Indian Constitution History PDF

DEPARTMENT OF COMPUTER SCIENCE AND ENGG UNITI INTRODUCTION 6 Historical Background – Constituent Assembly of India – Philosophical foundations of the Indian Constitution – Preamble – Fundamental Rights – Directive Principles of State Policy – Fundamental Duties 1.1 Constitution...

DEPARTMENT OF COMPUTER SCIENCE AND ENGG UNITI INTRODUCTION 6 Historical Background – Constituent Assembly of India – Philosophical foundations of the Indian Constitution – Preamble – Fundamental Rights – Directive Principles of State Policy – Fundamental Duties 1.1 Constitution of India Historical Evolution of the Indian Constitution There are various layers in the background of the Indian Constitution: Regulating Act 1773 Pitt’s India Act 1784 Charter Act of 1813 Charter Act of 1833 Charter Act of 1853 Government of India Act 1858 Indian Councils Act 1861 India Councils Act 1892 Morley-Minto Reforms 1909 Montague-Chelmsford Reforms 1919 Government of India Act 1935 Indian Independence Act 1947 These acts were in some way instrumental for the development of the Indian Constitution. History of Indian Constitution – Regulating Act 1773 First time the British Parliament resorted to regulating the affairs of the East India Company. The Governor of Bengal was made the Governor-General of Bengal (Warren Hastings). An Executive Council of the Governor-General was created with 4 members. Centralised the administration with the Presidencies of Madras and Bombay being made subordinate to the Bengal Presidency. Supreme Court was established at Calcutta as the Apex Court in 1774. Prohibited  company officials from engaging in private trade and from accepting gifts from Indians. History of Indian Constitution – Pitt’s India Act 1784 Commercial and political functions of the company separated. The Court of Directors managed the commercial activities while the Board of Control managed political affairs. The company territories in India were called ‘British possession in India’. Governor’s Councils were set up in Madras and Bombay as well. History of Indian Constitution – Charter Act 1813 This act ended the East India Company’s monopoly over trade with India except in tea and opium. Trade with India was open to all British subjects. History of Indian Constitution – Charter Act 1833 Governor-General of Bengal was designated the Governor-General of India (Lord William Bentinck). The legislative powers of the Bombay and Madras Presidencies were removed. This act ended the commercial activities of the company and it was transformed into an administrative body. History of Indian Constitution – Charter Act 1853 The legislative and executive powers of the Governor-General’s Council were separated. A Central Legislative Council was created of 6 members out of which 4 were appointed by the provisional governments of Madras, Bombay, Agra and Bengal. The Indian civil service was opened as a means to recruit officers for administration through open competition. History of Indian Constitution – Government of India Act 1858 After the 1857 revolt, the rule of the company was ended and the British possessions in India came directly under the British Crown. The office of the Secretary of State for India was created. He was assisted by a 15- member Council of India. The Indian administration was under his authority and the Viceroy was his agent. The Governor-General was designated the Viceroy as well (Lord Canning). The Court of Directors and the Board of Control were abolished. History of Indian Constitution – Indian Councils Act 1861 Indians were given representation in the Viceroy’s Councils. 3 Indians entered the Legislative Council. Provisions were made for the entry of Indians in the Viceroy’s Executive council also as non-official members.  Portfolio system was recognised. Decentralisation initiated with the presidencies of Madras and Bombay being restored their legislative powers. History of Indian Constitution – Indian Councils Act 1892 Indirect elections (nominations) were introduced. Legislative Councils expanded. Gave more functions to the legislative councils such as the discussion of budget and questioning the executive. History of Indian Constitution – Indian Councils Act 1909 (Morley-Minto Reforms) Direct elections to the legislative councils were introduced for the first time. Central Legislative Council became the Imperial Legislative Council. The number of members of the legislative council was increased from 16 to 60. The concept of the separate communal electorate was accepted. For the first time, an Indian was made a member of the Viceroy’s Executive Council. (Satyendra Prasad Sinha – Law Member). History of Indian Constitution – Government of India Act 1919 (Montague-Chelmsford Reforms) Centraland provincial subjects were separated. Diarchy was introduced in the provincial governments with executive councillors being in charge of the reserved list and the ministers in charge of the transferred list of subjects. The ministers were nominated from among the elected members of the legislative council and were responsible to the legislature. A bicameral legislature was introduced for the first time at the centre. (Legislative council and legislative assembly later to become Rajya Sabha and Lok Sabha respectively). It mandated 3 members of the Viceroy’s executive council to be Indians. This act provided for the first time, the establishment of a public service commission in India. This act extended the right to vote and with this, about 10% of the population acquired voting rights. History of Indian Constitution – Government of India Act 1935 An all-India Federation was proposed which would consist of British India and the princely states. This never materialised though. Subjects were divided between the centre and the provinces. Centre was in charge of the Federal List, provinces in charge of the Provincial List and there was a Concurrent List which both catered to. Diarchy was abolished at the provincial level and introduced at the centre. More  autonomy was accorded to the provinces and in 6 out of 11 provinces, the bicameral legislature was introduced. A federal court was established and the Indian Council abolished. Burma and Aden were severed off from India. This act provided for the establishment of the RBI. This Act continued until it was replaced by the new Indian Constitution. History of Indian Constitution – Indian Independence Act 1947 India was declared independent and sovereign. The Viceroy and the Governors were made constitutional (nominal) heads. Set up responsible governments at the centre and the provinces. Assigned both legislative and executive powers to the Constituent Assembly of India. 1.2 Constituent Assembly of India Constituent Assembly of India – Background In 1934, M N Roy first proposed the idea of a constituent assembly. The demand was taken up by the Congress Party in 1935 as an official demand The British accepted this in the August Offer of 1940 Under the Cabinet Mission plan of 1946, elections were held for the formation of the constituent assembly The members of this assembly were elected indirectly, i.e., by the members of the provincial assemblies by the method of a single transferable vote of proportional representation The constituent assembly was formed for the purpose of writing a constitution for independent India Committees of Constituent Assembly of India with their Chairmen Committees of Constituent Assembly of India Drafting Committee Dr. B R Ambedkar Union Constitution Committee Jawaharlal Nehru Union Powers Committee Jawaharlal Nehru States Committee Jawaharlal Nehru  Steering Committee Dr. Rajendra Prasad Rules of Procedure Committee Dr. Rajendra Prasad Provincial Constitution Committee Sardar Vallabhbhai Patel Advisory Committee on Fundamental Fundamental Rights Sub-Committee: Acharya Rights, Minorities and Tribal and Kripalani Excluded Areas: Minorities Sub-Committee: H C Mookerjee Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee: A V Thakkar North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub Committee: Gopinath Bardoloi 1.3 Philosophical foundations ofthe Indian Constitution We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular democratic Republic and to secure to all its citizens Justice, social, economic and political, Liberty of thought, expression, belief, faith and worship, Equality of status and of opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation In our Constituent Assembly this twenty sixth day of November 1949 do hereby adopt, enact and give to ourselves this Constitution. The rest of the Constitution came into force on the 26th of January, 1950. The Constitution thus derives its authority from the people of India (and is not a gift of the British Parliament). The people have the freedom to choose the government and are entitled to an active role in determining what laws shall govern them. The primary and natural rights of the people are to be respected by the authority of the government. India became a Republic from January 26, 1950. India decided to remain a member of the British Commonwealth but without acknowledging allegiance to the Crown. Indian Constitution reiterates that it shall promote international peace and maintain just and honorable relations between nations (Art. 51). Fraternity assuring the dignity of the individual and the unity and integrity of the Nation In our Constituent Assembly this twenty sixth day of November 1949 do hereby adopt, enact and give to ourselves this Constitution. The rest of the Constitution came into force on the 26th of January, 1950. The Constitution thus derives its authority from the people of India (and is not a gift of the British Parliament). The people have the freedom to choose the government and are entitled to an active role in determining what laws shall govern them. The primary and natural rights of the people are to be respected by the authority of the government. India became a Republic from January 26, 1950. India decided to remain a member of the British Commonwealth but without acknowledging allegiance to the Crown. Indian Constitution reiterates that it shall promote international peace and maintain just and honorable relations between nations (Art. 51). The Constitution holds out equality to all citizens in the matters of choice of their representatives who are to run the governmental machinery. Unlike provisions in theoretic states, the Indian constitution leaves all offices open to Indian citizens of all religions. The government shall be of the People, by the People and for the People. This was to be ensured through the introduction of universal suffrage. The government for the people gives our constitution a socialistic character. The Constitution commits all governments to provide equal opportunities to all citizens. The Indian constitution does not seek to abolish property altogether but seeks to put it under restraints so that it may be used in the interest of the nation. It aims at offering equal opportunity and abolition of vested interests. The secular State guarantees freedom of religion. The dignity of the individual is respected by provisions for just and humane conditions of work (Art. 42) and a decent standard of life (Art. 43). The Indian state has to play an active role in accelerating the process of bringing about social equality based on justice and welfare for all groups of citizens. 1.4 Preamble The ‘Preamble’ of the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document, and it indicates the source from which the document which derives its authority, meaning, the people. It was adopted on 26 November 1949 by the Constituent Assembly of India and came into effect on 26th January 1950. Preamble of India – Objective Resolution In 1946, Objective Resolution was moved by Jawaharlal Nehru, describing the constitutional structure. In 1947 (22nd January) it was adopted. It shaped the Constitution of India and its modified version is reflected in the Preamble of the Indian Constitution. The basic tenets that the objective resolution highlighted were: Constituent Assembly’s resolve to see India as independent, sovereign and republic To draw a Constitution for India To make all territories of the pre-independent India into united states of post independent India To realize residual powers, autonomy on such states as the Constitution of India reflects To realize union with the power which will be different than those given to such states The people of India to play the source of power and authority of the sovereignty, and the independence To provide justice, social, economic and political equality of status of opportunity and, freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality before the law To provide adequate safeguards to the minorities, tribal and backward areas and other depressed and backward classes To maintain the integrity of the Indian republic’s territory and its territorial rights on land, sea, air according to the justice and law of the civilized nation To promote peace and welfare among the worldly nations. Interesting Facts about Preamble of Indian Constitution It was enacted after the enactment of the entire Constitution of India The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976. The Preamble secures to all citizens of India liberty of belief, faith and worship Ideal of  justice (social, economic and political) in the Preamble are borrowed from the Soviet Union (Russia) Constitution Republic and the ideals of liberty, equality and fraternity are borrowed from the French Constitution Preamble, in itself, has been first introduced through the American Constitution Four Main Ingredients of the Indian Preamble The source of the Indian Constitution, nature of the Indian State, the objectives of the Constitution of India & the date of adoption of the Indian State, are four main ingredients of the Indian Preamble which you can read about in the table below: Preamble to the Indian Constitution Source of the Indian The People of India are revealed to be the source of the authority Constitution of the Indian Constitution. The words, ‘We, the People of India’ reflect the same. Nature of the Indian The Preamble of India tags India as the sovereign, secular, State republic, secular and democratic nation Objective of the Indian Justice, Liberty, Equality and Fraternity are denoted as the Constitution objectives of the Preamble of India Adoption Date of the November 26, 1949 as the date when then the Indian Constitution Constitution of India Keywords in the Preamble of the Indian Constitution There are some important keywords in the Preamble of India like: 1. Sovereign 2. Socialist 3. Secular 4. Democratic 5. Republic 6. Justice 7. Liberty 8. Equality 9. Fraternity 1.5 Fundamental Rights Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens. They are applied without discrimination on the basis of race, religion, gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain conditions. Why are they called Fundamental Rights? These rights are called fundamental rights because of two reasons: 1. They are enshrined in the Constitution which guarantees them 2. They are justiciable (enforceable by courts). In case of a violation, a person can approach a court of law. List of Fundamental Rights There are six fundamental rights of Indian Constitution along with the constitutional articles related to them are mentioned below: 1. Right to Equality (Article 14-18) 2. Right to Freedom (Article 19-22) 3. Right against Exploitation (Article 23-24) 4. Right to Freedom of Religion (Article 25-28) 5. Cultural and Educational Rights (Article 29-30) 6. Right to Constitutional Remedies (Article 32) Introduction to Six Fundamental Rights (Articles 12 to 35) Under this section, we list the fundamental rights in India and briefly describe each of them. 1. Right to Equality (Articles 14 – 18) Right to equality guarantees equal rights for everyone, irrespective of religion, gender, caste, race or place of birth. It ensures equal employment opportunities in the government and insures against discrimination by the State in matters of employment on the basis of caste, religion, etc. This right also includes the abolition of titles as well as untouchability. 2. Right to Freedom (Articles 19 – 22) Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens. The freedom right includes many rights such as: Freedom of speech Freedom of expression Freedom of assembly without arms Freedom of association Freedom to practise any profession Freedom to reside in any part of the country Some of these rights are subject to certain conditions of state security, public morality and decency and friendly relations with foreign countries. This means that the State has the right to impose reasonable restrictions on them. 3. Right against Exploitation (Articles 23 – 24) This right implies the prohibition of traffic in human beings, begar, and other forms of forced labour. It also implies the prohibition of children in factories, etc. The Constitution prohibits the employment of children under 14 years in hazardous conditions. 4. Right to Freedom of Religion (Articles 25 – 28) This indicates the secular nature of Indian polity. There is equal respect given to all religions. There is freedom of conscience, profession, practice and propagation of religion. The State has no official religion. Every person has the right to freely practice his or her faith, establish and maintain religious and charitable institutions. 5. Cultural and Educational Rights (Articles 29 – 30) These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them to preserve their heritage and culture. Educational rights are for ensuring education for everyone without any discrimination. 6. Right to Constitutional Remedies (32 – 35) The Constitution guarantees remedies if citizens’ fundamental rights are violated. The government cannot infringe upon or curb anyone’s rights. When these rights are violated, the aggrieved party can approach the courts. Citizens can even go directly to the Supreme Court which can issue writs for enforcing fundamental rights. Features of Fundamental Rights Fundamental rights are different from ordinary legal rights in the manner in which they are enforced. If a legal right is violated, the aggrieved person cannot directly approach the SC bypassing the lower courts. He or she should first approach the lower courts. Some of the fundamental rights are available to all citizens while the rest are for all persons (citizens and foreigners). Fundamental rights are not absolute rights. They have reasonable restrictions, which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries. They are justiciable, implying they are enforceable by courts. People can approach the SC directly in case of violation of fundamental rights. Fundamental rights can be amended by the Parliament by a constitutional amendment but only if the amendment does not alter the basic structure of the Constitution. Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended. The application of fundamental rights can be restricted in an area that has been placed under martial law or military rule. Fundamental Rights Available Only to Citizens The following is the list of fundamental rights that are available only to citizens (and not to foreigners): 1. Prohibition of discrimination on grounds of race, religion, caste, gender or place of birth (Article 15). 2. Equality of opportunity in matters of public employment (Article 16).  3. Protection of freedom of:(Article 19) o Speech and expression o Association o Assembly o Movement o Residence o Profession 4. Protection of the culture, language and script of minorities (Article 29). 5. Right of minorities to establish and administer educational institutions (Article 30). Importance of Fundamental Rights Fundamental rights are very important because they are like the backbone of the country. They are essential for safeguarding the people’s interests. According to Article 13, all laws that are violative of fundamental rights shall be void. Here, there is an express provision for judicial review. The SC and the High Courts can declare any law unconstitutional on the grounds that it is violative of the fundamental rights. Article 13 talks about not just laws, but also ordinances, orders, regulations, notifications, etc. Amendability of Fundamental Rights Any changes to the fundamental rights require a constitutional amendment that should be passed by both the Houses of Parliament. The amendment bill should be passed by a special majority of Parliament. As per the Constitution, Article 13(2) states that no laws can be made that take away fundamental rights. The question is whether a constitutional amendment act can be termed law or not. In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend any part of the Constitution including fundamental rights. But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath case, it said that the fundamental rights cannot be amended. In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution. In 1981, the Supreme Court reiterated the Basic Structure doctrine. It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date. Doctrine of Severability This is a doctrine that protects the fundamental rights enshrined in the Constitution. It is also known as the Doctrine of Separability. It is mentioned in Article 13, according to which all laws that were enforced in India before the commencement of the Constitution, inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void. This implies that only the parts of the statute that is inconsistent shall be deemed void and not the whole statue. Only those provisions which are inconsistent with fundamental rights shall be void. Doctrine of Eclipse This doctrine states that any law that violates fundamental rights is not null or void ab initio, but is only non-enforceable, i.e., it is not dead but inactive. This implies that whenever that fundamental right (which was violated by the law) is struck down, the law becomes active again (is revived). Another point to note is that the doctrine of eclipse applies only to pre-constitutional laws (laws that were enacted before the Constitution came into force) and not to post- constitutional laws. This means that any post-constitutional law which is violative of a fundamental right is void ab initio. 1.6 DirectivePrinciplesofStatePolicy The Sapru Committee in 1945 suggested two categories of individual rights. One being justiciable and the other being non-justiciable rights. The justiciable rights, as we know, are the Fundamental rights, whereas the non-justiciable ones are the Directive Principles of State Policy. DPSP are ideals which are meant to be kept in mind by the state when it formulates policies and enacts laws. There are various definitions to Directive Principles of State which are given below: They are an ‘instrument of instructions’ which are enumerated in the Government of India Act, 1935. They seek to establish economic and social democracy in the country. DPSPs are ideals which are not legally enforceable by the courts for their violation. Directive Principles of State Policy – Classification Indian Constitution has not originally classified DPSPs but on the basis of their content and direction, they are usually classified into three types- SocialisticPrinciples, Gandhian Principles and, Liberal-Intellectual Principles. The details of the three types of DPSPs are given below: Socialistic Principles  Definition: They are the principles that aim at providing social and economic justice and set the path towards the welfare state. Under various articles, they direct the state to: Article 38 Promote the welfare of the people by securing a social order through justice—social, economic and political—and to minimise inequalities in income, status, facilities and opportunities Article 39 Secure citizens: Right to adequate means of livelihood for all citizens Equitable distribution of material resources of the community for the common good Prevention of concentration of wealth and means of production Equal pay for equal work for men and women Preservation of the health and strength of workers and children against forcible abuse Opportunities for the healthy development of children Article 39A Promote equal justice and free legal aid to the poor Article 41 In cases of unemployment, old age, sickness and disablement, secure citizens: Right to work Right to education Right to public assistance, Article 42 Make provision for just and humane conditions of work and maternity relief Article 43 Secure a living wage, a decent standard of living and social and cultural opportunities for all workers Article 43A Take steps to secure the participation of workers in the management of industries Article 47 Raise the level of nutrition and the standard of living of people and to improve public health Gandhian Principles Definition: These principles are based on Gandhian ideology used to represent the programme of reconstruction enunciated by Gandhi during the national movement. Under various articles, they direct the state to: Article 40 Organise village panchayats and endow them with necessary powers and authority to enable them to function as units of self-government Article 43 Promote cottage industries on an individual or co-operation basis in rural areas Article 43B Promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies Article 46 Promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation Article 47 Prohibit the consumption of intoxicating drinks and drugs which are injurious to health Article 48 Prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds Liberal-Intellectual Principles. Definition: These principles reflect the ideology of liberalism. Under various articles, they direct the state to: Article 44 Secure for all citizens a uniform civil code throughout the country Article 45 Provide early childhood care and education for all children until they complete the age of fourteen years Article 48 Organise agriculture and animal husbandry on modern and scientific lines  Article 49 Protect monuments, places and objects of artistic or historic interest which are declared to be of national importance Article 50 Separate the judiciary from the executive in the public services of the State Article 51 Promote international peace and security and maintain just and honourable relations between nations Foster respect for international law and treaty obligations Encourage settlement of international disputes by arbitration What are the new DPSPs added by the 42nd Amendment Act, 1976? 42nd Amendment Act, 1976 added four new Directive Principles in the list: 1 Article 39 To secure opportunities for the healthy development of children 2 Article 39A To promote equal justice and to provide free legal aid to the poor 3 Article 43A To take steps to secure the participation of workers in the management of industries 4 Article 48A To protect and improve the environment and to safeguard forests and wildlife Facts about Directive Principles of State Policy: 1. A new DPSP under Article 38 was added by the 44th Amendment Act of 1978, which requires the State to minimise inequalities in income, status, facilities and opportunities. 2. The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary education a fundamental right under Article 21A. The amended directive requires the State to provide early childhood care and education for all children until they complete the age of 14 years. 3. A new DPSP under Article 43B was added by the 97th Amendment Act of 2011 relating to co-operative societies. It requires the state to promote voluntary formation, autonomous functioning, democratic control and professional management of co operative societies. 4. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.’ Criticism of Directive Principles of State Policy As a point of debate, the following reasons are stated for the criticism of Directive Principles of State Policy: 1. It has no legal force 2. It is illogically arranged 3. It is conservative in nature 4. It may produce constitutional conflict between centre and state 1.7 Fundamental Duties The fundamental duties which were added by the 42nd Amendment Act of the Constitution in 1976, in addition to creating and promoting culture, also strengthen the hands of the legislature in enforcing these duties vis-a-vis the fundamental rights. The list of 11 Fundamental Duties under article 51-A to be obeyed by every Indian citizen is given in the table below: 1. Abide by the Indian Constitution and respect its ideals and institutions, the National Flag and the National Anthem 2. Cherish and follow the noble ideals that inspired the national struggle for freedom 3. Uphold and protect the sovereignty, unity and integrity of India 4. Defend the country and render national service when called upon to do so 5. Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women 6. Value and preserve the rich heritage of the country’s composite culture 7. Protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures 8. Develop scientific temper, humanism and the spirit of inquiry and reform 9. Safeguard public property and to abjure violence 10. Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement 11. Provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th Constitutional Amendment Act, 2002