Introduction the the Constitution CLAT Notes | EduRev

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What is Constitution?

  • It is the supreme law of the land.
  • It is the basic structure, which defines the powers of the States and the rights and duties of its citizens.
  • It can also be termed as the fundamental law of the country.
  • It sets out the framework and principal functions of the Government.

Birth of the Indian Constitution

Introduction the the Constitution CLAT Notes | EduRev

  • The idea of a Constitution Assembly for India was put forward for the first time by N. Roy, a pioneer of communist movement in the year 1934.
  • The demand for the establishment of a Constituent Assembly was first embodied in a resolution of the Indian National Congress in 1936. But the British rulers rejected it.
  • During World War II, Sir Stafford Cripps was sent to India to win over the support of Indian political leaders. A proposal for setting up body for preparing the Constitution of India was made. It was not accepted.
  • Later, in 1946, the Cabinet Mission came to India and put across a proposal for setting up of a Constituent Assembly.
  • Members of the Provincial Legislatures elected members of the Constituent Assembly on communal basis indirectly through the method of proportional representation.
  • The Constituent Assembly thus created had 389 members, of which the members of the Provincial Assemblies elected 296 members and the rest were nominated by the Princely States.
  • First Meeting was held on December 9th 1946, Sacchidanand Sinha was elected as Interim Chairman.
  • However on December 11th 1946, Rajendra Prasad was elected its Permanent Chairman.
  • The Muslim league boycotted the meeting, thus hampering the work of the Constituent Assembly.
  • The situation in the country deteriorated and communal riots broke out.
  • All these events resulted in the partition of the country with the Mountbatten plan of June 3, 1947.
  • In accordance with the Indian Independence Act of 1947, the Constituent Assembly became a sovereign body.
  • Jawaharlal Nehru moved the Objective Resolution on 13th December 1946.
  • Shri B. N. Rau was appointed as the legal Advisor of the Constituent Assembly.
  • On August 29th 1947, the Assembly set up the Drafting Committee to prepare a draft Constitution.
  • The constituent assembly formed 13 important committees for framing the Constitution.

Important committees of the Constituent Assembly

Introduction the the Constitution CLAT Notes | EduRev

  1. Union Powers Committee Chairman (JAWAHARLAL NEHRU)
  2. Steering Committee (Dr. K.M. MUNSHI)
  3. Drafting Committee Chairman (B.R. AMBEDKAR)
  4. Provincial Committee (SARDAR PATEL)
  5. Committee on Union Constitution (JAWAHARLAL NEHRU)
  6. Fundamental Rights & Minorities’ Committee [SARDAR VALLABHBHAI PATEL]

The Framing of the Constitution

  • The first session of the Assembly was held in New Delhi on December 9, 1946.
  • The Constituent Assembly took 2 years, 11 months and 18 days to prepare the Constitution.
  • The Constitution was ready and adopted on November 26, 1949.
  • The Constitution came into full operation with effect from January 26, 1950.
  • January 26, 1950, was chosen as the date of commencement of the Constitution because on this date in 1930, Indian people observed Independence Day, following the resolution of Purna Swaraj of the Congress session held in the midnight of December 31, 1929 at Lahore.
  • Originally, it contained 395 articles divided into 22 parts and 8 schedules.
  • The design of the National Flag was adopted by the Constituent Assembly on July 22nd
  • The National Anthem was adopted by the Constituent Assembly on January 24th 1950.
  • The National Emblem was taken from the Ashoka Pillar in Sarnath. The words “Satyameva Jayate” have been adopted from the “Mundaka Upanishad”.
  • The Song “Vande Mataram” composed in Sanskrit by Bankim Chandra Chatterji has been adopted as National Song. It was first sung at the 1896 session of the Indian National Congress.

Main Sources of the Indian Constitution

                 Concept Borrowed          Country
(1)  Scheme of Federation              Canada
(2) Written Constitution              U.S.A
(3) Federal system of Government  U.S.A
(4) Supreme Court              U.S.A
(5) Fundamental Rights              U.S.A
(6) Judicial Review              U.S.A
(7) Independence of Judiciary              U.S.A
(8) Preamble              U.S.A
(9) Cabinet system              U.K
(10) Office of the PresidentU.K [British Queen]
(11) Bicameralism              U.K
(12) Rule of Law              U.K
(13) System of Single Citizenship              U.K
(14) Emergency & its effect on Fundamental Rights              Germany
(15) Fundamental Duties              Russia
(16) Directive Principles              Ireland
(17) Concurrent List              Australia
(18) Republic              France


Introduction the the Constitution CLAT Notes | EduRev

Preamble

It is an introduction especially of an Act of Parliament giving its objectives. It lays down the purposes for which a particular Act has been passed.

The Preamble

“WE, THE PEOPLE OF INDIA, have solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens.
JUSTICE, Social economic and political;
LIBERTY of thought, expression, belief, faith and worship;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation
In our Constituent Assembly this twenty-sixth day of November, 1949, do Hereby ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.
Under the 42nd Amendment two new words ‘SOCIALIST & SECULAR’ have been inserted in the Preamble.

Significance of the Preamble to the Constitution of India:

1) The preamble represents the aspirations of the people of India.
2) The words “WE THE PEOPLE” means, the Constitution of India has been framed and enacted by the people of India. It has not been derived from any external force. Further, ‘People of India’ – refers to the elected members of Constituent Assembly.
3) Sovereign 
The word Sovereign emphasizes that there is no authority outside India on which our country is in any way dependent.
4) Preamble as basic structure
The objectives specified in the Preamble contain the basic structure of the constitution. The Preamble may therefore be pressed into service to interpret the provisions.
5) Democratic
The term democratic means that the rulers are elected by the people and derive authority to run the government.
6) Socialist
This word was added by the 42nd Amendment of the Constitution, to bring out the concept of socialism. The inclusion of the word suggests that there would be a tendency to lean towards nationalization and State ownership of industry.
7) Secular
This word has also been added by the 42nd Amendment, to emphasise the secular nature of the nation. The word secular specifically means that there is no State religion.
8) Republic
It means absence of ‘monarchy’. All the authorities of the State are directly or indirectly elected by the people.
9) Liberty
of thought, expression, belief, faith and worship. Liberty is an essential attribute of a free society that helps in the fullest development of intellectual, mental and spiritual faculties of an individual. The Indian Constitution guarantees six democratic freedoms to citizens under Art.19 and Right to Freedom of Religion under Arts. 25-28.
10) Fraternity
Fraternity as enshrined in the Constitution means a sense of brotherhood prevailing amongst all the sections of the people. This is sought to be achieved by making the State secular, guaranteeing fundamental and other rights equally to people of all sections and protecting their interests.

Is the Preamble a part of the Constitution?

  • This question came up for consideration, for the first time before the Supreme Court in the Berubari’s Case in 1960.
  • In that case, the Supreme Court held that the Preamble was not a part of the Constitution.
  • The Supreme Court in Kesavananda Bharathi vs. State of Kerala overruled the above judgment.
  • Supreme Court made it clear that the Preamble is a part of the Constitution and it is subject to the amending power of the Parliament as any other provisions of the Constitution is not destroyed.

GOVERNMENT TYPES
All over the world, there are two types of government – Unitary and Federal on the basis of the nature of relations between the national government and the regional governments.

Introduction the the Constitution CLAT Notes | EduRev

Fig: Unitary vs Federal System

In a unitary government, all the powers are vested in the national government and the regional governments derive their authority from the national government.
On the other hand, in a federal government the powers are divided between the national government and the regional government by the Constitution and both operate independently within their realm of power.

Essential characteristics of a Federal Constitution 

  • Distribution of Powers:
    The distribution of powers is an essential feature of federalism. Federalism means the distribution of the powers between the central government and the governments of the units forming the federation.
  • Supremacy of Constitution:
    The Constitution in a federal State constitutes the supreme law of the land. Every power, executive, legislative or judicial whether it belongs to the nation or individual State is subordinate to and controlled by the Constitution.
  • Written Constitution:
    A federal Constitution must certainly be a written Constitution. This is to establish the supremacy of the Constitution and avoid disputes between the Centre and State governments.
  • Rigidity:
    Constitution, which is supreme, must also be rigid. In a rigid Constitution, the procedure of amendment is very complicated and difficult.
  • Authority of Courts:
    In a federal system, the judiciary has the final power to interpret the Constitution and uphold the supremacy of the Constitution.
  • Dual Citizenship:
    Most federal states like U.S. Switzerland and Australia have dual citizenship, i.e National Citizenship as well as State citizenship.

Features of Indian Constitution:
The Framers of Indian Constitution consciously chose a unique type of governance combining some of the features of typical federal state and incorporating certain non-federal features as well to suit the Indian system.

List of Federal & Unitary Features of the Constitution

1. Lengthiest Constitution: The Indian Constitution is the lengthiest and most detailed of all the written Constitutions in the world.

The Constitution consists of approximately 395 Articles (447 articles including Clauses and Sub-clauses added over the years by way of Constitutional Amendment) divided into 26 parts and 12 Schedules.

Note: Thus, there is no Article number 400, 410, etc. The number of Articles remains at 395. However, when Clauses and Sub-clauses are added, it amounts to 447.

2. Parliamentary form of Government: We have a parliamentary form of government both at the Centre and the States. The President is the Constitutional head of the State. The real executive power is vested in the Council of Ministers whose head is the Prime Minister.

3. Directive Principles of the State Policy: The Directive Principles of State policy contained in Part IV of the Constitution set out the aims and objectives to be taken up by the States in the governance of the country. However, these rights are not justiciable.

4. Adult Suffrage: Under the Indian Constitution, every man and woman above 18 years has been given the right to elect representatives for the legislature, without imposing any qualification such as sex, property, education, etc.

5. An Independent Judiciary: Unless there is remedy, there is no right. The number of fundamental rights would prove useless, unless the rights are enforced. For this purpose, an independent and impartial judiciary with a power of judicial review has been established under the Constitution of India.

6. Secular State: A Secular State has no religion of its own as recognised religion of state. It treats all religions equally.

7. Single Citizenship: Though the Constitution of India is federal, it provides for a single citizenship for the whole of India.

8. Unique blend of rigidity and flexibility: Important provisions of the Constitution cannot be easily amended and calls for complicated and difficult procedure. Whereas, certain other provisions can be amended easily.

9. A federation with strong central tendency: The Constitution has been framed in such a manner that the Central Government has been vested with more powers as compared to the states. Also, during emergencies all powers are centralized and the Constitution acquires a unitary character.

10. Fundamental Duties: The 42nd Amendment Act, 1976 introduced a code of ten Fundamental Duties for citizens. It requires the citizens to observe certain basic norms of democratic conduct and democratic behaviour.

Note: In 2002, one more Fundamental duty was added and presently, there are eleven fundamental duties.

11. Division of powers

The Constitution has divided the powers between the Centre and the States in terms of the Union List, State List and Concurrent List. The Union List consists of 100 subjects, the State list 66 subjects and the Concurrent List has 52 subjects.
Both the centre and state can make laws on the subjects of the concurrent list, but in case of a conflict, the central law prevails. The residuary subjects (these not mentioned in any of the three lists) are given to the centre.

12. Supremacy of the Constitution
The Constitution is the supreme law of the land. All laws passed by the Centre and States must be line with the provisions in the Constitution.

13. Bicameralism
The Constitution provides for a bicameral legislature consisting of an upper House (Rajya Sabha) and a Lower House (Lok Sabha)

The Indian Constitution – is it truly federal?

 Features of Federal ConstitutionFeatures found in Indian Constitution
 a) Distribution of powers between Central & State Yes
 b) Supremacy of Constitution Yes
 c) Written Constitution Yes
 d) Dual Citizenship No
 e) Rigidity of the Constitution No
 f) Authority of Courts Yes
 g) States & Centre have equal   powers No
 h) Equal Distribution of powers   between Centre and States No
 i) Separate Constitution for   member States No

Though the Indian Constitution fulfills most of the essential characteristics of a federal Constitution it cannot be called truly federal as the Centre is vested with more powers as compared to the States.
Thus, it may concluded that India is not a typical Federal State. In the words of Prof. K.C. Wheare who described the Constitution of India as ‘Quasi Federal’ remarked that Indian Union is a Unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features.

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