January - 2015 Odisha Review

Making of the Constitution of : A Critical Analysis

Dr. Abhijit Sahoo Dr. Tusarkanta Pattanaik

A country is governed by a set of policies through making, the field of Constitutional and political a framework of laws, rules and regulations. history can only be a richer and more informative Constitution of a democratic country is a resource to understand the complex postcolonial fundamental legal document which lays down the developments in India. basic structure of the government, and other public Making of the Constitution: bodies, their powers, functions; rights and duties of its people and their interrelations. It also Constitution is a living document, an contains the principles to be followed by the state instrument which makes the government system in the governance of the country. work. A Constitution is the highest law of the land, The writing of the Indian which defines and limits the Constitution has often been powers of government and its celebrated for its momentousness, various branches, vis-à-vis each as it came at the end of a long other, and the people, and period of anti-colonial struggle. provides a strong foundation for However, very little has been a state based on the rule of law. written on the making of the The design of a Constitution and Constitution. Often, the event of its process of development can drafting the Constitution is written- play an important role in peaceful off as part of a logical end to the political transitions and post- British Empire in India or as part conflict peace building. It can also of a fulfilling of the promise made play a critical prevention role. by India’s anti-colonial leaders. Constitution-making presents However, this has led to a severe moments of great opportunity to impoverishment of the field of Indian create a common vision of the future of a state, Constitutional history. In this essay, we suggest the results of which can have profound and lasting that we could benefit so much more by impacts on peace and stability. The Constitution considering the long, complicated, and fraught of India is the supreme law of India. It lays down history of Constitution making separately from the the framework defining fundamental political process of the making of independent India. By principles, establishes the structure, procedures, separating nation-making from Constitution- powers and duties of government institutions and

7 Odisha Review January - 2015 sets out fundamental rights, directive principles the Indian Independence Act, 1947 was repealed. and the duties of citizens. It is the longest written The Constitution declares India to be a sovereign, Constitution of any sovereign country in the world, socialist, secular, democratic republic, assuring its containing 448 articles in 25 parts, 12 schedules, citizens of justice, equality, and liberty, and 5 appendices and 98 amendments (out of 120 endeavours to promote fraternity among them. Constitution Amendment Bills). Besides the The words “socialist” and “secular” were added English version, there is an official to the definition in 1976 by Constitutional translation. Dr. Bhimrao Ramji Ambedkar is amendment (mini constitution). India celebrates widely regarded as the architect of the Indian the adoption of the Constitution on 26 January Constitution. each year as Republic Day. The Constitution follows parliamentary Previous Legislations as Source: system of government and the executive is The is drawn from directly accountable to the legislature. Article 74 many sources. Keeping in mind the needs and provides that there shall be a Prime Minister of conditions of India the framers of the Constitution India as the head of government. It also states of India borrowed different features freely from that there shall be a President of India and a Vice- previous legislation. President of India under Articles 52 and 63. Unlike the Prime Minister, the President largely performs Government of India Act 1858: ceremonial roles. The Constitution of India is After the , the federal in nature. Each state and each Union British Government took direct control of territory of India has its own government. territories formerly ruled by the English East Analogues to President and Prime Minister, each India Company. To calm down the after effects has a Governor (in case of states) or Lieutenant of 1857 revolt, the Act of 1858 was introduced. Governor (in the case of Union territories) and This act abolished East India Company and a Chief Minister. The 73rd and 74th Amendment transferred powers towards the British crown to Act also introduced the system of Panchayati Raj establish direct rule. The Provisions of the Bill are: in rural areas and Municipality in urban areas. Also, Article 370 of the Constitution gives special · Provision for the creation of an Indian Civil status to the State of Jammu and Kashmir. The Service under the control of the Secretary of Constitution was adopted by the India State. Constituent Assembly on 26 November 1949, · The Crown was empowered to appoint a and came into effect on 26 January 1950. The Governor-General and the Governors of the date of 26 January was chosen to commemorate Presidencies. the Purna Swaraj declaration of independence of · The Company’s territories in India were to 1930. With its adoption, the Union of India be vested in the Queen, the Company ceasing officially became the modern and contemporary to exercise its power and control over these Republic of India and it replaced the Government territories. India was to be governed in the of India Act 1935 as the country’s fundamental Queen’s name. governing document. To ensure Constitutional autochthony, the framers of Constitution inserted · All the property of the East India Company Article 395 in the Constitution and by this Article was transferred to the Crown. The Crown

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also assumed the responsibilities of the the Raja of Benaras, the Maharaja of Patiala Company as they related to treaties, and Sir Dinkar Rao. contracts, and so forth. · Decentralization of legislative powers. · The Queen’s Principal Secretary of State · Establishment of recent legislative councils in received the powers and duties of the Bengal, NWFP and Punjab in 1862, 1866 Company’s Court of Directors. A council of and 1897 respectively. fifteen members was appointed to assist the Secretary of State for India. The council · Introduction of portfolio system. became an advisory body in India affairs. For · It empowered the Viceroy to issue ordinances all the communications between Britain and with no concurrence of the legislative council India, the Secretary of State became the real throughout an emergency. The life of such an channel. ordinance was 6 months. · Abolition of double government. : Indian Councils Act 1861: Enacted due to the demand of the Indian National Congress to expand legislative council, Indian Councils Act 1861 enacted by the number of non-official members was increased Parliament of the United Kingdom that both in central and provincial legislative councils, transformed the Viceroy of India’s executive the non official members of Indian legislative council into a cabinet run on the portfolio system. councils were henceforth to be nominated by This cabinet had six “ordinary members” who Bengal chamber of commerce and provincial each took charge of a separate department in legislative council. In 1892, the council consisted Calcutta’s government: home, revenue, military, of 24 members, only five being where Indians. law, finance, and (after 1874) public works. Its features are: Indian Councils Act 1861 is an essential landmark · Power discussing budget to legislative in the constitutional and political good reputation councils. for India. The 1861 Act restored the legislative power taken away by the Charter Act of 1833. · It delivers to the nomination of some non The legislative council at Calcutta was given official people in the central legislative council extensive authority to pass laws for British India through the viceroy on the recommendation as a whole, while the legislative councils at of the provincial legislative councils which of Bombay and Madras were given the power to the provincial legislative councils through the make laws for the “Peace and good Government” governors on the recommendations of the of their respective presidencies. The Governor district boards, municipalities, universities, General was given the power to create new trade associations, zamindars and chambers. provinces for legislative purposes. He also could The Act amended the Indian Councils Acts of appoint Lt. Governors for the same. Its features 1861 and 1892.Its features are: are: 1. The maximum number of nominated and · Indians were involved with law-making elected members of the Legislative Council process. For this purpose, Viceroy nominated at the Centre was increased from 16 to 60.

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The number did not include ex-officio of Britain, would leave them permanently members. subject to Hindu majority rule. The Act of 2. The right of separate electorate was given to 1909 stipulated, as demanded by the Muslim the Muslims. leadership. 3. Official members were to form the majority Government of India Act 1919: but in provinces non-official members would After World War I, the British be in majority. Government opened the door for Indians to public 4. The members of the Legislative Councils were office and employment. The Provisions of the Bill permitted to discuss the budgets, suggest the are: amendments and even to vote on them; · Relaxation of central treatments for the excluding those items that were included as provinces by demarcating and separating the non-vote items. They were also entitled to central and provincial subjects. ask supplementary questions during the legislative proceedings. · It further divided the provincial subjects into two parts – transferred (That have been 5. The Secretary of State for India was administered by governor by the help of empowered to increase the number of the ministers who are responsible to legislative Executive Councils of Madras and Bombay council) and reserved (that has been to be from two to four. administered by the governor and the 6. Two Indians were nominated to the Council executive council without being responsible of the Secretary of State for Indian Affairs. towards the legislative council). : · Introduction of diarchy, Bicameralism, direct Indian Councils Act 1909 commonly elections and establishment of central public known as the Morley-Minto Reforms was an Act service commission in 1926. of the Parliament of the United Kingdom that · Franchise was granted to some limited people brought about a limited increase in the involvement on foundation of property, tax and education. of Indians in the governance of British India. The Act of 1909 was important for the following · Separation of central budget from provisional reasons: budget. · It effectively allowed the election of Indians · Appointment of statutory commission. to the various legislative councils in India for Government of India Act 1935: the first time. Previously some Indians had been appointed to legislative councils. The provisions of the Government of India Act 1935, though never implemented fully, · The introduction of the electoral principle laid had a great impact on the Constitution of India. the groundwork for a parliamentary system Many key features of the Constitution were even though this was contrary to the intent of directly taken from this Act. It is really a lengthy Morley. and detailed document having 321 sections and · Muslims had expressed serious concern that 10 schedules. The majority of the today’s a first past the post electoral system, like that Constitution has drawn from this. Its features are:

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· It delivers to the establishment of an All India 4. Empowering of Constitution for the nations. Federation. The previous names transferred On 18 July 1947, British India divided and reserved subjects are changed as federal into two new independent states, India and and provincial lists and concurrent list is Pakistan, which were to be dominions under the definitely an addendum. Commonwealth of Nations until they had each · Abolition of Diarchy and introduced finished drafting and enacted a new constitution. provincial autonomy. The Constituent Assembly was divided into two · Abolition of Council Asia. for the separate states, with each new Assembly having sovereign powers transferred to it for the · Establishment of RBI, Federal Court, respective dominion. The Act also terminated Provincial PSUs and Joint PSUs. British suzerainty over the princely states, each · Extension of bicameralism, communal of which was left to decide whether to accede to representation and franchise. one or other of the new dominions or to continue The federal structure of government, as independent states in their own right. provincial autonomy, a bicameral central Constituent Assembly: legislature consisting of a federal assembly and a The Constitution was drafted by the Council of States and the separation of legislative Constituent Assembly, which was elected by the powers between the centre and states are some elected members of the provincial assemblies. Dr. of the provisions of the Act which are present in B.R. Ambedkar, Sanjay Phakey, Jawaharlal the Constitution of India. Nehru, C. Rajagopalachari, , Indian Independence Act 1947: Sardar , Kanaiyalal Munshi, The legislation was formulated by the Purushottam Mavalankar, Sandipkumar government of Prime Minister Clement Attlee and Patel, Maulana Abul Kalam Azad, Shyama the Governor General of India Lord Mountbatten, Prasad Mukherjee, Nalini Ranjan Ghosh, and after representatives of the Indian National Balwantrai Mehta were some important figures Congress, the Muslim League, and the Sikh in the Assembly. There were more than 30 community came to an agreement with the Viceroy members of the scheduled classes. Frank Anthony of India, Lord Mountbatten of Burma, on what represented the Anglo-Indian community, and the has come to be known as the 3 June Plan or Parsis were represented by H. P. Modi. The Mountbatten Plan. The Prime Minister of the Chairman of the Minorities Committee was United Kingdom announced on 20 February Harendra Coomar Mookerjee, a distinguished 1947 that: Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng 1. British Government would grant full self- represented the Gorkha Community. Prominent government to British India by June 1948 at jurists like Alladi Krishnaswamy Iyer, Benegal the latest, Narsing Rau and K. M. Munshi, Ganesh 2. Partition of India and Pakistan. Mavlankar were also members of the 3. The future of Princely States would be Assembly. Sarojini Naidu, Hansa Mehta, decided after the date of final transfer is Durgabai Deshmukh, Rajkumari Amrit Kaur decided. and Vijayalakshmi Pandit were important

11 Odisha Review January - 2015 women members. The first temporary 2-day years. Finally on 26 Nov. 1949, the process was President of the Constituent Assembly was Dr. completed and Constituent assembly adopted the Sachidanand Sinha. Later, Rajendra Prasad constitution. 284 members signed the document was elected President of the Constituent and the process of Constitution making was Assembly. The members of the Constituent complete. The Assembly met in sessions open to Assembly met for the first time on 9 December the public, for 166 days, spread over a period of 1946. 2 years, 11 months and 18 days before adopting Drafting: the Constitution, the 308 members of the Assembly signed two copies of the document (one On the 14 August 1947 meeting of the each in Hindi and English) on 24 January 1950. Assembly, a proposal for forming various The original Constitution of India is hand-written committees was presented. Such committees with beautiful calligraphy, each page beautified included a Committee on Fundamental Rights, the and decorated by artists from Union Powers Committee and Union Constitution including Beohar Rammanohar Sinha and Committee. On 29 August 1947, the Drafting . Two days later, on 26 January Committee was appointed, with Dr. B. R. 1950, the Constitution of India became the law Ambedkar as the Chairman along with six other of all the States and territories of India. members assisted by a constitutional advisor. Rs.1,00,00,000 was official estimate of These members were Pandit Govind Ballabh expenditure on constituent assembly. The Pant, Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, ), N Gopalaswami Ayengar (Ex- Prime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer). The constitutional advisor was Sir Benegal Narsing Rau (who became First Indian Judge in International Court of Justice, 1950–54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). Owing to death of D P Khaitan, T T Krishnamachari was chosen to be included in the drafting committee. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two

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Constitution has undergone many amendments Part XV – Elections since its enactment. Part XVI – Special Provisions relating to certain Structure: classes. The Constitution, in its current form Part XVII – Languages (September 2012), consists of a preamble, 25 Part XVIII – Emergency Provisions parts containing 448 articles, 12 schedules, 5 appendices and 98 amendments to date. Part XIX – Miscellaneous Parts Part XX – Amendment of the Constitution The individual Articles of the Constitution Part XXI – Temporary, Transitional and Special are grouped together into the following Parts: Provisions Preamble Part XXII – Short title, date of commencement, Part I – Union and its Territory Authoritative text in Hindi and Repeals Part II – Citizenship. Schedules: Part III – Fundamental Rights. Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and

Part IV– Directive Principles of State Policy. policy of the Government. Part IVA – Fundamental Duties. · First Schedule (Articles 1 and 4) - This lists Part V – The Union. the states and territories of India, lists any changes to their borders and the laws used Part VI – The States. to make that change. Part VII – States in the B part of the First schedule (Repealed). · Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 Part VIII – The Union Territories and 221)- – This lists the salaries of officials Part IX – The Panchayats. holding public office, judges, and Comptroller and Auditor General of India. Part IXA – The Municipalities. · Third Schedule (Articles 75(4), 99, 124(6), Part IXB – The Co-operative Societies. 148(2), 164(3), 188 and 219)—Forms of Part X – The scheduled and Tribal Areas Oaths – This lists the oaths of offices for Part XI – Relations between the Union and the elected officials and judges. States. · Fourth Schedule (Articles 4(1) and 80(2)) Part XII – Finance, Property, Contracts and Suits – This details the allocation of seats in the (the Upper House of Parliament) Part XIII – Trade and Commerce within the per State or Union Territory. territory of India · Fifth Schedule (Article 244(1)) – This Part XIV – Services under the Union, the States. provides for the administration and control Part XIVA – Tribunals. of Scheduled Areas and Scheduled Tribes

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(areas and tribes needing special protection Amendment : due to disadvantageous conditions). The process of rewriting any part of the · Sixth Schedule (Articles 244(2) and Constitution is called amendment. Amendments 275(1))— Provisions for the administration to the Constitution are made by the Parliament, of tribal areas in Assam, Meghalaya, Tripura, the procedure for which is laid out in Article 368. and Mizoram. An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority · Seventh Schedule (Article 246) —The union (central government), state, and and voting. In addition to this, certain amendments which pertain to the federal nature of the concurrent lists of responsibilities. Constitution must be ratified by a majority of state · Eighth Schedule (Articles 344(1) and legislatures. Unlike the ordinary bills (with 351)—The official languages. exception to money bills), there is no provision · Ninth Schedule (Article 31-B) – Validation for joint sitting of the two houses of the Parliament of certain Acts and Regulations. to pass a Constitutional Amendment Bill. As of September 2013 there have been 120 · Tenth Schedule (Articles 102(2) and amendment bills presented in the Parliament, out 191(2))—”Anti-defection” provisions for of which 98 have been passed to become Members of Parliament and Members of the Amendment Acts. Most of these amendments State Legislatures. address issues dealt with by statute in other · Eleventh Schedule (Article 243-D) — democracies. However, the Constitution is so Panchayati Raj (rural local government). specific in spelling out government powers that · Twelfth Schedule (Article 243-W) — many of these issues must be addressed by Municipalities (urban local government). constitutional amendment. As a result, the document is amended roughly twice a year. In Appendices: 2000 the National Commission to Review the · Appendix I—The Constitution (Application Working of the Constitution (NCRWC) was set to Jammu and Kashmir) Order, 1954. up to look into updating the Constitution. · Appendix II— Re-statement, with reference Limitations : to the present text of the Constitution, of the The Supreme Court has ruled in exceptions and modifications subject to which Kesavananda Bharati v. State of Kerala case that the Constitution applies to the State of Jammu not every Constitutional amendment is and Kashmir. permissible; the amendment must respect the · Appendix III—Extracts from the “basic structure” of the Constitution, which is Constitution (Forty-fourth Amendment) Act, immutable. This “Doctrine of Basic Features” of 1978. the Constitution lays down that certain basic features of the Constitution cannot be abridged · Appendix IV—The Constitution (Eighty- or deleted or repealed; what are the “basic sixth Amendment) Act, 2002. features” has not been defined exhaustively · Appendix V— The Constitution (Eighty- anywhere and whether a particular provision of eighth Amendment) Act, 2003. the Constitution of India is a “basic feature” will

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be decided as and when an issue is raised before · M. Laxmikanta., (2014) “Indian Polity”, Mcgraw the court in an individual case. Hill Education, , PP-2.1-2.7. Adoptions from other Constitutions · Granville Austin, (1966) “The Indian Constitution- Corner stone of a Nation”, Oxford, pp-7-9. The architects of Indian Constitution were · Umakanta Singh (2011) “Indian polity and most heavily influenced by the British model of Governance” Airhant Publication ,PP-16-20. parliamentary democracy. In addition, a number · B.L. Fadia (2004) “Indian Govt. and Politics” of principles were adopted from the Constitution New Delhi, PP-2-7. of the United States of America, including the · M.V. Pylee, (1997). India’s Constitution. S. Chand separation of powers among the major branches & Co.P. 3. of government and the establishment of a · “Introduction to Constitution of India”. Ministry Supreme Court. The principles adopted from of Law and Justice of India. 29 July 2008. Retrieved Canada were federal government with strong 2008-10-14. centre and also distribution of powers between · Hari Das, (2002). “Political System of India”. central government and state governments along Anmol Publications. P. 120. with placing residuary powers with central · V. Venkatesan, “A fresh look at the relevance of government. From Ireland, directive principle of three early doctrines that have defined the Indian state policy was adopted. From Germany, the Constitution over the years”. Front-line (Vol. 29 - principle of suspension of fundamental rights Issue 05:: 10-23 Mar. 2012) during emergency was adopted. From Australia, · M.P.Jain,(2010). “Indian Constitutional Law”, the idea of having a Concurrent list of shared LexisNexis Butterworths Wadhwa Nagpur. P. 921. powers was used as well and some of the · Ashok Dhamija, (2007). “Need to Amend a terminology was utilized for the preamble. Constitution and Doctrine of Basic Features”. Wadhwa and Company. P. 568. References : · B.L.Grover, Alka Mehta., (2012), “ A new look at Modern Indian History” S.Chand Publishers, New Delhi, PP-364-370. · Ibid, PP-453-459. Dr. Abhijit Sahoo, Lecturer in History, KIIT School of Social Sciences (KISS), KIIT University, Campus-10, · K.K. Ghai., (2009) “Indian Polity”, Kalyani Bhubaneswar-24. Publishers, New Delhi, PP-43-44. · Arvind Elangovan, (2014), “The Making of the Dr. Tusarkanta Pattanaik, H.O.D. in Political Science, KIIT Indian Constitution: A case for a non-nationalist School of Social Sciences, KIIT University, Campus-10, approach” History Compass”, Vol-12, Issue-1. Bhubaneswar-24.

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