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CHAPTER CONSTITUTION 1 & IT’S TYPES

What is a Constitution?

 A constitution is a basic law of the land which establishes the relations between various organs of the government and also defi nes the nature and polity of that country.

Types of Constitution?

 Broadly speaking, constitution can be based on: 1. The nature of document:

Written Constitution Unwritten Constitution

That Constitution in which all its Its provisions are not systematically provisions are Systematically and and serially arranged. serially arranged in Parts, Articles and Schedules is known as Written Constitution.

It is codifi ed and compiled in One It is also codifi ed but not compiled in Book form. a book form.

It is formulated by a Constituent It is formulated by laws passed by the Assembly formed for this purpose Parliament. only.

Constitution is Supreme and all the Principle of Parliamentary Supremacy three organs of the Government - is found. Hence Judiciary and Executive Legislature, Executive and Judiciary are are subordinate to the Parliament. subordinate to the Constitution.

Legislature, Executive and Judiciary Parliament itself decides what shall be are equivalent to each other. They the Constitution and according to that derive their functions and powers in the functions and authority of Executive polity from the Constitution. and Judiciary are determined

Consequently, Right to Judicial Review Judiciary does not have this right and is found i.e. the Judiciary can declare a the laws passed by the Parliament piece of legislation null and void if it is are absolute and ultimate. Thus the not in accordance with the substance Parliament is fi nal though fallible. and spirit of the Constitution.

LEGISLATURE = EXECUTIVE = Parliament is Supreme and what it says JUDICIARY and all of the three becomes the Constitution under which work under the authority of the comes the Executive and Judiciary. Constitution.

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2. The relations between the Central Government and its unit.

Federal Features Unitary Features

Dual Government Residuary Power

Division of Powers Union’s Power over the State

Bicameral Legislature Inequality of State Representation

Supremacy of Constitution Single Constitution

Rigidity Flexibility of Amendment

Independent Judiciary Emergency Powers

Functions of the Constitution?

The constitution whether written or unwritten, is a political structure having several functions:  Expression of Ideology: It refl ects the ideology and philosophy of a nation state  Expression of Basic Law: Constitution present basic laws which could be modifi ed or replaced through a process called extra-ordinary procedure of amendment.  Organizational framework: It provides organizational framework for the governments. It defi nes the functions of the legislature, executive, and judiciary, their inter-relationship, restrictions on their authority etc.  Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be suffi cient provisions for amendment of the constitution. It should contain a set of directions for its own modifi cations. The system might collapse if it lacks in scope for modifi cation.

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CHAPTER EVOLUTION 2 OF THE CONSTITUTION

The origin and growth of the Indian Constitution has its roots in Indian history during the British period. The British came to India in the 17th century as traders. From 1773 onwards, various Acts were passed by the British Government for the governance of India. None of them however satisfied Indian aspirations mainly because they were imposed by the alien rulers.

The Company Rule (1773–1858)

Regulating Act, 1773

 Designated the Governor of Bengal as the ‘Governor-General of Bengal’ - First GG of SIGNIFICANCE Bengal was Lord Warren Hasting (Later in  1st step taken by the British Government 1833 Charter Act, Governor General of Bengal to control and regulate the affairs of become Governor General of India) the EIC  It subordinated Governors of Bombay and  1st statute that recognizes the company Madras to Governor General of Bengal. (Earlier, as fulfi lling functions other than those of they were independent of one another.) trade.  Created an Executive Council of four members  First time differentiated the political to assist him and administrative functions of the  Established Supreme Court at Calcutta Company (1774) comprising one Chief justice and three  Centralization of Administration started other judges. (Its jurisdiction was over all British in India. subjects including the provinces of Bengal, Bihar and Orissa.)  Sir Elijah Imphey was the fi rst Chief Justice of this Supreme Court.  Prohibited EIC servants from taking any gifts  Made it mandatory for Court of Directors (governing body of the Company) to report on its revenue, civil, and military affairs in India.

Amending Act, 1781

 To rectify the defects of the Regulating Act of 1773, the British Parliament passed the Amending Act of 1781, also known as the Act of Settlement or Declaratory Act, 1781.  The key provision of this act was to demarcate the relations between the Supreme Court and the Governor General in Council.  It settled the question of jurisdiction of Supreme Court.

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Pitt’s India Act, 1784

 Indian affairs came under direct control of British Government in Britain. SIGNIFICANCE   Distinguished between the commercial and Company’s territories in India were for the fi rst time called the ‘British political functions of the Company. possessions in India’.  Allowed the Court of Directors to manage  British Government was given the the commercial affairs and created a new supreme control over Company’s body called Board of Control (6 members) to affairs and its administration in India. manage the political affairs. Thus, it established a system of dual government.  Empowered the Board of Control to supervise and direct all operations of the civil and military government or revenues of the British possessions in India.

Act of 1786

 Governor-General to be the Commander-in-Chief of Indian Forces.  In 1786, Lord Cornwallis was appointed as Governor-General and commander in chief in India.

Charter Act, 1793

 Company given monopoly of trade for 20 more years.  Expenses and salaries of the Board of Control to be charged on Indian Revenue.  The Governor-General was given more powers. He could override his council’s decision under certain circumstances.

Charter Act, 1813

 Charter act of 1813 ended the monopoly of SIGNIFICANCE the EIC in India except company’s monopoly  Charter Act 1813 for the fi rst time in “trade with china” and “trade in tea explicitly defi ned the constitutional with India”. (Thus, trade with India for all position of the British territories in commodities except tea was thrown open to all India. British subjects. This lasted till 1833 when the next charter abolished the trade of the company)  The company debt was to be reduced and dividend was fi xed @10.5% per annum.  There was also a provision that Company should invest Rs. 1 Lakh every year on the education of Indians.  This act also empowered the local governments to impose taxes on the persons subject to the jurisdiction of the Supreme Court.  Nothing substantial was changed in terms of governance in India.

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Charter Act, 1833

 Final step towards Centralization. SIGNIFICANCE  GG of Bengal became Governor-General  of India (Lord William Bentick was the fi rst Governor General of India governor-general of India).  Centralization which started in 1773  GG was vested with all civil and military Regulating Act , got completed. powers.  Ended EIC’s commercial function too. (Political function got ended after Pitt’s  The Governor General of India was given exclusive legislative powers for the entire India Act 1784.) British India. It deprived the governor of  Introduced law member (Macaulay) in Bombay and Madras of their legislative powers. Governor General’s Council. (This powered was returned by Indian Council Act of 1861).  The laws made under the previous acts were called as Regulations while laws made under this act were called as Acts.  It ended the activities of the EIC as a commercial body, which became a purely administrative body.  It attempted to introduce a system of open competition for selection of civil servants. However, this provision was negated after opposition from the Court of Directors. (It was Charter Act of 1853 which introduced open competition for civil services).

Charter Act, 1853

 Separated the legislative and executive SIGNIFICANCE functions of the Governor General’s council.  Known as the Last Charter Act  Provided for addition of six new members  Separate legislative body created called legislative councilors to the council  known as the Indian (Central) Legislative Open Competition for Civil Services. Council.  It introduced, for the fi rst time, local representation in the Indian (Central) Legislative Council.  Introduced an open competition for civil services. The covenanted civil service was thus thrown open to the Indians also.

THE CROWN RULE (1858–1947)

Government of India Act, 1858

 Also known as the Act for the Good Government of India.  Rule of company was replaced by rule of crown.  Changed the designation of the Governor-General of India to that of Viceroy of India (fi rst viceroy: Lord Canning). He (viceroy) was the direct representative of the British Crown in India.

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 Viceroy became the agent of the crown.  Created a new offi ce, Secretary of State for SIGNIFICANCE India (Charles wood ,the last president of the  Rule of crown started Board of Control was made SoS for India),  This act abolished the dual government vested with complete authority and control of the Pitt’s India Act. over Indian administration.  This act also ended the doctrine of  The secretary of state was a member of the British cabinet and was responsible ultimately lapse. to the British Parliament.  Abolished Board of Control and Court  Established a 15-member Council of India to of Directors assist the secretary of state for India.  Constituted the secretary of state-in-council as a body corporate, capable of suing and being sued in India and in England.

Indian Councils Act, 1861

 Initiated the process of decentralization by restoring legislative powers to Bombay and SIGNIFICANCE Madras. (These powers were taken away  Initiated the process of decentralization. through Charter Act 1833).  Introduced Indian in legislature; they  Introduced representative institutions in India by associating Indians with the law-making were nominated process.  Seed of Parliamentary system sown in  Viceroy nominated some Indians as non- India offi cial members of his expanded council.  Three Indians nominated were —the Raja of Banaras, the Maharaja of Patiala and Sir Dinkar Rao.  It empowers Viceroy to issue ordinances during Emergency. The life of such ordinances was 6 months.  Empowered Viceroy to frame Rule of Business (the same power is given to President of India under Art 77).  Statutory recognition to portfolio system.  Member in charge of his department could issue fi nal orders with regard to matters which concerned his department.  Establishment of new legislative councils for Bengal, NWFP and Punjab.

Indian Councils Act, 1892

 The act made a limited and indirect provision for the use of election, Viceroy still had SIGNIFICANCE power to nominate members.  Indirect Elections  Viceroy could nominate members of Central  Powers to discuss budget and ask Legislative Council on the recommendation questions (but not supplementary of the provincial legislative councils and the questions which was given under Indian Bengal Chamber of Commerce. Council Act 1909).  Governors could nominate members of Provincial legislative councils on the recommendation of the district boards, municipalities, universities, trade associations, zamindars and chambers.

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 The word “election” was, however, not used in the act.  It increased the number of additional (non-offi cial) members in the Central and provincial legislative councils, but maintained the offi cial majority in them.  Enlarged functions of legislative councils. They had power to discuss the budget and address questions to the executive (without having power to vote).

Indian Councils Act, 1909

 It considerably increased the size of the legislative councils, both Central and SIGNIFICANCE provincial.  Also known as Morley Minto Reforms  It retained offi cial majority in the Central  Members were allowed to ask Legislative Council but allowed the provincial supplementary questions, move legislative councils to have non-offi cial resolutions on the budget, and so on. majority.  Introduced Separate Electorate  The elected members were elected indirectly. The local bodies elected an electoral college who would elect members of the provincial legislative councils. These members would, in turn, elect the members of the Central legislative council.  In the provincial councils, non-offi cial members were in a majority. However, since some of the non-offi cial members were nominated, in total, a non-elected majority was there.  It enlarged the deliberative functions of the legislative councils at both the levels. For example, members were allowed to ask supplementary questions, move resolutions on the budget, and so on.  It provided for the fi rst time, association of Indians with the Executive Councils of the Viceroy and Governors. (Satyendra Prasad Sinha became the fi rst Indian to join the Viceroy’s Executive Council. He was appointed as the law member).  It introduced Separate Electorate for Muslims.  Under this, the Muslim members were to be elected only by Muslim voters. Thus, the Act ‘legalized communalism’ and Lord Minto came to be known as the Father of Communal Electorate.  It also provided for the separate representation of presidency corporations, chambers of commerce, universities and zamindars.

Government of India Act, 1919

 It relaxed the Central control over the provinces by demarcating and separating the central and Subjects provincial subjects.  Provincial subjects were divided into two parts— Provincial Central transferred and reserved. The transferred subjects were to be administered by the governor with the aid Transferred Reserved of ministers responsible to the legislative Council. Administered by Administered by governor with the Governor and his The reserved subjects, on the other hand, were to be aid of Ministers executive council administered by the governor and his executive responsible to without any legislature responsibility to council without being responsible to the legislative legislature Council.  This dual scheme of governance was known as ‘Dyarchy’—a term derived from the Greek word di-arche which means double rule.

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 It introduced bicameralism and direct elections in the country. Thus, the Indian Legislative SIGNIFICANCE Council was replaced by a bicameral  Also known as Montagu Chelmsford legislature consisting of an Upper House Reforms. (Council of State) and a Lower House (Legislative Assembly).  Introduced Diarchy in provinces. (Through GOI Act 1935 Dyarchy in  Required that the 3 of the 6 members of the Viceroy’s executive Council (other than the provinces was abolished and Dyarchy commander-in-chief) were to be Indian. at centre was introduced).   Extended the principle of communal Created Centre State Relations. representation by providing separate  Introduced Bicameralism in centre Two electorates for Sikhs, Indian Christians, houses of legislature (Note: Bicamera- Anglo-Indians and Europeans. ( 1909 – To lism in Provinces was introduced through Muslims only, 1935 – Extended to Schedule 1935 Act) Castes and Women and Labors)  Direct elections introduced  Granted franchise to a limited number  Extended the principle of Communal of people on the basis of property, tax or Representation education.  Provided for the establishment of Public  Provided for the establishment of a public Service Commission. service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants.  Separated provincial budgets from the Central budget and authorized the provincial legislatures to enact their Diarchy budgets.  Extended the principle of communal representation by providing separate Provincial Centre electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.  Provided for the appointment of a Introduced in Abolished in Introduced in statutory commission to inquire into and GOI Act 1919 GOI Act 1935 GOI Act 1935 report on its working after ten years of its coming into force.  Local Self-Government became provincial and transferred subjects under a responsible Indian Minister.

Simon Commission

 The Simon Commission was a group of 7 MPs from Britain which was sent to India in 1927 to study constitutional reforms and make recommendations to the government.  The Commission was originally named the Indian Statutory Commission. It came to be known as the Simon Commission after its chairman Sir John Simon.  Clement Atlee was a member of this Commission. He later became Britain’s Prime Minister during Indian independence and partition in 1947.  Commissions’ Recommendations were published in May 1930. They were as follows: 1. Diarchy in the provinces should be abolished. 2. The Governor was to retain the special powers for the safety and tranquility of the province and for the protection of the minorities. 3. The Franchise was to be extended and legislatures were to be enlarged.

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4. At the centre, a Federal assembly would be constituted on the basis of representation SIGNIFICANCE of the provinces and other areas as per the  To study Constitution Reforms. population.  Diarchy should be scrapped, extension 5. The Council of State would continue as of responsible Govt in the provinces. the Upper House but its members would  Federal Union including British India be chosen not on the basis of direct election and Princely States. but on the basis of indirect election by the  Provincial councils. Franchise should be extended.  6. No change in the central executive. Continuation of Communal Awards. 7. The All India federation was not considered practical idea for immediate execution. 8. Burma should be separated from the British India and should be provided a constitution of its own. (The British separated Burma Province from British India in 1937).

Government of India Act, 1935

 Provided for the establishment of an All-India Federation consisting of provinces and princely Provinces states as units. (Note: Princeley States did Introduced in not join and so Federation didn’t come into GOI Act 1935 existence) BICAMERALISM  3 lists of subjects— Centre Introduced in 1. Federal List (for Centre) GOI Act 1919 2. Provincial List (for Provinces) 3. Concurrent List (for Both).  Residuary powers were given to the Viceroy. SIGNIFICANCE  Abolished diarchy in the provinces and  Concurrent List added introduced ‘provincial autonomy’ in its place.  Abolished diarchy in the provinces  Introduced responsible government in (which was introduced in Indian Council provinces. Act 1919).  Introduced Bicameralism in six out of eleven  Abolished the Council of India provinces.  Established Reserve Bank of India  Extended the principle of communal  Introduced Bicameralism in six out of representation by providing separate eleven provinces. electorates for depressed classes (scheduled  Established Federal Court. castes), women and labor (workers). (1909  Established Federal Public Service – Only for Muslims, 1919 – extended for Commission. Sikhs, Indian Christians, Anglo-Indians and Europeans.)  Abolished the Council of India, established by the Government of India Act of 1858.  The Secretary of State for India was provided with a team of advisors.  Established Reserve Bank of India to control the currency and credit of the country.  Established Federal Public Service Commission, Provincial Public Service Commission and Joint Public Service Commission for two or more provinces.  Provided for the establishment of a Federal Court, which was set up in 1937.

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Indian Independence Act, 1947

 Declared India as an independent and sovereign state from August 15,1947. SIGNIFICANCE  Provided for creation of two independent  Till 1947, Government functioned under dominions of India and Pakistan with the right the provisions of GOI Act 1919 because to secede from the British Commonwealth. the provisions of GOI Act 1935 relating (Governor General of Each to be appointed by to federation and diarchy at centre did King on advice of Dominion Cabinet) not come into operation.  Empowered the Constituent Assemblies of the two dominions to frame and adopt any constitution and to repeal any act of the British Parliament, including the Independence act itself.  Abolished the offi ce of the secretary of state for India and transferred his functions to the secretary of state for Commonwealth Affairs.  It assigned dual functions (i.e. constituent and legislative) to the Constituent Assembly formed in 1946. It declared this dominion legislature as a sovereign body.  Granted freedom to the Indian princely states either to join the Dominion of India or Dominion of Pakistan or to remain independent.

Factual information about the Making of Indian Constitution)

 The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were indirectly elected from British India and 93 seats were nominated by the Princely States. (Thus, Constituent assembly had nominated as well as elected members.)  Each province and princely state (or group of states in case of small states) was to be allotted seats in proportion to their respective population.  The representatives of princely states were to be nominated by the heads of the princely states.  It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.  The constituent assembly met for the fi rst time in New Delhi on 9th December,1946 in the constitution Hall which is now known as Central Hall of parliament house. 207 representatives, including 9 women were present.  Although the Constitution Assembly was not directly elected by the people of India on the basis of adult franchise, the Assembly comprised representatives of all sections of Indian Society - Hindus, Muslims, Sikhs, Parsis, Anglo - Indians, Indian Christians, SCs, STs included women of all these sections. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi.  Sachchidananda Sinha ,the oldest member, was elected as the temporary president of the assembly following the French practice.  The Muslim League boycotted the Constituent Assembly. Due to the boycott of Muslim League, it was attended by only 211 elected members of the congress. Constituent assembly was not a sovereign body as it was brought about by British Government and could be abolished by it.  Later, Dr. Rajendra Prasad was elected as the President of the assembly. similarly, both H.C.

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Mukherjee and V.T Krishna-machari 1934 were elected as Vice- Presidents of the assembly. In 1934 the idea of a Constituent Assembly for  Sir B. N. Rau was appointed as the making the constitution was fi rst mooted by constitutional advisor to the assembly. M. N. Roy  The historic objective resolution was 1935 moved by Pt. Jawaharlal Nehru on Dec. 13,1946 which was later accepted In 1935 for the fi rst time INC offi cially demanded in its modifi ed form as the preamble the formation of constituent assembly. of the constitution. 1940  This resolution was unanimously adopted by the assembly on Jan 22, Under “August offer” the demand for constituent 1947. It infl uenced the eventual shaping assembly was accepted fi rst time by British. of the constitution. 1942  On the 26th November, 1949 constitution was declared as passed after the signature The “Cripps Mission” proposal envisaged the of the president of the assembly. Thus on framing of constitution of India by an elected 26th November 1949 the constitution constituent assembly of the Indian people. It of India was adopted. failed due to disagreement between Congress and  The constituent Assembly took 2 years, Muslim league. 11 months and 18 days to complete its 1946 historic task of drafting the constitution for Independent India. During this period, Finally, in November 1946, under the provisions of it held eleven sessions covering a total of Cabinet Mission Plan, a constituent assembly was 165 days. formed.  As to its composition, members were chosen by indirect election by the members of the provincial legislative THINGS TO REMEMBER assemblies, according to the scheme In addition to the making of the constitution recommended by the Cabinet Mission. and enacting of ordinary laws, the constituent  On 29 August, 1947, the Constituent assembly also performed following functions: Assembly set up a Drafting Committee  It ratifi ed India’s membership of the under the chairmanship of Dr. B. Commonwealth in may 1949. R. Ambedkar to prepare a Draft  Constitution for India. It adopted the national fl ag on 22 July 1947.   284 members actually signed the It adopted the national anthem and national Constitution. song on January 24, 1950.  The provisions relating to the following were given effect from 26th November 1949 (a) Citizenship, (b) Election, (c) Provisional parliament, (d) Temporary provisions,  The rest of the constitution came into force on the 26th January, and date is referred to in the constitution as the date of its commencement (to commemorate the Independence day celebrated since 1930 after the passage of Purna Swaraj resolution).  On January 24, 1950 the constituent assembly held its last session. However, it continued as the provisional parliament of India from 26 January, 1950 till the formation of new Parliament after the fi rst general elections in 1951-52.  The fi rst Draft ‘constitution in India’ was published in Feb 1948.  Dr. B. R. Ambedkar is recognized as father of the Indian constitution.

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Important Committees of the Constituent Assembly and their Chairman

COMMITTEE NAME CHAIRMAN

 Committee on the Rules of Procedure Rajendra Prasad

 Steering Committee Rajendra Prasad

 Finance and Staff Committee Rajendra Prasad

 AD hoc Committee on the National Flag Rajendra Prasad

 States Committee Jawaharlal Nehru

 Union Powers Committee Jawaharlal Nehru

 Union Constitution Committee Jawaharlal Nehru

 Credential Committee Alladi Krishna swami Ayyar

 House Committee B. Pattabhi Sitaramayya

 Order of Business Committee K.M. Munsi

 Committee on the Functions of the Constituent Assembly G.V. Mavalankar

 Advisory Committee on Fundamental Rights, Minorities and Tribal and Vallabhbhai Patel Excluded Areas

 Minorities Sub-Committee H.C. Mookherjee

 Fundamental Rights Sub-Committee J.B. Kripalani

 North-East Frontier Tribal Areas and Assam, Excluded and Partially Gopinath Bardoloi Excluded Areas Sub-Committee

 Excluded and Partially Excluded Areas-other than those in Assam Sub- A.V. Thakkar Committee

 Drafting Committee B.R. Ambedkar

Drafting Committee was entrusted with the task of making the new constitution. It consisted of seven members. They were: 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 (He replaced B L Mitter who resigned due to ill-health) 7. T. T. Krishnamachari (He replaced D P Khaitan who died in 1948)

Some facts related to Constitution of India

 The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.

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 Indian Constitution is known as a bag of borrowings.  All the 284 members of the Constituent Assembly signed the documents on January 24, 1950.  The constitution came into effect on January 26, 1950.  The national emblem of India was adopted on the same day.  Elephant was adopted as the symbol (Seal) of the Constituent Assembly.  Sir B.N Ram was appointed the Constitutional advisor (legal advisor) to the Constituent Assembly.  H.V.R Iyengar was the Secretary to the Constituent assembly.  S.N. Mukherjee was the Cheif dratsman of the Constitution in the Constituent Assembly.  Prem Behari Narain Raizada was the Calligrapher of the Indian Constitution. The original constitution was hand written by him in a fl owing italic style.  The original version was beautifi ed & decorated by artists from Shantiniketan including Nandlal Bose and Beohar Rammonohar Sinha.  The Calligraphy of the Hindi version of the orginal Constitution was done by Vasant Krishan Vaidya & elegantly decorated & illuminated by Nandlal Bose.  Beohar Rammanohar Sinha illuminated, beautifi ed & ornamented the original preamble calligraphed by Prem Behari Narain Raizada.

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