Indian Polity by M Laxmikanth PDF

1 Historical Background T he British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I. In 1765, the Company, which till now had purely trading function...

1 Historical Background T he British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I. In 1765, the Company, which till now had purely trading functions obtained the ‘diwani’ (i.e., rights over revenue and civil justice) of Bengal, Bihar and Orissa.1 This started its career as a territorial power. In 1858, in the wake of the ‘sepoy mutiny’, the British Crown assumed direct responsibility for the governance of India. This rule continued until India was granted independence on August 15, 1947. With Independence came the need for a Constitution. Hence, a Constituent Assembly was formed for this purpose in 1946 and on January 26, 1950, the Constitution came into being. However, various features of the Indian Constitution and polity have their roots in the British rule. There were certain events in the British rule that laid down the legal framework for the organisation and functioning of government and administration in British India. These events have greatly influenced our constitution and polity. They are explained here in a chronological order under two major headings : 1. The Company Rule (1773 – 1858) 2. The Crown Rule (1858 – 1947)  THE COMPANY RULE (1773–1858) Regulating Act of 1773 This act was of great constitutional importance as (a) it was the first step taken by the British Government to control and regulate the affairs of the East India Company in India; (b) it recognised, for the first time, the political and administrative functions of the Company; and (c) it laid the foundations of central administration in India. The features of this Act were as follows: 1. It designated the Governor of Bengal as the ‘Governor- General of Bengal’ and created an Executive Council of four members to assist him. The first such GovernorGeneral was Lord Warren Hastings. 2. It made the governors of Bombay and Madras presidencies subordinate to the governor-general of Bengal, unlike earlier, when the three presidencies were independent of one another. 3. It provided for the establishment of a Supreme Court at Calcutta (1774) comprising one chief justice and three other judges. 4. It prohibited the servants of the Company from engaging in any private trade or accepting presents or bribes from the ‘natives’. 5. It strengthened the control of the British Government over the Company by requiring the Court of Directors (governing body of the Company) to report on its revenue, civil, and military affairs in India. Amending Act of 1781 In a bid 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. The features of this Act were as follows:  1. It exempted the Governor-General and the Council from the jurisdiction of the Supreme Court for the acts done by them in their official capacity. Similarly, it also exempted the servants of the company from the jurisdiction of the Supreme Court for their official actions. 2. It excluded the revenue matters and the matters arising in the collection of revenue from the jurisdiction of the Supreme Court. 3. It provided that the Supreme Court was to have jurisdiction over all the inhabitants of Culcutta. It also required the court to administer the personal law of the defendants i.e., Hindus were to be tried according to the Hindu law and Muslims were to be tried according to the Mohammedan law. 4. It laid down that the appeals from the Provincial Courts could be taken to the Governor-General-in-Council and not to the Supreme Court. 5. It empowered the Governor-General-inCouncil to frame regulations for the Provincial Courts and Councils. Pitt’s India Act of 1784 The next important act was the Pitt’s India Act2 of 1784. The features of this Act were as follows: 1. It distinguished between the commercial and political functions of the Company. 2. It allowed the Court of Directors to manage the commercial affairs, but created a new body called Board of Control to manage the political affairs. Thus, it established a system of double government. 3. It 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. Thus, the act was significant for two reasons: first, the Company’s territories in India were for the first time called the ‘British possessions in India’; and second, the British Government was given the supreme control over Company’s affairs and its administration in India. Act of 1786 In 1786, Lord Cornwallis was appointed as the Governor-General of Bengal. He placed two demands to accept that post, viz., 1. He should be given power to override the decision of his council in special cases. 2. He would also be the Commander-in-Chief. Accordingly, the Act of 1786 was enacted to make both the provisions. Charter Act of 1793 The features of this Act were as follows: 1. It extended the overriding power given to Lord Cornwallis over his council, to all future Governor-Generals and Governors of Presidencies. 2. It gave the Governor-General more powers and control over the governments of the subordinate Presidencies of Bombay and Madras. 3. It extended the trade monopoly of the Company in India for another period of twenty years. 4. It provided that the Commander-in-Chief was not to be a member of the Governor-General’s council, unless he was so appointed. 5. It laid down that the members of the Board of Control and their staff were, henceforth, to be paid out of the Indian revenues. Charter Act of 1813 The features of this Act were as follows: 1. It abolished the trade monopoly of the company in India i.e., the Indian trade was thrown open to all British merchants. However, it continued the monopoly of the company over trade in tea and trade with China. 2. It asserted the sovereignty of the British Crown over the Company’s territories in India. 3. It allowed the Christian missionaries to come to India for the purpose of enlightening the people.  4. It provided for the spread of western education among the inhabitants of the British territories in India. 5. It authorised the Local Governments in India to impose taxes on persons. They could also punish the persons for not paying taxes. Charter Act of 1833 This Act was the final step towards centralisation in British India. The features of this Act were as follows: 1. It made the Governor-General of Bengal as the Governor- General of India and vested in him all civil and military powers. Thus, the act created, for the first time, Government of India having authority over the entire territorial area possessed by the British in India. Lord William Bentick was the first Governor-General of India. 2. It deprived the Governor of Bombay and Madras of their legislative powers. The Governor-General of India was given exclusive legislative powers for the entire British India. The laws made under the previous acts were called as Regulations, while laws made under this act were called as Acts. 3. It ended the activities of the East India Company as a commercial body, which became a purely administrative body. It provided that the Company’s territories in India were held by it ‘in trust for His Majesty, His heirs and successors’. 4. The Charter Act of 1833 attempted to introduce a system of open competition for selection of civil servants and stated that the Indians should not be debarred from holding any place, office and employment under the Company. However, this provision was negated after opposition from the Court of Directors. Charter Act of 1853 This was the last of the series of Charter Acts passed by the British Parliament between 1793 and 1853. It was a significant constitutional landmark. The features of this Act were as follows: 1. It separated, for the first time, the legislative and executive functions of the Governor-General’s council. It provided for addition of six new members called legislative councillors to the council. In other words, it established a separate Governor-General’s legislative council which came to be known as the Indian (Central) Legislative Council. This legislative wing of the council functioned as a mini- Parliament, adopting the same procedures as the British Parliament. Thus, legislation, for the first time, was treated as a special function of the government, requiring special machinery and special process. 2. It introduced an open competition system of selection and recruitment of civil servants. The covenanted civil service3 was, thus, thrown open to the Indians also. Accordingly, the Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854. 3. It extended the Company’s rule and allowed it to retain the possession of Indian territories on trust for the British Crown. But, it did not specify any particular period, unlike the previous Charters. This was a clear indication that the Company’s rule could be terminated at any time the Parliament liked. 4. It introduced, for the first time, local representation in the Indian (Central) Legislative Council. Of the six new legislative members of the GovernorGeneral’s council, four members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.  THE CROWN RULE (1858–1947) Government of India Act of 1858 This significant Act was enacted in the wake of the Revolt of 1857–also known as the First War of Independence or the ‘sepoy mutiny’. The act known as the Act for the Good Government of India, abolished the East India Company, and transferred the powers of Government, territories and revenues to the British Crown. The features of this Act were as follows: 1. It provided that India, henceforth, was to be governed by, and in the name of, Her Majesty. It changed the designation of the Governor-General of India to that of Viceroy of India. He (Viceroy) was the direct representative of the British Crown in India. Lord Canning, thus, became the first Viceroy of India. 2. It ended the system of double Government by abolishing the Board of Control and Court of Directors. 3. It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration. The secretary of state was a member of the British Cabinet and was responsible ultimately to the British Parliament. 4. It established a 15-member council of India to assist the Secretary of State for India. The council was an advisory body. The secretary of state was made the Chairman of the council. 5. It constituted the Secretary of State-inCouncil as a body corporate, capable of suing and being sued in India and in England. ‘The Act of 1858 was, however, largely confined to the improvement of the administrative machinery by which the Indian Government was to be supervised and controlled in England. It did not alter in any substantial way the system of Government that prevailed in India4.’ Indian Councils Act of 1861 After the great revolt of 1857, the British Government felt the necessity of seeking the cooperation of the Indians in the administration of their country. In pursuance of this policy of association, three acts were enacted by the British Parliament in 1861, 1892 and 1909. The Indian Councils Act of 1861 is an important landmark in the constitutional and political history of India. The features of this Act were as follows: 1. It made a beginning of the representative institutions by associating Indians with the law-making process. It, thus, provided that the Viceroy should nominate some Indians as non-official members of his expanded council. In 1862, Lord Canning, the then Viceroy, nominated three Indians to his legislative council–the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao. 2. It initiated the process of decentralisation by restoring the legislative powers to the Bombay and Madras Presidencies. It, thus, reversed the centralising tendency that started from the Regulating Act of 1773 and reached its climax under the Charter Act of 1833. This policy of legislative devolution resulted in the grant of almost complete internal autonomy to the provinces in 1937. 3. It also provided for the establishment of new legislative councils for Bengal, North-Western Provinces and Punjab, which were established in 1862, 1886 and 1897, respectively. 4. It empowered the Viceroy to make rules and orders for the more convenient transaction of business in the council. It also gave a recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859. Under this, a member of the Viceroy’s council was made in-charge of one or more departments of the Government and was authorised to issue final orders on behalf of the council on matters of his department(s). 5. It empowered the Viceroy to issue ordinances, without the concurrence of the legislative council, during an emergency.  The life of such an ordinance was six months. Indian Councils Act of 1892 The features of this Act were as follows: 1. It increased the number of additional (non-official) members in the Central and provincial legislative councils, but maintained the official majority in them. 2. It increased the functions of legislative councils and gave them the power of discussing the budget5 and addressing questions to the executive. 3. It provided for the nomination of some non-official members of the (a) Central Legislative Council by the viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce, and (b) that of the provincial legislative councils by the Governors on the recommendation of the district boards, municipalities, universities, trade associations, zamin-dars and chambers. ‘The act made a limited and indirect provision for the use of election in filling up some of the non-official seats both in the Central and provincial legislative councils. The word “election” was, however, not used in the Act. The process was described as nomination made on the recommendation of certain bodies6.’ Indian Councils Act of 1909 This Act is also known as Morley-Minto Reforms (Lord Morley was the then Secretary of State for India and Lord Minto was the then Viceroy of India). The features of this Act were as follows: 1. It considerably increased the size of the legislative councils, both Central and provincial. The number of members in the Central legislative council was raised from 16 to 60. The number of members in the provincial legislative councils was not uniform. 2. It retained official majority in the Central legislative council, but allowed the provincial legislative councils to have non- official majority.  3. 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. 4. It provided (for the first time) for the association of Indians with the executive councils of the Viceroy and Governors. Satyendra Prasad Sinha became the first Indian to join the Viceroy’s executive council. He was appointed as the Law Member. 5. It introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’. Under this, the Muslim members were to be elected only by Muslim voters. Thus, the Act ‘legalised communalism’ and Lord Minto came to be known as the Father of Communal Electorate. 6. It also provided for the separate representation of presidency corporations, chambers of commerce, universities and zamindars. Government of India Act of 1919 On August 20, 1917, the British Government declared, for the first time, that its objective was the gradual introduction of responsible Government in India7. The Government of India Act of 1919 was thus enacted, which came into force in 1921. This Act is also known as Montagu- Chelmsford Reforms (Montagu was the Secretary of State for India and Lord Chelmsford was the Viceroy of India). The features of this Act were as follows: 1. It relaxed the central control over the provinces by demarcating and separating the central and provincial subjects. The central and provincial legislatures were authorised to make laws on their respective list of subjects. However, the structure of government continued to be centralised and unitary. 2. It further divided the provincial subjects into two parts– transferred and reserved. The transferred subjects were to be administered by the Governor with the aid of Ministers  responsible to the legislative council. The reserved subjects, on the other hand, were to be administered by the Governor and his executive council without being responsible to the legislative council. This dual scheme of governance was known as ‘dyarchy’–a term derived from the Greek word di- arche which means double rule. However, this experiment was largely unsuccessful. 3. It introduced, for the first time, bicameralism and direct elections in the country. Thus, the Indian legislative council was replaced by a bicameral legislature consisting of an Upper House (Council of State) and a Lower House (Legislative Assembly). The majority of members of both the Houses were chosen by direct election. 4. It required that the three of the six members of the Viceroy’s executive Council (other than the Commander-in-Chief) were to be Indian. 5. It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans. 6. It granted franchise to a limited number of people on the basis of property, tax or education. 7. It created a new office of the High Commissioner for India in London and transferred to him some of the functions hitherto performed by the Secretary of State for India. 8. It provided for the establishment of a public service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants8. 9. It separated, for the first time, provincial budgets from the Central budget and authorised the provincial legislatures to enact their budgets. 10. It provided for the appointment of a statutory commission to inquire into and report on its working after ten years of its coming into force. Simon Commission In November 1927 itself (i.e., 2 years before the schedule), the British Government announced the appointment a seven-member statutory commission under the chairmanship of Sir John Simon to report on the condition of India under its new Constitution. All the members of the commission were British and hence, all the parties boycotted the commission. The commission submitted its report in 1930 and recommended the abolition of dyarchy, extension of responsible Government in the provinces, establishment of a federation of British India and princely states, continuation of communal electorate and so on. To consider the proposals of the commission, the British Government convened three round table conferences of the representatives of the British Government, British India and Indian princely states. On the basis of these discussions, a ‘White Paper on Consitutional Reforms’ was prepared and submitted for the consideration of the Joint Select Committee of the British Parliament. The recommendations of this committee were incorporated (with certain changes) in the next Government of India Act of 1935. Communal Award In August 1932, Ramsay MacDonald, the British Prime Minister, announced a scheme of representation of the minorities, which came to be known as the Communal Award. The award not only continued separate electorates for the Muslims, Sikhs, Indian Christians, Anglo-Indians and Europeans but also extended it to the depressed classes (Scheduled Castes). Gandhiji was distressed over this extension of the principle of communal representation to the depressed classes and undertook fast unto death in Yerawada Jail (Poona) to get the award modified. At last, there was an agreement between the leaders of the Congress and the depressed classes. The agreement, known as Poona Pact, retained the Hindu joint electorate and gave reserved seats to the depressed classes. Government of India Act of 1935 The Act marked a second milestone towards a completely responsible government in India. It was a lengthy and detailed document having 321 Sections and 10 Schedules. The features of this Act were as follows: 1. It provided for the establishment of an All-India Federation consisting of provinces and princely states as units. The Act divided the powers between the Centre and units in terms of three lists–Federal List (for Centre, with 59 items), Provincial List (for provinces, with 54 items) and the Concurrent List (for both, with 36 items). Residuary powers were given to the Viceroy. However, the federation never came into being as the princely states did not join it. 2. It abolished dyarchy in the provinces and introduced ‘provincial autonomy’ in its place. The provinces were allowed to act as autonomous units of administration in their defined spheres. Moreover, the Act introduced responsible Governments in provinces, that is, the Governor was required to act with the advice of ministers responsible to the provincial legislature. This came into effect in 1937 and was discontinued in 1939. 3. It provided for the adoption of dyarchy at the Centre. Consequently, the federal subjects were divided into reserved subjects and transferred subjects. However, this provision of the Act did not come into operation at all. 4. It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal, Bombay, Madras, Bihar, Assam and the United Provinces were made bicameral consisting of a legislative council (upper house) and a legislative assembly (lower house). However, many restrictions were placed on them. 5. It further extended the principle of communal representation by providing separate electorates for depressed classes (Scheduled Castes), women and labour (workers). 6. It 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. 7. It extended franchise. About 10 per cent of the total population got the voting right. 8. It provided for the establishment of a Reserve Bank of India to control the currency and credit of the country. 9. It provided for the establishment of not only a Federal Public Service Commission, but also a Provincial Public Service  Commission and Joint Public Service Commission for two or more provinces. 10. It provided for the establishment of a Federal Court, which was set up in 1937. Indian Independence Act of 1947 On February 20, 1947, the British Prime Minister Clement Atlee declared that the British rule in India would end by June 30,1948; after which the power would be transferred to responsible Indian hands. This announcement was followed by the agitation by the Muslim League demanding partition of the country. Again on June 3, 1947, the British Government made it clear that any Constitution framed by the Constituent Assembly of India (formed in 1946) cannot apply to those parts of the country which were unwilling to accept it. On the same day (June 3, 1947), Lord Mountbatten, the Viceroy of India, put forth the partition plan, known as the Mountbatten Plan. The plan was accepted by the Congress and the Muslim League. Immediate effect was given to the plan by enacting the Indian Independence Act9 (1947). The features of this Act were as follows: 1. It ended the British rule in India and declared India as an independent and sovereign state from August 15, 1947. 2. It provided for the partition of India and creation of two independent dominions of India and Pakistan with the right to secede from the British Commonwealth. 3. It abolished the office of Viceroy and provided, for each dominion, a governorgeneral, who was to be appointed by the British King on the advice of the dominion cabinet. His Majesty’s Government in Britain was to have no responsibility with respect to the Government of India or Pakistan. 4. It empowered the Constituent Assemblies of the two dominions to frame and adopt any constitution for their respective nations and to repeal any act of the British Parliament, including the Independence act itself. 5. It empowered the Constituent Assemblies of both the dominions to legislate for their respective territories till the  new constitutions were drafted and enforced. No Act of the British Parliament passed after August 15, 1947 was to extend to either of the new dominions unless it was extended thereto by a law of the legislature of the dominion. 6. It abolished the office of the Secretary of State for India and transferred his functions to the Secretary of State for Commonwealth Affairs. 7. It proclaimed the lapse of British paramountcy over the Indian princely states and treaty relations with tribal areas from August 15, 1947. 8. It granted freedom to the Indian princely states either to join the Dominion of India or Dominion of Pakistan or to remain independent. 9. It provided for the governance of each of the dominions and the provinces by the Government of India Act of 1935, till the new Constitutions were framed. The dominions were however authorised to make modifications in the Act. 10. It deprived the British Monarch of his right to veto bills or ask for reservation of certain bills for his approval. But, this right was reserved for the GovernorGeneral. The Governor- General would have full power to assent to any bill in the name of His Majesty. 11. It designated the Governor-General of India and the provincial governors as constitutional (nominal) heads of the states. They were made to act on the advice of the respective council of ministers in all matters. 12. It dropped the title of Emperor of India from the royal titles of the King of England. 13. It discontinued the appointment to civil services and reservation of posts by the secretary of state for India. The members of the civil services appointed before August 15, 1947 would continue to enjoy all benefits that they were entitled to till that time. At the stroke of midnight of 14-15 August, 1947, the British rule came to an end and power was transferred to the two new independent Dominions of India and Pakistan10. Lord Mountbatten became the first GovernorGeneral of the new Dominion of India. He swore in Jawaharlal Nehru as the first Prime Minister of independent India. The Constituent Assembly of India formed in 1946 became the Parliament of the Indian Dominion. Table 1.1 Interim Government (1946) Sl. Members Portfolios Held No. 1. Jawaharlal Nehru Vice-President of the Council; External Affairs & Commonwealth Relations 2. Sardar Vallabhbhai Home, Information & Broadcasting Patel 3. Dr. Rajendra Prasad Food & Agriculture 4. Dr. John Mathai Industries & Supplies 5. Jagjivan Ram Labour 6. Sardar Baldev Singh Defence 7. C.H. Bhabha Works, Mines & Power 8. Liaquat Ali Khan Finance 9. Abdur Rab Nishtar Posts & Air 10. Asaf Ali Railways & Transport 11. C. Rajagopalachari Education & Arts 12. I.I. Chundrigar Commerce 13. Ghaznafar Ali Khan Health 14. Joginder Nath Law Mandal Note: The members of the interim Government were members of the Viceroy’s Executive Council. The Viceroy continued to be the head of the Council. But, Jawaharlal Nehru was designated as the Vice-President of the Council. Table 1.2 First Cabinet of Free India (1947) Sl. Members Portfolios Held No. 1. Jawaharlal Nehru Prime Minister; External Affairs & Commonwealth Relations; Scientific Research 2. Sardar Vallabhbhai Home, Information & Broadcasting; Patel States 3. Dr. Rajendra Prasad Food & Agriculture 4. Maulana Abul Kalam Education Azad 5. Dr. John Mathai Railways & Transport 6. R.K. Shanmugham Finance Chetty 7. Dr. B.R. Ambedkar Law 8. Jagjivan Ram Labour 9. Sardar Baldev Singh Defence 10. Raj Kumari Amrit Health Kaur 11. C.H. Bhabha Commerce 12. Rafi Ahmed Kidwai Communication 13. Dr. Shayama Prasad Industries & Supplies Mukherji 14. V.N. Gadgil Works, Mines & Power NOTES AND REFERENCES 1. The Mughal Emperor, Shah Alam, granted ‘Diwani’ to the Company after its victory in the Battle of Buxar (1764). 2. It was introduced in the British Parliament by the then Prime Minister, William Pitt. 3. At that time, the Civil Services of the company were classified into covenanted civil services (higher civil services) and uncovenanted civil services (lower civil  services). The former was created by a law of the Company, while the later was created otherwise. 4. Subhash C. Kashyap, Our Constitution, National Book Trust, Third Edition, 2001, P. 14. 5. The system of Budget was introduced in British India in 1860. 6. V. N. Shukla, The Constitution of India, Eastern Book Company, Tenth Edition, 2001, P. A-10. 7. The declaration thus stated: ‘The policy of His Majesty’s Government is that of the increasing association of Indians in every branch of the administration, and the gradual development of self-government institutions, with a view to the progressive realisation of responsible government in India as an integral part of the British Empire’. 8. This was done on the recommendation of the Lee Commission on Superior Civil Services in India (1923- 24). 9. The Indian Independence Bill was introduced in the British Parliament on July 4, 1947 and received the Royal Assent on July 18, 1947. The act came into force on August 15, 1947. 10. The boundaries between the two Dominions were determined by a Boundary Commission headed by Radcliff. Pakistan included the provinces of West Punjab, Sind, Baluchistan, East Bengal, North-Western Frontier Province and the district of sylhet in Assam. The referendum in the North-Western Frontier Province and Sylhet was in favour of Pakistan.  2 Making of the Constitution DEMAND FOR A CONSTITUENT ASSEMBLY It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time by M.N. Roy, a pioneer of communist movement in India. In 1935, the Indian National Congress (INC), for the first time, officially demanded a Constituent Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise’. The demand was finally accepted in principle by the British Government in what is known as the ‘August Offer’ of 1940. In 1942, Sir Stafford Cripps, a Member of the Cabinet, came to India with a draft proposal of the British Government on the framing of an independent Constitution to be adopted after the World War II. The Cripps Proposals were rejected by the Muslim League, which wanted India to be divided into two autonomous states with two separate Constituent Assemblies. Finally, a Cabinet Mission1 was sent to India. While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.  COMPOSITION OF THE CONSTITUENT ASSEMBLY The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan. The features of the scheme were: 1. The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats to the princely states. Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces2 and four from the four Chief Commissioners’ provinces3 , one from each. 2. Each province and princely state (or group of states in case of small states) were to be allotted seats in proportion to their respective population. Roughly, one seat was to be allotted for every million population. 3. Seats allocated to each British province were to be divided among the three principal communities–Muslims, Sikhs and General (all except Muslims and Sikhs), in proportion to their population. 4. The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote. 5. The representatives of the 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 franchise4. The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces) were held in July-August 1946. The Indian National Congress won 208 seats, the Muslim League 73 seats and the small groups and independents got the remaining 15 seats. However, the 93 seats allotted to the princely states were not filled as they decided to stay away from the Constituent Assembly.  Although the Constituent Assembly was not directly elected by the people of India on the basis of adult franchise, the Assembly comprised representatives of all sections of the Indian society– Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians, SCs, STs including women of all these sections. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi.  WORKING OF THE CONSTITUENT ASSEMBLY The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. The meeting was, thus, attended by only 211 members. Dr. Sachchidananda Sinha, the oldest member, was elected as the temporary President of the Assembly, following the French practice. Later, Dr. Rajendra Prasad was elected as the President of the Assembly. Similarly, both H.C. Mukherjee and V.T. Krishnamachari were elected as the Vice-Presidents of the Assembly. In other words, the Assembly had two Vice-Presidents. Objectives Resolution On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure. It read: 1. “This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution: 2. Wherein the territories that now comprise British India, the territories that now form the Indian States and such other parts of India as are outside India and the States as well as other territories as are willing to be constituted into the independent sovereign India, shall be a Union of them all; and 3. wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units together with residuary powers and exercise all powers and functions of Government and administration save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom; and  4. wherein all power and authority of the sovereign independent India, its constituent parts and organs of Government are derived from the people; and 5. wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and 6. wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and 7. whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and 8. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.” This Resolution was unanimously adopted by the Assembly on January 22, 1947. It influenced the eventual shaping of the constitution through all its subsequent stages. Its modified version forms the Preamble of the present Constitution. Changes by the Independence Act The representatives of the princely states, who had stayed away from the Constituent Assembly, gradually joined it. On April 28, 1947, representatives of the six states5 were part of the Assembly. After the acceptance of the Mountbatten Plan of June 3, 1947, for the partition of the country, the representatives of most of the other princely states took their seats in the Assembly. The members of the Muslim League from the Indian Dominion also entered the Assembly. The Indian Independence Act of 1947 made the following three changes in the position of the Assembly: 1. The Assembly was made a fully sovereign body, which could frame any Constitution it pleased. The act empowered the Assembly to abrogate or alter any law made by the British Parliament in relation to India.  2. The Assembly also became a legislative body. In other words, two separate functions were assigned to the Assembly, that is, making of the Constitution for free India and enacting of ordinary laws for the country. These two tasks were to be performed on separate days. Thus, the Assembly became the first Parliament of free India (Dominion Legislature). Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body6 , it was chaired by G.V. Mavlankar. These two functions continued till November 26, 1949, when the task of making the Constitution was over. 3. The Muslim League members (hailing from the areas7 included in the Pakistan) withdrew from the Constituent Assembly for India. Consequently, the total strength of the Assembly came down to 299 as against 389 originally fixed in 1946 under the Cabinet Mission Plan. The strength of the Indian provinces (formerly British Provinces) was reduced from 296 to 229 and those of the princely states from 93 to 70. The state-wise membership of the Assembly as on December 31, 1947, is shown in Table 2.4 of this chapter. Other Functions Performed In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly also performed the following functions: 1. It ratified the India’s membership of the Commonwealth in May 1949. 2. It adopted the national flag on July 22, 1947. 3. It adopted the national anthem on January 24, 1950. 4. It adopted the national song on January 24, 1950. 5. It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950. In all, the Constituent Assembly had 11 sessions over two years, 11 months and 18 days. The Constitution-makers had gone through the Constitutions of about 60 countries, and the Draft Constitution was considered for 114 days. The total expenditure incurred on making the Constitution amounted to ₹64 lakh.  On January 24, 1950, the Constituent Assembly held its final session. It, however, did not end, and continued as the provisional parliament of India from January 26, 1950, till the formation of new Parliament8 after the first general elections in 1951–52.  COMMITTEES OF THE CONSTITUENT ASSEMBLY The Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others were minor committees. The names of these committees and their Chairman are given below: Major Committees 1. Union Powers Committee - Jawaharlal Nehru 2. Union Constitution Committee -Jawaharlal Nehru 3. Provincial Constitution Committee -Sardar Patel 4. Drafting Committee - Dr. B.R. Ambedkar 5. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas - Sardar Patel. This committee had the following five sub-committees: (a) Fundamental Rights Sub-Committee - J.B. Kripalani (b) Minorities Sub-Committee - H.C. Mukherjee (c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee -Gopinath Bardoloi (d) Excluded and Partially Excluded Areas (other than those in Assam) Sub-Committee - A.V. Thakkar (e) North-West Frontier Tribal Areas Sub-Committee8a 6. Rules of Procedure Committee - Dr. Rajendra Prasad 7. States Committee (Committee for Negotiating with States) - Jawaharlal Nehru 8. Steering Committee - Dr. Rajendra Prasad Minor Committees 1. Finance and Staff Committee - Dr. Rajendra Prasad 2. Credentials Committee - Alladi Krishnaswami Ayyar 3. House Committee - B. Pattabhi Sitaramayya 4. Order of Business Committee - Dr. K.M. Munshi 5. Ad-hoc Committee on the National Flag - Dr. Rajendra Prasad  6. Committee on the Functions of the Constituent Assembly - G.V. Mavalankar 7. Ad-hoc Committee on the Supreme Court - S. Varadachari (Not an Assembly Member) 8. Committee on Chief Commissioners’ Provinces - B. Pattabhi Sitaramayya 9. Expert Committee on the Financial Provisions of the Union Constitution -Nalini Ranjan Sarkar (Not an Assembly Member) 10. Linguistic Provinces Commission - S.K. Dar (Not an Assembly Member) 11. Special Committee to Examine the Draft Constitution - Jawaharlal Nehru 12. Press Gallery Committee - Usha Nath Sen 13. Ad-hoc Committee on Citizenship - S. Varadachari (Not an Assembly Member) Drafting Committee Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of 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) The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February, 1948. The people of India were given eight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October, 1948. The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141 days.  ENACTMENT OF THE CONSTITUTION Dr. B.R. Ambedkar introduced the final draft of the Constitution in the Assembly on November 4, 1948 (first reading). The Assembly had a general discussion on it for five days (till November 9, 1948). The second reading (clause by clause consideration) started on November 15, 1948, and ended on October 17, 1949. During this stage, as many as 7653 amendments were proposed and 2473 were actually discussed in the Assembly. The third reading of the draft started on November 14, 1949. Dr. B.R. Ambedkar moved a motion–‘the Constitution as settled by the Assembly be passed’. The motion on Draft Constitution was declared as passed on November 26, 1949, and received the signatures of the members and the president. Out of a total 299 members of the Assembly, only 284 were actually present on that day and signed the Constitution. This is also the date mentioned in the Preamble as the date on which the people of India in the Constituent Assembly adopted, enacted and gave to themselves this Constitution. The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules. The Preamble was enacted after the entire Constitution was already enacted. Dr. B.R. Ambedkar, the then Law Minister, piloted the Draft Constitution in the Assembly. He took a very prominent part in the deliberations of the Assembly. He was known for his logical, forceful and persuasive arguments on the floor of the Assembly. He is recognised as the ‘Father of the Constitution of India’. This brilliant writer, constitutional expert, undisputed leader of the Scheduled Castes and the ‘chief architect of the Constitution of India’ is also known as a ‘Modern Manu’.  ENFORCEMENT OF THE CONSTITUTION Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949, itself. The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the Republic Day. January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated, following the resolution of the Lahore Session (December 1929) of the INC. With the commencement of the Constitution, the Indian Independence Act of 1947 and the Government of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed. The Abolition of Privy Council Jurisdiction Act (1949) was however continued.  EXPERTS COMMITTEE OF THE CONGRESS While elections to the Constituent Assembly were still in progress, on July 8, 1946, the Congress Party (Indian National Congress) appointed an Experts Committee for the purpose of preparing material for the Constituent Assembly. This committee consisted of the following members8b : 1. Jawaharlal Nehru (Chairman) 2. M. Asaf Ali 3. K.M. Munshi 4. N. Gopalaswami Ayyangar 5. K.T. Shah 6. D.R. Gadgil 7. Humayun Kabir 8. K. Santhanam Later, on the Chairman’s proposal, it was resolved that Krishna Kripalani be co-opted as member and convener of the committee. The committee had two sittings, the first at New Delhi from July 20 to 22, 1946, and the second at Bombay from August 15 to 17, 1946. Apart from a number of notes prepared by its members, the committee discussed the procedure to be adopted by the Constituent Assembly, the question of the appointment of various committees and the draft of a resolution on the objectives of the constitution to be moved during the first session of the Constituent Assembly8c. On the role played by this committee in the making of the Constitution, Granville Austin, a British constitutional expert, observed: “It was the Congress Experts Committee that set India on the road to her present Constitution. The committee members, working within the framework of the Cabinet Mission Scheme, made general suggestions about autonomous areas, the powers of provincial Governments and the Centre, and about such issues as the princely states and the amending power. They also drafted a resolution, closely resembling the Objectives Resolution”.8d  CRITICISM OF THE CONSTITUENT ASSEMBLY The critics have criticised the Constituent Assembly on various grounds. These are as follows: 1. Not a Representative Body: The critics have argued that the Constituent Assembly was not a representative body as its members were not directly elected by the people of India on the basis of universal adult franchise. 2. Not a Sovereign Body: The critics maintained that the Constituent Assembly was not a sovereign body as it was created by the proposals of the British Government. Further, they said that the Assembly held its sessions with the permission of the British Government. 3. Time Consuming: According to the critics, the Constituent Assembly took unduly long time to make the Constitution. They stated that the framers of the American Constitution took only four months to complete their work8e. In this context, Naziruddin Ahmed, a member of the Constituent Assembly, coined a new name for the Drafting Committee to show his contempt for it. He called it a “Drifting Committee”. 4. Dominated by Congress: The critics charged that the Constituent Assembly was dominated by the Congress party. Granville Austin, an American Constitutional expert, remarked: ‘The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India’9. 5. Lawyer-Politician Domination: It is also maintained by the critics that the Constituent Assembly was dominated by lawyers and politicians. They pointed out that other sections of the society were not sufficiently represented. This, to them, is the main reason for the bulkiness and complicated language of the Constitution. 6. Dominated by Hindus: According to some critics, the Constituent Assembly was a Hindu dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston Churchill commented that the Constituent Assembly represented ‘only one major community in India’. IMPORTANT FACTS 1. Elephant was adopted as the symbol (seal) of the Constituent Assembly. 2. Sir B.N. Rau was appointed as the constitutional advisor (Legal advisor) to the Constituent Assembly. 3. H.V.R. Iyengar was the Secretary to the Constituent Assembly. 4. S.N. Mukerjee was the chief draftsman of the constitution in the Constituent Assembly. 5. Prem Behari Narain Raizada was the calligrapher of the Indian Constitution. The original constitution was handwritten by him in a flowing italic style. 6. The original version was beautified and decorated by artists from Shantiniketan including Nand Lal Bose and Beohar Rammanohar Sinha. 7. Beohar Rammanohar Sinha illuminated, beautified and ornamented the original Preamble calligraphed by Prem Behari Narain Raizada. 8. The calligraphy of the Hindi version of the original constitution was done by Vasant Krishan Vaidya and elegantly decorated and illuminated by Nand Lal Bose.  HINDI TEXT OF THE CONSTITUTION Originally, the Constitution of India did not make any provision with respect to an authoritative text of the Constitution in the Hindi language. Later, a provision in this regard was made by the 58th Constitutional Amendment Act of 19878f. This amendment inserted a new Article 394-A in the last part of the Constitution i.e., Part XXII8g. This article contains the following provisions: 1. The President shall cause to be published under his authority: (i) The translation of the Constitution in Hindi language. The modifications which are necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of the Central Acts in Hindi can be made in it. All the amendments of the Constitution made before such publication should be incorporated in it. (ii) The translation in Hindi of every amendment of the constitution made in English. 2. The translation of the Constitution and its every amendment published shall be construed to have the same meaning as the original text in English. If any difficulty arises in this matter, the President shall cause the Hindi text to be revised suitably. 3. The translation of the Constitution and its every amendment published shall be deemed to be, for all purposes, its authoritative text in Hindi. Table 2.1 Allocation of seats in the Constituent Assembly of India (1946) Sl.No. Areas Seats 1. British Indian Provinces (11) 292 2. Princely States (Indian States) 93 3. Chief Commissioners’ Provinces (4) 4 Total 389 Table 2.2 Results of the Elections to the Constituent Assembly (July–August 1946) Sl.No. Name of the Party Seats won 1. Congress 208 2. Muslim League 73 3. Unionist Party 1 4. Unionist Muslims 1 5. Unionist Scheduled Castes 1 6. Krishak - Praja Party 1 7. Scheduled Castes Federation 1 8. Sikhs (Non-Congress) 1 9. Communist Party 1 10. Independents 8 Total 296 Table 2.3 Community-wise Representation in the Constituent Assembly (1946) Sl.No. Community Strength 1. Hindus 163 2. Muslims 80 3. Scheduled Castes 31 4. Indian Christians 6 5. Backward Tribes 6 6. Sikhs 4 7. Anglo-Indians 3 8. Parsees 3 Total 296 Table 2.4 State-wise Membership of the Constituent Assembly of India as on December 31, 1947 Sl.No. Name No. of Members A. Provinces (Indian Provinces)–229 1. Madras 49 2. Bombay 21 3. West Bengal 19 4. United Provinces 55 5. East Punjab 12 6. Bihar 36 7. C.P. and Berar 17 8. Assam 8 9. Orissa 9 10. Delhi 1 11. Ajmer-Merwara 1 12. Coorg 1 B. Indian States (Princely States)–70 1. Alwar 1 2. Baroda 3 3. Bhopal 1 4. Bikaner 1 5. Cochin 1 6. Gwalior 4 7. Indore 1 8. Jaipur 3 9. Jodhpur 2 10. Kolhapur 1 11. Kotah 1 12. Mayurbhanj 1  13. Mysore 7 14. Patiala 2 15. Rewa 2 16. Travancore 6 17. Udaipur 2 18. Sikkim and Cooch Behar Group 1 19. Tripura, Manipur and Khasi States 1 Group 20. U.P. States Group 1 21. Eastern Rajputana States Group 3 22. Central India States Group 3 (including Bundelkhand and Malwa) 23. Western India States Group 4 24. Gujarat States Group 2 25. Deccan and Madras States Group 2 26. Punjab States Group 3 27. Eastern States Group I 4 28. Eastern States Group II 3 29. Residuary States Group 4 Total 299 Table 2.5 Sessions of the Constituent Assembly at a Glance Sessions Period First Session December 9–23, 1946 Second Session January 20–25, 1947 Third Session April 28-May 2, 1947 Fourth Session July 14–31, 1947 Fifth Session August 14–30, 1947 Sixth Session January 27, 1948 Seventh Session November 4, 1948-January 8, 1949 Eighth Session May 16-June 16, 1949 Ninth Session July 30-September 18, 1949 Tenth Session October 6–17, 1949 Eleventh November 14–26, 1949 Session Note: The Assembly met once again on January 24, 1950, when the members appended their signatures to the Constitution of India. Table 2.6 Time Taken by the Framers of Other Constitutions8h Sl. Country No. of Working Period Time Taken No. Articles 1 U.S.A. 7 May 25, 1787 to Less than 4 September 17, months 1787 2 Canada 147 October 10, 1864 to About 2 years March 1867 and 6 months 3 Australia 128 March 1891 to July About 9 years 9, 1900 4 South 153 October 1908 to 1 year Africa September 20, 1909 Table 2.7 Articles Related to Short Title, Commencement, Hindi Text and Repeals at a Glance Article No. Subject Matter 393 Short title 394 Commencement 394A Authoritative text in the hindi language 395 Repeals NOTES AND REFERENCES 1. The Cabinet Mission consisting of three members (Lord Pethick Lawrence, Sir Stafford Cripps and A.V. Alexander) arrived in India on March 24, 1946. The Cabinet Mission published its plan on May 16, 1946. 2. These include Madras, Bombay, UP, Bihar, Central Provinces, Orissa, Punjab, NWFP, Sindh, Bengal and Assam. 3. These include Delhi, Ajmer-Merwara, Coorg and British Baluchistan. 4. The Government of India Act of 1935 granted limited franchise on the basis of tax, property and education. 5. These include Baroda, Bikaner, Jaipur, Patiala, Rewa and Udaipur. 6. For the first time, the Constituent Assembly met as Dominion Legislature on November 17, 1947 and elected G.V. Mavlankar as its speaker. 7. These are West Punjab, East Bengal, NWFP, Sindh, Baluchistan and Sylhet District of Assam. A separate Constituent Assembly was set up for Pakistan. 8. The Provisional Parliament ceased to exist on April 17, 1952. The first elected Parliament with the two Houses came into being in May 1952. 8a. One of the political consequences of the British Government’s statement of June 3, 1947, was that following a referendum, the North-West Frontier Province and Baluchistan became part of the territory of the Dominion of Pakistan and as a result the tribal areas in this region became a concern of that Dominion. The Sub-Committee on the Tribal Areas in the North-West Frontier Province and Baluchistan was not therefore called upon to function on behalf of the Constituent Assembly of India. (B. Shiva Rao, The Framing of India’s Constitution : Select Documents, Volume III, P.681.) The members of this Sub-Committee were : Khan Abdul Ghaffar Khan, Khan Abdul Samad Khan and  Mehr Chand Khanna. The information about the Chairman is not found. 8b. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Volume 1, p.326. 8c. Ibid. 8d. Granville Austin, The Indian Constitution - Cornerstone of a Nation, Oxford, 1966, pp. 32–33. 8e. See Table 2.6 at the end of this chapter. 8f. The 56th Constitutional Amendment Bill of 1987, after being passed by both the Houses of Parliament and assented by the President, finally emerged as the 58th Constitutional Amendment Act of 1987. 8g. Part XXII is entitled as ‘Short Title, Commencement, Authoritative Text in Hindi and Repeals’. Originally, this part consisted of three Articles only - Article 393 (short title), Article 394 (commencement) and Article 395 (repeals). 8h. J.R. Siwach, Dynamics of Indian Government and Politics, Sterling Publishers Private Limited, Second Edition, 1990, p.10. 9. Granville Austin, The Indian Constitution–Cornerstone of a Nation, Oxford, 1966, P. 8.  3 Salient Features of the Constitution T he Indian Constitution is unique in its contents and spirit. Though borrowed from almost every Constitution of the world, the Constitution of India has several salient features that distinguish it from the Constitutions of the other countries. It should be noted at the outset that a number of original features of the Constitution (as adopted in 1949) have undergone a substantial change, on account of several amendments, particularly 7th, 42nd, 44th, 73rd, 74th, 97th and 101st Amendments. In fact, the 42nd Amendment Act (1976) is known as ‘Mini-Constitution’ due to the important and large number of changes made by it in various parts of the Constitution. However, in the Kesavananda Bharati case1 (1973), the Supreme Court ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.  SALIENT FEATURES OF THE CONSTITUTION The salient features of the Constitution, as it stands today, are as follows: 1. Lengthiest Written Constitution Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution. The Constitution of India is the lengthiest of all the written Constitutions of the world. It is a very comprehensive, elaborate and detailed document. Originally (1949), the Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules. Presently (2019), it consists of a Preamble, about 470 Articles (divided into 25 Parts) and 12 Schedules2. The various amendments carried out since 1951 have deleted about 20 Articles and one Part (VII) and added about 95 Articles, four Parts (IVA, IXA, IXB and XIVA) and four Schedules (9, 10, 11 and 12). No other Constitution in the world has so many Articles and Schedules3. Four factors have contributed to the elephantine size of our Constitution. They are: (a) Geographical factors, that is, the vastness of the country and its diversity. (b) Historical factors, e.g., the influence of the Government of India Act of 1935, which was bulky. (c) Single Constitution for both the Centre and the states4. (d) Dominance of legal luminaries in the Constituent Assembly. The Constitution contains not only the fundamental principles of governance, but also detailed administrative provisions. Further, those matters which in other modern democratic countries have been left to the ordinary legislation or established political conventions have also been included in the constitutional document itself in India. 2. Drawn From Various Sources The Constitution of India has borrowed most of its provisions from the Constitutions of various other countries as well as from the Government of India Act5 of 1935. Dr. B.R. Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World6 ’. The structural part of the Constitution is, to a large extent, derived from the Government of India Act of 1935. The philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions, respectively. The political part of the Constitution (the principle of Cabinet Government and the relations between the Executive and the Legislature) have been largely drawn from the British Constitution7. The other provisions of the Constitution have been drawn from the Constitutions of Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan and so on8. The most profound influence and material source of the Constitution is the Government of India Act, 1935. The Federal Scheme, Judiciary, Governors, Emergency Powers, the Public Service Commissions and most of the administrative details are drawn from this Act. More than half of the provisions of Constitution are identical to or bear a close resemblance to the Act of 19359. 3. Blend of Rigidity and Flexibility Constitutions are also classified into rigid and flexible. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution. A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution. The Constitution of India is neither rigid nor flexible, but a synthesis of both. Article 368 provides for two types of amendments: (a) Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of  each House present and voting, and a majority of the total membership of each House. (b) Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states. At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368. 4. Federal System with Unitary Bias The Constitution of India establishes a federal system of Government. It contains all the usual features of a federation, viz., two Government, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism. However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions and so on. Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation. Hence, the Indian Constitution has been variously described as ‘federal in form but, unitary in spirit’, ‘quasi-federal’ by K.C. Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin, ‘federation with a centralising tendency’ by Ivor Jennings and so on. 5. Parliamentary Form of Government The Constitution of India has opted for the British Parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of co-operation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs. The parliamentary system is also known as the ‘Westminster’10 Model of Government, responsible Government and Cabinet Government. The Constitution establishes the parliamentary system not only at the Centre, but also in the states. The features of parliamentary government in India are: (a) Presence of nominal and real executives; (b) Majority party rule, (c) Collective responsibility of the executive to the legislature, (d) Membership of the ministers in the legislature, (e) Leadership of the Prime Minister or the Chief Minister, (f) Dissolution of the lower House (Lok Sabha or Assembly). Even though the Indian parliamentary system is largely based on the British pattern, there are some fundamental differences between the two. For example, the Indian Parliament is not a sovereign body like the British Parliament. Further, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy). In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’. 6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy The doctrine of sovereignty of Parliament is associated with the British Parliament, while the principle of judicial supremacy with that of the American Supreme Court. Just as the Indian parliamentary system differs from the British system, the scope of judicial review power of the Supreme Court in India is narrower than that of what exists in US. This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21). Therefore, the framers of the Indian Constitution have preferred a proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy. The Supreme Court, on the 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. 7. Integrated and Independent Judiciary The Indian Constitution establishes a judicial system that is integrated as well as independent. The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts, that is, district courts and other lower courts. This single system of courts enforces both the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary. The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution. Hence, the Constitution has made various provisions to ensure its independence–security of tenure of the judges, fixed service conditions for the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India, prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement, power to punish for its contempt vested in the Supreme Court, separation of the judiciary from the executive, and so on. 8. Fundamental Rights Part III of the Indian Constitution guarantees six11 fundamental rights to all the 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); and (f) Right to Constitutional Remedies (Article 32).  The Fundamental Rights are meant for promoting the idea of political democracy. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in nature, that is, they are enforceable by the courts for their violation. The aggrieved person can directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the restoration of his rights. However, the Fundamental Rights are not absolute and subject to reasonable restrictions. Further, they are not sacrosanct and can be curtailed or repealed by the Parliament through a Constitutional Amendment Act. They can also be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. 9. Directive Principles of State Policy According to Dr. B.R. Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution. They are enumerated in Part IV of the Constitution. They can be classified into three broad cat-egories–socialistic, Gandhian and liberalintellectual. The Directive Principles are meant for promoting the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India. However, unlike the Fundamental Rights, the directives are non-justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Hence, they impose a moral obligation on the state authorities for their application. But, the real force (sanction) behind them is political, that is, public opinion. In the Minerva Mills case12 (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’. 10. Fundamental Duties The original constitution did not provide for the Fundamental Duties of the citizens. These were added during the operation of internal emergency (1975–77) by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee. The 86th Constitutional Amendment Act of 2002 added one more fundamental duty. The Part IV-A of the Constitution (which consists of only one Article 51-A) specifies the eleven Fundamental Duties viz., to respect the Constitution, national flag and national anthem; to protect the sovereignty, unity and integrity of the country; to promote the spirit of common brotherhood amongst all the people; to preserve the rich heritage of our composite culture and so on. The fundamental duties serve as a reminder to citizens that while enjoying their rights, they have also to be quite conscious of duties they owe to their country, their society and to their fellow- citizens. However, like the Directive Principles, the duties are also non-justiciable in nature. 11. A Secular State The Constitution of India stands for a Secular State. Hence, it does not uphold any particular religion as the official religion of the Indian State. The following provisions of the Constitution reveal the secular character of the Indian State: (a) The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976. (b) The Preamble secures to all citizens of India liberty of belief, faith and worship. (c) The State shall not deny to any person equality before the law or equal protection of the laws (Article 14). (d) The State shall not discriminate against any citizen on the ground of religion (Article 15). (e) Equality of opportunity for all citizens in matters of public employment (Article 16). (f) All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).  (g) Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26). (h) No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27). (i) No religious instruction shall be provided in any educational institution maintained by the State (Article 28). (j) Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29). (k) All minorities shall have the right to establish and administer educational institutions of their choice (Article 30). (l) The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44). The Western concept of secularism connotes a complete separation between the religion (the church) and the state (the politics). This negative concept of secularism is inapplicable in the Indian situation where the society is multireligious. Hence, the Indian Constitution embodies the positive concept of secularism, i.e., giving equal respect to all religions or protecting all religions equally. Moreover, the Constitution has also abolished the old system of communal repre-sentation13 , that is, reservation of seats in the legislatures on the basis of religion. However, it provides for the temporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequate representation to them. 12. Universal Adult Franchise The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. 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. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988. The introduction of universal adult franchise by the Constitution-makers was a bold experiment and highly remarkable in view of the vast size of the country, its huge population, high poverty, social inequality and overwhelming illiteracy.14  Universal adult franchise makes democracy broad-based, enhances the self-respect and prestige of the common people, upholds the principle of equality, enables minorities to protect their interests and opens up new hopes and vistas for weaker sections. 13. Single Citizenship Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship. In countries like USA, on the other hand, each person is not only a citizen of USA, but also a citizen of the particular state to which he belongs. Thus, he owes allegiance to both and enjoys dual sets of rights–one conferred by the National government and another by the state government. In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them. Despite the constitutional provision for a single citizenship and uniform rights for all the people, India has been witnessing the communal riots, class conflicts, caste wars, linguistic clashes and ethnic disputes. This means that the cherished goal of the Constitution-makers to build a united and integrated Indian nation has not been fully realised. 14. Independent Bodies The Indian Constitution not only provides for the legislative, executive and judicial organs of the Government (Central and state) but also establishes certain independent bodies. They are envisaged by the Constitution as the bulkworks of the democratic system of Government in India. These are: (a) Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India. (b) Comptroller and Auditor-General of India to audit the accounts of the Central and state governments. He acts as  the guardian of public purse and comments on the legality and propriety of Government expenditure. (c) Union Public Service Commission to conduct examinations for recruitment to all-India services15 and higher Central services and to advise the President on disciplinary matters. (d) State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters. The Constitution ensures the independence of these bodies through various provisions like security of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and so on. 15. Emergency Provisions The Indian Constitution contains elaborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationality behind the incorporation of these provisions is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. The Constitution envisages three types of emergencies, namely: (a) National emergency on the ground of war or external aggression or armed rebellion16 (Article 352); (b) State emergency (President’s Rule) on the ground of failure of Constitutional machinery in the states (Article 356) or failure to comply with the directions of the Centre (Article 365); and (c) Financial emergency on the ground of threat to the financial stability or credit of India (Article 360). During an emergency, the Central Government becomes all- powerful and the states go into the total control of the centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation of the political system from federal (during normal times) to unitary (during emergency) is a unique feature of the Indian Constitution. 16. Three-tier Government Originally, the Indian Constitution, like any other federal Constitution, provided for a dual polity and contained provisions with regard to the organisation and powers of the Centre and the states. Later, the 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of Government (i.e., local) which is not found in any other Constitution of the world. The 73rd Amendment Act of 1992 gave constitutional recognition to the panchay-ats (rural local governments) by adding a new Part IX17 and a new Schedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992 gave constitutional recognition to the municipalities (urban local governments) by adding a new Part IX-A18 and a new Schedule 12 to the Constitution. 17. Co-operative Societies The 97th Constitutional Amendment Act of 2011 gave a constitutional status and protection to co-operative societies. In this context, it made the following three changes in the Constitution: 1. It made the right to form co-operative societies a fundamental right (Article 19). 2. It included a new Directive Principle of State Policy on promotion of co-operative societies (Article 43-B). 3. It added a new Part IX-B in the Constitution which is entitled as “The Co-operative Societies” (Articles 243-ZH to 243-ZT). The new Part IX-B contains various provisions to ensure that the co-operative societies in the country function in a democratic, professional, autonomous and economically sound manner. It empowers the Parliament in respect of multi-state cooperative societies and the state legislatures in respect of other co-operative societies to make the appropriate law.  CRITICISM OF THE CONSTITUTION The Constitution of India, as framed and adopted by the Constituent Assembly of India, has been criticized on the following grounds: 1. A Borrowed Constitution The critics opined that the Indian Constitution contains nothing new and original. They described it as a ‘borrowed Constitution’ or a ‘bag of borrowings’ or a ‘hotch-potch Constitution’ or a ‘patchwork’ of several documents of the world constitutions. However, this criticism is unfair and illogical. This is because, the framers of the Constitution made necessary modifications in the features borrowed from other constitutions for their suitability to the Indian conditions, at the same time avoiding their faults. While answering the above criticism in the Constituent Assembly, Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, said : “One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution”.19 2. A Carbon Copy of the 1935 Act The critics said that the framers of the Constitution have included a large number of the provisions of the Government of India Act of 1935 into the Constitution of India. Hence, they called the Constitution as a “Carbon Copy of the 1935 Act” or an “Amended Version of the 1935 Act”. For example, N. Srinivasan observed that the Indian Constitution is “both in language and substance a close copy of the Act of 1935”. Similarly, Sir Ivor Jennings, a British Constitutionalist, said that “the Constitution derives directly from the Government of India Act of 1935 from which, in fact, many of its provisions are copied almost textually”. Further, P.R. Deshmukh, a member of the Constituent Assembly, commented that “the Constitution is essentially the Government of India Act of 1935 with only adult franchise added”. The same Dr. B.R. Ambedkar answered the above criticism in the Constituent Assembly in the following way : “As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration”.20 3. Un-Indian or Anti-Indian According to the critics, the Indian Constitution is ‘un-Indian’ or ‘anti-Indian’ because it does not reflect the political traditions and the spirit of India. They said that the foreign nature of the Constitution makes it unsuitable to the Indian situation or unworkable in India. In this context, K. Hanumanthaiya, a member of the Constituent Assembly, commented : “We wanted the music of Veena or Sitar, but here we have the music of an English band. That was because our Constitution-makers were educated that way”.21 Similarly, Lokanath Misra, another member of the Constituent Assembly, criticized the Constitution as a “slavish imitation of the west, much more - a slavish surrender to the west”.22 Further, Lakshminarayan Sahu, also a member of the Constituent Assembly, observed: “The ideals on which this draft Constitution is framed have no manifest relation to the fundamental spirit of India. This Constitution would not prove suitable and would break down soon after being brought into operation”.23 4. An Un-Gandhian Constitution According to the critics, the Indian Constitution is un-Gandhian because it does not contain the philosophy and ideals of Mahatma Gandhi, the father of the Indian Nation. They opined that the Constitution should have been raised and built upon village panchayats and district panchayats. In this context, the same member of the Constituent Assembly, K. Hanumanthaiya, said: “That is exactly the kind of Constitution Mahatma Gandhi did not want and did not envisage”.24 T. Prakasam, another member of the Constituent Assembly, attributed this lapse to Ambedkar’s non-participation in the Gandhian movement and the antagonism towards the Gandhian ideas.25 5. Elephantine Size The critics stated that the Indian Constitution is too bulky and too detailed and contains some unnecessary elements. Sir Ivor Jennings, a British Constitutionalist, observed that the provisions borrowed were not always well-selected and that the constitution, generally speaking, was too long and complicated.26 In this context, H.V. Kamath, a member of the Constituent Assembly, commented : “The emblem and the crest that we have selected for our assembly is an elephant. It is perhaps in consonance with that our constitution too is the bulkiest that the world has produced”.27 He also said: “I am sure, the House does not agree that we should make the Constitution an elephantine one”.28 6. Paradise of the Lawyers According to the critics, the Indian Constitution is too legalistic and very complicated. They opined that the legal language and phraseology adopted in the constitution makes it a complex document. The same Sir Ivor Jennings called it a “lawyer’s paradise”. In this context, H.K. Maheswari, a member of the Constituent Assembly, observed : “The draft tends to make people more litigious, more inclined to go to law courts, less truthful and less likely to follow the methods of truth and non-violence. If I may say so, the draft is really a lawyer’s paradise. It opens up vast avenues of litigation and will give our able and ingenious lawyers plenty of work to do”.29  Similarly, P.R. Deshmukh, another member of the Constituent Assembly, said : “I should, however, like to say that the draft of the articles that have been brought before the House by Dr. Ambedkar seems to my mind to be far too ponderous like the ponderous tomes of a law manual. A document dealing with a constitution hardly uses so much of padding and so much of verbiage. Perhaps it is difficult for them to compose a document which should be, to my mind, not a law manual but a socio- political document, a vibrating, pulsating and life-giving document. But, to our misfortune, that was not to be, and we have been burdened with so much of words, words and words which could have been very easily eliminated.”30 Table 3.1 The Constitution of India at a Glance Parts Subject Matter Articles Covered I The Union and its territory 1 to 4 II Citizenship 5 to 11 III Fundamental Rights 12 to 35 IV Directive Principles of State Policy 36 to 51 IV-A Fundamental Duties 51-A V The Union Government 52 to 151 Chapter I - The Executive 52 to 78 Chapter II - Parliament 79 to 122 Chapter III - Legislative Powers of 123 President Chapter IV - The Union Judiciary 124 to 147 Chapter V - Comptroller and Auditor- 148 to 151 General of India VI The State Governments 152 to 237 Chapter I - General 152 Chapter II - The Executive 153 to 167  Chapter III - The State Legislature 168 to 212 Chapter IV - Legislative Powers of 213 Governor Chapter V - The High Courts 214 to 232 Chapter VI - Subordinate Courts 233 to 237 VII The States in Part B of the First Schedule 238 (deleted) (deleted) VIII The Union Territories 239 to 242 IX The Panchayats 243 to 243– 0 IX-A The Municipalities 243-P to 243-ZG IX-B The Co-operative Societies 243-ZH to 243-ZT X The Scheduled and Tribal Areas 244 to 244- A XI Relations between the Union and the 245 to 263 States Chapter I - Legislative Relations 245 to 255 Chapter II - Administrative Relations 256 to 263 XII Finance, Property, Contracts and Suits 264 to 300- A Chapter I - Finance 264 to 291 Chapter II - Borrowing 292 to 293 Chapter III - Property, Contracts, Rights, 294 to 300 Liabilities, Obligations and Suits Chapter IV - Right to Property 300-A XIII Trade, Commerce and Intercourse within 301 to 307 the Territory of India XIV Services under the Union and the States 308 to 323 Chapter I - Services 308 to 314  Chapter II - Public Service Commissions 315 to 323 XIV-A Tribunals 323-A to 323-B XV Elections 324 to 329- A XVI Special Provisions relating to Certain 330 to 342- Classes A XVII Official Language 343 to 351- A Chapter I - Language of the Union 343 to 344 Chapter II - Regional Languages 345 to 347 Chapter III–Language of the Supreme 348 to 349 Court, High Courts, and so on Chapter IV–Special Directives 350 to 351 XVIII Emergency Provisions 352 to 360 XIX Miscellaneous 361 to 367 XX Amendment of the Constitution 368 XXI Temporary, Transitional and Special 369 to 392 Provisions XXII Short title, Commencement, Authoritative 393 to 395 Text in Hindi and Repeals Note: Part VII (dealing with Part-B states) was deleted by the 7th Amendment Act (1956). On the other hand, both Part IV-A and Part XIV-A were added by the 42nd Amendment Act (1976), while Part IX-A was added by the 74th Amendment Act (1992), and Part IX-B was added by the 97th Amendment Act (2011). Table 3.2 Important Articles of the Constitution at a Glance Articles Deals with 1 Name and territory of the Union 3 Formation of new states and alteration of areas, boundaries or names of existing states  13 Laws inconsistent with or in derogation of the fundamental rights 14 Equality before law 16 Equality of opportunity in matters of public employment 17 Abolition of untouchability 19 Protection of certain rights regarding freedom of speech, etc. 21 Protection of life and personal liberty 21A Right to elementary education 25 Freedom of conscience and free profession, practice and propagation of religion 30 Right of minorities to establish and administer educational institutions 31C Saving of laws giving effect to certain directive principles 32 Remedies for enforcement of fundamental rights including writs 38 State to secure a social order for the promotion of welfare of the people 40 Organisation of village panchayats 44 Uniform civil code for the citizens 45 Provision for early childhood care and education to children below the age of 6 years. 46 Promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections 50 Separation of judiciary from executive 51 Promotion of international peace and security 51A Fundamental duties 72 Power of president to grant pardons, etc., and to suspend, remit or commute sentences in certain  cases 74 Council of ministers to aid and advise the president 78 Duties of prime minister as respects the furnishing of information to the president, etc. 110 Definition of Money Bills 112 Annual financial statement (Budget) 123 Power of president to promulgate ordinances during recess of Parliament 143