Making of The Constitution
|It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time
by M. N. Roy, a pioneer of communist movement in India and an advocate of radical
democratism. In 1935, the Indian National Congress (INC), for the first time, officially demanded
a Constituent Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru, on behalf the
INC declared that ‘the Constitution of free India must be framed, without outside interference, by a
Constituent Assembly elected on the basis of adult franchise’.
The demand was finally accepted in principle by the British Government in what is known as the
‘August Offer’ of 1940. In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a
draft proposal of the British Government on the framing of an independent Constitution to be adopted
after the World War II. The Cripps Proposals were rejected by the Muslim League which wanted
India to be divided into two autonomous states with two separate Constituent Assemblies. Finally, a
Cabi-net Mission1 was sent to India. While it rejected the idea of two Constituent Assemblies, it put
forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.
Composition of The Constituent Assembly
|The Constituent Assembly was constituted in November 1946 under the scheme formulated by the
Cabinet Mission Plan. The features of the scheme were:
|(1) The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be
allotted to British India and 93 seats to the Princely States. Out of 296 seats allotted to the
British India, 292 members were to be drawn from the eleven governors’ provinces2 and four
from the four chief commissioners’ provinces3, one from each.
(2) Each province and princely state (or group of states in case of small states) were to be
allotted seats in proportion to their respective population. Roughly, one seat was to be
allotted for every million population.
(3) Seats allocated to each British province were to be decided among the three principal
communities—Muslims, Sikhs and general (all except Muslims and Sikhs), in proportion to
(4.) The representatives of each community were to be elected by members of that community in
the provincial legislative assembly and voting was to be by the method of proportional
representation by means of single transferable vote.
(5) The representatives of princely states were to be nominated by the heads of the princely
It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body.
Moreover, the members were to be indirectly elected by the members of the provincial assemblies,
who themselves were elected on a limited franchise4.
The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces)
were held in July–August 1946. The Indian National Congress won 208 seats, the Muslim League 73
seats, and the small groups and independents got the remaining 15 seats. However, the 93 seats
allotted to the princely states were not filled as they decided to stay away from the Constituent
Although the Constituent Assembly was not directly elected by the people of India on the basis of
adult franchise, the Assembly comprised representatives of all sections of Indian Society—Hindus,
Muslims, Sikhs, Parsis, Anglo–Indians, Indian Christians, SCs, STs including women of all these
sections. The Assembly included all important personalities of India at that time, with the exception
of Mahatma Gandhi and M A Jinnah.
Working of the Constituent Assembly
|The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted
the meeting and insisted on a separate state of Pakistan. The meeting was thus attended by only 211
members. Dr Sachchidan-and Sinha, the oldest member, was elected as the temporary President of
the Assembly, following the French practice.
Later, on December 11, 1946, Dr Rajendra Prasad and H C Mukherjee were elected as the President
and Vice-President of the Assembly respectively. Sir B N Rau was appointed as the Constitutional
advisor to the Assembly.
|On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the
Assembly. It laid down the fundamentals and philosophy of the constitutional structure. It read:
1. “This Constituent Assembly declares its firm and solemn resolve to proclaim India as an
Independent Sovereign Republic and to draw up for her future governance a Constitution:
2. Wherein the territories that now comprise British India, the territories that now form the
Indian States, and such other parts of India as are outside India and the States as well as other
territories as are willing to be constituted into the independent sovereign India, shall be a
Union of them all; and
3. wherein the said territories, whether with their present boundaries or with such others as may
be determined by the Constituent Assembly and thereafter according to the law of the
Constitution, shall possess and retain the status of autonomous units together with residuary
powers and exercise all powers and functions of Government and administration save and
except such powers and functions as are vested in or assigned to the Union or as are inherent
or implied in the Union or resulting therefrom; and
4. wherein all power and authority of the Sovereign Independent India, its constituent parts and
organs of Government are derived from the people; and
5. wherein shall be guaranteed and secured to all the people of India justice, social, economic
and political; equality of status of opportunity, and before the law; freedom of thought,
expression, belief, faith, worship, vocation, association and action, subject to law and public
6. wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and
depressed and other backward classes; and
7. whereby shall be maintained the integrity of the territory of the Republic and its sovereign
rights on land, sea and air according to justice and the law of civilized nations; and
8. This ancient land attains its rightful and honoured place in the world and makes its full and
willing contribution to the promotion of world peace and the welfare of mankind.”
This Resolution was unanimously adopted by the Assembly on January 22, 1947. It influenced the
eventual shaping of the constitution through all its subsequent stages. Its modified version forms the
Preamble of the present Constitution.
Changes by the Independence Act
|The representatives of the princely states, who had stayed away from the Constituent Assembly,
gradually joined it. On April 28, 1947, representatives of the six states5 were part of the Assembly.
After the acceptance of the Mountbatten Plan of June 3, 1947 for a partition of the country, the
representatives of most of the other princely states took their seats in the Assembly. The members of
the Muslim League from the Indian Dominion also entered the Assembly.
The Indian Independence Act of 1947 made the following three changes in the position of the
1. The Assembly was made a fully sovereign body, which could frame any Constitution it
pleased. The act empowered the Assembly to abrogate or alter any law made by the British
Parliament in relation to India.
2. The Assembly also became a legislative body. In other words, two separate functions were
assigned to the Assembly, that is, making of a constitution for free India and enacting of
ordinary laws for the country. These two tasks were to be performed on separate days. Thus,
the Assembly became the first Parliament of free India (Dominion Legislature). Whenever the
Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met
as the legislative body6, it was chaired by G V Mavlankar. These two functions continued till
November 26, 1949, when the task of making the Constitution was over.
3. The Muslim League members (hailing from the areas7 included in the Pakistan) withdrew
from the Constituent Assembly for India. Consequently, the total strength of the Assembly
came down to 299 as against 389 originally fixed in 1946 under the Cabinet Mission Plan.
The strength of the Indian provinces (formerly British Provinces) was reduced from 296 to
229 and those of the princely states from 93 to 70. The state-wise membership of the
Assembly as on December 31, 1947.
Other Functions Performed
|In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly
also performed the following functions:
1. It ratified the India’s membership of the Commonwealth in May 1949.
2. It adopted the national flag on July 22, 1947.
3. It adopted the national anthem on January 24, 1950.
4. It adopted the national song on January 24, 1950.
5. It elected Dr Rajendra Prasad as the first President of India on January 24, 1950.
In all, the Constituent Assembly had 11 sessions over two years, 11 months and 18 days. The
Constitution-makers had gone through the constitutions of about 60 countries, and the Draft
Constitution was considered for 114 days. The total expenditure incurred on making the Constitution
amounted to ` 64 lakh.
On January 24, 1950, the Constituent Assembly held its final session. It, however, did not end, and
continued as the provisional parliament of India from January 26, 1950 till the formation of new
Parliament8 after the first general elections in 1951–52.
Committees of the Constituent Assembly
1. Union Powers Committee – Jawaharlal Nehru
2. Union Constitution Committee – Jawaharlal Nehru
3. Provincial Constitution Committee – Sardar Patel
4. Drafting Committee – Dr. B.R. Ambedkar
5. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas –
Sardar Patel. This committee had the following sub-committes:
(a) Fundamental Rights Sub-Committee – J.B. Kripalani
(b) Minorities Sub-Committee – H.C. Mukherjee
(c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-
Committee – Gopinath Bardoloi
(d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee –
6. Rules of Procedure Committee – Dr. Rajendra Prasad
7. States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
8. Steering Committee – Dr. Rajendra Prasad
1. Committee on the Functions of the Constituent Assembly – G.V. Mavalankar
2. Order of Business Committee – Dr. K.M. Munshi
3. House Committee – B. Pattabhi Sitaramayya
4. Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad
5. Special Committee to Examine the Draft Constitution – Alladi Krishnaswamy Ayyar
6. Credentials Committee – Alladi Krishnaswamy Ayyar
7. Finance and Staff Committee – Dr. Rajendra Prasad.
8. Hindi Translation Committee
9. Urdu Translation Committee
10. Press Gallery Committee
11. Committee to Examine the Effect of Indian Independence Act of 1947
12. Committee on Chief Commissioners’ Provinces – B. Pattabhi Sitaramayya.
13. Commission on Linguistic Provinces
14. Expert Committee on Financial Provisions
15. Ad-hoc Committee on the Supreme Court – S. Varadachariar.
Among all the committees of the Constituent Assembly, the most important committee was the
Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task
of preparing a draft of the new Constitution. It consisted of seven members. They were:
1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
7. T T Krishnamachari (He replaced D P Khaitan who died in 1948)
The Drafting Committee, after taking into consideration the proposals of the various committees,
prepared the first draft of the Constitution of India, which was published in February 1948. The
people of India were given eight months to discuss the draft and propose amendments. In the light of
the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft,
which was published in October 1948.
The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141 days.
Enactment of the Constitution
Dr B R Ambedkar introduced the final draft of the Constitution in the Assembly on November 4, 1948
(first reading). The Assembly had a general discussion on it for five days (till November 9, 1948).
The second reading (clause by clause consid-eration) started on November 15, 1948 and end-ed on
October 17, 1949. During this stage, as many as 7653 amendments were proposed and 2473 were
actually discussed in the Assembly.
The third reading of the draft started on November 14, 1949. Dr B R Ambedkar moved a motion
—‘the Constitution as settled by the Assembly be passed’. The motion on Draft Constitution was
declared as passed on November 26, 1949, and received the signatures of the members and the
president. Out of a total 299 members of the Assembly, only 284 were actually present on that day
and signed the Constitution. This is also the date mentioned in the Preamble as the date on which the
people of India in the Constituent Assembly adopted, enacted and gave to themselves this
The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8
Schedules. The Preamble was enacted after the entire Constitution was already enacted.
Dr B R Ambedkar, the then Law Minister, piloted the Draft Constitution in the Assembly. He took a
very prominent part in the deliberations of the Assembly. He was known for his logical, forceful and
persuasive arguments on the floor of the Assembly. He is recognised as the ‘Father of the Constitution
of India’. This brilliant writer, constitutional expert, undisputed leader of the scheduled castes and the
‘chief architect of the Constitution of India’ is also known as a ‘Modern Manu’.
Enforcement of the Constitution
Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament,
temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366,
367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949 itself.
The remaining provisions (the major part) of the Constitution came into force on January 26, 1950.
This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the
January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its
historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated, following
the resolution of the Lahore Session (December 1929) of the INC.
With the commencement of the Constitution, the Indian Independence Act of 1947 and the Government
of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed.
The Abolition of Privy Council Jurisdiction Act (1949) was however continued.
Criticism of the Constituent Assembly
The critics have criticised the Constituent Assembly on various grounds. These are as follows:
1. Not a Representative Body: The critics have argued that the Constituent Assembly was not a
representative body as its members were not directly elected by the people of India on the
basis of universal adult franchise.
2. Not a Sovereign Body: The critics maintained that the Constituent Assembly was not a
sovereign body as it was created by the proposals of the British Government. Further, they
said that the Assembly held its sessions with the permission of the British Government.
3. Time Consuming: According to the critics, the Constituent Assembly took unduly long time to
make the Constitution. They stated that the framers of the American Constitution took only four
months to complete their work.
4. Dominated by Congress: The critics charged that the Constituent Assembly was dominated by
the Congress party. Granville Austin, a British Constitutional expert, remarked: ‘The
Constituent Assembly was a one-party body in an essentially one-party country. The
Assembly was the Congress and the Congress was India’9.
5. Lawyer–Politician Domination: It is also maintained by the critics that the Constituent
Assembly was dominated by lawyers and politicians. They pointed out that other sections of
the society were not sufficiently represented. This, to them, is the main reason for the
bulkiness and complicated language of the Constitution.
6. Dominated by Hindus: According to some critics, the Constituent Assembly was a Hindu
dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston
Churchill commented that the Constituent Assembly represented ‘only one major community in
Salient features of the constitution
|1. Lengthiest Written Constitution
Constitutions are classified into written, like the American Constitution, or unwritten, like the British
Constitution. The Constitution of India is the lengthiest of all the written constitutions of the world. It
is a very comprehensive, elaborate and detailed document.
Originally (1949), the Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8
Schedules. Presently (2013), it consists of a Preamble, about 465 Articles (divided into 25 Parts) and
12 Schedules2. The various amendments carried out since 1951 have deleted about 20 Articles and
one Part (VII) and added about 85 Articles, four Parts (IVA, IXA, IXB and XIVA) and four Schedules (9, 10, 11 and 12). No other Constitution in the world has so many Articles and Schedules3. Four factors have contributed to the elephantine size of our Constitution. They are:
(a) Geographical factors, that is, the vastness of the country and its diversity.
(b) Historical factors, e.g., the influence of the Government of India Act of 1935, which was
(c) Single Constitution for both the Centre and the states except Jammu and Kashmir4.
(d) Dominance of legal luminaries in the Constituent Assembly.
The Constitution contains not only the fundamental principles of governance but also detailed
administrative provisions. Further, those matters which in other modern democratic countries have
been left to the ordinary legislation or established political conventions have also been included in
the constitutional document itself in India.
2. Drawn From Various Sources
The Constitution of India has borrowed most of its provisions from the constitutions of various other
countries as well as from the Government of India Act5 of 1935. Dr B R Ambedkar proudly
acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions
of the World6’.
The structural part of the Constitution is, to a large extent, derived from the Government of India Act
of 1935. The philosophical part of the Constitution (the Fundamental Rights and the Directive
Principles of State Policy) derive their inspiration from the American and Irish Constitutions
respectively. The political part of the Constitution (the principle of Cabinet Government and the
relations between the executive and the legislature) have been largely drawn from the British
The other provisions of the Constitution have been drawn from the constitutions of Canada, Australia,
Germany, USSR (now Russia), France, South Africa, Japan,etc.
However, the criticism that the Indian Constitution is a ‘borrowed Constitution’, a ‘patchwork’ and
contains nothing new and original is unfair and illogical. This is because, the framers of the
Constitution made necessary modifications in the features borrowed from other constitutions for their
suitability to the Indian conditions, at the same time avoiding their faults9.
3. Blend of Rigidity and Flexibility
Constitutions are also classified into rigid and flexible. A rigid Constitution is one that requires a
special procedure for its amendment, as for example, the American Constitution. A flexible
constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws
are made, as for example, the British Constitution.
The Constitution of India is neither rigid nor flexible but a synthesis of both. Article 368 provides for two types of amendments:
(a) Some provisions can be amended by a special majority of the Parliament, i.e., a two-third
majority of the members of each House present and voting, and a majority (that is, more than
50 per cent), of the total membership of each House.
(b) Some other provisions can be amended by a special majority of the Parliament and with the
ratification by half of the total states.
At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.
4. Federal System with Unitary Bias
The Constitution of India establishes a federal system of government. It contains all the usual features
of a federation, viz., two government, division of powers, written Constitution, super-macy of
Constitution, rigidity of Constitution, independent judiciary and bicameralism.
However, the Indian Constitution also contains a large number of unitary or non-federal features, viz.,
a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary,
appointment of state governor by the Centre, all-India services, emergency provisions, and so on.
Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other
hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not
the result of an agreement by the states; and two, no state has the right to secede from the federation.
Hence, the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’,
‘quasi-federal’ by K C Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin, ‘federation with a centralising tendency’ by Ivor Jennings, and so on.
5. Parliamentary Form of Government
The Constitution of India has opted for the British parliamentary System of Government rather than
American Presidential System of Government. The parliamentary system is based on the principle of
cooperation and co-ordination between the legislative and executive organs while the presidential
system is based on the doctrine of separation of powers between the two organs.
The parliamentary system is also known as the ‘Westminster’10 model of government, res-ponsible
government and cabinet government. The Constitution establishes the parliamentary system not only at the Centre but also in the states. The features of parliamentary government in India are:
(a) Presence of nominal and real executives;
(b) Majority party rule,
(c) Collective responsibility of the executive to the legislature,
(d) Membership of the ministers in the legislature,
(e) Leadership of the prime minister or the chief minister,
(f) Dissolution of the lower House (Lok Sabha or Assembly).
Even though the Indian Parliamentary System is largely based on the British pattern, there are some
fundamental differences between the two. For example, the Indian Parliament is not a sovereign body
like the British Parliament. Further, the Indian State has an elected head (republic) while the British
State has hereditary head (monarchy).
In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so
significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.
6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
The doctrine of sovereignty of Parliament is associated with the British Parliament while the
principle of judicial supremacy with that of the American Supreme Court.
Just as the Indian parliamentary system differs from the British system, the scope of judicial review
power of the Supreme Court in India is narrower than that of what exists in US. This is because the
American Constitution provides for ‘due process of law’ against that of ‘procedure established by
law’ contained in the Indian Constitution (Article 21).
Therefore, the framers of the Indian Constitution have preferred a proper synthesis between the
British principle of parliamentary sovereignty and the American principle of judicial supremacy. The
Supreme Court, on the one hand, can declare the parliamentary laws as unconstitutional through its
power of judicial review. The Parliament, on the other hand, can amend the major portion of the
Constitution through its constituent power.
7. Integrated and Independent Judiciary
The Indian Constitution establishes a judicial system that is integrated as well as independent.
The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there
are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts, that is,
district courts and other lower courts. This single system of courts enforces both the central laws as
well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary
and the state laws are enforced by the state judiciary.
The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental
rights of the citizens and the guardian of the Constitution. Hence, the Constitution has made various
provisions to ensure its independence—security of tenure of the judges, fixed service conditions for
the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India,
prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement,
power to punish for its contempt vested in the Supreme Court, separation of the judiciary from the
executive, and so on.
8. Fundamental Rights
Part III of the Indian Constitution guarantees six11 fundamental rights to all the citizens:
(a) Right to Equality (Articles 14–18),
(b) Right to Freedom (Articles 19–22),
(c) Right against Exploitation (Articles 23–24),
(d) Right to Freedom of Religion (Articles 25–28),
(e) Cultural and Educational Rights (Articles 29–30), and
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy. They operate as
limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in
nature, that is, they are enforceable by the courts for their violation. The aggrieved person can
directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition,
certiorari and quo warranto for the restoration of his rights.
However, the Fundamental Rights are not absolute and subject to reasonable restrictions. Further,
they are not sacrosanct and can be curtailed or repealed by the Parliament through a constitutional
amendment act. They can also be suspended during the operation of a National Emergency except the
rights guaranteed by Articles 20 and 21.
9. Directive Principles of State Policy
According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the
Indian Constitution. They are enumerated in Part IV of the Constitution. They can be classified into
three broad categories—socialistic, Gandhian and liberal–intellectual.
The directive principles are meant for promoting the ideal of social and economic democracy. They
seek to establish a ‘welfare state’ in India. However, unlike the Funda-mental Rights, the directives are non-justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Const-itution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Hence, they impose a moral obligation on the state author-ities for their application. But, the real force (sanction) behind them is political, that is, public opinion. In the Minerva Mills case12 (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.
10. Fundamental Duties
The original constitution did not provide for the fundamental duties of the citizens. These were added
during the operation of internal emergency (1975–77) by the 42nd Constitutional Amendment Act of
1976 on the recommendation of the Swaran Singh Committee. The 86th Constitutional Amendment
Act of 2002 added one more fundamental duty.
The Part IV-A of the Constitution (which consists of only one Article—51-A) specifies the eleven Fundamental Duties viz., to respect the Constitution, national flag and national anthem; to protect the sovereignty, unity and integrity of the country; to promote the spirit of common brotherhood amongst all the people; to preserve the rich heritage of our composite culture and so on.
The fundamental duties serve as a reminder to citizens that while enjoying their rights, they have also
to be quite conscious of duties they owe to their country, their society and to their fellow-citizens.
However, like the Directive Principles, the duties are also non-justiciable in nature.
11. A Secular State
The Constitution of India stands for a secular state. Hence, it does not uphold any particular religion
as the official religion of the Indian State. The following provisions of the Constitution reveal the
secular character of the Indian State:
(a) The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd
Constitutional Amendment Act of 1976.
(b) The Preamble secures to all citizens of India liberty of belief, faith and worship.
(c) The State shall not deny to any person equality before the law or equal protection of the laws
(d) The State shall not discriminate against any citizen on the ground of religion (Article 15).
(e) Equality of opportunity for all citizens in matters of public employment (Article 16).
(f) All persons are equally entitled to freedom of conscience and the right to freely profess,
practice and propagate any religion (Article 25).
(g) Every religious denomination or any of its section shall have the right to manage its religious
affairs (Article 26).
(h) No person shall be compelled to pay any taxes for the promotion of a particular religion
(i) No religious instruction shall be provided in any educational institution maintained by the
State (Article 28).
(j) Any section of the citizens shall have the right to conserve its distinct language, script or
culture (Article 29).
(k) All minorities shall have the right to establish and administer educational institutions of their
choice (Article 30).
(l) The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).
The Western concept of secularism connotes a complete separation between the religion (the church)
and the state (the politics). This negative concept of secularism is inapplicable in the Indian situation
where the society is multireligious. Hence, the Indian Constitution embodies the positive concept of
secularism, i.e., giving equal respect to all religions or protecting all religions equally.
Moreover, the Constitution has also abolished the old system of communal representation13, that is,
reservation of seats in the legislatures on the basis of religion. However, it provides for the
temporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequate
representation to them.
12. Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and
the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote
without any discrimination of caste, race, religion, sex, literacy, wealth, and so on. The voting age
was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
The introduction of universal adult franchise by the Constitution-makers was a bold experiment and
highly remarkable in view of the vast size of the country, its huge population, high poverty, social
inequality and overwhelming illiteracy.14
Universal adult franchise makes democracy broad-based, enhances the self-respect and prestige of
the common people, upholds the principle of equality, enables minorities to protect their interests and
opens up new hopes and vistas for weaker sections.
13. Single Citizenship
Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides
for only a single citizenship, that is, the Indian citizenship.
In countries like USA, on the other hand, each person is not only a citizen of USA but also a citizen of the particular state to which he belongs. Thus, he owes allegiance to both and enjoys dual sets of rights—one conferred by the National government and another by the state government.
In India, all citizens irrespective of the state in which they are born or reside enjoy the same political
and civil rights of citizenship all over the country and no discrimination is made between them
excepting in few cases like tribal areas, Jammu and Kashmir, and so on.
Despite the constitutional provision for a single citizenship and uniform rights for all the people,
India has been witnessing the communal riots, class conflicts, caste wars, linguistic clashes and
ethnic disputes. This means that the cherished goal of the Constitution-makers to build an united and
integrated Indian nation has not been fully realised.
14. Independent Bodies
The Indian Constitution not only provides for the legislative, executive and judicial organs of the
government (Central and state) but also establishes certain independent bodies. They are envisaged
by the Constitution as the bulworks of the democratic system of Government in India. These are:
(a) Election Commission to ensure free and fair elections to the Parliament, the state legislatures,
the office of President of India and the office of Vice-president of India.
(b) Comptroller and Auditor-General of India to audit the accounts of the Central and state
governments. He acts as the guardian of public purse and comments on the legality and
propriety of government expenditure.
(c) Union Public Service Commission to conduct examinations for recruitment to all-India
services15 and higher Central services and to advise the President on disciplinary matters.
(d) State Public Service Commission in every state to conduct examinations for recruitment to
state services and to advice the governor on disciplinary matters.
The Constitution ensures the independence of these bodies through various provisions like security of
tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and so
15. Emergency Provisions
The Indian Constitution contains eleborate emergency provisions to enable the President to meet any
extraordinary situation effectively. The rationality behind the incorporation of these provisions is to
safeguard the sovereignty, unity, integrity and security of the country, the democratic political system
and the Constitution.
The Constitution envisages three types of emergencies, namely:
(a) National emergency on the ground of war or external aggression or armed rebellion16 (Article
(b) State emergency (President’s Rule) on the ground of failure of Constitutional machinery in the
states (Article 356) or failure to comply with the directions of the Centre (Article 365); and
(c) Financial emergency on the ground of threat to the financial stability or credit of India (Article
During an emergency, the Central Government becomes all-powerful and the states go into the total
control of the centre. It converts the federal structure into a unitary one without a formal amendment of
the Constitution. This kind of transformation of the political system from federal (during normal
times) to unitary (during emergency) is a unique feature of the Indian Constitution.
16. Three-tier Government
Originally, the Indian Constitution, like any other federal constitution, provided for a dual polity and
contained provisions with regard to the organisation and powers of the Centre and the states. Later,
the 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government (i.e.,local) which is not found in any other Constitution of the world.
The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local
governments) by adding a new Part IX17 and a new Schedule 11 to the Constitution. Similarly, the
74th Amendment Act of 1992 gave constitutional. recognition to the municipalities (urban local
governments) by adding a new Part IX-A18 and a new Schedule 12 to the Constitution.
Preamble of the Constitution
|“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”.
The word ‘sovereign’ implies that India is neither a dependency nor a dominion of any other nation,but an independent state2. There is no authority above it, and it is free to conduct its own affairs (both internal and external). Though in 1949, India declared the continuation of her full membership of the Commonwealth of Nations and accepted the British Crown as the head of the Commonwealth, this extra-constitutional declaration does not affect India’s sovereignty in any manner3. Further, India’s membership of the United Nations Organisation (UNO) also in no way constitutes a limitation on her sovereignty4. Being a sovereign state, India can either acquire a foreign territory or cede a part of its territory in favour of a foreign state.
Even before the term was added by the 42nd Amendment in 1976, the Constitution had a socialist content in the form of certain Directive Principles of State Policy. In other words, what was hitherto implicit in the Constitution has now been made explicit. Moreover, the Congress party itself adopted a resolution5 to establish a ‘socialistic pattern of society’ in its Avadi session as early as in 1955 and took measures accordingly. Notably, the Indian brand of socialism is a ‘democratic socialism’ and not a ‘communistic socialism’ (also known as ‘state socialism’) which involves the nationalisation of all means of production and distribution and the abolition of private property. Democratic socialism, on the other hand, holds faith in a ‘mixed economy’ where both public and private sectors co-exist side by side6. As the Supreme Court says, ‘Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity7. Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism’8. The new economic policy (1991) of liberalisation, privatisation and globalisation has, however, diluted the socialist credentials of the Indian State.
The term ‘secular’ too was added by the 42nd Constitutional Amendment Act of 1976. However, as
the Supreme Court said in 1974, although the words ‘secular state’9 were not expressedly mentioned
in the Constitution, there can be no doubt that Constitution-makers wanted to establish such a state and accordingly Articles 25 to 28 (guaranteeing the fundamental right to freedom of religion) have been
included in the constitution. The Indian Constitution embodies the positive concept of secularism ie, all religions in our country (irrespective of their strength) have the same status and support from the state10
A democratic11 polity, as stipulated in the Preamble, is based on the doctrine of popular sovereignty, that is, possession of supreme power by the people. Democracy is of two types—direct and indirect. In direct democracy, the people exercise their supreme power directly as is the case in Switzerland. There are four devices of direct democracy, namely, Referendum, Initiative, Recall and Plebiscite12. In indirect democracy, on the other hand, the representatives elected by the people exercise the supreme power and thus carry on the government and make the laws. This type of democracy, also known as representative democracy, is of two kinds—parliamentary and presidential. The Indian Constitution provides for rep-resentative parliamentary democracy under which the executive is responsible to the legislature for all its policies and actions. Universal adult franchise, periodic elections, rule of law, independence of judiciary, and absence of discrimination on certain grounds are the manifestations of the democratic character of the Indian polity.
The term ‘democratic’ is used in the Preamble in the broader sense embracing not only political democracy but also social and economic democracy.
A democratic polity can be classified into two categories—monarchy and republic. In a monarchy,
the head of the state (usually king or queen) enjoys a hereditary position, that is, he comes into office
through succession, eg, Britain. In a republic, on the other hand, the head of the state is always elected
directly or indirectly for a fixed period, eg, USA.
Therefore, the term ‘republic’ in our Preamble indicates that India has an elected head called the
president. He is elected indirectly for a fixed period of five years.
A republic also means two more things: one, vesting of political sovereignty in the people and not in
a single individual like a king; second, the absence of any privileged class and hence all public
offices being opened to every citizen without any discrimination.
The term ‘justice’ in the Preamble embraces three distinct forms—social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles.
Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs and OBCs) and women.
Economic justice denotes the non-discrimination between people on the basis of economic factors. It involves the elimination of glaring in-equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’.
Political justice implies that all citizens should have equal political rights, equal access to all political offices and equal voice in the government. The ideal of justice—social, economic and political—has been taken from the Russian Revolution (1917).
The term ‘liberty’ means the absence of restraints on the activities of individuals, and at the same
time, providing opportunities for the development of individual personalities.
The Preamble secures to all citizens of India liberty of thought, expression, belief, faith and worship,
through their Fundamental Rights, enforceable in court of law, in case of violation.
Liberty as elaborated in the Preamble is very essential for the successful functioning of the Indian
democratic system. However, liberty does not mean ‘license’ to do what one likes, and has to be
enjoyed within the limitations mentioned in the Constitution itself. In brief, the liberty conceived by
the Preamble or fundamental rights is not absolute but qualified.
The ideals of liberty, equality and fraternity in our Preamble have been taken from the French
The term ‘equality’ means the absence of special privileges to any section of the society, and the provision of adequate opportunities for all individuals without any discrimination. The Preamble secures to all citizens of India equality of status and opportunity. This provision embraces three dimensions of equality—civic, political and economic.
Fraternity means a sense of brotherhood. The Constitution promotes this feeling of fraternity by the
system of single citizenship. Also, the Fundamental Duties (Article 51-A) say that it shall be the duty
of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic, regional or sectional diversities.
The Preamble declares that fraternity has to assure two things—the dignity of the individual and the
unity and integrity of the nation. The word ‘integrity’ has been added to the preamble by the 42nd
Constitutional Amendment (1976).
|Significance of the Preamble
The Preamble embodies the basic philosophy and fundamental values—political, moral and religious —on which the Constitution is based. It contains the grand and noble vision of the Constituent Assembly, and reflects the dreams and aspirations of the founding fathers of the Constitution. In the words of Sir Alladi Krishnaswami Iyer, a member of the Constituent Assembly who played a significant role in making the Constitution, ‘The Preamble to our Constitution expresses what we had thought or dreamt so long’. According to K M Munshi, a member of the Drafting Committee of the Constituent Assembly, the Preamble is the ‘horoscope of our sovereign democratic republic’.
Pandit Thakur Das Bhargava, another member of the Constituent Assembly, summed up the importance of the Preamble in the following words: ‘The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution. It is a proper yardstick with which one can measure the worth of the Constitution’.
Sir Ernest Barker, a distinguished English political scientist, paid a glowing tribute to the political wisdom of the authors of the Preamble. He described the Preamble as the ‘key-note’13 to the Constitution. He was so moved by the text of the preamble that he quoted14 it at the opening of his popular book, Principles of Social and Political Theory (1951).
M Hidayatullah, a former Chief Justice of India, observed, ‘Preamble resembles the Declaration of Independence of the United States of America, but is more than a declaration. It is the soul of our Constitution, which lays down the pattern of our political society. It contains a solemn resolve, which nothing but a revolution can alter15.
|Preamble as Part of the Constitution
One of the controversies about the Preamble is as to whether it is a part of the Constitution or not.
In the Berubari Union16 case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the
makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of
more than one meaning, some assistance at interpretation may be taken from the objectives enshrined
in the Preamble. Despite this recognition of the significance of the Preamble, the Supreme Court
specifically opined that Preamble is not a part of the Constitution.
In the Kesavananda Bharati case17 (1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that the Preamble 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. In the LIC of India case18 (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution.
Like any other part of the Constitution, the Preamble was also enacted by the Constituent Assembly,
but, after the rest of the Constitution was already enacted. The reason for inserting the Preamble at the
end was to ensure that it was in conformity with the Constitution as adopted by the Constituent
Assembly. While forwarding the Preamble for votes, the president of the Constituent Assembly said,
‘The question is that Preamble stands part of the Constitution’19. The motion was then adopted.
Hence, the current opinion held by the Supreme Court that the Preamble is a part of the Constitution,
is in consonance with the opinion of the founding fathers of the Constitution.
However, two things should be noted:
1. The Preamble is neither a source of power to legislature nor a prohibition upon the powers of
2. It is non-justiciable, that is, its provisions are not enforceable in courts of law.
|Amendability of the Preamble|
|The question as to whether the Preamble can be amended under Article 368 of the Constitution arose
NOTES AND REFERENCES
for the first time in the historic case of Kesavananda Bharati (1973). It was urged that the Preamble cannot be amended as it is not a part of the Constitution. The petitioner contended that the amending power in Article 368 cannot be used to destroy or damage the basic elements or the fundamental features of the Constitution, which are enshrined in the Preamble.
The Supreme Court, however, held that the Preamble is a part of the Constitution. The Court stated
that the opinion tendered by it in the Berubari Union (1960) in this regard was wrong, and held that
the Preamble can be amended, subject to the condition that no amendment is done to the ‘basic
features’. In other words, the Court held that the basic elements or the fundamental features of the
Constitution as contained in the Preamble cannot be altered by an amendment under Article 36820.
The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment
Act, which has added three new words—Socialist, Secular and Integrity—to the Preamble. This
amendment was held to be valid.