of the Constituent Assembly of India, and the a fresh election was held in the new Provinces of West Bengal and East Punjab. (Hence, when the Constituent Assembly reassembled on Oct. 31, 1947) the members of the House was reduced to 299. Of these 284 were present on Nov. 26, 1949, and appended their signatures to the Constitution as finally passed.

1.1.1 1909 Act 

In Great Britain, the Liberal Party had scored an electoral victory in 1906 that marked the dawn of a new era of reforms for British India. The relatively new secretary of state—hampered though he was by Lord Minto, the British viceroy of India (1905–10)—was able to introduce several important innovations in the legislative and administrative machinery of the British Indian government. Implementing Queen Victoria’s promise of equality of opportunity for Indians, two Indian members were appointed by him to council at Whitehall: one a Muslim, Sayyid Husain Bilgrami, who has taken an active role in the founding of the Muslim League; and the other a Hindu, Krishna G. Gupta, a senior Indian in the Indian Civil Service. Morley also was unwilling Lord Minto to appoint to the viceroy’s Executive Council the first Indian member, Satyendra P. Sinha, in 1909.

Though the initial electorate base designated by the 1909 act was a small minority of Indians authorized by property ownership and education, in 1910 some 135 elected Indian representatives took their seats as members of legislative councils throughout British India. The act also increased the maximum additional members of the Imperial Legislative Council from 16 (to which it had been raised by the Indian Councils Act of 1892) to 60. In the provincial councils of Bombay (now Mumbai), Bengal, and Madras (now Chennai), which was created in 1861, the permissible total membership was earlier raised to 20 by the Indian Councils Act of 1892. That number was raised to 50 in 1909, even though a majority of the members were to be unofficial. The number of council members in the other provinces was similarly increased.

When Morley abolished the official majorities of provincial legislatures, it was on the advice of Gopal Krishna Gokhale and other liberal leaders of the Indian National Congress, such as Romesh Chunder Dutt. He overrode the bitter opposition of the ICS and also his viceroy and council. Morley believed, as did many other British Liberal politicians, that the only justification for British rule over India was to bequeath to India Britain’s greatest political institution: parliamentary government. Lord Minto and his officials in the Calcutta (now Kolkata) and the Simla (now Shimla) wrote strict regulations for the implementation of the reforms and insisted on the retention of executive veto power over all legislation. Elected members of the new councils were empowered, nevertheless, to question the executive informally or formally about all aspects concerning the annual budget. Members were also permitted to introduce legislative proposals of their own.

The Indian Councils Act 1909 is an act of the British Parliament that introduced a few reforms in the legislative councils and increased the involvement of Indians (limited) in the governance of British India. It is more commonly called the Morley-Minto Reforms after the Secretary of State for India John Morley and the Viceroy of India, the 4th Earl of Minto.

Background of Morley-Minto Reforms 

• Despite Queen Victoria’s proclamation that Indian’s would be treated equally, very few Indians got such an opportunity as the British authorities were hesitant to accept them as equal partners.
• Lord Curzon had carried out the partition of Bengal in 1905. This lead to a massive uprising in Bengal as a result. Following this, the British authorities understood the need for some reforms in the governance of Indians.
• The Indian National Congress (INC) was also agitating for more reforms and self-governance of Indians. The earlier Congress leaders were moderates, but now extremist leaders were on the rise who believed in more aggressive methods.
• INC demanded home rule for the first time in 1906.
• Gopal Krishna Gokhale met Morley in England to emphasize the need for reforms.
• Shimla Deputation: A group of elite Muslims led by Aga Khan met Lord Minto in 1906 and placed their demand for a separate electorate for the Muslims.
• John Morley was a member of the Liberal government, and he wanted to make positive changes in India’s governance.

Major provisions of the Morley-Minto reforms

• The legislative councils at the Centre and the provinces increased in size.

• Central Legislative Council – from 16 to 60 members
• Legislative Councils of Bengal, Madras, Bombay and United Provinces – 50 members each
• Legislative Councils of Punjab, Burma and Assam – 30 members each
• The legislative councils at the Centre and the provinces were to have four categories of members as follows:
• Ex officio members: Governor-General and members of the executive council.
• Nominated official members: Government officials who were nominated by the Governor-General.
• Nominated non-official members: nominated by the Governor-General but were not government officials.
• Elected members: elected by different categories of Indians.
• The elected members were elected indirectly. The local bodies elected an electoral college who would elect members of the provincial legislative councils. These members would, in turn, elect the members of the Central legislative council.
• The elected members were from the local bodies, the chambers of commerce, landlords, universities, traders’ communities and Muslims.
• In the provincial councils, non-official members were in the majority. However, since some of the non-official members were nominated, in total, a non-elected majority was there.
• Indians were given membership to the Imperial Legislative Council for the first time.
• It introduced separate electorates for the Muslims. Some constituencies were earmarked for Muslims and only Muslims could vote their representatives.
• The members could discuss the budget and move resolutions. They could also discuss matters of public interest.
• They could also ask supplementary questions.
• No discussions on foreign policy or on relations with the princely states were permitted.
• Lord Minto appointed (on much persuasion by Morley) Satyendra P Sinha as the first Indian member of the Viceroy’s Executive Council.
• Two Indians were nominated to the Council of the Secretary of State for Indian affairs.

Assessment of the Morley-Minto reforms

• The Act introduced communal representation in Indian politics. This was intended to stem the growing tide of the nationalism in the country by dividing people into communal lines. The culmination of this step was seen in the partition of the country along religious lines. The effects of differential treatment of different religious groups can be seen to this day.
• The Act did nothing to grant colonial self-government, which was Congress’s demand.
• The Act did increase Indian participation in the legislative councils, especially at the provincial levels.

1.1.2 1919 Act

The Government of India Act 1919 was an act of the British Parliament that sought to increase the participation of Indians in the administration of the country. The act was based on the recommendations of report by Edwin Montagu, the then Secretary of State for the India, and Lord Chelmsford, India’s Viceroy between 1916 and 1921. Hence the constitutional reforms set forth by this act are known as Montagu-Chelmsford reforms or Montford reforms.

• Executive:

• Dyarchy was introduced, i.e., there were two classes of administrators – Executive councilors and ministers.
• The Governor was the executive head of the province.
• The subjects were divided into two lists – reserved and transferred.
• The governor was in charge of the reserved list along with his executive councilors. The subjects under this list are law and order, irrigation, finance, land revenue, etc.
• The ministers were in charge of subjects under the transferred list. The subjects included are education, local government, health, excise, industry, public works, religious endowments, etc.
• The ministers were responsible to the people who elected them through the legislature.
• These ministers were nominated from among the elected members of the legislative council.
• The executive councilors were not responsible to the legislature, unlike the ministers.
• The Secretary of State and the Governor-General could interfere in matters under the reserved list but this interference was restricted for the transferred list.
• Legislature:
• The size of the provincial legislative assemblies was increased. Now about 70% members were elected.
• There were communal and class electorates.
• Some women could also vote.
• The governor’s assent was required to pass any bill. He also has veto power and could issue ordinances.

Central government

• Executive:

• The chief executive authority was the Governor-General.
• There were two lists for administration – central and provincial.
• The provincial list was under the provinces while the centre took care of the central list.
• Out of the 6 members of the Viceroy’s executive council, 3 were to be Indian members.
• The governor-general could issue ordinances.
• He could also certify bills that were rejected by the central legislature.
• Legislature:

• A bicameral legislature was set up with two houses – Legislative Assembly (forerunner of the Lok Sabha) and the Council of State (forerunner of the Rajya Sabha).
• Legislative Assembly (Lower House)
• Members of the Legislative Assembly:

During the World War the Great Britain and her allies had said that they were fighting the war for the freedom of the nations. Many Indian leaders believed that after the war is over, India would be given Swaraj. The British government however had no intention of conceding the demands of Indian people. Changes were introduced in the administrative system as a result of the Montagu-Chelmsford Reforms, called the Government of India Act, 1919.

Government of India Act 1919 was passed by British Parliament to further expand the participation of Indians in the Government of the India. Since the act embodied reforms as recommended by a report of Edwin Montagu {Secretary of State for India} and Lord Chelmsford {Viceroy and Governor General}, it is also called as Montague-Chelmsford Reforms or simply Mont-Ford Reforms. The most notable feature of the act was “end of benevolent despotism” and introduction of responsible government in the India. This act covers 10 years from 1919 to 1929.

Edwin Samuel Montagu had remained the Secretary of State for India between 1917 and 1922. He was a critic of the system by which India was administered. On 20 August 1917, he made a historic declaration in the House of Commons in British Parliament which is called “Montague declaration”. The theme of this declaration was increasing association of Indians in every branch of administration and gradual development of self-governing institutions and responsible government in India.

In November 1917, Montague had visited India to ascertain views from all sections of polity including talks with Gandhi and Jinnah. A report on Constitutional Reforms in India {Mont-Ford Report} was published on 8th July, 1918. This report became the basis of Government of India Act 1919. Key features of this report were as follows:

• Increasing association of Indians in every branch of administration.
• Gradual development of self-governing institutions with a view to the progressive realization of responsible government in India as an integral part of the British Empire.
• Progress towards responsible government in successive stages.

Preamble

The Government of India Act 1919 had separate Preamble. Key points of preamble were as follows:

• India to remain as an integral part of British Empire.
• Gradual decentralization of authority with loosening the supreme hold of the central government. Thus, preamble of this act suggested for a decentralized unitary form of government.
• The time and manner towards goal of responsible government will be decided by the British Parliament.
• Partial responsibility in provinces, but no change in character of the central government.

1.1.3 1935 Act 

On August 1935, Government of the India passed longest act i.e. Government of India Act 1935 under the British Act of Parliament. This act also includes the Government of Burma Act 1935. According to this act, India would become a federation if 50% of Indian states decided to join it. They would then have a large number of representatives in the two houses of the central legislature. However, the provisions with regards to federation were not implemented. The act made no reference even to granting dominion status, much less independence, to India.

With regard to the provinces, the act of 1935 was an improvement on the existing position. It introduced what is known as provincial autonomy. The ministers of the provincial governments, according to it, are to be responsible to the legislature. The powers of the legislature were increased. However, in certain matters like the Police, the government have the authority. The right to vote also remained limited. Only about 14% of the population got the right to vote. The appointment of governor-general and governors, of course, remained in the hands of the British government and they were not responsible to the legislatures. The act never came near the objective that the nationalist movement had been struggling for.

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 in 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 the 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 in 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).

List of British Viceroys during British India

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 establishment of a Reserve Bank of India to control 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 main objectivity of the act of 1935 was that the government of India was under the British Crown. So, the authorities and their functions derive from the Crown, in so far as the crown did not itself retain executive functions. His conception, familiar in dominion constitutions, was absent in earlier Acts passed for India.

Hence, the act of 1935 served some of the useful purposes by the experiment of provincial autonomy, thus we can say the Government of India Act 1935 marks a point of no return in the history of constitutional development in India.

Key Takeaways:

• In 1938, Jawaharlal Nehru, on behalf of the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of the adult franchise’.
• The Indian Councils Act 1909 was an act of the British Parliament that introduced a few reforms in the legislative councils and increased the involvement of Indians (limited) in the governance of British India. It was commonly called the Morley-Minto Reforms after the Secretary of State for India John Morley and the Viceroy of India, the 4th Earl of Minto.
• On August 1935, the Government of India passed longest act i.e. Government of India Act 1935 under the British Act of Parliament. This act also included the Government of Burma Act 1935. According to this act, India would become a federation if 50% of the Indian states decided to join it. They would then have a large number of representatives in the two houses of the central legislature.

1.2 Constituent Assembly

The Constituent Assembly of India was elected to write the Constitution of India. It was elected by the 'Provincial Assembly'. Following India's independence from British Government in 1947, its members served as the nation's first Parliament.

An idea for the Constituent Assembly was proposed in 1934 by M. N. Roy, a pioneer of the Communist movement in India and an advocate of radical democracy. It became an official demand of the Indian National Congress in 1935, C. Rajagopalachari voiced the demand for the Constituent Assembly on 15 November 1939 based on an adult franchise, and was accepted by the British in August 1940.

On 8 August 1940, a statement was made by Viceroy Lord Linlithgow about the expansion of the Governor-General's Executive Council and the establishment of a War Advisory Council. This offer, known as the August Offer, included giving full weight to minority opinions and allowing Indians to draft their own constitution. Under the Cabinet Mission Plan of 1946, election was held for the first time for the Constituent Assembly. The Constitution of the India was drafted by the Constituent Assembly, and it was implemented under the Cabinet Mission Plan on 16 May 1946. The members of the Constituent Assembly were elected by provincial assemblies by a single, transferable-vote system of proportional representation. The total membership of Constituent Assembly was 389 of which 292 were representatives of the provinces, 93 represented the princely states and 4 were from the chief commissioner provinces of Delhi, Ajmer-Merwara, Coorg and the British Baluchistan.

1.2.1 Composition and Functions

• Initially, the number of members was 389. After partition, some of the members went to Pakistan and the number came down to the 299. Out of this, 229 were from the British provinces and 70 were nominated from the princely states.
• Dr. Sachchidananda Sinha was the first temporary chairman of the Constituent Assembly. Later, Dr. Rajendra Prasad was elected as the President and its Vice President was the Harendra Coomar Mookerjee. BN Rau was the constitutional advisor.

Constituent Assembly of India was set up under Cabinet Mission Plan of 1946. It consisted of 385 members, of which 292 were elected by elected members of provincial Legislative Assemblies while 93 members were nominated by the Princely States. It also had one representative each from the four chief Commissioners provinces of Delhi, Ajmer-Marwar, Coorg and British Baluchistan.

B N Rao was the Constitutional Advisor of the Assembly. Dr. Rajendra prasad was elected as its president.

1.2.2 Fundamental features of the Indian Constitution

1. World's Longest Constitution

The Indian Constitution contains 395 articles and 12 schedules, making it world's longest written constitution. Just compare it with other countries Constitutions. For example, the UK has no written constitution, while the US Constitution contains only seven articles.

Not only have this but since 1951 about 90 articles and more than 100 amendments been added. However, since articles are not added separately as part of an existing article (e.g. Article 21A, 35A etc.) the total number of articles remains same at 395.

2. Taken from various sources

The Indian Constitution was framed from multiple sources including the 1935 Government of India Act and Other Countries Constitutions.

3. Federal System with Unitary Features

Federal System with the Unitar the Indian Constitution includes all the federal characteristics of the governance such as dual government system (center and state), division of powers between the three state organs (executive, judiciary and legislature), constitutional supremacy, independent judiciary and bicameralism (lower and upper house).

Nevertheless, the Indian Constitution is unique in that form it includes many unitary features such as a strong center, all India services common to the center and the states, emergency provisions that can transform the Constitution into a unitary one if necessary, appointment of governors by president on advice of the center, etc.

Indeed, Article 1 clearly states that India is a ' Union of States ' rather than a federation of States. In India, the states did not come together to form the center (or Union) like in the case of the USA which is the purest form of a federation. Rather, for administrative convenience, it is the center that created the states. Article 3 of the Indian Constitution gives Parliament the sole authority to create new states clearly indicating that the Indian Constitution is of a unitary nature with certain federal characteristics.

4. Parliamentary Form of Government

On the pattern of the British parliamentary system of government, the Indian Constitution has opted for the parliamentary form of government. The key characteristics of the parliamentary form of government are:

• Executive are members of the legislature
• Collective responsibility to the legislature of the Council of Ministers
• Rule of the majority party
• Prime Minister's or chief minister's leadership in the state
• Lower house dissolution (Lok Sabha and the state assemblies)
• Government form of the Cabinet

5. Balance between the Sovereignty of Parliament and the Judicial Supremacy

A fine balance has been struck between the parliamentary sovereignty and judicial supremacy by the Indian Constitution. The Supreme Court is vacuumed by Articles 13, 32 and 136 with the power of judicial review. By its power of the judicial review, it can strike down any parliamentary law as unconstitutional.

On the other hand, the Parliament, being a representative of the people's will, has the authority to make laws, and it can also amend the major part of the Constitution through its video vested powers under Article 368.

6. Independent and Integrated Judicial System

In India, unlike the United States where there is a two-tiered judiciary, a single judicial system prevails with the Supreme Court at the top, the State and District High Courts and other subordinate courts below and subject to the supervision of the High Courts.

It is the duty of all levels of courts in India to enforce both central and state laws unlike in the US, where federal courts adjudicate on federal matters and state courts on state matters.

Not only is the judiciary system well fully integrated in India, but because of the following provisions it is also independent

• Appointment of judges of Supreme Court and High Courts by collegium system
• Removal of judges in Parliament through an impeachment procedure that is very difficult to pass
• Supreme Court judges salaries, pensions, and allowances are charged to India's Consolidated Fund
• Power to punish for self – disregard
• Ban on judges practice after retirement…etc.

7. Directive Principles of State Policy

In Part IV of the Constitution, Directive Principles of State Policies (DPSPs) aims to make India a welfare state. Therefore, Dr. B.R. Ambedkar calls the Directive Principles as Indian Constitution's novel feature. The Principles of the Directive are inherently unjustifiable, that is, they are not enforceable for their violation by the courts.

Their usefulness, however, lies in their moral obligation to apply these principles to the state in making laws. Such as, the principles of the directive are fundamental to the country's governance.

8. Combination of rigidity and flexibility

The Indian Constitution strikes the fine balance between rigidity and flexibility when it comes to ease of modification. Article 368 lays down two types of modifications:

1. Some provisions may be amended by a special parliamentary majority, i.e. a 2/3rd majority of the members of each House present and vote and majority (i.e. more than 50 %) of each House's total membership.

2. Some other provisions can be amended by the special parliamentary majority and with half of the total states ratifying them. This ensures that with the widest possible majority, the Constitution is amended. At the same time, in the manner of ordinary legislative process, certain provisions of the Constitution can be amended by a simple majority of Parliament. Such amendments are not within the scope of Article 368.

Key Takeaways:

• The Constituent Assembly of India was elected to write the Constitution of India. It was elected by the 'Provincial Assembly'. Following India's independence from British Government in 1947, its members served as the nation's first Parliament.
• The Indian Constitution contains 395 articles and 12 schedules, making it the world's longest written constitution
• Article 1 clearly states that India is a ' Union of States ' rather than a federation of States. In India, the states did not come together to form the center (or Union) like in the case of the USA which is the purest form of a federation
• Indian Constitution makes Parliament the sole authority to create new states clearly indicating that the Indian Constitution is of a unitary nature with certain federal characteristics.

Reference Books:

1. D.D. Basu, Introduction to the constitution of India, Lexis Nexis, New Delhi

2. Subhash Kashyap, Our Parliament, National Book Trust, New Delhi