In this Article, You will read Constitution: Why And How – Indian Polity Notes For UPSC IAS.
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.
- 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 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)
- 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?
- 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.
- 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.
- 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
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”).
- 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 –
- 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.
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:
- 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.
Constitution of India: Drawn From Various Sources
|S.No||Countries||Borrowed Features of Indian Constitution|
|1.||Australia||(a) Concurrent list|
(b) Freedom of trade, commerce, and intercourse
(c) Joint-sitting of the two Houses of Parliament
|2.||Canada||(a) Federation with a strong Centre|
(b) Vesting of residuary powers in the Centre
(c) Appointment of state governors by the Centre
(d) Advisory jurisdiction of the Supreme Court
|3.||Ireland||(a) Directive Principles of State Policy|
(b) The nomination of members to Rajya Sabha
(c) Method of election of the president
|4.||Japan||Procedure Established by law|
|5.||Soviet Union (USSR) (now, Russia)||(a )Fundamental duties|
(b) Ideals of justice (social, economic, and political) in the Preamble
|6.||UK||(a) Parliamentary government|
(b) Rule of Law
(c) Legislative procedure
(d) Single Citizenship
(e) Cabinet system
(f) Prerogative writs
(g) Parliamentary privileges
|7.||US||(a) Fundamental rights|
(b) Independence of judiciary
(c) Judicial review
(d) Impeachment of the president
(e) Removal of Supreme Court and High Court judges
(f) Post of vice-president
|8.||Germany (Weimar)||Suspension of Fundamental Rights during emergency|
|9.||South Africa||(a) Procedure for amendment in the Indian Constitution|
(b) Election of members of Rajya Sabha
(b) Ideals of liberty, equality, and fraternity in the Preamble
11. Government of India Act of 1935
- Federal Scheme
- Office of governor
- Public Service Commissions
- Emergency provisions
- Administrative details
Parts of Indian Constitution
The parts of the Indian Constitution along with Subject and Articles they cover are given below.
|Part I||The Union and its territory||Art. 1 to 4|
|Part II||Citizenship||Art. 5 to 11|
|Part III||Fundamental Rights||Art. 12 to 35|
|Part IV||Directive Principles||Art. 36 to 51|
|Part IVA||Fundamental Duties||Art. 51A|
|Part V||The Union||Art. 52 to 151|
|Part VI||The States||Art. 152 to 237|
|Part VII||Repealed by Const. (7th Amendment) Act, 1956|
|Part VIII||The Union Territories||Art. 239 to 242|
|Part IX||The Panchayats||Art. 243 to 243O|
|Part IXA||The Municipalities||Art. 243P to 243ZG|
|Part IXB||Co-operative Societies||Art. 243ZH to 243ZT|
|Part X||The Scheduled and Tribal Areas||Art. 244 to 244A|
|Part XI||Relations between the Union and the States||Art. 245 to 263|
|Part XII||Finance, Property, Contracts and Suits||Art. 264 to 300A|
|Part XIII||Trade, Commerce and Intercourse within the Territory of India||Art. 301 to 307|
|Part XIV||Services under the Union and the States||Art. 308 to 323|
|Part XIVA||Tribunals||Art. 323A to 323B|
|Part XV||Elections||Art. 324 to 329A|
|Part XVI||Special provisions relation to certain classes||Art. 330 to 342|
|Part XVII||Official Language||Art. 343 to 351|
|Part XVIII||Emergency Provisions||Art. 352 to 360|
|Part XIX||Miscellaneous||Art. 361 to 367|
|Part XX||Amendment of the Constitution||Art. 368|
|Part XXI||Temporary, Transitional and Special Provisions||Art. 369 to 392|
|Part XXII||Short title, commencement, authoritative text in Hindi and repeals||Art. 393 to 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.
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 Schedule of Indian Constitution||~It contains the name of States and Union |
~TerritoriesTerritorial Jurisdiction of states is also included
|Second Schedule of Indian Constitution||The provisions in relation to allowances, privileges, emoluments of: |
~President of India
~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)
|Third Schedule||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 Legislature Elections’ Candidates
~State Legislature Members
~High Court Judges
|Fourth Schedule||It contains the provisions in relation to the allocation of seats for States and Union Territories in the Rajya Sabha|
|Fifth Schedule||It contains provisions in relation to the administration and control of scheduled areas and scheduled tribes|
|Sixth Schedule||It contains provisions in relation to the administration of tribal areas in the states of Meghalaya, Assam, Tripura, and Mizoram|
|Seventh Schedule||This schedule deals with the three legislative lists:|
|Eighth Schedule||It deals with the 22 official languages recognized by the Indian Constitution:|
|Ninth Schedule||~It deals with the state acts and regulations that deal with land reforms and the abolition of the zamindari system. It also deals with the acts and regulations of the Parliament dealing with other matters. |
~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
|Tenth Schedule||~It contains provisions relating to the disqualification of the members of Parliament and State Legislatures on the ground of defection.|
~This schedule was added by the 52nd Amendment Act of 1985, also known as Anti-defection Law
|Eleventh Schedule||~It contains the provisions that specify the powers, authority, and responsibilities of Panchayats. It has 29 matters.|
~This schedule was added by the 73rd Amendment Act of 1992
|Twelfth Schedule||~It deals with the provisions that specify the powers, authority, and responsibilities of Municipalities. It has 18 matters.|
~This schedule was added by the 74th Amendment Act of 1992