A constitution is a body of fundamental principles according to which a state is constituted or governed.
The first function of a constitution is to provide a set of basic rules that allow for minimal coordination among members of a society.
The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
The third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
The most common way of limiting the power of government is to specify certain fundamental rights that all of us possess as citizens and which no government can ever be allowed to violate.
The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.
The Indian Constitution enables the government to take positive welfare measures some of which are legally enforceable. Such enabling provisions have the support of the Preamble to our Constitution, and these provisions are found in the section on Fundamental Rights. The Directive Principles of State of Policy also enjoin government to fulfill certain aspirations of the people.
Finally, and perhaps even most importantly, a constitution expresses the fundamental identity of a people. One has many sets of identities that exist prior to a constitution. But by agreeing to certain basic norms and principles one constitutes one’s basic political identity. Second, constitutional norms are the overarching framework within which one pursues individual aspirations, goals and freedoms. The constitution sets authoritative constraints upon what one may or may not do. It defines the fundamental values that we may not trespass. So the constitution also gives one a moral identity.
Successful constitutions strike the right balance between preserving core values and adapting them to new circumstances.
The Indian Constitution horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission.
Making of the Indian Constitution:
Formally, the Constitution was made by the Constituent Assembly which had been elected for undivided India. It held its first sitting on 9 December 1946 and re-assembled as Constituent Assembly for divided India on 14 August 1947.
Its 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. According to this plan:
1.“ 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. As a result the Provinces (that were under direct British rule) were to elect 292 members while the Princely States were allotted a minimum of 93 seats.
2.“ The seats in each Province were distributed among the three main communities, Muslims, Sikhs and general, in proportion to their respective populations.
3.“ Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote.
4.“ The method of selection in the case of representatives of Princely States was to be determined by consultation.
The Constituent Assembly had eight major Committees on different subjects. Each Committee usually drafted particular provisions of the Constitution which were then subjected to debate by the entire Assembly.
The best summary of the principles that the nationalist movement brought to the Constituent Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly) moved by Nehru in 1946. 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 a cosmopolitan identity.
Main points of the Objectives Resolution:
√India is an independent, sovereign, republic;
√India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States as are willing to be a part of the Union;
√Territories forming the Union shall be autonomous units and exercise all powers and functions of the Government and administration, except those assigned to or vested in the Union;
√All powers and authority of sovereign and independent India and its constitution shall flow from the people;
√All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms – of speech, expression, belief, faith, worship, vocation, association and action – subject to law and public morality;
√The minorities, backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards;
√The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be maintained
according to justice and law of civilized nations;
√The land would make full and willing contribution to the promotion of world peace and welfare of mankind.
Provisions borrowed from constitutions of different countries:
First Past the Post -Parliamentary Form of Government – The idea of the rule of law – Institution of the Speaker and his role – Lawmaking procedure
United States Constitution:
Charter of Fundamental Rights – Power of Judicial Review and independence of the judiciary
Directive Principles of State Policy.
Principles of Liberty, Equality and Fraternity.
A quasi-federal form of government (a federal system with a strong central government) – The idea of Residual Powers.
RIGHTS IN THE INDIAN CONSTITUTION:
Right to Equality
√Equality before law
√Equal protection of laws
√Prohibition on discrimination on ground of religion
√Equal access to shops, bathing ghats, hotels etc.
√Equality of opportunity in employment
√Abolition of titles
√Abolition of untouchability
Right to liberty and Personal freedoms
√speech and expression
√Move freely throughout the territory of India
√Reside and settle in any part of India. Practice any profession or to carry on any occupation, trade or business.
√Right to life and liberty;
√Rights of the accused and convicts
Right against exploitation
√Prohibition of forced labour;
√Prohibition of employment of children in hazardous jobs
Right to freedom of religion
√Freedom of conscience and profession;
√Freedom to manage religious affairs; freedom to give religious instructions in certain institutions
Cultural and educational Rights of minority groups
√Protection of language, culture of minorities;
√Right of minorities to establish educational institutions
Right to Constitutional remedy
√Right to move the courts for issuance of writs
Article 16 (4): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Article 21: Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.
Right to constitutional remedies is the means through which our fundamental rights could be realised in practice and defended against any attack on them. This right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.
The courts can issue various special orders known as writs:
1. Habeas corpus: A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
2. Mandamus: This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.
3. Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
4. Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
5. Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.
DIRECTIVE PRINCIPLES OF STATE POLICY:
Some guidelines were incorporated in the Constitution but they were not made legally enforceable: this means that if a government did not implement a particular guideline, we cannot go to the court asking the court to instruct the government to implement that policy. Thus, these guidelines are ‘non-justiciable’ i.e., parts of the Constitution that cannot be enforced by the judiciary. The list of these guidelines is called the Directive Principles of State Policy.
The chapter on Directive Principles lists mainly three things:
1.The goals and objectives that we as a society should adopt;
2. Certain rights that individuals should enjoy apart from the Fundamental Rights; and
3. Certain policies that the government should adopt.
Welfare of the people;
Social, economic and political justice;
Raising the standard of living;
Equitable distribution of resources;
promotion of international peace
equal pay for equal work (for men and women)
Right against economic exploitation.
Right to work;
Right of children to free and compulsory education
Uniform civil code;
Prohibition of consumption of alcoholic liquor;
Promotion of cottage industries;
Prevention of slaughter of useful cattle;
Promotion of village panchayats.
Article 324: (1)
The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
Executive is the branch of government responsible for the implementation of laws and policies adopted by the legislature.