Definition & Need for Constitution:
In every civil society, there is a need for definition and declaring laws which will be implemented by the State and followed by the citizens of that country. Constitution is the basic foundational document which talks about the core values of the State, i.e. what are the rights given to the citizens, what are the powers and duties of the State, the way the Government will be put in place, Labour conditions, and many more. Later we need specific Statutes on every topic to explain in detail, how the parties involved in such topic will deal with it. One example of a Statute is the Indian Penal Code which is the primary general criminal law of India.
Making of Indian Constitution:
India gained independence from the English empire on 15 August 1947. As it was already concluded that the British will leave India, the preparation for making Constitution of India was started in 1946 by the Constituent Assembly, and it concluded on 26 November 1949 where some parts of the Constitution were brought in effect, and finally on 26 January 1950 the remaining parts were also brought into effect, and due to this reason Indians celebrate 26 November as ‘National Law Day’ or ‘Constitution Day’, and 26 January is celebrated as ‘Republic Day’. This making of the Constitution took almost 3 years, where there were multiple committees, and the prominent committee was the Drafting Committee whose Chairman was Shri Dr B.R Ambedkar who is popularly known as the architect & father of Indian Constitution. Indian Constitution is a written Constitution and it is the lengthiest Constitution in the world.
The Constitution of India, as on July 2020 has 469 Articles, which are divided into 25 Parts, and it has 12 Schedules attached at the end. Total numbered Articles are actually 503, but 34 out of them are omitted. An Article contains the basic law on a particular topic. The 25 Parts are divisions of the Articles on a common topic. The Schedules give additional information linked to the Articles. When the Constitution was originally implemented in 1950, it had 395 Articles, 22 Parts and 8 Schedules in it. There have been 104 Amendments to the Constitution so far. As we know the Constitution is a very big document, we will try to put light on most important topics in it.
Inspiration and Influence:
As India is a relatively new country, it had many Constitutions of other countries available to peruse and to borrow important features which could be imbibed in Indian Constitution. Dr B.R. Ambedkar who was an economist, a lawyer and a scholar, studied the Constitution of about 60 countries. From the United Kingdom we have borrowed Parliamentary Form of Government, Concept of Single Citizenship, Rule of law, the Legislative speaker and their role, Legislative procedure. From the United States of America we have borrowed Bill of Rights, Federal structure of Government, Electoral College, Independent Judiciary and Separation of Powers, Judicial Review, President as Commander-in-chief of the armed forces, Equal protection under law. From Ireland, we have taken Directive Principles of State Policy.
Important features like Freedom of trade between states, National legislative power to implement treaties, even on matters outside normal federal jurisdiction, Concurrent List, Preamble terminology were taken from Australia. The ideals of Liberty, Equality and Fraternity have been borrowed from France. Quasi-federal Government, Distribution of powers between the central and state governments, Residual powers, retained by the central government have been taken from the Canada. From the Soviet Union, we have borrowed Fundamental Duties and Planning Commission. The Emergency provisions are taken from Germany and Amendment provision is taken from South Africa.
The Preamble to the Indian Constitution is like a foreword to a document. It actually contains the crux of the values of the Constitution. It declares India as a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty, and endeavours to promote fraternity. As India was being ruled by the British earlier, it was very important to declare India as a Sovereign nation through the Constitution.
In the First Part of the Constitution we have information about the names of the country which are India and Bharat. Information such as present States and Union Territories, establishment of new States, and alteration and formation of new States is given.
In the Second Part information regarding Citizenship is given, primarily someone has to be born in India or their parents have to be born in India or they must have been residents for 5 years prior to the implementation of the Constitution. Information regarding Citizenship for migrants returning from Pakistan is given. Information regarding Citizenship to children born to Non Resident Indians is given. Power of Parliament to make laws regarding Citizenship is given. We see that a separate Statute for Citizenship was passed in 1955 by or Parliament called Indian Citizenship Act 1955, which gives details about acquiring, maintaining and losing Citizenship in India.
The Third Part contains the Fundamental Rights which are the most important feature of the Constitution and can be called as the heart of it. In a civil society if there are no rights of the Citizens against the State, then the society will collapse. Here, the definition of State is given, any law which contradicts with the Fundamental Rights is declared to be void. The State is directed to treat every citizen equal before the Law, and to be given equal protection. Any discrimination based on grounds of Religion, Race, Caste, Sex or Place of Birth is prohibited. Every person is to be given equal opportunity in terms of Government jobs. Untouchability was abolished, and abolition of titles by the State is done and no titles or benefits can be taken from foreign States.
Protection of certain rights like Freedom of Speech & Expression, Assembling peacefully and without arms, formation of Associations or Unions, Free movement throughout Indian Territory, Residence and settlement in any part of India, and the freedom to practice any profession, occupation, trade or business is bestowed upon the Citizens, with reasonable restrictions.
In terms of Conviction for offences, punishment is to be given only to the extent as defined by law during occurrence of the crime. No accused could be punished twice for one offence. No accused in an offence shall be compelled to be a witness against himself.
Protection of Life and Liberty is given in Article 21, and a lot of case laws in this regard have widened the scope of understanding of Life and Liberty. State has to provide free and compulsory education to all children aged between 6 and 14 as per Article 21A. Every citizen who is arrested has to be informed about the reasons for such police action and also he must be given legal counsel of his choice. Every arrested person has to be produced before the nearest Magistrate within 24 hours of the arrest.
Children below the age of 14 are not to be employed in factories and other hazardous work places. Every citizen has freedom to practice, propagate and preach his religion. Freedom is given to manage religious affairs. Minorities in terms of religion, race, caste, language culture have special protection and they can establish and administer their educational institutions.
Article 32 provides that whenever any Citizen is aggrieved by infringement of his Fundamental Rights he can approaches the Supreme Court of India, which has the power to issue Writs like Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari.
The Part Four contains Directive Principles of State Policy, where a recommendatory vision has been given to the State regarding the way to administer the country. The State is directed to make policies to secure a social order for the promotion of welfare of the people, which treat men and women equally, give rights to an adequate livelihood, proper distribution of material things for common good, even distribution of wealth, equal pay for equal work for men and women, development of children with freedom and dignity. The State is supposed to give free legal aid to economically disabled persons under Article 39A.
There is a proposal to bring Uniform Civil Code throughout India in Article 44. State is supposed to promote the educational and economic interests of people belonging to Schedule Caste, Schedule Tribe and Other Backward Communities. State must provide appropriate level of nutrition, give good standard of living and improvise healthcare facilities. The State must take steps to separate the Judiciary from the Executive in public services of the State.
Part Four-A contains the Fundamental Duties, which are duties imposed upon the citizens of the country. They are as follows : to abide by the Constitutions, respect National Flag and National Anthem, respect the ideals of freedom struggle, to uphold sovereignty, integrity and unity of India, to defend the country when called, to promote harmony between people of all communities, to respect dignity of women, to preserve our composite culture, to protect & improve the Environment, to develop scientific temper, to safeguard public property, to shun violence, to excel in all fields, to provide educational opportunities for children aged between 6 and 14 years.
Part Five talks about the structure and scheme of the Union. There will be President of India who will have executive power of the Union, he will also be Supreme commander of the Defence Forces. President will be elected by members of Electoral College consisting of Members of both Houses of Parliament and Member of Legislative Assemblies of States. Minimum age for becoming President is 35 years. His term will be for 5 years. He is given oath by the Chief Justice of India. President can give his resignation letter to the Vice-President. President can also be removed through impeachment for violation of Constitution by due process established.
There will be a Vice-President of India who will be ex-officio Chairman on Council of States, also called as Rajya Sabha. His work is to deliver duties of the President in his absence, or illness or vacancy. Vice-President is elected by an electoral college consisting of members of both houses of Parliament. Minimum age to become Vice-President is 35 years. His term will be for 5 years. Vice-President may give his resignation to President of India, or he can be removed by a resolution initiated by the Rajya Sabha and approved by the Lok Sabha.
The President can pardon or suspend the punishment sentence of convicted persons in certain cases. There will be Council of Ministers to aid and advise the President.
Attorney General of India will be the highest law officer of the Union of India and he shall represent the same in all courts of India. The Prime Minister has to furnish all information regarding progress of the Government activities with the President.
There will be a Parliament, which will have two house, first is ‘Upper House’ or ‘Council of States’ or ‘Rajya Sabha’. The other is ‘Lower House’ or ‘House of the People’ or ‘Lok Sabha’. The Lok Sabha will ordinarily dissolve after 5 years. The Rajya Sabha will not dissolve but one-third of its members will leave the house every 2nd year. Lok Sabha will be presided by the Speaker and Deputy-Speaker of the house. Rajya Sabha will be presided by the Chairman or Deputy-Chairman of the house. Minimum age to become Lok Sabha member is 25 years and for Rajya Sabha is 30 years.
There will be a Supreme Court of India, where every Judge is appointed by the President of India, and will retire at the age of 65 years. Supreme Court will have Original Jurisdiction and Appellate Jurisdiction where it will hear appeals from all inferior courts to it. Supreme Court has power to issue Writs bestowed under Article 32. Law declared by Supreme Court is binding on all Courts of India. It can transfer cases from one State to another State High Courts or Lower Courts. The Comptroller and Auditor General is the highest accounts officer of the Union of India.
Part Six talks about the States. This executive head of the State is the Governor in whom the executive power vests. Governor of a State is appointed by the President of India. He must have minimum age of 35 years, and his term is generally for 5 years. Governor can pardon or suspend punishment terms for convicted persons in certain cases. There will be a Council of Ministers to aid and advise the Governor. The Advocate General will be highest law officer of the State Government and will represent it in all the Courts of the State. The Chief Minister is the head of the Council of Ministers and his duty is to timely update the Governor of developments in the functioning of the Government. There shall be a Legislative Assembly, and it will be presided by the Speaker and Deputy-Speaker. There shall be a Legislative Council which will be presided by the Chairman and Deputy-Chairman. Minimum age to become Member of Legislative Assembly (MLA) is 25 years, for Member of Legislative Council (MLC) is 30 years.
There shall be a High Court for one State or more than one State. Every Judge will be appointed by the President and will retire at the age of 62 years. He shall take oath before Governor of the State. Article 226 provides power to the High Court to issue Writs. There will be a Chief Justice to supervise the work of the other Judges. High Court will be be in superintendence over all courts inferior to it. Appointment of District Judges and lower court Judges is to be done by a procedure of examinations.
Part Eight talks about Union Territories (UT). These are areas which are directly administered by the President of India who appoints an Administrator of that region or even a Governor of a State. Governor of such UT will exercise his power independent of the Council of Ministers.
Part Nine talks about the Panchayats. It defines Panchayat to be a self-government for the rural areas. It talks about Gram Sabhas, Constitution & Composition of Panchayats, Reservation of seats, and other important aspects related to Panchayats in India.
Part Nine-A talks about Municipalities. It defines Municipalities, and talks about Constitution & Composition of Municipalities, Reservation of seats, and other important aspects related to Municipalities in India.
Part Nine-B talks Co-Operative Societies.
Part Ten talks about Scheduled and Tribal Areas.
Part Eleven talks about Relations between Union and the States. Here we see that there are three lists namely Union List, State List and Concurrent List which are present in Seventh Schedule of the Constitution. It simply means that the Union can make laws on the topics from the Union List, the State can make laws on the topics from the State List and there are certain issues which are common to the Union and the States where they both can make laws on the topics which are present in the Concurrent List.
Part Twelve talks about Finance Property, Contracts and Suits.
Part Thirteen talks about Trade, Commerce and Intercourse within the Territory of India.
Part Fourteen talks about Services under the Union and the States.
Part Fourteen-A talks about Tribunals.
Part Fifteen talks about Elections.
Part Sixteen talks about Special Provisions relating to Certain Classes.
Part Seventeen talks about Official Language. It says Hindi in Devanagiri Script is the Official language of the Union. It also says that respective States can adopt Official languages through its Legislature. Official Language in the Supreme Court of India and High Courts will be English.
Part Eighteen talks about Emergency Provisions. It is a very important part of the Constitution of India. It says under Article 352, the President can Proclaim Emergency in India if there is security threat by war or external aggression to whole of India or some part as specified in the Proclamation. When Emergency is imposed the power of Parliament also extends to making laws for the State. Also in certain situations if the Government of a State fails to perform its duty, on the advice of the Governor of such State, the President of India can take over the administrative functioning of that State into his own hands, this is popularly referred to as President’s Rule in a State. The Fundamental Rights laid down in Part Three of the Constitution will be suspended during the time of Emergency, except Article 20 and Article 21. Finally, as per Article 360, the President can proclaim Financial Emergency where the financial or economic stability of the country is threatened.
Part Nineteen talks about Miscellaneous Provisions.
Part Twenty talks about Amendment of the Constitution. Article 368 in this part says that Parliament has the power to amend the Constitution.
Part Twenty One talks about Temporary, Transitional and Special Provisions. This Part contains all the Special Provisions relating to States of Jammu Kashmir (Article 370), Maharshtra & Gujarat, Nagaland, Assam, manipur, Andhra Pradesh & Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa, Karnataka.
Part Twenty Two contains Short Title , Commencement, and Repeals.
The author is the founder of VakeelSahab.com and an Advocate practicing in Hyderabad, Telangana. This article was first published on 06 July 2020.