Constitution: Why and How

What is a Constitution?
Each society consists of some set of rules or ideals that make it
what it is and differentiate it from other kinds of societies. In
large societies, these rules are formulated through consensus,
and in modern countries, this consensus is usually available in
written form.
On similar lines, a Constitution is a body or a document which
consists of certain fundamental rules and principles that all
persons in a country can agree upon as the basis of the way in
which they want the country to be governed.
Who can decide which rules are the best to suite for a society?
• The constitution specifies the basic allocation of power in
a society.

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 It decides who gets to decide what the laws will be.
•

In the Indian Constitution, it is specified that in most

•

instances, Parliament gets to decide laws and policies and

that Parliament itself be organized in a particular manner.
Purpose and functions of a Constitution
• Lays out certain ideals that form the basis of the kind of
country that we as citizens aspire to live in.
• Defines the nature of a country’s political system; plays a
crucial role in laying out certain important guidelines that
govern decision-making within these societies.
• Provides a set of basic rules that allow for minimal
coordination amongst members of society.
• Provides safeguards against the leaders who might
misuse their authority—sets some limits on what a
government can impose on its citizens. These limits are
fundamental in the sense that the government may never
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 trespass them. (Ex – Aseem Trivedi, Shreya Singal Case,
Section 66A of IT Act)
• Protects minorities from the tyranny of the majority (i.e.
from inter-community and intra-community domination (Ex
– Apartheid Movement in South Africa)
• Constitution saves us from ourselves (This may sound
strange but what is meant by this is that we might at times
feel strongly about an issue that might go against our
larger interests and the Constitution helps us guard
against this.)
• It helps to protect us against certain decisions that we
might take that could have an adverse effect on the larger
principles that the country believes in. Therefore, the
constitution sets authoritative constraints upon what one
may or may not do. (Ex – Cow slaughter, Ghar Wapsi
issue)
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 • Enables the government to fulfill the aspirations of a
society and create conditions for a just society. (Directive
Principles of State Policy, DPSP, and various acts)
• Constitution expresses the fundamental identity of a
people.

In many Countries, Constitutions remain defunct. Why?

• Because they are crafted by military leaders or leaders
who are not popular. (Ex. Junta rule of Myanmar, Nepal’s
Constitution)
• Crafted by leaders who do not have the ability to carry the
people with them.

Why the Constitution of countries like India, South Africa,

and the United States is the most successful?

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 • The Constitutions were created in the aftermath of popular
national movements and were crafted by popular leaders
who had the ability to take forward the citizens with them
and were highly credible— drawing upon a long history of
the nationalist movement that had a remarkable ability to
take along different sections of society together. (Ex –
Nehru, B.R.Ambedkar, etc.)
• The Constitution drew enormous legitimacy from the fact
that it was drawn up by people who enjoyed immense
public credibility, who had the capacity to negotiate and
command the respect of a wide cross-section of society,
and who were able to convince the people that the
constitution was not an instrument for the aggrandizement
of their personal power.

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 • In some countries (not India) Constitution was framed on
the basis of a full-fledged referendum, where all the
people vote on the desirability of a constitution.

Therefore, the authority of people who enact the Constitution

helps determine in part its prospects for success.
The Hallmark of a successful constitution/an effective
constitution is one which –
• Gives everyone in society some reason to go along with
its provisions.
• Does not allow permanent majorities to oppress minority
groups within society.
• Does not systematically privilege some members at the
expense of others or that systematically entrenched the
power of small groups in society.
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 • Does not stifle the identity of any group.
• Has to convince people that it provides the framework for
pursuing basic justice.
• Preserves the freedom and equality of all its members.
• Fragments power in society intelligently so that no single
group can subvert the constitution
• Ensures that no single institution acquires a monopoly of
power
• Provides for balanced institutional design – i.e., an
intelligent system of checks and balances
• Strikes the right balance between certain values, norms,
and procedures as authoritative, and at the same time
allow enough flexibility in its operations to adapt to
changing needs and circumstances
• Is not too rigid or too flexible

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Such a Constitution can ensure that it will survive as a
document respected by people.
How was the Indian Constitution made?
• Constitution was made by the Constituent Assembly
which had been elected for undivided India.
• First sitting on 9 December 1946 and re-assembled as
Constituent Assembly for divided India on 14 August
1947.
• Much before the Constituent Assembly finally came into
being, the demand for such a constituent assembly was
first echoed by Dr. Rajendra Prasad (in 1946).
• (Rajendra Prasad quoted Mahatma Gandhi that “swaraj
would mean wishes of the people as expressed through
their freely chosen representatives”).

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 • However, the idea of a constituent assembly to frame a
constitution for India was first mooted by M. N. Roy in
1934.
• Members were elected by indirect election by the
members of the Provisional Legislative Assemblies that
had been established in 1935.
• The Constituent Assembly was composed roughly along
the lines suggested by the plan proposed by the
committee of the British cabinet, known as the Cabinet
Mission.

Cabinet Mission Plan:

According to this plan –

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 • Each Province and each Princely State or group of States
were allotted seats proportional to their respective
population roughly in the ratio of 1:10,00,000.
• The seats in each Province were distributed among the
three main communities, Muslims, Sikhs, and General, in
proportion to their respective populations.
• Members of each community in the Provisional Legislative
Assembly elected their own representatives by the
method of proportional representation with a single
transferable vote.
• The method of selection in the case of representatives of
Princely States was to be determined by consultation.

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What is a Constituent Assembly?
• A body of representatives is composed of drafting a
constitution.
• In our times, we have recently seen how Nepal’s
constituent assembly has drafted its constitution recently.
We note that drafting the constitution is the only function
of a constituent assembly.
• Once the constitution is ready and adopted; the assembly
is dissolved.
• Further, since members of the constituent assembly are
representatives (elected or unelected); it’s a form of
representative democracy.

About Objective Resolutions:

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 • Moved by Nehru in 1946; defined the aims of the
Constituent Assembly.
• This resolution encapsulated the aspirations and values
behind the Constitution.
• Based on this resolution, our Constitution gave
institutional expression to these fundamental
commitments: equality, liberty, democracy, sovereignty,
and cosmopolitan identity.

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Constitution of India: Drawn From Various Sources

Borrowed Features of
S.No Countries Indian Constitution
(a) Concurrent list
(b) Freedom of trade,
commerce, and
intercourse
(c) Joint-sitting of the two
1. Australia Houses of Parliament
(a) Federation with a
strong Centre
(b) Vesting of residuary
powers in the Centre
2. Canada (c) Appointment of state
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 governors by the Centre
(d) Advisory jurisdiction of
the Supreme Court
(a) Directive Principles of
State Policy
(b) The nomination of
members to Rajya Sabha
(c) Method of election of
3. Ireland the president
Procedure Established by
4. Japan law
Soviet Union
(USSR) (now, (a )Fundamental duties
5. Russia) (b) Ideals of justice

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 (social, economic, and
political) in the Preamble
(a) Parliamentary
government
(b) Rule of Law
(c) Legislative procedure
(d) Single Citizenship
(e) Cabinet system
(f) Prerogative writs
(g) Parliamentary
privileges
6. UK (h) Bicameralism
(a) Fundamental rights
(b) Independence of
7. US judiciary
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 (c) Judicial review
(d) Impeachment of the
president
(e) Removal of Supreme
Court and High Court
judges
(f) Post of vice-president
Suspension of
Germany Fundamental Rights
8. (Weimar) during emergency
(a) Procedure
for amendment in the
Indian Constitution
(b) Election of members
9. South Africa of Rajya Sabha
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 (a) Republic
(b) Ideals of liberty,
equality, and fraternity in
10. France the Preamble
11. Government of India Act of 1935
1. Federal Scheme
2. Office of governor
3. Judiciary
4. Public Service Commissions
5. Emergency provisions
6. Administrative details

Parts of Indian Constitution

The parts of the Indian Constitution along with Subject and
Articles they cover are given below.
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 Part Subject Articles
Part I The Union and its territory Art. 1 to 4
Part II Citizenship Art. 5 to 11
Part Art. 12 to
III Fundamental Rights 35
Part Art. 36 to
IV Directive Principles 51
Part
IVA Fundamental Duties Art. 51A
Art. 52 to
Part V The Union 151

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 Part Subject Articles
Part Art. 152 to
VI The States 237
Part Repealed by Const. (7th
VII Amendment) Act, 1956
Part Art. 239 to
VIII The Union Territories 242
Part Art. 243 to
IX The Panchayats 243O
Part Art. 243P
IXA The Municipalities to 243ZG
Part Art. 243ZH
IXB Co-operative Societies to 243ZT
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 Part Subject Articles
The Scheduled and Tribal Art. 244 to
Part X Areas 244A
Part Relations between the Union Art. 245 to
XI and the States 263
Part Finance, Property, Contracts Art. 264 to
XII and Suits 300A
Trade, Commerce and
Part Intercourse within the Art. 301 to
XIII Territory of India 307
Part Services under the Union Art. 308 to
XIV and the States 323

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 Part Subject Articles
Part Art. 323A
XIVA Tribunals to 323B
Part Art. 324 to
XV Elections 329A
Part Special provisions relation to Art. 330 to
XVI certain classes 342
Part Art. 343 to
XVII Official Language 351
Part Art. 352 to
XVIII Emergency Provisions 360
Part Art. 361 to
XIX Miscellaneous 367
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 Part Subject Articles
Part Amendment of the
XX Constitution Art. 368
Part Temporary, Transitional and Art. 369 to
XXI Special Provisions 392
Short title, commencement,
Part authoritative text in Hindi and Art. 393 to
XXII repeals 395

Parts of the Indian Constitution added as amendments

Three parts – 9A Municipalities, 9B Co-operative societies, and
14A tribunals – are added to the original constitution via
amendments.

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Various articles were also added under these 25 parts of the
Indian constitution as amendments. At present, the total article
count is around 469.
Schedules of Indian Constitution

Schedules Features of Schedules

First ~It contains the name of States
Schedule of and Union
Indian ~TerritoriesTerritorial Jurisdiction
Constitution of states is also included
Second The provisions in relation
Schedule of to allowances, privileges,
Indian emoluments of:
Constitution ~President of India

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 ~Governors of Indian States
~Speaker of Lok Sabha & Deputy
Speaker of Lok Sabha
~Chairman of Rajya Sabha &
Deputy Chairman of Rajya Sabha
~Speaker and Deputy Speaker of
Legislative Assemblies of Indian
States
~Chairman and Deputy Chairman
of Legislative Councils of the
Indian States
~Supreme Court Judges
~High Court Judges
~Comptroller & Auditor General of
India (CAG)

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 It contains the forms of oath and
affirmation for:
~Union Ministers of India
~Parliament Election Candidates
~Members of Parliament (MPs)
~Supreme Court Judges
~Comptroller and Auditor General
~State Ministers
~State Legislature Elections’
Candidates
Third ~State Legislature Members
Schedule ~High Court Judges
Fourth It contains the provisions
Schedule in relation to the allocation of

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 seats for States and Union
Territories in the Rajya Sabha
It contains provisions in relation to
the administration and control of
Fifth scheduled areas and scheduled
Schedule tribes
It contains provisions in relation to
the administration of tribal areas
in the states of
Sixth Meghalaya, Assam, Tripura, and
Schedule Mizoram
This schedule deals with the three
Seventh legislative lists:
Schedule ~Union

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 ~State
~Concurrent
It deals with the 22 official
languages recognized by the
Indian Constitution:
Assamese
Bengali
Bodo
Dogri (Dongri)
Gujarati
Hindi
Kannada
Kashmiri
Eighth Konkani
Schedule Mathili (Maithili)
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 Malayalam
Manipuri
Marathi
Nepali
Oriya
Punjabi
Sanskrit
Santhali
Sindhi
Tamil
Telugu
Urdu
~It deals with the state acts and
Ninth regulations that deal with land
Schedule reforms and the abolition of
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 the zamindari system. It also deals
with the acts and regulations of the
Parliament dealing with other
matters.
Note:
~1st Amendment Act 1951 added
the Ninth Schedule to protect the
laws included in it from judicial
scrutiny on the ground of violation
of fundamental rights.
~However, in 2007, the Supreme
Court ruled that the laws included
in this schedule after April 24,
1973, are now open to judicial
review

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 ~It contains provisions relating to
the disqualification of the members
of Parliament and State
Legislatures on the ground of
defection.
Note:
~This schedule was added by the
Tenth 52nd Amendment Act of 1985, also
Schedule known as Anti-defection Law
~It contains the provisions that
specify the powers, authority, and
responsibilities of Panchayats. It
Eleventh has 29 matters.
Schedule Note:

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 ~This schedule was added by the
73rd Amendment Act of 1992
~It deals with the provisions that
specify the powers, authority, and
responsibilities of Municipalities.
It has 18 matters.
Note:
Twelfth ~This schedule was added by the
Schedule 74th Amendment Act of 1992

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