The Indian Constitution

Constituent Assembly

● The Constituent Assembly is an institution specifically conceived for the creation or

modification of a Constitution. The Constituent Assembly has the power to dictate or change
the norms that will govern the functioning of the political and social system of a territory.

● The Constituent Assembly's objective was drafting and formulating the Constitution of India
because that was the only way the self-determination concept could be implemented in India.

What were the developments during the making of the Indian Constitution?

The Indian Constitution was made by the Constituent Assembly, which came into existence as per the
provisions of the Cabinet Mission of May 1946. Its task was to formulate a Constitution for facilitating
the appropriate transfer of sovereign power from British authorities to Indian hands.

● 9 December 1946: The Constituent Assembly sat for the first time.

● 11 December 1946: Rajendra Prasad as President, Harendra Coomar Mookerjee and V.T.
Krishnamachari as the Vice Presidents were elected, and B. N. Rau as Constitutional legal
advisor was appointed.

● 13 December 1946: Jawaharlal Nehru introduced the famous "Objective Resolution" in the
Assembly, which laid down the philosophy of the Constitution of India.

○ It is geared toward fostering economic and political security in India through a written
Constitution and declaring India a Sovereign, Democratic Republic.

○ It fostered the formulation of a federal with the even-handed distribution of powers

between the Centre and the states.

○ It strives to secure equality, justice, and freedom of thought, expression, belief, faith,
association, and associated action for each subject of the country.

○ It is geared toward providing necessary protection to the minority and backward

section of society.

○ It strives to secure the integrity of the territory of the Indian republic and follow the
law of any civilized nation to secure rights on land, sea, and air.

● 22 January 1947: The Resolution was unanimously adopted by the Assembly.

July 1947- Indian Independence Act, 1947: The Act made the following changes in the position of the
Constituent Assembly:

● The Assembly was given complete autonomy and the power to draft any Constitution it chose.

● The Act gave the Assembly the authority to annul or amend any law passed by the British
Parliament regarding India.

● The Assembly was also given legislative authority. As a result, the Assembly was elected as
India's first free Parliament (Dominion Legislature). Dr. Rajendra Prasad presided over
meetings of the Assembly as the Constituent body, and G.V. Mavlankar presided over those of
the Assembly as the Legislative body.

● July - October 1947: Preparation of the first draft by the Constitutional advisor,
Constitutional Advisor started putting together the first draft of the Constitution by aligning the
reports already discussed and adopted.

● 22 July 1947: The Constituent Assembly adopted the National flag.

● October 1947- February 1948: Deliberations in Drafting Committee and resultant draft
Constitution, Drafting committee produced the draft Constitution by February 21, 1948, which
contained 315 Articles and 8 Schedules.

● 4 November 1948 - 9 November 1948 (First reading): Drafting committee published the draft
Constitution of India in February 1948. The draft was introduced in the Assembly in November
1948.

● 15 November 1948 – 17 October 1949 (Second reading): Clause-by-clause draft discussion was
conducted in the Assembly.

● May 1949: The Constituent Assembly accepted and approved India's membership of the British
Commonwealth.

● 14 November 1949 - 26 November 1949 (Third reading): The Assembly finished the third
reading.

● 26 November 1949: The Constituent Assembly passed and adopted the Constitution of India.

● 24 January 1950: The Constituent Assembly elected Dr. Rajendra Prasad as the first President
of India and, adopted the National anthem and National song.

Constituent Assembly Debates

We can divide the CADs into four major sections, as shown below:
 Stage Work

Preliminary The guiding principles of the Constitution were outlined in reports submitted by
stage certain committees such as the Fundamental Rights and Minorities Committee,
(9/12/1946 to Union Powers Committees, etc. Also, the Drafting Committee was formed to draft
27/01/1948) the Constitution.

First reading Introduction of the draft constitution in the Assembly.

(4/11/1948 to
9/11/1948)

Second reading The draft was discussed clause by clause.

(15/11/1948 to
17/10/1949)

Third reading The third reading of the Constitution was completed and it was enacted on 26th
(14/11/1949 to November.
26/11/1949)

When did the Constitution come into force?

● As per the provisions in the Constitution, it formally commenced on January 1950, bringing it
into force in its entirety. This date was chosen to commemorate the declaration of ‘Poorna
Swaraj’ by J.L. Nehru at an annual session of the Congress in Lahore in 1929.

● Some of the Constitution's provisions, included in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379,
380, 388, 391, 392, and 393, relating to citizenship, elections, a provisional parliament,
temporary and transitional laws, and short titles, came into effect on November 26, 1949.

● The remaining provisions of the Constitution took effect on January 26, 1950, and the entire
Constitution was enforced. This day is celebrated as Republic Day.
Basic Features Doctrine of Indian Constitution
The doctrine of Basic Structure was propounded by the Indian Judiciary on 24th April 1973 in the
Keshavananda Bharati case to put a limitation on the amending powers of the Parliament so that the
‘Basic Structure of the Constitution’ cannot be amended in the exercise of its ‘constituent power’ under
Article 368 of the Indian constitution.

● It is a judicial creation whereby certain features of the constitution of India are beyond the limits
of amending powers of parliament of the constitution.

● The word "Basic Structure" is not mentioned in the constitution but was recognized for the first
time in the Kesavananda Bharati case of 1973.

Which features of the constitution constitute the Basic Structure?

The components of the Basic Structure provided in the constitution have been recognized by the judiciary
in various cases to date.

Some of these components are:

● Supremacy of the Constitution

● Sovereign, democratic and republican nature of the Indian

● Polity

● Secular character of the Constitution

● Separation of powers between the legislature, the executive, and the judiciary

● Federal character of the Constitution

● Unity and integrity of the nation

● Welfare state (socio-economic justice)

● Judicial review

● Freedom and dignity of the individual

● Parliamentary system

● The rule of law

● Harmony and balance between Fundamental Rights and Directive Principles

 ● Principle of equality

● Free and fair elections

● Independence of Judiciary

● Limited power of Parliament to amend the Constitution

● Principles (or essence) underlying fundamental rights

● Powers of the Supreme Court under Articles 32, 136, 141 and 142.

● Powers of the High Courts under Articles 226 and 227.

What is the significance of the Basic Structure Doctrine?

● Promotes Constitutional Ideals: Basic Structure Seeks to preserve constitutional principles and
Basic ideals envisioned by the founding fathers.

● Maintains Supremacy of the Constitution: The doctrine has helped to maintain the supremacy
of the Constitution and has prevented its destruction by a temporary majority in Parliament.

● Separation of powers: Basic Structure strengthens our democracy by delineating a true separation
of power where the Judiciary is independent of the other two organs.

○ Granville Austin argues that with Basic Structure Doctrine, a balance has been reached
between the responsibilities of Parliament and the Supreme Court for protecting the
seamless web of the Indian Constitution.

● Protects Fundamental Rights: Basic Structure protects the fundamental rights of the citizens
against arbitrariness and authoritarianism of the legislature.

● Constitution as a living document: Being dynamic in nature, it is more progressive and open to
changes in time, making the constitution a living document.

Fundamental Rights

The Constitution of India enshrines Fundamental Rights for its citizens in Part III of the Constitution.
These rights, referred to as the "Magna Carta of India," are categorised into six groups - Right to Equality,
Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Right to Cultural and
Educational Rights, and Constitutional Remedies. Inspired by the Bill of Rights of the American
Constitution, these legally enforceable rights safeguard individual liberties and provide freedoms against
the state's authoritarian rule, serving as the foundation for India's democratic system. Indian judiciary
protects these Fundamental Rights if there is a violation of these rights by executive as well as legislative
actions. Moreover, the Fundamental rights are referred to as the “Conscience of the Constitution”.

Six Fundamental Rights of the Indian Constitution

The original Constitution of 1950 included seven Fundamental Rights. However, the 44th
Constitutional Amendment in 1978 reduced this number to six by removing the Right to Property
(Article 31).

Right to Equality (Article 14 -18)

The Right to Equality ensures that all individuals, irrespective of their background, have equal
rights and opportunities to develop their skills, and talents, and pursue their ambitions.

● Equality before law (Article 14): This article guarantees that the state shall not deny any
person equality before the law and the equal protection of the laws within India.

○ This article implies the supremacy of the rule of law, the principle of natural
justice, the doctrine of Anti Arbitrariness, and the inclusion of both positive and
negative rights.

● Prohibition of discrimination on certain grounds (Article 15): The state cannot

discriminate against citizens based on their religion, race, caste, sex, or place of birth. It
ensures that no citizen shall be subjected to any disability, liability, or restriction on these
grounds.

○ Every Indian citizen has equal access to shops, restaurants, public entertainment
venues, and the use of wells, tanks, and roads.

○ However, the state can make special provisions (affirmative actions) or

concessions for women and children.

● Equality of opportunity in public employment (Article 16): This article guarantees equal
opportunity for all citizens in public employment.

○ It prohibits discrimination against a citizen in respect of employment or office

under the state based on religion, race, caste, descent, place of birth, residence, or
any combination of these factors.

○ However, the state can make provisions for the reservation of appointments or
posts in favour of vulnerable sections of society.
 ● Abolition of untouchability (Article 17): This article abolishes untouchability in any
form.

○ It recognises untouchability as a social evil and ensures the eradication of this

discriminatory practice in Indian society.

● Abolition of titles (Article 18): This article states that no title other than military and
academic distinction shall be conferred by the state.

Right to Freedom (Article 19-22)

● Freedom of Speech and Expression (Article 19): This article guarantees six fundamental
freedoms ((albeit with reasonable restrictions) to the citizens:

○ Speech and Expression

○ Peaceful assembly

○ Forming Associations/Unions

○ Free Movement throughout India

○ Freedom to reside and settle in any part of India

○ Freedom to practice any profession or carry on any occupation, trade, or business

● Protection in Respect of Conviction for Offences (Article 20): This article provides four
key safeguards to individuals:

○ Ex Post Facto Law: No person can be convicted for an act that was not considered
an offence at the time it was committed.

○ Limit on Penalty: No person can be subjected to a penalty greater than what was
prescribed by the law at the time the offence was committed.

○ Double Jeopardy: A person cannot be prosecuted and punished for the same
offence more than once.

○ Self-Incrimination: No person can be compelled to be a witness against

themselves. This protection ensures the right to silence and safeguards individuals
from forced confessions.
 ● Protection of life and personal liberty (Article 21): It says that no one can be deprived of
his or her life or personal liberty except according to the procedure established by law.

○ This right includes various other rights such as the right to privacy,the Right to a
clean environment etc.

● Right to Education (Article 21A): It was added through the 86th Amendment to the
Constitution in 2002. It entrusts the state to provide free and compulsory education to
children aged six to fourteen in the manner determined by the state.

● Protection Against Arrest and Detention in Certain Cases (Article 22): This article
provides two key protections:

○ Protection at the time of arrest: The arrested person (but not enemy aliens or
persons detained under preventive detention laws) should be informed of the
grounds for arrest, allowed to consult and be defended by a legal practitioner of
their choice, and presented before a magistrate within 24 hours.

Right against Exploitation (Article 23 - 24)

● Prohibition of traffic in human beings and forced labour (Article 23): It says that
trafficking in human beings and beggars, as well as other forms of forced labour, is
prohibited, and any violation of this provision is punishable by law.

● Prohibition of employment of children in factories, etc. (Article 24): According to this

Article no child under the age of fourteen shall be employed in a factory, mine, or
hazardous occupation.

○ Child Labour (Prohibition & Regulation) Amendment Act, 2016 completely

prohibits on employment or work of children below 14 years of age in all
occupations and processes.

Right to Freedom of Religion (Article 25 - 28)

● Freedom of conscience and free profession, practice and propagation of religion (Article
25): According to it, everyone has the right to free conscience and the freedom to freely
profess, practise, and propagate religion.

○ However, this does not grant the right to forceful conversion. The State can
impose restrictions on this right on the grounds of public order, morality and
health.
 ● Freedom to manage religious affairs (Article 26): Every religious group or section thereof
shall have the right:

○ to establish and maintain institutions for religious and charitable purposes;

○ to manage its own religious affairs;

○ to own and acquire movable and immovable property; and

○ to administer such property in accordance with the law.

● Freedom from taxation for the promotion of religion (Article 27): No one shall be
compelled to pay any tax, the proceeds of which are specifically used to pay expenses
incurred in the promotion or maintenance of any particular religion or religious sect.

● Freedom from attending religious instruction (Article 28): It forbids religious instruction
in any educational institution entirely supported by state funds unless such an institution,
even if administered by the state, is established under an endowment or trust that requires
it to be imparted.

Cultural and Educational Rights (Article 29 - 30)

● Protection of interests of minorities (Article 29):

○ It gives any section of citizens residing in India's territory or any part of it with a
distinct language, script, or culture the right to preserve it. (protects the right of a
group)

○ No citizen shall be denied admission to or receive aid from a state-run educational

institution based on religion, race, caste, language, or any of them. (protects the
rights of individuals irrespective of community)

● Right of minorities to establish and administer educational institutions (Article 30): All
religious and linguistic minorities have the right to establish and administer educational
institutions of their choice. Protection under it extends only to linguistic and religious and
not any section of the citizens.

Right to Constitutional Remedies (Article 32)

It provides legal remedies for the protection of other fundamental rights. When any of the
fundamental rights are violated, one can seek justice through the courts.
 ● One can directly approach the Supreme Court under Article 32 (original jurisdiction of
the Supreme Court), which empowers the courts to enforce Fundamental Rights through
various writs such as habeas corpus, mandamus, prohibition, quo warranto, and
certiorari.

● The High Courts also have been conferred these powers under Article 226. Further, any
other court may be authorised by Parliament to issue directives, orders, and writs of every
description.

Significance of Fundamental Rights

Fundamental Rights provide citizens with civil and political rights. They create the necessary
conditions for an individual's material and moral protection while ensuring political justice and
equality. The importance of Fundamental Rights is as follows:

● Fundamental: The term"Fundamental" signifies that these rights are essential for the
all-round development of the citizens in a country.

● These rights are so important that the Constitution has separately listed them and made
special provisions for their protection.

● The Constitution itself ensures that they are not violated by the government.

● Rule of Law: Fundamental rights establish the Rule of Law. All citizens are equal under
the law. They have equal rights to freedom of religion, assembly, association, and
movement. No person can be deprived of his life, liberty, or property, except under the
law.

○ The concept of the rule of law came mainly from England (Albert Wayne Dicey)
and is an integral part of the Indian Constitution.

○ The rule of law delivers four universal principles - accountability, just law, open
government, and accessible and impartial justice.

● They are the cornerstone of liberal democracy.

● Different from ordinary legal rights: Fundamental Rights are different from ordinary legal
rights.

○ While ordinary rights are enforced by ordinary law, Fundamental Rights are
protected and guaranteed by the Constitution, the fundamental law of a country.
 ○ Ordinary rights may be changed by the legislature through the ordinary process of
law-making whereas; a fundamental right can only be changed by amending the
Constitution itself.

○ Further, no organ of the government can violate them.

● Positive and Negative Rights:

● Negative Rights: These are the rights that require the state to refrain from interfering in
the lives of citizens, such as the right to equality, the right to freedom of speech, freedom
of religion, etc.

● Positive Rights: These rights require the state to take positive action to fulfil them, such
as the right to education, the right to equal opportunities, special privileges to weaker
sections, etc.

○ Thus, Fundamental Rights also pave the way for affirmative actions to promote
social justice and equality.

● Protection of minority rights: Fundamental Rights ensure that minority communities are
not subject to discrimination, prejudice, or persecution and guarantee their right to
practice and preserve their language, culture, and religion.

Federal Structure
Federalism refers to a system of government in which power is divided between a central
authority and various constituent units, such as states or provinces.

● In India, the constitution divides powers and responsibilities between the central
government and the state governments. The division of powers is further enhanced by a
third tier of government, the local self-government.

● Federalism in India allows for both national unity and regional diversity, as it allows
the central government to implement policies that apply uniformly throughout the
country while also allowing the states to tailor policies to meet the specific needs of their
regions.

The nature of the Indian state is federal, in the sense that the powers are distributed between the
Union and the state.
 ● However, The Constitution also has Unitary features making it a unique Quasi-Federal
Setup.

● It is federal because:

○ The Constitution of India is written and supreme.

○ It has two sets of government.

○ There is a division of powers between the Centre and the States.

○ There is an independent judiciary.

● It is unitary because:

○ Indian State is described as a “union of states”.

○ There is single citizenship.

○ There is a single integrated judicial and administrative system.

○ There is integrated machinery for elections, and audits.

○ State Governors are appointed and removed by the President,

○ States depend upon the union’s grant–in–aid.

○ During an emergency, the system acts like a unitary system.

What is the significance of Indian federalism?

Indian federalism is significant for several reasons:

● Accommodation of diversity: Federalism in India allows for the accommodation of

diversity by giving autonomy to states to govern their own affairs and address their
unique needs and concerns.

● Effective governance: A robust federal structure needs to be in place to deliver effective

governance and to ensure that the diverse needs and interests of the states are represented
in the decision-making process.
 ● Promotion of democracy: Federalism promotes democracy by ensuring that power is
decentralized and shared between different levels of government. This allows for greater
participation and representation of citizens in the decision-making process.

● Protection of rights: Federalism allows for more robust protection of individual and
minority rights as state governments are better able to address the specific needs and
concerns of their diverse populations and can tailor policies and legislation accordingly.

Why is Indian federalism considered Quasi-federal?

Indian federalism is called a quasi-federal structure because it exhibits features of both federal
and unitary systems of government.

● The Constitution of India has a federal structure as it divides powers between the central
government and the state governments.

● However, it also has certain unitary features that give the central government more power
in certain situations.

● This blend of features makes the federal structure of the Indian Constitution more flexible
and adaptable as per the needs.

● The Chairman of the Drafting Committee, Dr. Ambedkar, said that “Our Constitution
would be both unitary as well as federal according to the requirements of time and
circumstances”.

Independence of Judiciary
Judicial Independence means that the judiciary is able to uphold constitutional sovereignty
against the invasion of power by legislature and executive. The other organs of the government
should not interfere with the decisions of the judiciary and the judges must be able to perform
their functions without any fear or favor.

Essentiality of Judicial Independence:

Safeguarding Against Misuse of Power
Judicial Independence that allows the courts to play a central role in ensuring that there is no misuse of
power by the legislature and the executive.
● To protect and maintain the Rule of Law: It means that all the people are equally subject to the
ordinary law of the land.
● Independence from Executive and Legislature: One aspect of this independence is the ‘separation
of powers.’
 ● Separation of power means the judges should not act on the direction of the government or
according to the wishes of the party in power.
● That is why all modern democracies have courts that are independent of the legislature and the
executive.
● To protect the democratic rights of the people.
● To uphold constitutional supremacy against other organs of the government.

How can we secure Judicial Independence?

Appointment of Judges:
● Appointment: The judges of the Supreme Court and the High Courts are appointed by the
President in consultation with the Chief Justice of the Supreme Court.
● Judicial Primacy: Ensuring Judicial Independence, appointments and transfer of judges, which
means that here party politics would not play any role.
● Chief Justice of India: From 1950 to 1973, the senior-most judge of the Supreme Court was
appointed as the Chief Justice of India.
● Departures from Tradition: But this convention was broken twice when Justice A. N. Ray (1973)
and Justice M. H. Beg (1975) was appointed as CJI superseding their senior judges. Hence, only
the senior most judge is appointed as CJI, emphasizing the importance of Judicial Independence.
● Collegium System: After 1998, the SC suggested that the chief justice should recommend names
of persons to be appointed in consultation with 4 senior-most judges.
● Thus, it established the principle of collegiality.
Removal of the Judges:
● Removal: A judge can be removed only by an impeachment motion passed separately in both
Houses of the Parliament.
● Special Majority: The motion must be approved by a special majority in both Houses of the
Parliament, underscoring the importance of Judicial Independence.
● Ground for removal: Proved Misbehavior or incapacity.
● Though this has never happened in the history of Indian democracy.
○ In 1991, an attempt was made to remove Justice Ramaswamy, but the removal motion
was not passed in the House as the Congress party abstained from voting in the House.
Tenure of the Judges:
● The judges have a fixed tenure, and they hold the office till the age of retirement.
● They have the security of tenure, which ensures that they function without fear or favor. Hence
the constitution provides a very difficult procedure for their removal.
Protection to the Judiciary:
● The salaries and allowances of the judges are not subjected to the approval of Parliament.
● The decisions of the judges are immune from personal criticisms.
● They have the power to penalize those who are found guilty of contempt of court.
● Parliament cannot discuss the conduct of judges except when the proceeding to remove a judge is
being carried out, emphasizing the significance of Judicial Independence.
Parliamentary System

The Parliamentary system is also known as the cabinet system or Responsible government or Prime
Minister Model. India follows a parliamentary system of government.The choice of a parliamentary form
of government in India was influenced by the historical context of British colonial rule.

Parliamentary System Of Government - Concept

● Parliamentary system is a type of democratic government.
● In this system, the political party which win majority seats of the House of people during
general election becomes the ruling party.
● The Supreme Court says that; Constitution is modelled on the British Parliamentary
system where the executive is deemed to have the primary responsibility for the
formation of government policy and its transmission into law by retaining the
confidence of the Lok Sabha.
● Articles 74 and 75 provide the parliamentary system for the centre.
● Articles 163 and 164 provide the parliamentary system for the states.
● Unlike the Presidential system, in this system the executives sit in the legislature because
they are part of the legislature.
● Executives can exercise power and stay in the office as long as they have the support of
the lower house of the legislature.

Indian Parliamentary System - Main Features

Nominal And Real Executives
● The president is the nominal executive, while the prime minister is the actual executive
(de facto executive officer).
● Therefore, the president is the head of state and the prime minister is the head of
government.
● Article 74 provides for the Council of Ministers headed by the Prime Minister to assist
the President in performing his duties and to advise him. The proposal made in this way
is binding on the President.

The close relationship between legislative power and executive power

● Here, the prime minister and the Council of Ministers form the executive body, and the
parliament is the legislative body.
● The prime minister and ministers are elected from members of the parliament, which
means that the executive power comes from the legislature.

Collective Responsibility
● This is the basic principle of parliamentary government.
 ● The ministers are collectively responsible to the parliament in general and to the Lok
Sabha in particular.(Article 75). They swim and sink together as a team.

Why Did The Makers Of Our Constitution Decide To Adopt The Parliamentary System
For India?
The makers of the Constitution wisely chose the parliamentary model. The reasons for it lie in
India's colonial political legacy as well as India’s socio-political structure. The reasons for this
were as follow:

● By the time of constitution framing, India already had some experience of the
parliamentary system under the Government of India Act 1919 and 1935. So Indian
people were familiar with it.
● This experience also showed that the executives can be effectively controlled by the
representatives of the people.
● The makers of the constitution wanted to make the government responsible to people’s
demands and should be accountable to them.
● The makers were reluctant to go for the presidential system as it gives excessive powers
to the president who works independently with the legislature.
● The presidential system is also prone to the personality cult of the president.
● The makers of the Constitution wanted to have a strong executive branch but with strong
safeguards to avert the risk of a personality cult.
● In the parliamentary system, there are several mechanisms to make the executive more
answerable to the people’s representatives.
● So, the constitution adopted a parliamentary system for India.