Introduction to the Constitution

of India

Presented by:
Dr. Daksha Sharma
Assistant Professor (Law)
School of Law, Bennett University
Times Group, Greater Noida, Delhi (NCR)
 Synopsis
1. Constitutional Law, Constitutionalism and
Rule of Law
2. Historical Background and Making of the
Constitution
3. Philosophy of the Indian Constitution
4. Salient Features of the Indian Constitution
5. The Nature of the Indian Constitution
 Constitutional Law, Constitutionalism and Rule of Law

 What is a state?
 State needs to establish certain basic organs.
 Legal System is divided into 2 types

Law ●
Public International Law
governing ●

●
Constitutional Law
Administrative Law
the state
Law by which
state governs the Contract Laws, Property Laws, Torts
●

conduct of its Criminal Laws

●

members
 Constitutional Law, Constitutionalism and Rule of Law

 Constitution: A document having a special legal sanctity which sets

out the framework and the principal functions of the organs of the
government of a state and declares the principles of those organs.

 Constitutional Law
• The term Constitutional Law comprises of the Constitution,
relevant statutory law, judicial decisions and conventions.
• 3 important organs of the State:
1. Legislature
2. Executive
3. Judiciary
 Constitutional Law, Constitutionalism and Rule of Law

• Nature of the Constitution

One Central government and many regional governments One central government

U.S.A., Canada, Australia, Malaysia, Germany etc. Britain, Sri Lanka, Singapore etc.

Federa Unitar
l y
 Constitutional Law, Constitutionalism and Rule of Law

• Courts are regarded as the interpreter as well

as the guardian of the Constitution.
 Constitutionalism
• Envisages the power of check and balances.
• Puts limitation on the government
• Antithesis of arbitrary powers
• Decentralization of power
 Constitutional Law, Constitutionalism and Rule of Law

• What promotes Constitutionalism

Written Constitution

Independent Judiciary

Doctrine of Rule of Law and Separation

of Powers

Free Elections

Fundamental Rights of the people

Federalism
 Constitutional Law, Constitutionalism and Rule of Law

 Rule of Law
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 Constitutional Law, Constitutionalism and Rule of Law

• Rule of Law is an absence of arbitrary power in

the country and is a kind of higher law which
is reasonable, just and non-discriminatory.
• Examples of Rule of Law
• Important Judgments discussing Rule of Law
- Bachan Singh v. State of Punjab, AIR 1982 SC
1325
- A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207
 Historical Background and Making of the Constitution

• The Constitution of India is the product of research

and deliberations.
• Government of India Act, 1858
- Principle of absolute imperial control without any
popular participation.
- The powers of the Crown were to be exercised by
the Secretary of the State for India assisted by a
Council of 15 members.
- The Secretary of State was responsible to British
Parliament and he governed India through the
Governor- General assisted by the executive council.
 Historical Background and Making of the Constitution

- Essential features of the system introduced by

the Act of 1858
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 Historical Background and Making of the Constitution

• Indian Councils Act, 1861

- The Governor-General’s Executive Council which was composed
exclusively of officials should also include certain non- official
members.
- This executive council was neither representative nor deliberative.
- Members were nominated and their functions were confined
exclusively to the consideration of legislative proposals placed
before it.
- Effective powers were reserved for the Governor General
- Important for 2 reasons: People of the land were associated with
the work of legislation and it led to the grant of complete internal
autonomy in 1937.
 Historical Background and Making of the
Constitution
• Indian Councils Act, 1892
- It increased the number of members in the Central
and Provincial Council.
- Introduced the election system partially.
- Enlarged the functions of the councils.
- It laid the foundation of the representative
government.
- The councils were to have the power of discussing
the annual statement of revenue and expenditure.
 Historical Background and Making of the
Constitution
• Morley- Minto Reforms
- First attempt at introducing a representative and popular
element.
- Size of the Legislative Council both at the Central as well as
the provincial level was considerably increased.
- Powers of the Legislative Councils were enlarged to discuss
any matter, any questions and supplementary questions.
- Council had the right to moving a resolution on financial
statement but they were not given the power of voting.
- For the first time, it provided for the separate
representation of the muslim community and thus sowed
the seeds of separatism.
 Historical Background and Making of the
Constitution
• Montague Chelmsford Report and the
Government of India Act, 1919.
- Dyarchy in the provinces.
- Relaxation of Central control over the
provinces.
- The Indian Legislature made more
representative- bicameral legislature was
introduced.
 Historical Background and Making of the
Constitution
• The Government of India Act, 1935
- Federation and Provincial Autonomy:
Provinces were autonomous units of
administration.
Secretary of the State

Governor General

Governor
 Historical Background and Making of the
Constitution
- Dyarchy at the centre: The executive authority of the
Centre was vested in the Governor- General.
- Legislature: The Central Legislature was bicameral
consisting of Federal Assembly and the Council of State.
- Distribution of legislative powers between the Centre
and the provinces: Federal List (external affairs, currency
and coinage, naval, military and air forces), Provincial
List (Police, Provincial Public Service, Education ) and
Concurrent List (criminal law and procedure, civil
procedure, marriage, divorce and arbitration).
 Historical Background and Making of the
Constitution
- The Federal Court
- Jurisdiction: Original, Appellate and Advisory
• Cripps Mission
- The Constitution of India was to be framed by an elected
Constituent Assembly of the Indian people.
- That the Constitution should give India Dominion status-
equal partnership of the British Commonwealth of
Nations.
- One Indian Union
- Provinces are free to retain their constitutional status.
 Historical Background and Making of the
Constitution
• Cabinet Mission Plan
- There shall be a Union of India.
- Paramountcy of the Crown to be lapsed.
- For the purpose of framing a new constitution
a Constituent Assembly was to be elected.
- An interim government was to be set up
having the support of the major political
parties.
 Historical Background and Making of the
Constitution
• The Indian Independence Act, 1947
- The Act provided for the creation of 2 dominions.
- Each dominion was to have a Governor- General
who was to be appointed by the king.
- After August 15th, 1947 the British Government
was not to control the dominions or the provinces.
- Post of Secretary of the State was to be abolished.
 Philosophy of the Indian Constitution
• PREAMBLE
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;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION
 
 
 Philosophy of the Indian Constitution

• The Preamble serves 2 important puposes:

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 Philosophy of the Indian Constitution
• According to the Preamble, India is :
1. Sovereign- Sovereignty means independent authority
of the state.
2. Socialist- Added by 42nd Amendment, 1976
3. Secular- Added by 42nd Amendment, 1976
4. Democratic- Representative Democracy; Parliamentary
Democracy
5. Republic- Source of authority is the people of India and
we have an elected President at the head of our state.
Salient Features of the Indian Constitution

 Modern Constitution
- Fundamental Rights owe a great deal to the American
Bill of Rights.
- Indian federalism is influenced by the American,
Canadian and Australian federalism.
- Process of Amendment adopted in India is a modified
version of American system.
- Australian experiences were taken to incorporate
centre-state financial relationships.
- Directive Principles are inspired from Irish Constitution.
Salient Features of the Indian Constitution

 Written Constitution
- Lengthiest Constitution of the world.
- Originally it consisted of 395 articles, 22 parts
and 8 schedules.
- Presently, there are 470 articles, 25 parts and
12 schedules.
- It has been amended 104 times.
Salient Features of the Indian Constitution

 Preamble
- Purpose of the Preamble
●
Contains enacting Clause

●
Declares the rights and freedom of the people of
India

●
Declares the basic type of government

●
Provides source of the Constitution
Salient Features of the Indian Constitution

- In re Berubari Union and Exchange of Enclaves,

AIR 1960 SC 845- Preamble does not form the
part of the Constitution.
- Kesavananda Bharati v. State of Kerala, AIR
1973 SC 1461: Preamble to the Constitution is
of extreme importance and the Constitution
should be read and interpreted in the light of
the grand and noble vision expressed in the
Preamble.
Salient Features of the Indian Constitution

 Socialist State
- D.S.Nakara v. Union of India, AIR 1983 SC 130:
The principle aim of socialism is to eliminate
inequality of income and status and standards of
life and to provide a decent standard of life to
the working people.
 Welfare State
- The concept of welfare state is strengthened by
the Directive Principles of State Policy.
Salient Features of the Indian Constitution

 Secular State
- State shall not have any official religion.
 Responsible Government
- Parliamentary form of government
 Fundamental Rights
- Maneka Gandhi v. Union of India: “The attempt of the
Court should be to expand the reach and ambit of the
Fundamental Rights rather than to attenuate their
meaning and content by a process of judicial
construction.”
Salient Features of the Indian Constitution

 Minorities and Backward Classes

 Independent Judiciary
- India has a unified system of courts
 Federal Constitution
- India possesses co-operative federalism.
- States are not agents of the Centre.
Salient Features of the Indian Constitution

 Single Citizenship

 Fundamental Duties
- Article 51 A
- Introduced by way of the Constitution (42nd
Amendment) Act, 1976
Salient Features of the Indian Constitution
Fundamental duties.—It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national
struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon
to do so;
(e) to promote harmony and the spirit of common brotherhood amongst
all the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women;
Salient Features of the Indian Constitution
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels
of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education
to his child or, as the case may be, ward between the age of six and
fourteen years.
 The Nature of the Indian Constitution

• Federal Principle- Prof. K.C. Wheare observes

that federal principles are the method of
dividing powers, so that the general and
regional governments, each within a sphere,
co-ordinate and remain independent.
• The existence of the co-ordinate authorities
independent of each other is the gist of the
federal principle.
 The Nature of the Indian Constitution

• Article 1 (1)- “India, that is Bharat, shall be a

Union of States.”
• 2 advantages in using the term ‘Union’
1. That the Indian federation is not the result of
an agreement by the units, and
2. That the component units have no freedom
to secede from it.
(CAD Vol. VII, p. 43)
 The Nature of the Indian Constitution

• Essential Characteristics of a Federal

Constitution:
1. Distribution of Powers: The basis is that in
matters of national importance in which a
uniform policy is desirable in the interest of
the units, authority is entrusted to the Union
and matters of local concern remain with the
States.
 The Nature of the Indian Constitution

2. Supremacy of the Constitution: A federal state

derives its existence from the Constitution,
just as a Corporation derives its existence from
the grant by which it is created.
3. Written Constitution- The foundation of a
federal state are complicated contracts.
4. Rigidity- Method of amendment is rigid.
 The Nature of the Indian Constitution

5. Authority of Courts- In a federal polity, the

judiciary has the final power to interpret the
Constitution.
• Indian Constitution contains the modification of
such principles-
a) Appointment of Governors: Article 155 and
156- The President has the power to veto state
laws under Article 200, 288 (2). Example- In re
Kerala Education Bill, AIR 1958 SC 956.
 The Nature of the Indian Constitution

b) Parliament’s power to legislate in the national

interest- Art. 249
c) Parliament’s power to form new states and
alter boundaries of existing states- Art. 1 to 4
d) Emergency Powers- Art. 352 to 360
• The Centre has been assigned a larger role than
the states but that by itself does not detract
from the federal nature of the Constitution.