Polity Handout-1 (Class-1) by Mr.

Samarjit Mishra
FRAMING OF THE INDIAN CONSTITUTION

The constitution as it stands today owes much to the British and American system as they
extensively influenced the members of the constituent assembly.
Structurally the Indian constitution is highly swayed by the colonial era’s Government of India Act
1935 (which is a culmination of many Acts passed by the British under Company’s and Crown’s rule
of India), and philosophically it is the American and Irish constitution that has impacted the Indian
constitution to a larger extent.

THE CONSTITUTION OF INDIA:

Was framed by an elected Constituent Assembly, formally adopted on 26th November, 1949
Came into force on 26th January 1950
Was set up under the Cabinet Mission (1946) proposal
The all-important Drafting Committee – which
Provincial
Princely
bore the responsibility of drafting the Legislative
Membership Total States-
Constitutional document during the recess of Assemblies-
Nominated
elected
the Constituent Assembly from July 1947 –
September 1948, was formed on August 29, Original (Cabinet
385 292 93
Mission plan)
1947, under the chairmanship of Dr. B.R.
Ambedkar and included among others, two Post Muslim
league 299 229 70
distinguished jurists and lawyers Alladi withdrawal
Krishnaswamy Ayyar and K.M. Munshi.
The Drafting Committee prepared the draft Constitution which came out in the open in February
1948 to elicit the public opinion and reaction to it. The Constituent Assembly next met in
November 1948 when the provisions of the draft Constitution were considered and discussed in
detail.
With the completion of all those procedural formalities of considerations and deliberations over
the draft Constitution, it finally received the signature of the President of the Constituent
Assembly on November 26, 1949, when it was declared as passed and adopted.
The last session of the assembly was held on January 24, 1950, which unanimously elected Dr.
Rajendra Prasad as the President of India. In all, 284 members of the Assembly signed the official
copies of the Indian Constitution which came into effect on January 26, 1950 – known and
celebrated as the Republic day in India.

Draft First - General Second - detail Enactment of

Major & Minor Floated for Ratification
Constitution Second Reading reading and Constitution
Committees Public opinion
Draft Amendments

Constituent Assembly
First meeting -December 9, 1946 with Dr. Sachidanand Sinha as its interim President, following
the French principle.
Dr. Rajendra Prasad was elected as its President on 11th December 1946.
To cope with the wide range of specialized tasks, the Constituent Assembly formed:

Major Committees Minor Committees

1.Union Powers Committee - Jawaharlal Nehru 1.Finance and Staff Committee - Dr. Rajendra Prasad
2.Union Constitution Committee -Jawaharlal Nehru 2.Credentials Committee - Alladi Krishnaswami Ayyar

POLITY Class 01 handout by Mr. Samarjit Mishra

 3.Advisory Committee on Fundamental Rights,
3.House Committee - B. Pattabhi Sitaramayya
Minorities and Tribal and Excluded Areas - Sardar Patel.
4.Order of Business Committee - Dr. K.M. Munshi
4.Drafting Committee - Dr. B.R. Ambedkar
5.Ad-hoc Committee on the National Flag - Dr.
5.Rules of Procedure Committee - Dr. Rajendra Prasad
Rajendra Prasad
Steering Committee - Dr. Rajendra Prasad

The philosophy underlying the Indian Constitution was embodied quite early in the Objective
Resolution which was moved in the first session of the Constituent Assembly on December 13,
1946 by Pt. Nehru and adopted after considerable debate and deliberation in the Assembly on
January 22, 1947.

1. To foster unity of the nation and to ensure its economic and political security, to have
a written Constitution, and to proclaim India as a Sovereign, Democratic Republic.
2. To have a federal form of government with the distribution of powers between the
Centre and the States.
3. To guarantee and secure justice, equality, freedom of thought, expression, belief,
faith, worship, vocation, association and action to all the people of India.
4. To provide adequate safeguards for minorities, backward and tribal areas and
depressed and other backward classes.
5. To maintain the integrity of the territory of the Republic and the sovereign rights on
land, sea and air according to the law of civilized nations.
6. To attain rightful and honoured place in the world and make willing contribution to
the promotion of world peace and the welfare of mankind.

The architects of Indian Constitution went through all the then existing major Constitutions of
the world before drafting their own and as Dr. Ambedkar observed, they tried to accommodate
the best possible and time-tested features of each of them to the requirement of the country.
Therefore, Constitution of India is often described as ‘a bag of borrowings’ as it freely drew from
the Constitutions of various other countries and the Government of India Act, 1935. But, the
largest influence was exercised on them by the Government of India Act, 1935.

IDEA OF CONSTITUTION AND ITS UTILITY

A Constitution is a document of peoples’ faith and aspirations possessing a special legal sanctity. It is
the fundamental law of a country and all other laws and customs of the country in order to be legally
valid shall conform to the Constitution. It established rule of law and limited government. It is the
supreme law of the land. In essence, a Constitution is the rule book of a nation, codifying the rule of
law.
At the same time, the Constitution of a democratic country reflects the ideals and aspirations of the
people of the nation. To quote Sir Ivor Jennings, ‘All the Constitutions are the heirs of the past as well
as the testators of the future.’
According to the International Institute for Democracy and Electoral Assistance (International IDEA),
an intergovernmental organization with a mission to support sustainable democracy worldwide, the
vast majority of contemporary constitutions describe the basic principles of the state, the structures
and processes of government and the fundamental rights of citizens in a higher law that cannot be
unilaterally changed by an ordinary legislative act. This higher law is usually referred to as a
constitution. The content and nature of a particular constitution, as well as how it relates to the rest
of the legal and political order, varies considerably between countries, and there is no universal and
uncontested definition of a constitution.
POLITY Class 01 handout by Mr. Samarjit Mishra
 Nevertheless, any broadly accepted working definition of a constitution would likely include the
following characteristics: A constitution is a set of fundamental legal-political rules that:
Are binding on everyone in the state, including ordinary law-making institutions;
Concern the structure and operation of the institutions of government, political principles and
the rights of citizens;
Are based on widespread public legitimacy;
Are harder to change than ordinary laws (e.g. a two-thirds majority vote or or a referendum is
needed);
As a minimum, meet the internationally recognized criteria for a democratic system in terms of
representation and human rights.

CONSTITUTION AT THE INTERSECTION OF LEGAL, SOCIAL AND POLITICAL LIFE

Constitutions as legal instruments: A constitution ‘marries power with justice’ —it makes the
operation of power procedurally predictable, upholds the rule of law, and places limits on the
arbitrariness of power. It is the supreme law of the land, and it provides the standards that ordinary
statutes have to comply with.
Constitutions as social declarations: Constitutions often
attempt, to varying degrees, to reflect and shape society—for
LEGAL (JUSTICE)
example, by expressing the (existing or intended) common Foundation of legal
system and citizens
identity and aspirations of the people, or by proclaiming shared right

values and ideals. These provisions are generally found in

preambles and opening declarations, but can also be found in Constitution
oaths and mottos or on flags and other symbols that are SOCIAL (Culture) POLITICAL (Power)
Reflecting and Power map of
defined by the Constitution. Other substantive provisions of the influencing shared institutions of
values and principles governance.
constitution, particularly those defining socio-economic rights,
cultural or linguistic policy, or education, might also belong to
this category.
Constitutions as political instruments: The constitution prescribes a country’s decision-making
institutions: constitutions ‘identify the supreme power’, ‘distribute power in a way that leads to
effective decision making’ and ‘provide a framework for continuing political struggle’. The political
provisions show how state institutions (parliament, executive, courts, head of state, local authorities,
independent bodies, etc.) are constituted, what powers they have and how they relate to one
another.

IDEA OF TRANSFORMATIVE CONSTITUTION & TRANSACTIONAL CONSTITUTION

Transformative Constitution Transactional Constitution

Believes in bringing Social and Economic changes in Believes more in political changes as a gradual relaxation
the nation along with political empowerment in rights of citizen

Enacted on a particular date by an constituent Evolved through years as part of the politico-legal
assembly evolution

POLITY Class 01 handout by Mr. Samarjit Mishra

 Judiciary plays a very important role in interpretation of Judiciary’s role is limited as the interpretation is
the constitution strictly based on letters of law

transforms the legal relationship between the individual The legal relation between state and individual is that
and the State empowering the citizens with agency of subjects to be governed

Justice- Political, Social and economic takes the centre More than justice is the administration of laws that
stage extending the idea of constitutionalism in spirit takes the centre stage

Why do we need a Constitution? Limited government is ensured by:

Doctrine of Limited Government Judicial review Democracy
Idea of Rule of Law Fundamental rights Separation of powers
Secularism

CRITICISM OF THE INDIAN CONSTITUTION

Borrowed Constitution:
‘borrowed Constitution’ or a ‘bag of borrowings’ or a ‘hotch-potch Constitution’ or a ‘patchwork’ of
several documents of the world constitutions.

Imitation of GoI Act 1935

BR Ambedkar: “As to the accusation that the Draft Constitution has reproduced a good part of the
provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed
of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of
a Constitution. What I am sorry about is that the provisions taken from the Government of India Act,
1935, relate mostly to the details of administration”

Un-Gandhian Constitution
It does not contain the philosophy and ideals of Mahatma Gandhi, the father of the Indian Nation.
They opined that the Constitution should have been raised and built upon village panchayats and
district panchayats.

Elephantine Size
Too bulky and too detailed and contains some unnecessary elements.
HV Kamath: “The emblem and the crest that we have selected for our assembly is an elephant. It
is perhaps in consonance with that our constitution too is the bulkiest that the world has
produced”

Paradise of the Lawyers

It is too legalistic and very complicated. The legal language and phraseology adopted in the
constitution makes it a complex document. It opens up vast avenues of litigation and will give our
able and ingenious lawyers plenty of work to do.

POLITY Class 01 handout by Mr. Samarjit Mishra

DOCTRINE OF SEPERATION OF POWERS

‘The doctrine of separation of powers is a crucial law

principle that upholds the three organs of the
government; legislature, executive, and judiciary to
remain separate especially in executing their duties.
The French Jurist Montesquieu in his book L. Esprit Des
Lois (Spirit of Laws) published in 1748, for the first time
enunciated the principle of separation of powers.

Montesquieu‟s doctrine, in essence, signifies the fact that one person or body of persons should not
exercise all the three powers of the Government viz. legislative, executive and judiciary. In other
words each organ should restrict itself to its own sphere and restrain from transgressing the province
of the other.

Indian Context:
The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government have been sufficiently differentiated, so that one
organ of the Government could not usurp the function of another.

Debates in Constituent Assembly

Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by

amendment a new Article 40-A concerned with doctrine of separation of powers.
This Article reads: “There shall be complete separation of powers as between the
principal organs of the State, viz; the legislative, the executive, and the judicial.”

Shri K. Hanumanthiya, a member of Constituent Assembly dissented with the

proposal of Prof. K.T. Shah. He Said - “Instead of having a conflicting trinity it is
better to have a harmonious governmental structure. If we completely separate the
executive, judiciary and the legislature conflicts are bound to arise between these
three departments of Government. In any country or in any government, conflicts
are suicidal to the peace and progress of the country..... Therefore in a governmental
structure it is necessary to have what is called “harmony” and not this three-fold
conflict.”

Dr. Ambedkar noted “ There is not slightest doubt in my mind and in the minds of
many students of Political Science, that the work of Parliament is so complicated, so
vast that unless and until the members of the Legislature receive direct guidance
and initiative from the members of the Executive, sitting in Parliament, it would be
very difficult for Members of Parliament to carry on the work of the Legislature. I
personally therefore, do not think that there is any very great loss that is likely to
occur if we do not adopt the American method of separating the Executive from the
Legislature.”

In strict sense the principle of separation of powers cannot be applied in any modern Government
either may be U.K., U.S.A., France, India or Australia. But it does not mean that the principle has no
relevance now a days. Government is an organic unity. It cannot be divided into water tight
compartments.

POLITY Class 01 handout by Mr. Samarjit Mishra

 History proves this fact. If there is a complete separation of powers the government cannot run
smoothly and effectively. Smooth running of government is possible only by co-operation and mutual
adjustment of all the three organs of the government. Rather each organ of the Government should
exercise its power on the principle of „Checks and Balances” signifying the fact that none of the
organs of Government should usurp the essential functions of the other organs.

SALIENT FEATURES OF INDIAN CONSTITUTION

Longest Written
Constitution
Parliamentary Form Of Blend Of Rigidity
Government And Flexibility

Emergency Fundamental
Provisions Rights

Federal Structure Fundamental

with unitary bias Duties

Universal Directive Principles

Adult Franchise Of
State Policy

Single An Independent and

Citizenship Integrated Judiciary
Systems Of
Local Self-Government

PREAMBLE

A preamble is an introductory statement in a

document that explains the document’s
philosophy and objectives.
In a Constitution, it presents the intention of its
framers, the history behind its creation, and the
core values and principles of the nation.
The ideals behind the Preamble to India’s
Constitution were laid down by Jawaharlal
Nehru’s Objectives Resolution.

Is the Preamble a Part of Constitution?

The vexed question whether the Preamble
is a part of the Constitution or not was
dealt with in two leading cases on the
subject:

Re - Beruberi Case
The court ruled out that the Preamble to the Constitution, containing the declaration made
by the people of India in exercise of their sovereign will, no doubt it is “a key to open the
mind of the makers” which may show the general purposes for which they made the several
provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.

POLITY Class 01 handout by Mr. Samarjit Mishra

 Kesavananda Bharati Case
To the extent necessary for the purpose of the Preamble, it can be safely concluded that the
majority in Kesavananda Bharati case leans in favor of holding,
(i) That the Preamble to the Constitution of India is a part of the Constitution;
(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;
(iii) The Preamble has a significant role to play in the interpretation of statutes and also in
the interpretation of provisions of the Constitution.

AMENDABLITY OF PREAMBLE

The Supreme Court in Kesavananda Bharati vs. State of Kerala, 1973 has held that Preamble is the
part of the constitution and it can be amended but, Parliament cannot amend the basic features of
the preamble.
The court observed, “The edifice of our constitution is based upon the basic element in the Preamble.
If any of these elements are removed the structure will not survive and it will not be the same
constitution and will not be able to maintain its identity.”
The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the
words Socialist, Secular, and Integrity were added to the preamble.

PURPOSE AND UTILITY

Preamble indicates that the Constitution derives its powers from the people and the source of all
authority under the Constitution emanates from the people of India. It also means that
sovereignty ultimately resides with the people.
The Preamble also declares the rights and freedom which the people of India intended to secure
to all citizens and the mode of realization of the ideas and operations.
The Preamble though not an operative part of the Constitution, aids in the legal interpretation
where the language of the Constitution is found to be ambiguous.
It declares the basic type of government and polity which is sought to be established in the
country.
Since the Constitution is a legal document, the date of adoption is clearly mentioned in the
Preamble to the Indian Constitution.

LIMITATIONS

The Preamble is not regarded as the source of any substantive governmental power and cannot
place any limitation on exercise of powers of the organs of the Constitution, viz. the Executive,
Legislature and Judiciary.
The Preamble cannot override the express provisions of the Constitution. It cannot be enforced in
a court of law.
It has limited applications and can be resorted to only when there is an ambiguity in the provisions
of the Constitution.

POLITY Class 01 handout by Mr. Samarjit Mishra