K.R.

MAGALAM UNIVERSITY
GURUGRAM

TOPIC: CONSTITUTION OF INDIA

Submitted to: Mr. Kulvinder Singh

Submitted by: Neha Vats
BALLB IIIrd Semester
1805170025
 1. INTRODUCTION
The Constitution of India is the supreme law of India. It frames fundamental
political principles, procedures, practices, rights, powers, and duties of the
government. It imparts constitutional supremacy and not parliamentary
supremacy, as it is not created by the Parliament but, by a constituent assembly,
and adopted by its people, with a declaration in its preamble. Parliament cannot
override it.

The world’s longest constitution is the Indian’s constitution. At its

commencement, it had 395 articles in 22 parts and 8 schedules. It consists of
approximately 145,000 words, making it the second largest active constitution in
the world. Currently, it has a preamble, 25 parts with 12 schedules, 5 appendices,
448 articles, and 101 amendments.

1. HISTORY
The constitution of India was adopted on the 26th of November, in the year 1949.
However, it came to effect on the 26th of January, 1950. 26th of January is
celebrated as the Republic Day of India.

It was adopted by the Constitution Assembly. Dr. B. R. Ambedkar , the chairman

of the Drafting Committee, is widely considered to be the architect of the
Constitution of India. After, the adoption of the constitution, The Union of India
became the contemporary and modern Republic of India.

HISTORY OF INDIAN CONSTITUTION

The history of the Constitution of India is very insightful as it explains exactly

how it came into being. It also explains why India chose the Parliamentary form
of democracy in its modern form.
The British came to India in the 17th century initially for trading only. Eventually,
after slowly gaining more power, they attained the rights to collect revenue and
govern themselves. In order to do this, they enacted various laws, rules and
regulations.

According to the Charter Act of 1833, the Governor General of Bengal became
the Governor General of India. It also created a Central Legislature, which, in a
way, made the British supreme rulers of India.

The rule of the Company itself finally ended with the Government of India Act in
1858. As a result, the British Crown became ruler of India and administered the
country through its government.

The Indian Councils Acts of 1861, 1892 and 1909 started giving representation to
Indians in the Viceroy’s councils. They also restored legislative powers back to
some provinces. In other words, they adopted decentralization of powers between
the Centre and the provinces.

The Government of India Act, 1919:

According to this Act, legislative councils came into existence in all provinces of
the government. In other words, the British adopted a bicameral structure with
separate central and provincial governments. This was also the first time when
people could elect their own representatives through direct elections. The
Constitution later adopted this quasi-federal and bicameral structure.

The Government of India Act, 1935

The enactment of this law is one of the most important events in the history of the
Constitution. Firstly, this law divided powers of governance into a Federal List, a
Provincial List and a Concurrent List. Even the Indian Constitution adopted such
division of powers between the Central and state governments.

Secondly, this Act granted more autonomy of self-governance to the provinces. It

even established the Federal Court, which we now refer to as the Supreme Court
of India.

The Indian Independence Act of 1947

This Act marks the final step in the departure of the British from India. India
became a truly independent and sovereign state after this Act. The Act established
governments at the central and provincial levels. It also laid down the foundation
of the Constituent Assembly.

Constituent Assembly

Members of the provisional assemblies indirectly elected members of the

Constituent Assembly. This assembly served as the first ‘Parliament’ of
independent India and first met on 9 December 1946 in Delhi. After
Independence, the Assembly elected Dr Rajendra Prasad as its Chairman and
began drafting the Constitution.

Dr Ambedkar became the head of the Drafting Committee. This is why he is

called the Father of the Constitution. After more than two years of deliberations,
the Assembly finally approved the Constitution on 26 November 1949. This is
why we celebrate this day as Constitution Day today.
The Assembly finally adopted the Constitution on 26 January 1950. India
formally became a sovereign republic that day. This is why we celebrate 26
January as India’s Republic Day.

2. Salient Features of the Indian Constitution

1. The lengthiest Constitution in the world

The Indian Constitution is the lengthiest and the most detailed of all the written
Constitutions of the world containing 449 articles in 25 parts, 12 schedules, 5
appendices and 101 Amendments.

2. Parliamentary form of Government

The constitution of India establishes a parliamentary form of a government both
at the Centre and the State. The essence of the parliamentary government is its
responsibility to the Legislature. The president is the constitutional head of the
State but the real executive power is vested in the council of ministers whose
head is the Prime Minister.

3. Unique blend of rigidity and flexibility

It has been the nature of the amending process itself in federations which had
led political scientists to classify federal Constitution as rigid.

4. Fundamental Rights
The incorporation of a formal declaration of Fundamental Rights in part III of
the Constitution is deemed to be a distinguishing feature of a democratic
State. These rights are prohibitions against the State. The State cannot make a
law which takes away or abridges any of the rights of the citizens guaranteed in
part III of Constitution.

5. Directive Principles of State policy (DPSP)

The Directive Principles of State Policy contained in Part IV of the
Constitution, it set out the aims and objectives to be taken up by the States in
the governance of the country.

6. A federation with strong centralising tendency

The most remarkable feature of the Indian Constitution is that being a federal
Constitution it acquires a unitary character during the time of emergency.
During the proclamation of emergency the normal distribution of powers
between Centre and State undergoes a vital change. The union parliament is
empower to legislate on any subject mentioned in the state list. The financial
arrangements between the Centre and State can also be altered by the Union
Government.

7. Adult Suffrage
The old system of communal electorates has been abolished and the uniform
adult suffrage system has been adopted. Under the Indian Constitution every
man and women above 18 years of age has been given the right to elect
representatives for the legislature.

8. An Independent Judiciary
An independent and impartial judiciary with power of judicial review has been
established under the Constitution of India. It is a custodian right of citizens.
Besides, in a federal Constitution it plays another significant role of determining
the limits of power of the Centre and States.

9. A Secular State
A Secular State has no religion of its own as recognised religion of State. It
treats all religions equally. Articles 25 to 28 of the Indian Constitution give
concrete shape to this concept of secularism. It guarantees to every person the
freedom of conscience and the right to profess, practice and propagate religion.
In a Secular state, the state only regulate the relationship between man and man.

10. Single Citizenship

The American constitution provides for dual citizenship, i.e., the citizen of
America and a state citizenship. But in India there is only one citizenship, i.e.,
Citizen of India. No state citizenship like citizen of Assam, Citizen of Delhi.
Every Indian is Citizen of India and enjoy the same rights of citizenship no
matter in what state he resides.

3. PREAMBLE
The Preamble states:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India

into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity
of the Nation;

The key words in the Preamble are explained below:

Sovereign

The Preamble proclaims that India is a Sovereign State. 'Sovereign' means that
India has its own independent authority and it is not a dominion or dependent
state of any other external power. The Legislature of India has the powers to
enact laws in the country subject to certain limitations imposed by the
Constitution.

Socialist

The word 'Socialist' was added to the Preamble by the 42nd Constitutional
Amendment in 1976. Socialism means the achievement of socialist ends
through democratic means. India has adopted 'Democratic Socialism'.
Democratic Socialism holds faith in a mixed economy where both private and
public sectors co-exist side by side. It aims to end poverty, ignorance, disease
and inequality of opportunity.

Secular

The word 'Secular' was incorporated in the Preamble by the 42nd Constitutional
Amendment in 1976. The term secular in the Constitution of India means that
all the religions in India get equal respect, protection and support from the
state. Articles 25 to 28 in Part III of the Constitution guarantee Freedom of
Religion as a Fundamental Right.

Democratic

The term Democratic indicates that the Constitution has established a form of
government which gets its authority from the will of the people expressed
in an election. The Preamble resolves India to be a democratic country. That
means, the supreme power lies with the people. In the Preamble, the term
democracy is used for political, economic and social democracy. The
responsible representative government, universal adult franchise, one vote one
value, independent judiciary etc. are the features of Indian democracy.

Republic

In a Republic, the head of the state is elected by the people directly or

indirectly. In India, the President is the head of the state. The President of India
is elected indirectly by the people; that means, through their representatives in
the Parliament and the State Assemblies. Moreover, in a republic, the political
sovereignty is vested in the people rather than a monarch.

Justice

The term Justice in the Preamble embraces three distinct forms: Social,
economic and political, secured through various provisions of the Fundamental
and Directive Principles.
Social justice in the Preamble means that the Constitution wants to create a
more equitable society based on equal social status. Economic justice means
equitable distribution of wealth among the individual members of the society so
that wealth is not concentrated in few hands. Political Justice means that all the
citizens have equal right in political participation. Indian Constitution provides
for universal adult suffrage and equal value for each vote.

Liberty

Liberty implies absence of restraints or domination on the activities of an

individual such as freedom from slavery, serfdom, imprisonment, despotism etc.
The Preamble provides for liberty of thought, expression, belief, faith and
worship.

Equality

Equality means absence of privileges or discrimination against any section

of the society. The Preamble provides for equality of status and opportunity to
all the people of the country. The Constitution strives to provide social,
economic and political equality in the country.

Fraternity

Fraternity means feeling of brotherhood. The Preamble seeks to promote

fraternity among the people assuring the dignity of the individual and the unity
and integrity of the nation.

4. RULE OF LAW
The term ‘Rule of law’ is a phrase that is very commonly used whenever
law is being studied. It is derived from the French phrase ‘la principe de
legalite’ which means the ‘principal of legality’. It refers to ‘a
government based on principles of law and not of men’. In other words,
the concept of ‘la Principe de legalite’ is opposed to arbitrary powers.
‘Rule of Law’ as defined by Dicey, means “the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness, of prerogative, or even
wide discretionary authority on the part of the government.”

The concept of rule of law is a very dynamic concept, capable of

interpretations to enable the successful working of a democracy. In
simple terms, Rule of Law is the restriction on the arbitrary exercise of
power by subordinating it to well-defined and established laws. Law
should govern the nation and not the arbitrary decisions by individuals.
Thus, Rule of Law embodies the doctrine of supremacy of law.

Rule of Law in India

The concept of Rule of Law permeates into the Indian Legal System
through the Constitution. Part III of the Constitution of India acts as a
restraint on the various organs exercising powers. While conferring the
rights on the citizens, it imposes restrictions on the power that can be
exercised. Under our Constitution, we have adopted the British System of
Rule of Law. Absence of arbitrary power is the first essential of Rule of
Law upon which our whole constitutional system is based. Governance
must be by rule, and not arbitrary, vague and fanciful. Under our
Constitution, the Rule of Law pervades over the entire field of
administration and every organ of the state is regulated by Rule of Law.
The concept of Rule of Law cannot be upheld in spirit and letter if the
instrumentalities of the state are not charged with the duty of discharging
their function in a fair and just manner.

Judiciary and Rule of Law:

The Indian Judiciary has played an instrumental role in shaping Rule of

Law in India. By adopting a positive approach and dynamically
interpreting the constitutional provisions, the courts have ensured that the
Rule of Law and respect for citizens’ rights do not remain only on paper
but are incorporated in spirit too.

In the case of A.D.M. Jabalpur v. Shiv Kant Shukla , KHANNA, J.

observed:

“Rule of Law is the antithesis of arbitrariness . Rule of Law is now the

accepted norm of all civilized societies. Everywhere it is identified with
the liberty of the individual. It seeks to maintain a balance between the
opposing notions of individual liberty and public order.”

In Bachhan Singh v. State of Punjab it was held that the Rule of Law has
three basic and fundamental assumptions. They are:-

1) Law making must be essentially in the hands of a democratically

elected legislature;

2) Even in the hands of the democratically elected legislature, there

should not be unfettered legislative power; and

3) There must be independent judiciary to protect the citizens against

excesses of executive and legislative power.

The first case which stirred a debate about Rule of Law was Shankari
Prasad v. Union of India where the question of amendability of
fundamental rights arose. The question lingered and after witnessing the
game play between the government and the judiciary, the issue was
finally settled in the case of Kesavananda Bharati v. State of Kerala. In
this case, the Hon’ble Supreme Court held that the Rule of Law is the
“basic structure” of the Constitution. The Hon’ble Supreme Court by
majority overruled the decision given in Golak Nath’s case and held that
Parliament has wide powers of amending the Constitution and it extends
to all the Articles, but the amending power is not unlimited and does not
include the power to destroy or abrogate the basic feature or framework
of the Constitution. There are implied limitations on the power of
amendment under Art 368, which are imposed by Rule of Law. Within
these limits Parliament can amend every Article of the Constitution.
Justice H R Khanna played a vital role in preserving the Rule of law
although he concurred with the majority decision.

In the case of Indira Nehru Gandhi v. Raj Narayan, the Apex Court held
that Rule of Law embodied in Article 14 of the Constitution is the “basic
feature” of the Indian Constitution and hence it cannot be destroyed even
by an amendment of the Constitution under Article 368 of the
Constitution. Article 329-A was inserted in the Constitution under 39th
amendment, which provided certain immunities to the election of office
of Prime Minister from judicial review. The Supreme Court declared
Article 329-A as invalid, since it was clearly applicable only to the then
current prime minister and was an amendment to benefit only one
individual. It was decided that the law of the land is supreme and must
prevail over the will of one person.
In the case of Maneka Gandhi v. Union of India, the Hon’ble Supreme
Court established the Rule of Law that no person can be deprived of his
life and personal liberty except procedure establish by law under Article
21 of the Constitution. Thus, Article 21 requires the following conditions
to be fulfilled before a person is deprived to his life and liberty:

That there must be a valid law.

The law must provide procedure.

The procedure must be just, fair and reasonable.

The law must satisfy the requirement of Article 14 and 19.

The Supreme Court observed in Som Raj v. State of Haryana [xxi], that
the absence of arbitrary power is the primary postulate of Rule of Law
upon which the whole constitutional edifice is dependant. Discretion
being exercised without any rule is a concept which is antithesis of the
concept.

Another facet of Rule of Law in India is the independence of judiciary

and power to judicial review. The Supreme Court in the case Union of
India v. Raghubir Singh that it is not a matter of doubt that a
considerable degree of principles that govern the lives of the people and
regulate the State functions flows from the decision of the superior courts.
Rule of Law as has been discussed postulates control on power. Judicial
review is an effective mechanism to ensure checks and balances in the
system. Thus, any provision which takes away the right to judicial review
is seen to go against the very fibre of Rule of Law. In the case of S.P.
Sampath Kumar v. Union of India the courts have reiterated that judicial
review is part of the basic structure of the Constitution.

In India, the meaning of rule of law has been expanded. It is regarded as a

part of the basic structure of the Constitution and, therefore, it cannot be
abrogated or destroyed even by Parliament. The ideals of the
Constitution- liberty, equality and fraternity have been enshrined in the
preamble. Constitution makes the supreme law of the land and every law
enacted should be in conformity to it. Any violation makes the law ultra
vires. Rule of Law is also reflected in the independence of the judiciary.
 5. SEPARATION OF POWER

In simple words, the theory of Separation of Powers advocates that the three
powers of the government should be used by three separate organs. Legislature
should use only law making powers, Executive should undertake only law
enforcement functions, and Judiciary should perform only adjudication/Judicial
functions. Their powers and responsibilities should be clearly defined and kept
separate. This is essential for securing the liberty of the people.

Separation of Powers and Checks and Balances:

Further for using the theory of Separation of Powers, we need the adoption of
another theory i.e. the theory of Checks and Balances. Under this theory each
organ, along with its own power, enjoys some checking powers over the other
two organs. In the process a system of checks and balances governs the inter-
organ relations.

The theory of Checks and Balances holds that no organ of power should be
given unchecked power in its sphere. The power of one organ should be
restrained and checked with the power of the other two organs. In this way a
balance should be secured which should prevent any arbitrary use of power by
any organ of the government.

The legislative power should be in the hands of the legislature but the executive
and judiciary should have some checking powers over it with a view to prevent
any misuse or arbitrary use of legislative powers by the legislature. Likewise,
the executive powers should be vested with the executive but legislature and
judiciary should be given some checking powers over it.