Evolution of the Indian Constitution

Table of Contents
1. Historical Background
2. Constitutional Development
3. The Making of the Constitution
4. Drafting the Constitution
5. Salient Features of the Indian Constitution
6. The Preamble: Nature, Purpose and Key Terms
7. Composition and Structure of the Constitution
8. Important Doctrines and Judicial Interpretations
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Historical Background

Before 1947 India comprised two principal political entities: British India, administered directly by the British and organised into provinces, and the Princely States, ruled by native princes under subsidiary alliances and treaties. The eventual Indian Union united these entities, but many administrative and legal institutions evolved gradually over more than a century of British rule. The written Constitution of independent India embodied both new ideas and elements inherited from earlier British statutes and reforms.

The historical development of constitutional arrangements in India can be traced through a series of statutes and regulations enacted by the British Parliament and by the East India Company. Each measure expanded, narrowed, or reorganised the powers of governance and laid institutional foundations that influenced the framing of the Indian Constitution.

Constitutional Development

Regulating Act, 1773

• This was the first significant intervention by the British Parliament to regulate the East India Company's affairs in India.
• It designated the Governor of Bengal as Governor-General (of Bengal) with a council to assist him.
• Warren Hastings became the first Governor-General of Bengal.
• An Executive Council of four members was created for the Governor-General (there was no separate legislative council under this act).
• Governors of Bombay and Madras were made subordinate to the Governor-General of Bengal.
• The Supreme Court at Fort William (Calcutta) was established in 1774 as a court of record.
• The Act prohibited Company servants from private trade and accepting bribes, and required accountability to the Court of Directors.

Amending Act, 1781

• The Supreme Court was given jurisdiction over all citizens of Calcutta and could take local religious and social customs into account.
• For cases involving amounts below £5,000, the Governor-General in Council was the highest court of appeal.

Pitt's India Act, 1784

• Distinguished between the Company's commercial functions (left with the Court of Directors) and its political functions (subject to the Board of Control).
• Established the Board of Control to supervise political affairs and reduced the Governor-General's council to three members.
• Placed Indian affairs under the increasing direct influence of the British Government, and recognised Company territories as "the British possession in India."
• Governor's councils were organised for Madras and Bombay.

Act of 1786

• Made the Governor-General Commander-in-Chief and empowered him to override his council in extraordinary circumstances.

Charter Act, 1793

• The power of the Governor-General to override his Council was extended to all future Governors-General.
• During the Governor-General's absence from Bengal, a vice-president chosen from civilian council members could act in his place.
• Members were to be paid salaries from Indian revenues.
• Provision was made for translation of laws into Indian languages.

Charter Act, 1813

• Ended the Company's monopoly of trade with India, though the tea monopoly with China continued for the moment.
• Allocated Rs. 1 lakh annually for the promotion of education and the revival of literature in India.

Charter Act, 1833

• Abolished the Company's commercial monopoly; the Company retained political functions only.
• Centralised administrative authority in India.
• Introduced a Law Member in the Governor-General's Executive Council (without a vote); Lord Macaulay was the first law member.
• Proposed the introduction of competitive examinations for civil service recruitment
• Made the Governor-General of Bengal the Governor-General of India; Lord William Bentinck is regarded as the first to serve with powers over all India.

Charter Act, 1853

• Separated legislative and executive functions of the Governor-General's Council.
• Expanded the Central Legislative Council by adding six additional members, including provincial representation.
• Formalised open competition as the basis for civil service recruitment (the Indian Civil Service opened in principle).
• Further strengthened parliamentary control over Indian legislation, which became decisive after the events of 1857.

Government of India Act, 1858

• Abolished Company rule and transferred sovereignty to the Crown.
• Authority over Indian affairs was vested in the Secretary of State for India, assisted by the Council of India.
• The Viceroy acted as the Crown's representative in India; Lord Canning became the first Viceroy.
• The Board of Control and Court of Directors were abolished.

Indian Councils Act,1861

• The Act introduced Indian representation in advisory institutions, with three Indians appointed to the Legislative Council.
• It established legislative councils at both the central and provincial levels.
• It recognised the portfolio system and introduced limited decentralisation by restoring legislative powers to the Bombay and Madras Presidencies.

Indian Councils Act, 1892

• Introduced the principle of election in an indirect and limited form for legislative councils.
• Allowed nomination of non-official members by specified local bodies (universities, district boards, municipalities).
• Gave councils the power to discuss the annual revenue and expenditure statement and to address questions to the Executive.

Minto-Morley Reforms (Indian Councils Act), 1909

• The Act introduced elections to legislative councils, marking the first attempt to introduce a representative and popular element in Indian administration.
• It renamed the Central Legislative Council as the Imperial Legislative Council.
• The strength of the Central Legislative Council was increased from 16 to 60 members.
• It introduced communal representation for Muslims by accepting the principle of separate electorates.
• For the first time, an Indian was appointed to the Viceroy's Executive Council-Satyendra Prasad Sinha, as the Law Member.

Montagu-Chelmsford Report and Government of India Act, 1919

• The Act is also known as the Montagu-Chelmsford Reforms.
• It clearly separated Central and Provincial subjects, with greater responsibility given to the provinces.
• The system of dyarchy was introduced at the provincial level.
• Under dyarchy, provincial subjects were divided into reserved and transferred categories.
  (i) Reserved subjects were administered by the Governor and his executive council and were not responsible to the Legislative Council.
  (ii) Transferred subjects were administered by ministers responsible to the Legislative Council.
• The Act introduced bicameralism at the Centre for the first time.
• The Central Legislature consisted of a Legislative Assembly (145 members) and a Legislative Council (60 members).
• It introduced direct elections, though based on a limited and restricted franchise.
• The Act provided that at least three members of the Viceroy's Executive Council (excluding the Commander-in-Chief) were to be Indians.
• It provided for the establishment of a Public Service Commission.

Government of India Act, 1935

• Proposed an All-India Federation of provinces and princely states (the federation did not materialise as envisaged).
• Introduced the three-list system: Federal, Provincial and Concurrent Lists to allocate legislative subjects.
• Vested residuary powers with the Governor-General.
• Abolished dyarchy in provinces and introduced provincial autonomy; in contrast, dyarchy at the Centre was proposed.
• Introduced bicameralism in six provinces and established a Federal Court.
• Abolished the Council of India.

Indian Independence Act, 1947

• Provided for the partition of British India into the independent Dominions of India and Pakistan from 15 August 1947.
• Transferred unlimited powers to the Constituent Assemblies of the two dominions to frame their own constitutions.
• Placed Governors-General and provincial Governors as constitutional heads of the new dominions.
• On 14 August 1947 the Central legislature ceased to exist and the newly constituted Constituent Assembly acted as the legislature for the Dominion until replaced by the Constitution.

The Making of the Constitution

In 1938, Jawaharlal Nehru formally articulated the demand for a Constituent Assembly to frame India's Constitution. The British government resisted this demand until the outbreak of the Second World War, when changing international circumstances compelled them to reconsider.

• In March 1942, the British government sent Sir Stafford Cripps, a member of the British Cabinet, to India with a draft declaration known as the Cripps Mission. The proposals were to be implemented after the war and included the following provisions:
  (i)The Constitution of India would be framed by an elected Constituent Assembly of the Indian people.
  (ii) India would be granted Dominion Status after the war.
  (iii) There would be an Indian Union comprising British Indian provinces and princely states; however, any province unwilling to accept the Constitution would be free to retain its existing constitutional position.
• Both the Indian National Congress and the Muslim League rejected these proposals. The Muslim League demanded the creation of Pakistan and insisted on a separate Constituent Assembly on communal lines.
• Subsequently, the British government sent the Cabinet Mission to India, which presented its proposals on 16 May 1946. The main features of the Cabinet Mission Plan were:
  (i) The formation of a Union of India comprising both British India and the princely states.
  (ii) A Union Executive and Legislature constituted of representatives from the provinces and states.
  (iii) The establishment of a Constituent Assembly elected indirectly by members of the provincial legislative assemblies to frame the Constitution.
• Elections to the Constituent Assembly were held, and the Muslim League initially participated but later boycotted the Assembly. The first meeting of the Constituent Assembly was held on 9 December 1946. As the Muslim League did not attend, the Assembly began functioning without its members, and the League demanded its dissolution on the grounds that it was not fully representative.
• On 20 February 1947, the British government announced that British rule in India would end by 30 June 1948. Lord Mountbatten succeeded Lord Wavell as Governor-General and introduced the Mountbatten Plan (3 June 1947), which provided for the partition of India. The provinces of Punjab and Bengal were to be partitioned, and referendums were to be held in the North-West Frontier Province and the Sylhet district of Assam.
• Based on this plan, the British Parliament passed the Indian Independence Act, 1947, which provided that from 15 August 1947, two independent Dominions-India and Pakistan-would be established. The Constituent Assemblies of both Dominions were given full sovereign powers to frame and adopt their respective Constitutions and to repeal any Act of the British Parliament, including the Indian Independence Act.
• The Constituent Assembly of India reassembled on 14 August 1947 as the sovereign Constituent Assembly of the Dominion of India. It consisted of 299 members, elected indirectly by the members of the provincial legislative assemblies, with seats allotted to the princely states.
• As a result of Partition under the June 3 Plan, 1947, the representatives of Punjab, Bengal, Sind, the North-West Frontier Province, Baluchistan, and the Sylhet district of Assam ceased to be members of the Indian Constituent Assembly, and fresh elections were held in West Bengal and East Punjab. Ultimately, 284 members were present and signed the Constitution on 24 January 1950, while the Constitution had been adopted earlier on 26 November 1949.

Drafting the Constitution 

• The Drafting Committee was appointed on 29 August 1947 with B.R. Ambedkar as Chairman and six other members: N. Gopalaswami Ayyangar, Alladi Krishnaswamy Ayyar, K.M. Munshi, Mohammad Saadullah, B.L. Mitter (replaced by N. Madhava Rao), and D.P. Khaitan (who died in 1948 and was replaced by T.T. Krishnamachari).
• The Draft Constitution was published in February 1948 for wider discussion. The Assembly considered the Draft during its sessions and finalised the text.
• According to Article 394, provisions relating to the citizenship elections, provisional Parliament and temporary and transitional provisions contained in Articles 5, 6, 7, 8, 9, 324, 366, 367, 379, 380, 388, 391, 392, and 393 came into force on the day of adoption (i.e. 26 November 1949) of the Constitution and the remaining provisions of the Constitution came into being on the day of the commencement (i.e. 26 January 1950) of the Constitution.
• The Constitution adopted on 26 November 1949 came into full force on 26 January 1950, the date chosen to honour the Declaration of Purna Swaraj of 1930.

Salient Features of the Indian Constitution

Written, Lengthy and Detailed Constitution

• The Constitution is a written document, its provisions are formally enacted and documented by the Constituent Assembly.
• It is one of the lengthiest constitutions in the world. Originally it had 395 Articles and eight Schedules; subsequent amendments increased both the number of Articles and Schedules.
• The detailed form was chosen to reduce ambiguity in interpretation and to incorporate features found useful in several other constitutions.
• It contains specific provisions on the functioning of Union and State governments, fundamental rights, directive principles and a wide range of administrative and institutional arrangements.

Partly Rigid and Partly Flexible

• A flexible constitution is amendable by a simple majority of Parliament; a rigid constitution requires a difficult procedure (for example, special majorities and state ratification).
• The Indian Constitution is neither very flexible nor very rigid. Some provisions of the Constitution can be amended by a simple majority of Parliament, like ordinary laws of the land while most of the provisions can only be amended by a two-thirds majority of Parliament.
• For very important provisions of the Constitution, such as the manner of election of the President and the extent of the legislative powers of the Union and the States, an amendment passed by a two-thirds majority of Parliament should also be ratified by at least one-half of the State legislatures.
• The Indian Constitution thus combines the flexibility of the British Constitution and the rigidity of the American Constitution. Jawaharlal Nehru, while justifying this nature of the Constitution, said, "Our Constitution is to be as solid and permanent as we can make it, yet there is no permanence in a constitution. There should be a certain amount of flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living vital organic people.

Quasi-Federal: Federal in Form, Strong Unitary Bias

• Our Constitution declares India a Union of States (federation). It prescribes a dual set of governments-the Union Government and the State Governments.
• The subjects of administration have also been classified into three lists-the Union List, the State List and the Concurrent List. Whereas subjects of national importance like currency, defense, railways, post and telegraph, foreign affairs, citizenship, survey and census have been assigned to the Union Government and placed under the Union List.
• Subjects of local importance like agriculture, law and order, health and entertainment have been assigned to the States and form a part of the State List.
• Both the Union Government and the State Governments operate within the spheres of their authority. The Union Parliament and the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrent subjects. These subjects are of common importance such as marriage and divorce, adoption, succession, transfer of property, preventive detention, education, civil and criminal law, etc.
• However, if there is a conflict between a Union law and a law passed by one or many State Legislatures, the law made by the Union Parliament would prevail over the State law.
• The Indian Constitution possesses other features of a federation too, for example, supremacy of the constitution. This means that the Union and the State Governments both operate within the limits set by the Constitution. Both the governments derive authority from the Constitution itself.
• Similarly, in all federal countries, the authority of the Court is a well established fact. This means that in case of a dispute between the Union Government and State Governments or between two or more State Governments, the verdict of the Court will be final. Not only this, the Supreme Court is given the responsibility of interpreting the Constitution in case of dispute or confusion. The Supreme Court of India is the guardian of the Constitution and fulfils its role as a Federal Court too.
• The Indian Constitution, though federal in form, has a strong unitary bias. The Central Government possesses extensive powers compared to the State Governments. The exercise of these powers by the Centre gives the Constitution the strength of a unitary government. Let us look at those provisions of the Indian Constitution that make it partly unitary. The Union Government can supersede the authority of the States both in the normal and abnormal times. The President of India can declare three different types of emergencies. During the operation of an emergency, the powers of the State Governments are greatly curtailed and the Union Government becomes all in all.
• Even in normal times, the Union Parliament can legislate upon a subject given in the State List, if the Rajya Sabha passes a resolution by a two-thirds vote that such legislation is necessary in the national interest.
• Moreover, the Indian Constitution, unlike the US Constitution, does not provide for double citizenship, division of public services or of the judiciary.
• Similarly, the States in India do not enjoy the right to secede from the Union nor do they enjoy equality of representation in the Council of States (Rajya Sabha).
• Another unitary feature of our Constitution is that it gives Union Parliament the power to alter the boundaries of the existing States or to carve out new States out of the existing ones. It is on account of these features that the Indian Constitution is said to be federal in form but unitary in spirit.

Influence of Other Constitutions

The Preamble: Nature, Purpose and Key Terms

The Preamble sets out the objectives and ideals which the Constituent Assembly intended the Constitution to serve. It was based on the Objective Resolution moved by Pandit Nehru and adopted by the Assembly.

• The Constitution (42nd Amendment) Act, 1976, added the words "Socialist", "Secular" and "Integrity" to the Preamble.
• The Preamble is generally regarded as non-justiciable in the sense that it does not confer enforceable individual rights, but it plays a interpretative role; it cannot override specific constitutional provisions.
• The Supreme Court in Kesavananda Bharati v. State of Kerala (1973) (the landmark Basic Structure case) held that the Preamble is part of the Constitution and that Parliament's power to amend the Constitution does not extend to destroying the basic structure embodied in the Preamble and elsewhere.
• In later jurisprudence, notably the S.R. Bommai (1994) case, the Preamble's values were referred to as integral to the Constitution's character: democracy, federal structure, secularism and unity and integrity of the nation were held to be basic features.

 Key Words in the Preamble

 Sovereign

• The word 'Sovereign' emphasises that there is no authority outside India on which the country is in any way dependent.

 Socialist

• By the word 'Socialist', the Constitution means the achievement of a socialistic pattern of society through democratic means.

 Secular

• India is a 'Secular State' does not mean that India is non-religious or irreligious, or anti-religious, but simply that the State in itself is not religious and follows the ancient Indian principle of "Sarva Dharma Samabhava".
• It also means that the State shall not discriminate against the citizens in any way on the basis of religion.

 Democratic

• The term 'Democratic' means that the rulers are elected by the people, and they only have the authority to run the government.

 Republic

• The word 'Republic' means that there exists no hereditary ruler in India and all the Authorities of the State are directly or indirectly elected by the people.

The Preamble states that the objectives to be secured to every citizen are

Justice: social, economic, and political

• Regarding justice, one thing is clear that the Indian Constitution expects political justice to be the means to achieve social and economic justice, by making the State more and more welfare-oriented in nature.
• Political justice in India is guaranteed by universal adult suffrage without any sort of qualification.
• While social justice is ensured by abolishing any title of honor (Art. 18)
  and untouchability (Art. 17), economic justice is guaranteed primarily through the Directive Principles.

Liberty: of thought, expression, belief, faith, and worship

• Liberty is an essential attribute of a free society that helps in the fullest development of the intellectual, mental, and spiritual faculties of an individual.
• The Indian Constitution guarantees six democratic freedoms to individuals under Art 19 and the Right to freedom of religion under Arts 25-28.

Equality: of status, opportunity

• The fruits of liberty cannot be fully realized until there is an equality of status and opportunity.
• Our Constitution makes it illegal, any discrimination by the State only on the basis of religion, caste, sex, or place of birth (Art. 15) by throwing open public places to all, by abolishing untouchability (Art. 17) and by abolishing titles of honor (Art 18).
• However, to bring the hitherto neglected sections of the society into the national mainstream, the Parliament has passed certain laws for the SCs, STs, OBCs (Protective Discrimination).

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. However, fraternity is an evolving process and by the 42nd amendment, the word 'integrity' was added, thus giving it a broader meaning.
• KM Munshi termed it as 'the Political Horoscope'. Earnest Barker calls it the 'key to the Constitution'. Thakurdas Bhargava recognized it as the 'Soul of the Constitution'.
• The term 'Socialistic pattern of society' was adopted as a goal of the Indian State by the Congress in 1955 in Avadi Session.

Composition and Structure of the Constitution

The Constitution is organised into Parts, Articles and Schedules .The Indian constitution consists of 22 parts, 395 articles, and 12 Schedules (initially 8 schedules were there) which are as follow:

Parts of the Constitution

• Part I - Union and its Territory.
• Part II - Citizenship.
• Part III - Fundamental Rights.
• Part IV - Directive Principles of State Policy. (Fundamental Duties were later inserted as Part IV-A by amendment.)
• Part V - The Union.
• Part VI - The States.
• Part VII - States in the B part of the First Schedule (repealed by amendment when reorganisation made it unnecessary).
• Part VIII - Union Territories.
• Part IX - Panchayats and local self-government.
• Part X - Scheduled and Tribal Areas.
• Part XI - Relations between the Union and the States.
• Part XII - Finance, Property, Contracts and Suits.
• Part XIII - Trade and Commerce within India.
• Part XIV - Services under the Union and the States; Tribunals.
• Part XV - Elections.
• Part XVI - Special Provisions relating to certain classes.
• Part XVII - Official Language provisions.
• Part XVIII - Emergency Provisions.
• Part XIX - Miscellaneous.
• Part XX - Amendment of the Constitution.
• Part XXI - Temporary, Transitional and Special Provisions.
• Part XXII - Short title, commencement, authoritative text in Hindi and repeals.

Schedules

There are 12 Schedules in the Indian Constitution. Schedules can be added to the constitution by amendment.

• States and Union Territories;
• Emoluments for High-Level Officials;
• relates to different forms of Oaths;
• Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
• Provisions for the administration and control of Scheduled Areas and Scheduled Tribes;
• Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram;
• Relates to three types of lists: The Union (central government), State, and Concurrent (dual) lists;
• The Official Languages Recognised under the constitution ( There are 22 languages in this schedule; English is not mentioned in this schedule).
• Article 31B-Validity excluded from Court's Review (land and tenure reforms; the association of Sikkim with India). It was added by the 1^st Constitution Amendment Act in 1951. It is the largest schedule of the Constitution.
• Anti-Defection provisions for Members of Parliament and Members of the State Legislatures (added by 52^nd Constitution Amendment Act in 1985).  
• It relates to functions of Panchayats (Rural Development); added by the 73^rd Constitution Amendment Act in 1992.
• It relates to functions of Municipalities (Urban Planning); added by the Constitution Amendment Act in 1992.

Important Doctrines and Judicial Interpretations

• Basic Structure Doctrine: In Kesavananda Bharati v. State of Kerala the Supreme Court held that Parliament cannot use its amending power to destroy the basic structure of the Constitution. Elements such as democracy, rule of law, separation of powers, federalism, secularism and judicial review have been read as part of the basic structure by the Court in various cases.
• Preamble as a Guide: The Preamble, though not a source of enforceable rights by itself, is used by courts to interpret ambiguous provisions and to determine the constitutional vision and values.
• Judicial Review: The Supreme Court and High Courts are the guardians of the Constitution; they can strike down laws and executive actions inconsistent with constitutional provisions.