INDIAN CONSTITUTION

UNIT - I
FRAMING OF THE INDIAN
CONSTITUTION

The Constitution of India was drawn up by a Constituent Assembly. The

Assembly met for the first time on December 9, 1946. The Assembly constituted a
Drafting Committee, under the chairmanship of Dr.B.R.Ambedkar, to frame a
constitution for India. Indian Constitution was adopted on November 26, 1949 and it
came into effect on January 26, 1950. It is the longest written Constitution in the world
containing 395 Articles, 22 Parts and 12 Schedules.

a. Rajendra Prasad was elected its Permanent Chairman on 11.12.1946.

b. The Draft Constitution was published in January, 1948. The people of India were
given 8 months to discuss the draft and propose amendments. As many as 7,635
amendments were proposed and 2,473 were actually discussed.
c. The Constituent Assembly held 11 sessions.
d. The Draft Constitution was considered for 114 days. In all the Constitutional
Assembly sat for 2 years, 11 months and 18 days.
e. The New Constitution of India was adopted by the Constituent Assembly on
26th November, 1949 and was signed by the President, Dr. Rajendra Prasad. 15
Articles (5,6,7,8,9,60,324,366,367,372, 380, 388, 391,392 and 393) came into
force at once.
f. The remaining provisions of the Constitution came into force on 26th
January, 1950 which is the date of the commencement of the Constitution.
g. On January 26, 1950, the Indian Government also adopted Sarnath, the Lion
Capital of Ashoka with the wheel, bull, and horse as the national emblem of
India.
h. The design of the National Flag was adopted by the Constituent Assembly of
India on 22 July 1947.
i. The national calendar based on the Saka Era, with Chaitra as its first
month and a normal year of 365 days was adopted from 22 March 1957

National Anthem “Jana-gana-mana”, composed originally in Bengali by

Rabindranath Tagore, was adopted in its Hindi version by the Constituent Assembly as
the National Anthem of India on 24January 1950. It was first sung on 27 December
1911 at the Calcutta Session of the Indian National Congress.

Salient Features of the Constitution of India

(I) A written and lengthy constitution

The Constitution of India is a single, written document (unlike the British

constitution which is not a single, written document, but is drawn from legislation,
treaties, judicial precedents, convention, and numerous other sources). It was framed
by a Constituent Assembly which was established for the purpose in 1946. As originally
adopted, it had 22 Parts, 395 Articles and 8 Schedules. A number of amendments,
passed since its enforcement in 1950, have also become a part of the constitution.

The Constitution of India is the lengthiest constitution in the world as no other

constitution contains as many articles. The constitution of USA has 7 Articles, China
138, Japan 103, and Canada 107 Articles.

(ii) Single Constitution

Unlike the US which is considered as a role model of federalism, India has a
single constitution, that is, the Indian states do not have separate constitutions.
(iii) Sovereign, socialist, secular, democratic, republic
The Constitution declares India to be a Sovereign, Socialist, Secular, and Democratic,
Republic. The words, 'Socialist' and 'secular' were added in the Preamble of the Constitution by
42nd Amendment which was passed in 1976.

Sovereign: Sovereign means absolutely independent; it is not under the control of any other
state.

Socialist:
The Word 'Socialist' was added in the Preamble by 42nd Amendment of the
Constitution which was passed in 1976. This implies a system which will endeavor to avoid
concentration of wealth in a few hands and will assure its equitable distribution.

Secular:
The word 'Secular', like Socialist, was also added in the Preamble by 42nd Amendment
of the Constitution. There is no state religion in India. Every citizen is free to follow and
practice, the religion of his/her own choice. The state cannot discriminate among its citizens on
the basis of religion.

Democratic - It means that the power of the government is vested in the hands of the people.
People exercise this power through their elected representatives who, in turn, are responsible
to them. All the citizens enjoy equal political rights.

Republic:
It means that the head of the State is not a hereditary monarch but a President who is
indirectly elected by the people for a definite period.

(iv)Unique blend of rigidity and flexibility

Whether a constitution is rigid or flexible depends on the process of amendment. If the
constitutional laws and ordinary laws are amended separate ways, it is a rigid constitution. On
the contrary, in a flexible constitution, constitutional laws and ordinary laws are amended in
the same way.
Some provisions of the Constitution of India can be amended by the Indian Parliament
with simple majority. The amendment of most provisions of the constitution requires a special
majority in both houses of the parliament. There are some other provisions of constitution
which cannot be amended by the parliament alone. In case of such provision the amending bill
has first to be approved by both houses of parliament by a special majority (with the support of
two-thirds of the members of each house present and voting). Then it has to be ratified by the
legislatures of at least half of the states of India.

So, there is a balance between rigidity and flexibility in our constitution. Some amount
of flexibility was introduced into our constitution in order to encourage its growth.

(v) Patchwork, but a beautiful patchwork

The Indian Constitution is often referred to as a patchwork. It has been inspired and
derived from various sources. The best features of various constitutions have been
incorporated in our constitution.

(vi)Parliamentary form of democracy

 Indian Constitution provides for a parliamentary form of government. President is the
nominal head of the state. In actual practice, the government is run by the Prime Minister and
other members of the Council of Minister. The Council of Ministers is collectively responsible to
the Parliament.

(vii) Fundamental rights and duties

The Constitution of India guarantees six fundamental rights to every citizen.
The ZY are:
a. Right to Equality
b. Right to Freedom
c. Right against Exploitation
d. Right to Freedom of Religion
e. Cultural and Educational Rights
f. Right to Constitutional Remedies
The Constitution initially did not provide for Fundamental Duties. By the
42ndAmendment of the Constitution, ten Fundamental Duties of citizens have also been added.
Currently there are 11 Fundamental Duties.

(viii) Directive principles of state policy

The Directive Principles of State Policy are listed in Part Four of the Constitution. The
framers of our constitution took the idea of having such principles from the Irish Constitution.
These principles are instructions given by the Constitution to government.

All the governments-Central, State and Local-are expected to frame their policies in
accordance with these principles. The aim of these principles is to establish a welfare state in
India. They, however, are not binding on the government-they are mere guidelines.

(ix) Single citizenship

In federation, normally we have double citizenship. In U.S.A. every citizen besides being
a citizen of United States of America is the citizen of the state in which he or she resides. But
the Constitution of India provides for single citizenship - every Indian, irrespective of his place
of birth or residence, is a citizen of India.

(x) Universal adult franchise

The constitution provides for Universal Adult Franchise (article 326). It means that every
citizen who is 18 years of age or more is entitled to cast his/her vote irrespective of his caste,
creed, sex, religion or place of birth.

(xi) Affirmative action

The Constitution provides for affirmative action by the State to improve the conditions
of the weaker sections of society by providing reservations in the legislatures and government
jobs (articles 15 & 16).

(xii) Independent judiciary

The Indian Constitution provides for an independent judiciary. The judiciary has been
made independent of the Executive as well as the Legislature. The judges give impartial justice.

(xiii) Independent agencies

The Constitution provides for some Independent Agencies to perform functions allotted to
them. The important agencies are
Election Commission (article 324)
Comptroller and Auditor General (article 148)
Union and State Public Service Commission (article 315)
Finance Commission (article 280)

(xiv) Emergency provisions

The framers of our constitution had realized that there could be certain dangerous
situations when government could not be run as in ordinary time. Hence our constitution
contains certain emergency provisions. During emergency the fundamental rights of the
citizens can be suspended and our government becomes a unitary one.

The Constitution makes provisions for the proclamation of National Emergency under
Article 352, State Emergency under Article 356 and Financial Emergency under Article 360.

Constitutional Amendment
Amending the Constitution of India is the process of making changes to the nation's
fundamental law or supreme law. The procedure of amendment in the constitution is laid
down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of
the Constitution of India and keeps a check on arbitrary power of the Parliament of India.

However, there is another limitation imposed on the amending power of the

constitution of India, which developed during conflicts between the Supreme Court and
Parliament, where Parliament wants to exercise discretionary use of power to amend the
constitution while the Supreme Court wants to restrict that power. This has led to the laying
down of various doctrines or rules in regard to checking the validity/legality of an amendment,
the most famous among them is the Basic structure doctrine as laid down by the Supreme
Court in the case of Kesavananda Bharativs State of Kerala types of Amendments in Indian
Constitution.

The list of types of amendments can be found below. There are three ways in which the
Constitution can be amended:
1. Amendment by simple majority of the Parliament
2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half of
the state legislatures

A brief description of the above types of amendments of the Indian Constitution has been
laid down below:

1. by Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the
two houses of Parliament outside the scope of Article 368. These provisions include:

Admission or establishment of new states:

a. Formation of new states and alteration of areas, boundaries or names of existing states
b. Abolition or creation of legislative councils in states
c. Second Schedule-emoluments
d. Allowances, privileges and so on of the president, the governors, the Speakers, judges,
 etc
e. Quorum in Parliament
f. Salaries and allowances of the Members of Parliament
g. Rules of procedure in Parliament
h. Privileges of the Parliament, its members and its committees
i. Use of the English language in Parliament
j. Number of judges in the Supreme Court
k. Conferment of more jurisdiction on the Supreme Court
l. Citizenship-acquisition and termination
m. Elections to Parliament and state legislatures
n. Delimitation of constituencies
o. Union territories
p. Fifth Schedule-administration of scheduled areas and scheduled tribes
q. Sixth Schedule-administration of tribal areas

2. By Special Majority of Parliament

The majority of the provisions in the Constitution need to be amended by a special
majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total
membership of each House and a majority of two-thirds of the members of each House present
and voting. The expression ‘total membership’ means the total number of members comprising
the House irrespective of the fact whether there are vacancies or absentees.

The special majority is required only for voting at the third reading stage of the bill but
by way of abundant caution, the requirement for the special majority has been provided for in
the rules of the Houses in respect of all the effective stages of the bill.

The provisions which can be amended by this way include: (i) Fundamental Rights; (ii)
Directive Principles of State Policy; and (iii) All other provisions which are not covered by the
first and third categories.

3. by Special Majority of Parliament and Consent of States

Those provisions of the Constitution which are related to the federal structure of the
polity can be amended by a special majority of the Parliament and also with the consent of half
of the state legislatures by a simple majority. If one or some or all the remaining states take no
action on the bill, it does not matter; the moment half of the states give their consent, the
formality is completed. There is no time limit within which the states should give their consent
to the bill. The following provisions can be amended in this way:

a. Election of the President and its manner

b. Extent of the executive power of the Union and the states
c. Supreme Court and high courts
d. Distribution of legislative powers between space the Union and the states
e. Any of the lists in the Seventh Schedule
f. Representation of states in Parliament
g. Power of Parliament to amend the Constitution and its procedure (Article 368 itself)

Indian Federal System

Federalism in India describes the distribution of legal authority across national, state
and local governments in India. It is embedded from the Canadian model of federalism.

The Constitution of India establishes a federal structure to the Indian government,

declaring it to be a "Union of States". Part XI of the Indian constitution specifies the distribution
of legislative, administrative and executive powers between the union government and the
States of India. The legislative powers are categorized under a Union List, a State List and a
Concurrent List, representing, respectively, the powers conferred upon the Union government,
those conferred upon the State governments and powers shared among them.

This federalism is asymmetric in that the devolved powers of the constituent units are
not all the same. Historically, the state of Jammu and Kashmir was accorded a higher degree of
autonomy than other States under Article 370 (which was revoked by the union government in
2019). Union territories are unitary type, directly governed by the Union government. Article 1
(1) of the constitution stipulates two tier-governance with an additional local elected
government. Delhi and Puducherry were accorded legislatures under Article 239AA and 239A,
respectively.

The fundamental rights of citizens vary by state per Article 31 (B), as changes are added
to Constitution schedule IX by constitutional amendments. Legislative power

The division of powers is defined by the constitution and the legislative powers are
divided into three lists:

Union List
Union List consists of 100 items (earlier 97) on which the parliament has exclusive
power to legislate including: defence, armed forces, arms and ammunition, atomic energy,
foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation,
airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign trade,
inter-state trade and commerce, banking, insurance, control of industries, regulation and
development of mines, mineral and oil resources, elections, audit of Government accounts,
constitution and organization of the Supreme Court, High courts and union public service
commission, income tax, custom duties and export duties, duties of excise, corporation tax,
taxes on capital value of assets, estate duty and terminal taxes.

State List
State List consists of 61 items (earlier 66 items). Uniformity is desirable but not essential
on items in this list: maintaining law and order, police forces, healthcare, transport, land
policies, electricity in the state, village administration, etc. The state legislature has exclusive
power to make laws on these subjects. In certain circumstances, the parliament can make laws
on subjects mentioned in the State List, but to do so the Rajya Sabha (Council of States) must
pass a resolution with a two-thirds majority that it is expedient to legislate in the national
interest. Though states have exclusive powers to legislate with regards to items on the State
List, articles 249, 250, 252, and 253 mention situations in which the Union government can
legislate.

Concurrent List
Concurrent List consists of 52 (earlier 47) items. Uniformity is desirable but not essential
on items in this list. The list mentions: marriage and divorce, transfer of property other than
agricultural land, education, contracts, bankruptcy and insolvency, trustees and trusts, civil
 procedure, contempt of court, adulteration of foodstuffs, drugs and poisons, economic
and social planning, trade unions, labor welfare, electricity, newspapers, books and
printing press NS stamp duties.

Other (residuary) subjects

Subjects not mentioned in any of the three lists are known as residuary
subjects. However, many provisions in the constitution outside these lists permit
parliament or state Legislative assembly to legislate. Excluding the provisions of the
constitution outside these lists per Article 245, the power to legislate on such subjects,
rests with the parliament exclusively per Article 248. Parliament shall legislate on
residuary subjects following the Article 368 procedure as constitutional amendments.

In case the above lists are to be expanded or amended, the legislation should
be done by the Parliament under its constituent power per Article 368 with ratification
by the majority of the states. Federalism is part of the basic structure of the Indian
constitution which cannot be altered or destroyed through constitutional amendments
under the constituent powers of the Parliament without undergoing judicial review by
the Supreme Court.

Executive powers
The Union and States have independent executive staff controlled by their
respective governments. In legislative and administrative matters, the union
government cannot overrule the constitutional rights/powers of a state government
except when presidential rule is declared in a State. The Union's duty is to ensure that
the government of every State is carried on in accordance with the provisions of the
Constitution as per Article 355 and Article 256. The State governments cannot violate
the Central laws in administrative matters. When a State violates the Constitution,
Presidential rule is imposed under Article 356 and the President takes over the State’s
administration with ex post facto consent of the Parliament per Article 357.

Financial powers
Article 282 accords financial autonomy in spending financial resources available
to the states for public purpose. Article 293 allows States to borrow without limit
without consent from the Union government. However, the Union government can
insist upon compliance with its loan terms when a state has outstanding loans charged
to the consolidated fund of India or a federally-guaranteed loan.

The President of India constitutes a Finance Commission every five years to

recommend devolution of Union revenues to State governments.

Under Article 360, the President can proclaim a financial emergency when the
financial stability or credit of the nation or of any part of its territory is threatened.
However, no guidelines define "financial emergency" for the country or a state or a
union territory or a panchayat or a municipality or a corporation.

An emergency like this must be approved by the Parliament within two months by a simple majority
and has never been declared. A state of financial emergency remains in force indefinitely until
revoked by the President. The President can reduce the salaries of all government officials, including
judges of the Supreme Court and high courts, in cases of a financial emergency. All money bills
passed by the state legislatures are submitted to the President for approval. He can direct the state
to observe economy measures.