MODULE 1:

INTRODUCTION
Constitution Law – Constitutional Assembly Debates –
Constitution of India – Basic Features of Indian Constitution –
Preamble – Structure and Content of Indian Constitution
 State

An independent political entity

Occupying a defined territory

Members of which are united for the purpose of resisting

external force & preservation of internal order
 State

‘Police functions’ Modern State performs

of the State many social welfare functions

Defense and maintenance of

law & order
need to establish organs and
institutions of govt.
Organs and Institutions of Govt.

• How these organs are organized?

• What will be their structure?

• What will be their powers and functions?

• What is their mutual relations?

CONSTITUTION
CONSTITUTION- fundamental law of the land, pertaining to the
institution of the State and government of that country.

delineates the powers and responsibilities of the various

instrumentalities of the State,

Imposes limitations upon them

Regulates the relations between the State and its population

Also embodies and strive to construct, a common national, political and

constitutional identity for the people it covers
Definitions:
• Thomas Paine- “A constitution is not the act of a government, but
of a people constituting a government, and a government without a
constitution is power without right ... A constitution is a thing
antecedent to a government; and a government is only the creature
of a constitution.” [1792]

• Professor KC Wheare - “... the whole system of government of a

country, the collection of rules which establish and regulate or
govern the government.” [1966]
• Sir Ivor Jennings, author of The Law and the Constitution:

“If a constitution means a written document, then obviously Great Britain

has no constitution. In countries where such a document exists, the word
has that meaning. But the document itself merely sets out rules determining
the creation and operation of governmental institutions, and obviously Great
Britain has such institutions and such rules. The phrase ‘British
constitution’ is used to describe those rules.”
ESTABLISHES BASIC ORGANS

❑ LEGISLATURE (make laws)

❑ EXECUTIVE (implement laws)
❑ JUDICIARY (interpret laws) OTHER INSTITUTIONS
(Election commission,
Finance commission etc.)
 CONSTITUTION
OUTLINES SET OF FUNDAMENTAL RIGHTS FOR CITIZENS

REGULATES RELATIONS OF INDIVIDUAL WITH GOVT.

❖ OUTLINES MUTUAL RELATIONSHIP BETWEEN

LEGISLATURE, EXECUTIVE AND JUDICIARY
❖ ENSURES SEPERATION & LIMITATION OF
POWERS
WHY DO WE NEED CONSTITUTION?
to govern country properly

Constitution defines the nature of political system of a country

Constitution guard the people from an action of govt. against the larger public
interests

all 3 organs of the govt. function within the Constitution- they derive their
power & authority from the Constitution
SO CONSTITUTION IS REQUIRED TO HAVE AUTHORITATIVE

ALLOCATION OF POWER & FUNCTION AND ALSO RESTRICT

THEM WITHIN ITS LIMITS

Functions:
1. To provide a set of basic rules that allow for minimal coordination
amongst members of a society

2. To specify who has the power to make decisions in the society. It

decides how the govt. will be constituted.

3. Set limits on what a govt. can impose on its citizens.

4. Enable the govt. to create conditions for a just society

The First Book of Constitution of India is
located at Parliament Library Building,
New Delhi
1. Edicts of Ashoka (324 BC- 185 BC) established constitutional
principles for the 3rd century BC Maurya King’s rule in Ancient India
The Edicts of Ashoka are a collection of 33 inscriptions on Pillars
of Ashoka, as well as boulders and cave walls, made by the
Emperor Ashoka of the Mauryan dynasty.
2. East India Company (1599 AD-1765 AD)
In 1600, the East India Company came to India as
a trading company from Britain. In 1765, it became
an administrative power after gaining the Right of
Taxation in Bengal after defeating the Nawab
of Bengal
at the Battle East India House established
in 1600 by Queen Elizabeth
of Plassey (1757).
3. East India Company (1765 AD-1858 AD)
During this period, the company established unified control over the whole of India
from a single center in Culcutta. Different Acts and Laws were forced by company
during this period just so company could remain in power and authority. But the
Company came under increasing control by Parliament of Britain

and its rule ended with the revolt

of 1857.
4. British Raj(1858 AD-1947 AD)- This period of the British Raj was the time when
the Constitution of India took shape. The main stages of its evolution were:

a) The Act for the Better Government of India (1858)

This put India directly under the control of the British govt. It set up the office of the
Secretary of State, member of the British parliament,

who would be in charge of the Indian government.

In India, the Governor-General, working

Under the Secretary of State, led the administration. Flag of British India
b) Indian Councils Act (1861)- A separate legislative council was set up to assist the
Governor-General in making laws. Indians could be appointed to the council, but
only on the discretion of the Governor-General.

c) Indian Councils Act (1892)- as a result of Indian demands, the sizes of executive
and legislative councils were increased. More Indians were elected to these councils
and the principle of election was introduced.

d) Indian Councils Act (1909)- this Act increased the size of councils again and also
gave the legislative council the power to discuss certain matters and to ask
questions. More people were elected to the council.
e) Government of India Act (1919)- introduced ‘diarchy’ (partial responsible
government) at the provincial level. Elected Indians were given charge of some
areas of govt. (e.g. industry, education) at the provincial level.

f) Government of India Act (1935)- this introduced ‘provincial autonomy’:

responsible govt. at the provinces with elected Indians in charge of administration
and responsible to the elected legislatures. A federal govt. was proposed, though it
did not come into effect. At the centre, ‘diarchy’ was introduced.

g) Indian Independence Act(1947)- British gave up control over the Govt. of India to
two dominions- India & Pakistan. For the time being till the Constitution was made
both of them would be governed in accordance with GOI Act 1935.
h) Constitution of India (1950)- Constitution was enacted by the Constituent
Assembly on 26 Nov 1949 and came into effect on 26 Jan 1950.

‘26 January’ was chosen to commemorate the Purna Swaraj declaration of

independence of 1930.

With the adoption of Constitution, Union of India officially became the modern and
contemporary Republic of India and it replaced Government of India Act 1935 as the
country’s fundamental governing document.
FRAMING OF THE CONSTITUTION
The Constituent Assembly of India was elected to write the Constitution of India.
Following India’s independence from Great Britain, its members served as the
nation’s first Parliament.

Formed in 1946. The Assembly passed a resolution in 1947 January defining the
objectives of the Constitution:

❖ to set up a Union of India comprising British India and the princely states.

❖ to set up a federal form of government with separate state and central govt.s
❖ to set up a democracy in which all power is derived from the people:
❖ Where all people are guaranteed justice, equality, and freedom;

❖ Where minorities, depressed classes, and the tribal’s rights are protected

❖ To protect the integrity of India and her sovereign rights over the land, sea, and
air.

❖ To help attain its rightful place in the world and work for the peace and welfare of
all mankind
• Dr. Sachchidananda Sinha was the first president (temporary) of the Constituent
Assembly when it met on Dec 9, 1946. Later Dr. Rajendra Prasad became the
President of the Constituent Assembly and Dr. Bhimrao Ambedkar became the
Chairman of its Drafting Committee on Dec 11, 1946.

Dr. Sachchidananda Sinha Dr. Rajendra Prasad Dr. Bhimrao Ambedkar

• The Constituent Assembly consisted of 385 members, of which 292 were elected
by the elected members of the Provincial Legislative Assemblies while 93
members were nominated by the Princely States. To these were to be added a
representative each from the four Chief Commissioners Provinces of Delhi,
Ajmer-Marwar, Coorg and British Baluchistan.
 CONSTITUENT
ASSEMBLY DEBATES
http://164.100.47.194/loksabha/cadebatefiles/cadebates.html
Constituent Assembly debates can be broadly divided into four parts.
• The Assembly met for a total number of 165 days between 1946 and 1950.
• 46
days were spent on preliminary discussion in the Assembly and 101 days
were spent on the clause by clause discussion of the draft Constitution.
• From November 1948 to October 1949, the Assembly met for clause by
clause disscussion on the draft Constitution. They met for 101 days during
this period
• Fundamental Rights were included in Part III of the draft Constitution.
These were discussed for 16 days. 14% of the total clause by clause
discussion was dedicated to Fundamental Rights.
• The drafting Committee scrutinised and revised the draft created by the
Constitutional Advisor, Sir B. N. Rau and submitted it for the consideration of the
Assembly. The Committee members frequently responded to comments made by
other members during the discussion. This led to a higher participation by these
members in the Assembly.
• Dr. B. R. Ambedkar, the Chairman of the drafting Committee, spoke the most in the
Assembly.
• A few members who were not part of the drafting Committee participated
extensively in Assembly debates.
Role of Constituent Assembly Debates in
Understanding Constitution
Debates are valuable guidance and act as a guidance to fill the gaps of any
constitutional matter and its text
1) These debates can be said as an important source of material of our
foundation and the conflicting ideologies of our founders.
• Constitution is the mother of all laws. General/ Specific law- derives
authority from the Constitution. Since the debates show the values,
ambitions, ideals of our Constitution makers, it would help our Legislatures
to incorporate the same aspirations and ideals during legislation.
2) The debates help to resolve frequent controversies whether it is relating to
the debate on the adoption of form of Govt. or relating to the procedure of
judicial appointment through Collegium or NJAC. The debates supply the
form and content of the Constitution’s basic features, which lie beyond the
reach of constitutional amendments.

3) It can reduce the tension between the Legislature and the Judiciary, there
would be less need of amendment in Constitution and it can easily adapt
with the present situations. At the same time these debates can easily
address the current day questions which are not yet faced or foreseen by the
Courts.
STRUCTURE AND
CONTENTS OF
CONSTITUTION
Salient Features of Indian Constitution
LENGTHIEST WRITTEN CONSTITUTION

• very comprehensive, elaborate and detailed document

• Originally it contained a Preamble, 395 Articles (divided into 22 Parts) and 8

Schedules. Presently it consists of 470 Articles (divided into 25 Parts) and 12

Schedules.

• 104 Amendments were made till date and they have either added, deleted

or changed the Articles.

• No other Constitution in the world has so many Articles and Schedules.

❑ factors that contributed to the large size of the Constitution:
• Geographical factors- vastness of the country and its diversity

• Historical factors- e.g. the influence of the Governement of India Act 1935,
which was bulky
• Single Constitution for the Centre and the States except for J&K

• Constitution contains not only fundamental principles of governance but

also detailed administrative provisions.
• Those matters which in other modern democratic countries are left to the
ordinary legislation or established political conventions have also been
included in the Indian constitution itself.
 DRAWN FROM VARIOUS SOURCES
• COI borrowed most of its features from constitutions of various other
countries as well as from GOI Act 1935
• British Constitution- Nominal head- President, Parliamentary govt., Rule
of law, legislative procedure, single citizenship, cabinet system, prerogative
writs, parliamentary privileges, bicameralism
• American Constitution- Written Constitution, Fundamental Rights,
independence of judiciary, judicial review, impeachment of President,
removal of Supreme Court and High Court judge, post of Vice President
• Irish Constitution- DPSP, mode of election of President
• Australian Constitution- Concurrent list, Centre-State relationship,
freedom of trade & commerce
• USSR Constitution- Fundamental duties, ideal of ‘justice’ in Preamble

• German Constitution- emergency provisions

• Japanese Constitution- ‘procedure established by law’

• Canadian Constitution- federation with a strong Centre, residuary powers

in the Centre, advisory jurisdiction of Supreme Court
• South African Constitution- procedure of constitutional amendment
 BLEND OF RIGIDITY AND FLEXIBILITY

• Rigid Constitution- requires special procedure for its amendment e.g American
Constitution

• Flexible Constitution- can be amended in the same manner as the ordinary laws
are made e.g. British Constitution

• Indian Constitution- neither rigid nor flexible but a synthesis of both.

• Article 368 provides for two types of amendments which need special majority. At
the same time some provisions can be amended by simple majority of Parliament
in the manner of an ordinary legislative process.
 FEDERAL SYSTEM WITH UNITARY BIAS

• Contains usual features of federation- two govt., division of powers, written

Constitution, supremacy of Constitution, independent judiciary and bicameralism.

• Unitary features- a strong Centre, single Constitution, single citizenship, flexibility

of Constitution, integrated judiciary, emergency provisions, etc.

• Article 1- India as a ‘Union of States’- implies that:

• Indian Federation is not a result of an agreement by the States

• No State has the right to secede from the federation

 PARLIAMENTARY FORM OF GOVT.
• COI opted for British Parliamentary system rather than American Presidential
System of Govt.
• Parliamentary system- based on cooperation and co-ordination between the
legislative and executive organs while presidential system is based on separation
of powers between two organs
• Features:
a) Presence of nominal and real executive
b) Majority party rule
c) Collective responsibility of the executive to the legislature
d) Membership of ministers in the legislature
e) Leadership of the PM or the CM

• Indian Parliament system differs from British Parliament system- Indian

Parliament is not a sovereign body like British. India has elected head
(republic) but Britain has hereditary head (monarchy).

• In Parliamentary system role of PM is so crucial [political scientists call it a

Prime Ministerial Govt.]

 SYNTHESIS OF PARLIAMENTARY SOVEREIGNTY AND JUDICIAL
SUPREMACY

• Parliamentary sovereignty- British & Judicial supremacy- American

• Supreme Court can declare the parliamentary laws as unconstitutional

through its power of judicial review

• On the other hand, the Parliament can amend the major portion of

Constitution through it constituent power.

 INTEGRATED AND INDEPENDENT JUDICIARY
• Supreme Court stands at the top of the integrated judicial system in the
country. Below it – High Courts at state level- hierarchy of subordinate courts
• The single system of courts enforce both central and state laws unlike in
USA, where federal laws are enforced by federal judiciary and state laws by
state judiciary.
• Supreme Court- guarantor of fundamental rights & guardian of Constitution

• Provisions to ensure independence of Judiciary- security of tenure of judges,

fixed service conditions for judges, prohibition on discussion on the conduct
of judges in the legislatures, ban on practice after retirement, power to
punish contempt of court, separation of judiciary from the executive
 FUNDAMENTAL RIGHTS

• Part III – 6 fundamental rights:

a) Right to equality (Art 14-18)

b) Right to freedom (Art 19-22)

c) Right against exploitation (Art 23-24)

d) Right to freedom of religion (Art 25-28)

e) Cultural and educational rights (Art 29-30)

f) Right to constitutional remedies (Art 32)

• Operate as a limitation on abuse of power by executive and arbitrary laws

by legislature

• Justiciable- enforceable by the Courts

• FR are not absolute- subject to reasonable restrictions

• FR except 20, 21- can be suspended during operation of National

emergency
 DIRECTIVE PRINCIPLES OF STATE POLICY
• In Part IV

• Meant for promoting the ideal of social and economic democracy

• It seeks to establish a ‘welfare state’

• Non-justiciable

• These principles are fundamental in governance of the country and it shall

be the duty of the state to apply these principles in making laws
• Impose a moral obligation on the state authorities for their application.
(also public opinion)
 FUNDAMENTAL DUTIES
• Part IV-A, Article 51A specifies 11 fundamental duties:

• Respect the Constitution, national flag, national anthem

• Protect sovereignty, unity and integrity of the country

• Promote spirit of common brotherhood

• Preserve rich heritage of our culture, etc.

 SECULAR STATE
• India does not uphold any particular religion as the official religion

• Term ‘secular’ in the Preamble

• Preamble- liberty of belief, faith and worship

• Article 25- all persons are equally entitled to freedom of conscience and
right to freely profess, practice and propagate any religion, etc.
• Gives equal respect to all religions/ protecting all religions equally
 UNIVERSAL ADULT FRANCHISE

• Every citizen not less than 18 years of age has a right to vote without any

discrimination of caste, race, religion, sex, literacy, wealth, etc.

• Upholds democracy

SINGLE CITIZENSHIP

• Countries like USA- dual citizenship (USA and the concerned State)
 INDEPENDENT BODIES
• Certain bodies under Constitution other than the 3 organs

• Election commission- ensure free and fair elections

• Comptroller and Auditor-General of India- audit the accounts of Central and

state govt.
• Union Public Service Commission- conduct examination for recruitment to
all-India services and higher services and to advice the President on
disciplinary matters
• State Public Service Commission

• Constitution ensures independence of these bodies

 EMERGENCY PROVISIONS

• To enable the President to meet any extraordinary situation effectively

• National Emergency, State Emergency and Financial Emergency

• India becomes a unitary govt. during emergency

THREE-TIER GOVT.

• Centre, State and Local govt. (Panchayats, Municipalities)

PREAMBLE OF THE
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.
• Preamble- first introduced in American Constitution

• Refers to the introduction or preface to the Constitution

• Contains summary or essence of Constitution

• N A Palkhivala, an eminent jurist and constitutional expert- Preamble as the

‘identity card of the Constitution’

Ingredients of the Preamble:
• Source of authority of the Constitution: the Preamble states that the

Constitution derives its authority from the people of India

• Nature of Indian State: it declares India to be of a sovereign, socialist,

secular, democratic and republic polity

• Objectives of the Constitution: justice, liberty, equality and fraternity

• Date of adoption of the Constitution: stipulates Nov 26, 1949 as the date
Sovereign
• Implies that India is neither a dependency nor a dominion of any other

nation, but an independent state

• There is no authority above it and it is free to conduct its own affairs.

• Membership of the Commonwealth of Nations (British Crown as the head)

and membership of UNO- does not affect India’s sovereignty in any manner
and in no way is a limitation on her sovereignty

• India can either acquire a foreign territory or cede a part of its territory in

favour of a foreign state

Socialist
• The term was added by 42nd Amendment in 1976

• It provides that the State has a responsibility towards citizen for their

wealth, abolishing discrimination, nationalization of means of production,

equal distribution of wealth and securing justice for all

• Democratic socialism –aims to end poverty , ignorance, disease and

inequality of opportunity
Secular
• Also added by 42nd Amendment Act 1976

• Embodies positive concept of secularism- all religions of our country

(irrespective of their strength) have the same status and support from
the state.
Democratic
• Democratic polity is based on the doctrine of popular sovereignty-
possession of supreme power by the people.
• Representative Democracy- the representatives elected by the people
exercise the supreme power and thus carry on the govt. and make laws.
(two kinds- parliamentary & presidential)
• India- representative parliamentary democracy

• Universal adult franchise, periodic elections, rule of law, independence of

judiciary, absence of discrimination on certain grounds – manifestations of
democratic character of India polity
• Not only political but also social and economic democracy
Republic
• Democratic polity classified into –monarchy and republic

• Monarchy – the head of the state (king/queen) enjoys a hereditary position,

that is, he comes into office through succession, e.g. Britain.
• Republic- head of the state is always elected directly or indirectly for a fixed
period of time
• India- ‘republic’ in Preamble indicates that India has an elected head called
the President. He is elected indirectly for a period of 5 years
• Republic also means – 1) vesting of political sovereignty in the people and
not in a single individual like a king. 2) the absence of privileged class and
hence all public offices being opened to every citizen without any
discrimination.
Justice
• ‘justice’ in Preamble embraces 3 distinct forms- social, economic and

political (secured through provisions of FR & DPSP)

• Social justice- equal treatment of all citizens without any social distinction

based on caste, colour, race, religion, sex and so on. 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- non-discrimination between people on the basis of

economic factors.

• Political justice- all citizens should have equal political rights, equal access

to all political offices and equal voice in the govt.

• Idea of justice (social, economic & political)- taken from the Russian

Revolution (1917)
Liberty
• Means the absence of restraints on the activities of individuals, and at the
same time, providing opportunities for the development of individual
personalities.
• Preamble- liberty of thought, expression, belief, faith and worship-
enforceable through FR
• Liberty is not absolute but qualified

• Ideals of liberty, equality and fraternity- taken from French Revolution

(1789-1799)
Equality
• Means absence of special privileges to any section of the society, and the

provision of adequate opportunities for all individuals without any

discrimination

• Preamble- equality of status and opportunity to all citizens

• Equality- civil, political & economic

• Article 14, 15, 16, 17, 18

• Political equality- Article 325, 326

• Art 325- No person to be ineligible for inclusion in, or to claim to be included

in a special, electoral roll on grounds of religion, race, caste or sex

• Art 326- Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage

• Art 39- DPSP- to men and women- equal right to adequate means of

livelihood and equal pay for equal work

Fraternity
• Means sense of brotherhood
• Constitution protects this by the system of single citizenship
• FD- Art 51A- it shall be the duty of every citizen of India to promote harmony and
the spirit of brotherhood amongst all the people of India transcending religious,
linguistic, regional or sectional diversities.
• Preamble- fraternity has to ensure the dignity of the individual and the unity and
integrity of the nation
Significance of the Preamble
• Preamble embodies basic philosophy and fundamental values- political,
moral and religious- on which Constitution is based.
• It contains the grand and the noble vision of the Constituent Assembly and
reflects the dreams and aspirations of the founding fathers of the
Constitution.
• Sir Alladi Krishnaswami Iyer, member of the CA- ‘The Preamble to our
Constitution expresses what we had thought or dreamt so long’
• Pandit Thakur Das Bhargava, member of CA- ‘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’
• Kesavananda Bharati’s case (1973)-

• Preamble is a part of the Constitution

• 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. Held that Preamble is a part of the Constitution.
• Preamble can be amended, subject to the condition that no amendment is
done to the ‘basic features’.
• Basic elements or fundamental features of the Constitution as contained in
the Preamble cannot be altered by an amendment under Aricle 368.