CONSTITUTION OF

INDIA AND
FUNDAMENTAL
RIGHTS
COURSE CODE – AD 9011 HS
 What is a Constitution ?

A constitution is defined as a supreme law book comprising the

fundamental principles and laws that form a legal basis on which
the country is governed.

 Why do we need a Constitution ?

 What are Fundamental Rights ?

They are the basic human rights enshrined in the constitution

which are guaranteed to all the citizens.

They are protected by the constitution against the violation and

encroachment by the governments.

Judiciary is the ultimate protector

2 of the fundamental rights.
SYLLABUS

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 Unit – I
History of Making of the Indian Constitution

 British came to India in 1600 as traders under a charter granted by Queen Elizabeth I.

 East India Company has ruled India from 1773 – 1858

 Charter Act of 1853 established Governor-General’s legislative council which came to be known as Indian
Legislative Council (Mini-Parliament).

 After the revolt of 1857, the British government in London abolished the East India Company and transferred
all the powers to the British Crown. The Crown rule began from 1858 to 1947.

 Indian Councils Act of 1861, 1892, 1909 – seeking cooperation of Indians in the administration of country.

 Indians were nominated as non-official members to the Central and Provincial Legislative Councils. Gave
them rights to discuss on the budget and posing questions.

 Government of India Act of 1919 and 1935 introduced responsible government in India, division of powers
into central and provincial subjects, establishment of bi-cameral legislatures.

 Indian Independence Act of 1947 – provided for partition of the country and establishment of constituent
assembly to frame and adopt the constitution for independent India.
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Timeline of Events:

 In 1934, the idea of a constituent assembly for India was put forth by M.N Roy.

 In 1935, INC for the first time officially demanded a constituent assembly for framing constitution for India.

 In 1938, Jawaharlal Nehru declared the constitution of free India must be framed without outside interference,
by a constituent assembly elected by people.

 August Offer of 1940 – British government accepted.

 In 1942, Sir Stafford Cripps, a member of British cabinet came to India with a draft proposal for framing
constitution to be adopted after world war II.

 Cabinet Mission Plan 1946.

Composition of Constituent Assembly:

296 (British India)
 Total strength of constituent assembly 389 93 (Princely states)

 Each province or princely state were to be allotted seats in proportion to their respective population. Roughly
1 seat was allotted for every 1 million population.
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Drafting Committee – Composition and Working

 The drafting committee was setup on 29 th August 1947 and was entrusted with the responsibility to prepare
the draft constitution.

 It consisted of 7 members:

1. Dr. B.R. Ambedkar (Chairman)

2. N. Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr. K.M. Munshi
5. Syed Mohammad Saadullah
6. N. Madhava Rau
7. T.T. Krishnamachari

 The drafting committee, after taking into consideration the proposals of various committees, prepared the
first draft of the Constitution of India in February 1948.

 Members of constituent assembly were given 8 months to discuss the draft and propose amendments.

 In the light of public comments, criticisms and suggestions, the drafting committee prepared a second draft
on October 1948.
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 Dr. B.R. Ambedkar introduced the final draft of the constitution in the Constituent Assembly on November 4 th ,
1948.

 During the process of first, second and third readings of the constitution, thousands of amendments were
proposed and discussed in the assembly.

 Dr. B.R. Ambedkar moved a motion – “the constitution as settled by the assembly be passed’’. The motion on
the draft constitution was declared as passed on November 26 th 1949.

 On this date the people of India have adopted, enacted and gave to themselves this constitution.

 The adopted constitution contained a Preamble, 395 Articles, 22 Parts and 8 Schedules.

 The major part of the constitution came into force on January 26 th , 1950 – date of Commencement.

 With the enforcement of the constitution, the Indian Independence Act of 1947 and all other acts passed by
the British were repealed or became ineffective.

 The Constituent Assembly took 2 years, 11 months and 18 days to prepare the constitution.

 An amount of Rs. 6.4 crore were spent by the drafting committee in their stupendous efforts to prepare the
constitution of India.
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Other functions performed by Constituent Assembly:

 It ratified India’s membership of the Commonwealth in May 1949.

 It adopted the national flag on July 22, 1947, the national anthem on January 24, 1950, national song on
January 24, 1950.

 It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.

Other Committees of Constituent Assembly:

 Union Powers Committee – Jawaharlal Nehru

 Union Constitution Committee – Jawaharlal Nehru

 Provincial Constitution Committee – Sardar Patel

 Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel

 Rule of Procedures Committee – Dr. Rajendra Prasad

 States Committee (Committee for negotiating with States) – Jawaharlal Nehru

 Steering Committee – Dr Rajendra Prasad 8

 Philosophy of the Indian Constitution
PREAMBLE

 Introduction or preface to the constitution.

 “Preamble is the identity card of the Constitution”

– N.A. Palkhivala, eminent jurist and constitutional expert.

 The Preamble to the Indian Constitution is based

on the ‘Objectives Resolution’, drafted and moved
by Pandit Nehru, and adopted by the Constituent Assembly.

 42nd Constitutional Amendment Act (1976) added

three new words —socialist, secular and integrity.

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Ingredients of the Preamble:

1. Source of authority of the Constitution

2. Nature of Indian State
3. Objectives of the Constitution
4. Date of adoption of the Constitution

Key words in the Preamble

5. SOVEREIGN: The word ‘sovereign’ implies that India is neither a dependency nor a dominion of any other
nation, but an independent state.

6. SOCIALISM: Indian brand of socialism is a ‘democratic socialism’ and not a ‘communistic socialism’ (also
known as ‘state socialism’) which involves the nationalization of all means of production and distribution and
the abolition of private property. Democratic socialism, on the other hand, holds faith in a ‘mixed economy’
where both public and private sectors co-exist side by side.

7. SECULAR: Although the secular word was inserted in the Preamble only through the 42 nd Amendment of
1976, still there are many features in the constitution that reflects its secular nature. For instance, Articles 25
to 28 (guaranteeing the fundamental right to freedom of religion) have been included in the constitution.

The Indian Constitution embodies the positive concept of secularism i.e., all religions in our country have the
same status and support from the state. 10
4. DEMOCRATIC: The Indian Constitution provides for representative parliamentary democracy under which the
executive is responsible to the legislature. Universal adult franchise, periodic elections, rule of law, independence
of judiciary, and absence of discrimination on certain grounds are the manifestations of the democratic character
of the Indian polity.

5. REPUBLIC: A democratic polity can be classified into two categories—monarchy and republic. In a monarchy,
the head of the state (usually king or queen) enjoys a hereditary position, that is, he comes into office through
succession, eg, Britain. The term ‘republic’ in our Preamble indicates that India has an elected head called the
president.

6. JUSTICE: The term ‘justice’ in the Preamble embraces three distinct forms—social, economic and political,
secured through various provisions of Fundamental Rights and Directive Principles.

7. LIBERTY: The term ‘liberty’ means the absence of restraints on the activities of individuals, and at the same
time, providing opportunities for the development of individual personalities. The Preamble secures to all citizens
of India liberty of thought, expression, belief, faith and worship, through their Fundamental Rights, enforceable in
court of law, in case of violation.

8. EQUALITY: The term ‘equality’ means the absence of special privileges to any section of the society, and the
provision of adequate opportunities for all individuals without any discrimination. The Preamble secures to all
citizens of India equality of status and opportunity.

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9. FRATERNITY: Fraternity means a sense of brotherhood. The Constitution promotes this feeling of fraternity by
the system of single citizenship. Also, the Fundamental Duties (Article 51-A) say that it shall be the duty of every
citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India.

The Preamble declares that fraternity has to assure two things—the dignity of the individual and the unity and
integrity of the nation. The word ‘integrity’ was added to the preamble by 42nd Constitutional Amendment (1976).

Preamble as part of the Constitution:

In the Berubari Union case (1960), Supreme Court said that Preamble derives several provisions of the
constitution and if terms in any article are ambiguous, some interpretation can be taken from the Preamble. But
strangely, SC said Preamble is not part of the Constitution.

In the Kesavananda Bharti case (1973), SC said Preamble is very much part of the constitution.

Amendability of the Preamble:

The Supreme Court said in Kesavananda Bharti case (1973) that the Preamble is the part of the constitution and
can be amended according to Article 368, without amending the basic features or basic structure of the
constitution contained in the Preamble.

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 SALIENT FEATURES OF THE INDIAN CONSTITUTION

1. Lengthiest Written Constitution:

Written: American constitution, Unwritten: British Constitution.

Indian constitution is considered as the world’s lengthiest written constitution.

Originally (1949) – a Preamble, 395 Articles, 22 Parts, 8 Schedules.

Presently (2020) – a Preamble, 470 Articles, 25 Parts, 12 Schedules.

Geographical factors, historical factors, single constitution for both centre and the states, domination of legal
experts in the constituent assembly.

2. Drawn From Various Sources:

Structural part of the constitution – Government of India Act of 1935

Philosophical part (Fundamental Rights and Directive Principles of State Policy) - from American and Irish
constitutions.

Political Part (Cabinet government, relations between the

13Executive and the Legislature) – British Constitution.
3. Blend of Rigidity and Flexibility:

Rigid – special procedure for its amendment (Ex – American constitution)

Flexible – can amend in same manner as ordinary laws. (Ex: British constitution)

Indian constitution is a synthesis of both. Article 368 – 2 types of amendments.

 Some provisions can be amended by a special majority of Parliament i.e., a 2/3rds majority of members of
each house present and voting and some provisions can be amended by a special majority of Parliament with
ratification by half of the total states.

 Some provisions can be amended by a simple majority of Parliament similar to ordinary legislative process –
this doesn’t come under Article 368.

4. Federal System with Unitary Bias:

Contains usual features of a federation – two governments, division of powers, written constitution, supremacy of
constitution, rigidity of constitution, independent judiciary, bicameralism.

Unitary features – strong Centre, single constitution, single citizenship, flexibility of constitution, integrated
judiciary, emergency provisions, etc.
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5. Parliamentary form of Government:

Constitution of India opted for British Parliamentary system of government. Cooperation and coordination
between legislative and executive. It is also called as Westminister model of government, responsible
government, Cabinet government.

Features of Parliamentary government include: presence of nominal and real executives, majority party rule,
collective responsibility of the executive to the legislature, leadership of PM or CM, dissolution of Lok Sabha or
Assembly.

6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy:

Parliamentary sovereignty – British Parliament.

Judicial supremacy – American Supreme Court with little changes.

The Supreme Court on one hand can declare the parliamentary laws as unconstitutional through its power of
judicial review, the parliament on the other hand can amend the major portion of the constitution through its
constituent power.

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7. Integrated and Independent judiciary:

Supreme court – top of integrated judicial system – high courts – district level courts – lower level courts.

Single system of courts enforces both central laws as well as state laws.

Constitution made various provisions for ensuring independence of judiciary.

8. Fundamental Rights:

Part III of Indian constitution guarantees six fundamental rights to all citizens:
(a) Right to Equality (Articles 14-18)
(b) Right to Freedom (Articles 19-22)
(c) Right against exploitation (Articles 23-24)
(d) Right to freedom of Religion (Articles 25-28)
(e) Cultural and Educational Rights (Articles 29-30)
(f) Right to Constitutional Remedies (Article 32)

9. Directive Principles of State Policy:

Part IV from articles 36 to 51 – Socialistic, Gandhian and Liberal-intellectual principles.

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10. Fundamental Duties:

42nd Constitutional Amendment Act of 1976, Part IV A, Article 51 A specifies 11 fundamental duties – description.

11. A Secular State:

Term secular was added to the Preamble of the constitution by 42 nd Constitutional Amendment Act of 1976.

Articles 14, 15, 16 of Right to Equality and Articles 25-28 of Right to Freedom of Religion and Articles 29-30 –
cultural and educational rights confirm the secular nature of the constitution.

12. Universal Adult Franchise:

Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race,
religion, sex, literacy, wealth and so on.

13. Single Citizenship:

Comparison with dual citizenship of USA.

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14. Independent Bodies:

Election Commission, Comptroller and Auditor General of India, Union Public Service Commission, State Public
Service Commission.

15. Emergency Provisions:

3 types of Emergencies –

(a) National Emergency on grounds of war or external aggression or armed rebellion (Article 352).
(b) State Emergency (President’s Rule) on grounds of failure of constitutional machinery in the states (Article
356) or failure to comply with the directions of the Centre (Article 365).
(c) Financial Emergency (Article 360).

16. Three-Tier Government:

Central Government, State Government and Local Government.

3rd Tier introduced by enacting 73rd and 74th Constitutional Amendment Acts (1992) which gave constitutional
status to panchayats by adding Part IX and Schedule 11, to municipalities by adding Part IX-A and
Schedule 12 to the constitution.

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PERIOD