LawPage

Notes and Articles for Law students

User Tools

Site Tools


constitutional_law:part-1:constitution-nature

The Constitution Of India – Its Nature

A Constitution is a set of laws and rules, setting up the machinery of the government of a State which defines and determines the relations between the different institutions and areas of the government, the executive, the legislature and the judiciary, the central, the regional and the local governments. Every Constitution aims to build up a governmental structure based upon certain basic and well established principles. Although some of these principles are common to most of the Constitutions, there are others which vary from Constitution to Constitution.

The Constitution of India is not an exception to this rule and it has its own basic principles. The Constitution of India is the supreme law of the land. It lays down the frame- work defining fundamental political principles, establishes the structure, procedures, powers and duties of government and spells out the fundamental rights, directive principles and duties of the citizens. It is the largest written Constitution of any sovereign country in the world, containing more than 395 Articles and divided into 24 parts and 12 schedules passed and adopted by the Constituent Assembly on 26th November, 1949. It came into effect on 26th January, 1950. The Constitution declares the Union of India a Sovereign, Socialist, Secular, Democratic Republic, assuring its citizens of Justice, Equality and Liberty and endeavors to promote Fraternity among them all.

The Nature of the Indian State

The main characteristics of the Indian State are following which highlight the nature of the State itself:

Liberal – Democratic State

The model of a liberal – democratic State signifies a political system in which democracy or ‘the rule of Law’ prevails to make the regime ‘legitimate’ in the real sense of the term. The machinery of government is run by the chosen representatives of the people who are accountable to them for their policies and actions. The liberal democratic State is based on the assumption that the government is not an end in itself but a means for the realisation of the greatest good of the greatest numbers. Besides, the authority of the government is not absolute but limited by the laws.

All this brings us to the point that India stands for the preservation of the entire paraphernalia of a Liberal – Democratic State. It has been correctly asserted that the Constitution facilitates for adult franchise, periodic, elections, representative and responsible government, independent judiciary, rule of law and separation of powers.

Federal State

Mahatma Gandhi talked about decentralisation of powers of the State in the Indian context. All the powers of economic development and social change are vested in the State. The State has been bestowed with vast powers in the field of agriculture as well as industrial development. In the words of Rajni Kothari, ‘the ideology of a stronger and centralised State and the cult of personality have brought the country close to a centralised State’.

A Welfare State

The framers of the Indian Constitution incorporated many provisions to make India a Welfare State. The basic aims of a Welfare State were clearly included in the Preamble to the Constitution, and virtually in all provisions contained in Part IV of the Constitution, containing the Directive Principles of State Policy. Article 38 states : “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life.”

Caste-ridden Society

A system of hierarchical social organisation was evolved and practiced by our ancestors from the beginning of the early civilisation, which is the basic foundation of India’s social structure. The institution of caste determines a person’s place right from the day he/she is born, and inherits his occupation from his father and, in turn, passes it on to his descendants. What is significant about the caste system is that castes are forced not only among the Hindus, but also to some extent among the Indian Muslims, Christians, Sikhs, Jains and Jews etc.

Multi-religious Society

There is no homogeneity on the basis of religion. The Indian population is divided into Hindus, Muslims, Buddhist, Paris and Christians. It is a fact that there is not a single community which is not diverse. Even the personal laws are not uniform.

Besides these social, cultural, religious and racial diversities, India remains a largely unified society. It is surprising that beneath the bewildering diversity of religion, language and customs of this vast country, the underlying unity is remarkable. India is a political entity, every part of which is governed by the same Constitution.

The Constituent Assembly

A Constituent Assembly was constituted for formulating or adopting a new Constitution. The concept of a Constituent Assembly implies the right of people to determine their own future and decide the nature and type of policy under which they would like to live.

The enormous task of drafting India’s Constitution was taken up by the will of the Indian people. The Constitution for India was drafted during the years from December 1946 to November 1949. During this period, it held eleven sessions and performed real work for 165 days. The historic document –free India’s Constitution was passed and adopted by the Assembly on November 26, 1949 and it came into force on January 26, 1950.

In all, the Constituent Assembly was to have 389 members. As many as 296 of them were to the elected from British India and 93 were to be representatives of the native states. The members of the Constituent Assembly were indirectly elected by the members of the then existing Provincial Assemblies. In addition members were also nominated by the princely states. For elected members seats were reserved on communal basis. India was one and undivided when the Constituent Assembly was constituted. However, at the time of independence the Muslim League bycotted the Assembly. As a result, members representing the areas included in Pakistan ceased to be members of India’s Constituent Assembly. Hence, out of 296 elected members only 229 remained as on 31st December 1947. The Constituent Assembly was dominated by members belonging to Congress. Within the Congress, mostly all the leaders of the freedom movement were members of the Assembly. Out of the 229 members of the Constituent Assembly 192 belonged to Congress, 29 to Muslim Leagne, 1 Akali and seven were independent members.

The First meeting of the Constituent Assembly was presided over by Dr. Sachidanand. Later Dr. Rajendra Prasad was elected the President of Constituent Assembly. The members of the Constituent Assembly were not selected purely on party basis, but were drawn from all walks of life and represented almost every section of the Indian population. The moving spirit of the Assembly was Jawaharlal Nehru, the first Prime Ministers of Free India. In the opinion of Subhash Kashyap, “While Nehru fashioned its structure and shape, most significantly, Nehru gave to the Constitution of India its spirit and soul, its philosophy and its vision”.

Committees of the Constituent Assembly

The Constituent Assembly had a total of more than fifteen Committees, prominent of which were : the Drafting Committee, the Union Power Committee, the Union Constitution Committee, the Advisory Committee on Minorities and Fundamental Rights, the Committee on Chief Commissioner’s Provinces, the Committee on Financial Provisions of the Union Constitution and the Advisory Committee on Trible Areas. These Committees submitted their reports between April – August, 1948 which were considered by the Constituent Assembly. On the basis of these decisions, the final shape and form was given by Dr. B. R. Ambedkar and his colleagues in the Drafting Committee.

The Constituent Assembly appointed a Drafting Committee on 29th August, 1947 to consider the Draft Constitution. Dr. B. R. Ambedkar was appointed its Chairman and was assisted by some other members. The Drafting Committee under the Chairmanship of Dr. B. R. Ambedkar embodied the decisions of the Constituent Assembly with alternative and additional proposals in the form of a ‘Daft Constitution of India’ was first published in February 1948. The Draft Committee took less than six months to prepare the Draft.

Objectives of the Constitution

Quite a good number of political thinkers are of the opinion that the Constitution of independent India was framed in the background of about two hundred years of the colonial rule, a mass based freedom struggle, the national movement, partition of the country and spread of communal violence. The framers of the Constitution were concerned about the aspirations of the people, integrity and unity of the country and establishment of a democratic society. Different members of the Constituent Assembly held different ideological views. Some of them were inclined to socialist principles, still others laid emphasis on Gandhian thinking. Most of them agreed to give India a ‘Constitution’ which will fulfill the cherished ideals of the people.

As a result, conscious efforts were made to have consensus on different issues and principles to avoid disagreements and conflicts. This consensus came out in the form of the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru in the Constituent Assembly on 17 December, 1946 which was almost unanimously adopted on January 22, 1949. In the light of these ‘Objectives’ the Constituent Assembly completed its task by November 26, 1949. The Constitution was enforced with effect from January 26, 1950. From this auspicious day India became a Republic. Exactly twenty years before the first independences day was celebrated on January 26, 1930 as decided by the Lahore Session of the Congress on December 1929. Hence, January 26, was decided as the day to enforce the Constitution of India. Pandit Jawaharlal Nehru commenting on the aforesaid Resolution said: ‘Objective Resolution’ is something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication.