Date : Sub : Constitution of India Sub Code : 3TDC- CI - 01 Pages :

Unit 1
CONSTITUTION HISTORICAL BACKGROUND

INDIAN CONSTITUTION:-
• The British came to India in 1600 as traders in the form of East India
Company and had exclusive right of trading under a charted granted by
Queen Elizabeth I
• In 1765 the company which had purely trading factions obtained the
Diwani Rights (Right over revenue and civil justice) of Bengal Bihar and
Orissa.
• On the wake of ‘Sepoy Meeting’ in 1857, the “British Crown assumed
direct responsibility over the governance of India which continued till
India government Independence.
• Along with the independence came the need of a constitution in
1934, MN Roy (a pioneer in the communist movement in India and
an advocate) for the first time suggested the need of a constituent
assembly.
• A constituent assembly was formed in 1946 and on Jan 26 1950
constitution came into being these are certain in the British rule that laid
down the legal framework for the functioning of British rule also these
events have greatly influenced our constitution and polity chronological
events are explained below.

1935 Government of India Act.

• This act provides for creation of all India federation comprising of

British provinces 11 and princely states.
• But this attempt was failed because of disapproval by the princely states.
This act abolished directly in the provinces and provided provincial
autonomy.
• According to which the process are divided between courts and its units
or princely states.
1. Federal list
2. Provincial list
3. Concurrent list
• This act introduced bicameral ion in 6 out of 11 provinces.
• Bengal, Bombay, Madras, Bihar, Assam limited province.
• This act further entered commercial representation or separate electorate
for depressed class (SC) and women.
• Thus act provides for the establishment of not only federal public
service commission and also provincial public service commission.
• This act provides for the established of not only federal public service
commission and also provincial public commission.
• This act provides for the established of Reserve bank of India.
• This Act provides for the established of federal court which was set up
in 1937 in Delhi.

Same court was inaugurated as Indian Supreme Court in Jan 28 1950.

COMPOSITION OF CONSTITUENT ASSEMBLY:-

According to the scheme formulated by the cabinet mission plan, the

constituent assembly was constituted in November 1946.

FEATURES OF CONSTITUENT ASSEMBLY:-

• The total strength of CA was 389. Out of this 296 seats belonged to
British India and 93 seats belonged to princely states. Out of 296 seats of
British India, 292 member were to be drawn from the 11 governors’
provinces and 4 from chief commission province each.
• Seats province and princely state were to be allowed seats in proportion
to their respective population (roughly 1 seats to 1 million population).
• Seats allotted to each British province were to be decided among 3
principle communities, Muslim, Sikhs and general proportion to their
population.
• The respective of each communities were to be elected by members of
that community in provincial legislative assembly.
• The respective of princely states were to be nominated by heads of the
princely states. Thus, CA was partly elected and partly nominated body.
• The election for 296 seats were held on July, august 1946.
• INC won 208 seats, Muslim league won 73 seats 15 seats. However 93
seats allotted as they decided to stay away from CA.
Although the constituent assembly was not directly elected by the people
of India on the basis of adult franchise, the assembly had representatives
of all section of Indian society. Hindus Muslims, SIKHS, PARSIS,
 Anglo-Indians, Indian, Christians, SC’S ST’S including women of all
these sections.
The CA included all important personalities of that time except M.
Gandhi and M.A Jinnah.
WORKING OF CONSTITUENT ASSEMBLY:-
• The constituent of assembly held its first meeting on Dec 9th 1946 the
Muslim league bycoted the meeting and insisted on a separate state of
Pakistan the meeting was thus attended by only 211 members.
• Dr. Sachidanand sinha the oldest member was elected as the temporary
president of the assembly following the French practice.
• Later on Dec 11, 1946 Dr Rajendra Prasad and H.C Mukherjee were
elected as the president and vice president of assembly respectively, B.N
Ram was appointed as the constitutional advisor to the assembly.

SALIENT FEATURES OF THE CONSTITUTION:-

1. Lengthiest written constitution: It is lengthiest, written constitution

in the world. It is very comprehensive, elaborate and detailed
document. Originally there was a preamble, 395 articles divided into
22 parts and 8 schedules. Presently there are 468 articles 25 parts and
10 schedules.

2. Drawn from various sources: The structural part of constitution is to

in large extent derived from government of India act 1935, the
philosophical part of the constitution (FR & DPSP derive inspiration
from French and Ireland).
Political part have been largely derived from British constitution.
Other provisions are drawn from Canada, Australia, Germany, USSR,
France SA, Japan and so on.

3. Blend of rigidity and flexibility: A rigid constitution is one which

requires a special procedure for its amendment by American.
A flexible is one in which the amendment can be made in same
manner as ordinary laws are made. Ex: - British constitution.
Indian constitution is neither rigid nor flexible but a synthesis of both
article 368, provides for 2 types of amendments.

4. Federal system in unitary bias: Federation is dual government

division of power, supremacy and bicameralisation. How every
unitary / non-federal feathers are strong centre, single constitution,
single citizenship, integrated judiciary, and bicameralisation. More
over the term federation has now where been used in the IC article/
 describes India as a union of states. Hence IC has been variously
describe as federal inform and unitary in spirit, quasi federal by KC
Where bargaining federalism by Morris Jones etc.

5. Parliamentary form of government: IC has opted for British

parliamentary system of government rather than American presidential
system. Parliamentary system is also known as Westminster model of
government, responsible government and cabinet government.

6. Synthesis of parliamentary sovereignty and federal supremacy:

There is a proper synthesis between the parish principle of
parliamentary sovereignty and US principle of judicial supremacy. SC
on the other hand can declare the parliamentary laws as
unconstitutional through the power of judicial review the
parliamentary on the other hand, can amend the major portion of the
constitution through the constituent power.

7. Integrated and independent judiciary: SC is the federal court, the

highest court of appeal, the guarantor of fundamental rights to citizen
and guardian of the constitution. Hence there are various process to
ensure its independence.
Ex: separation of judiciary from executive prohibition on discussion
on conduct of judges in legislatures etc.

8. Fundamental rights: FR’S are meant to political democracy of

individuals. They are justifiable in nature is, enforceable by the court
when violated the affected person can directly approach the SC and
can issue writs such as habeas corpus, mandamus, prohibition,
certiorari, and quo warrantor for the restoration of their rights.
However, fundamental rights are not absolute and there are subjects to
reasonable restrictions also they are not sacrosanct in nature. They can
be suspended during the operation of national emergency except
article 20 & 21.

9. Directive principles of state policy: Dr. B.R Ambedkar call it has the
novel features of Indian constitution. The DPSP are meant to promote
the ideal of social and economic democracy. They are established for
the Moto of a welfare state to India.
10. Fundamental duties: Original constitution did not provide for the
fundamental rights of the citizens they were added during the
operation of internal emergency (1975-77) by 42nd amendment of
1976 on the recommendation of the Swarn Singh committee.

11. Secular state: IC is secular and hence it does not uphold any
particular religion as official religion of the state.

12.Universal adult franchise: IC adopts universal adult franchise as a

basis to loksabha and state legislature assembly election every person
who has attained 18 years has the right to vote.

13.Single citizenship: Though IC is federal and envisages a dual policy it

provides only for a single citizenship in Indian citizenship. Despite the
constitutional provision of a single citizenship and uniform rights for
all the people, India has been witnessing the communal riots, class
conflicts, caste were linguistic clashes and ethnic disputes, this means
the cherished goal of the constitutional; makes to build united and
integrated Indian national has not been finally realised.

14.Emergency provision: The rationality behind the incorporation of this

provision into safeguard to sovereignty unity, and integrity and
security of the country.
National emergency was aggression external and armed rebellion
(352).
State emergency (president rule) on the ground of failure of
constitutional monarchy of state (356).
Financial emergency on ground of treat to financial stability or credit
of India (360).
During emergency the central government becomes all powerful and
states go into the total control of centre. It connects the federal
structure into a unitary one without amendment in constitutions; this is
a unique feature of IC.

15.3 tier government: Originally, IC provided for a dual polity states the
73rd and 74th CAA (1992) have added a third tier of government, i.e.
(local) which is not found in any other constitution of the world.
PREAMBLE OF THE CONSTITUTION:

The American constitution was the first to be begin with a preamble, many
countries including India, fallowed the practice. Preamble refers to
constitutional; it contains the summary or essence of the constitution.
N.A Palkhivala an eminent jurist and constitutional expert called the preamble
as “identity card” of the constitution. The preamble is based on the objective
resolution drafted and moved by Pandit Nehru. And adopted by constituent
assembly. It has been amended by the 42nd constitutional amendment act which
has added 3 new words, socialistic, secular and integrity.

INGREDIENTS OF PREAMBLE: Source of authority of the constitution

preamble states that constitution derives its authority from to people of India.
Nature of Indian states: It declares India to be a sovereign, socialist, secular, and
democratic and republic.
Objectives of constitution: it specifies justices’ liberty, equality and fraternity as
the objective.
Date of adoption of the constitution: it stipulated Nov 26, 1949 as the date

KEY WORDS:-
SOVERIGN: Word sovereign implies that India is neither a dependency nor a
domination of any other national, but is an India president state.

SOCIALIST: Notably the Indian brand of socialism is a democratic socialism

and not a communist socialism democratic socialism holds faith in the mixed
economy where both public and private sector coincide side by side.
India socialism is blend of Marxism and Gandhian learning.

SECULAR: The term secular was added by the 42 constitutional amendment

act of 1976, the Indian constitution embodies the positive concept of secularism,
all religion in the country have the same status and support from the state

DEMOCRATIC: The type of democracy is known as representative democracy,

it’s of two types parliamentary and presidential. IC provides for representative
parliamentary democracy, universal adult franchise, periodic elections, rule of
law, independence of judiciary and absence of discrimination on certain
grounds are the manifestations of democratic character of Indian polity.

REPUBLIC: The term republic in one preamble indicates that India has an
elected head called the president, He is elected indirectly for a fixed period of 5
years.
 Republic also means two more things, one vesting of political sovereignty in
the people and not in a single individual like a king second are absence of any
privilege class and hence all public offices belong opened to very citizen
without any discrimination.

JUSTICE: Word justices is the preamble embraces 3 district forms, social,

economic and political. Social justice denotes the equal treatment of all citizens
without any social destination based on caste, colour, race, religion, and so on
economic public denotes the non-discrimination between people on the basis of
economic factors. Political justice implies that all citizen should have equal
political avoiders and equal voice in the government.

LIBERTY: The ideals of liberty, equality and fraternity in one preamble have
been taken from the French revolution.
The term liberty means the absence of restraints on the activity of the individual
at the same time providing opportunity for the development of individual
personalities, Liberty has be enjoyed certain limitation mentioned in the
constitution itself.

EQUALITY: The term equality means the absence of special privileges in any
section of the society, and the provision of adequate opportunities for all
individuals without any discrimination. Preamble secures to all citizens of India
equality of states and opportunity this provision embraces 3 dimension of
equality- civic, political and economic.
Article 14, 15,16,17,18, A 325, 326 all provides equality to the citizens.

FRATERNITY: Fraternity means a sense of brother hood this feeling is

promoted by the system of single citizenship. Also the fundamental duties of
(Article 51A)
Say that it shall be the duty of every citizen of India to promote harmony and
the spirit of brotherhood amongst the people of India.
 FUNDAMENTAL RIGHTS
The fundamentals rights are enshrined in part 3 of the constitution from article
12 to 35.Part 3 is rightly described as Magnacarta of India Fundamental rights
in our constitution are more elaborate than those found in the constitution of any
other country in the world including USA Fundamental rights guarantee
equality of all individually and meant for promoting the ideal of political
domisary.

Originally constitution provided for seven fundamental rights namely

1. Right to equality (A-14-18)
2. Right to freedom (A-19-22)
3. Right against exploitation (A-23, 24)
4. Right to freedom of religion (A-25-28)
5. Cultural &educational rights (A-29-30)
6. Right to property (A-31)
7. Right to constitutional remedies (A-32)
However the right to property was deleted from the list of fundamental rights by
the 44th C.A.A 1978 it is made a legal rights under A-300A in part 12 of the
constitution so at present there are only 6 fundamental rights.

FEATURES OF FUNDAMEMTAL RIGHT

• Some of them are available only to the citizen while others are available to all
person whether citizen foreign or legal person like corporations & company
• They are not absolute but qualified the state can impose reasonable restriction
are reasonable or not is to be decide by the constitution.
• Most of them are available against the arbitrary action of the state
• Some them are negative in character that is some limitation on the authority of
the state, while other are positive in nature, confusing certain on the person.
• They are defended and guaranteed by the Supreme Court.
• They are not of permanent the parliament can curtail them but only buy a
constitutional amendment act and not by an ordinary act.
• They can be suspended during the operation of a national emergency except
the rights guaranteed by article 20 & 21, art 19 can be suspended only when
emergency is declared on the grounds of external aggression & not on the
ground of armed rebellion /internal emergency.
 FUNDAMENTAL RIGHTS

Category Consists of
Rights to equality  Equality before law and equal
(Articles14-18) protection of laws (article 14)
Prohibition of discrimination on grounds
of religion. Race caste, sex or place of birth
(article15)
Equality of opportunity in matters of
public employment (article16)
Abolition of untouchability and
prohibition of its practice (article 17)
Abolition of titles except military and
academic (article18)
Right to freedom Protection of six rights regarding
(article 19-22) freedom of:
o Speech and expression
o Assembly
o Association
o Movement
o Residence
o Profession (Article19).
Protection in respect of convention for
offences (Article 20).
Protection of life and personal liberty
(Article 21)
Right to elementary education in
certain cases (Article 22)
Right against Prohibition of traffic in human beings
exploitation (Articles 23-24) and forced labour (Article 23)
Prohibition of employment of children in
factories, etc. (Article 24).
Right to freedom of religion Freedom of conscience and free
(Article 25-28) profession, practice and propagation of
religion (Article 25).
Freedom to manage religious affairs
(Article 26).
 Freedom from payment of taxes for
promotion of any religion (Article 27).
Freedom from attending religious
instruction or worship in certain educational
institutions (Article 28).
Cultural and educational rights 1. Protection of language, script and
(Articles 29-30) culture of minorities (Article 29).
2. Right of minorities to establish and
administer educational institutions
(Article 30).
Right to constitutional remedies Right to move the supreme Court for the
(Article 32) enforcement of fundamental rights including
the writs of
o Habeas corpus
o Mandamus
o Prohibition
o Certiorari
o Quo warranto (Article 32).
 FUNDAMENTAL DUTIES
In 1976, ten fundamental duties of citizens were added in the
constitution. In 2002, one more fundamental Duty was added. The
fundamental duties in the Indian constitution are inspired by the
constitution of erstwhile USSR.

LIST OF FUNDAMENTAL DUTIES

According to article 51 A, it shall be the duty of every citizen of
India;
1. To abide by the constitution and respect its ideals and institutions,
the national flag and the national anthem;
2. To cherish and follow the noble ideals that inspired the national
struggle for freedom;
3. To uphold and protect the sovereignty, unity and integrity of India;
4. To defend the country and render national service when called
upon to do so;
5. To promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities and to renounce practices derogatory
to the dignity of women;
6. To value and preserve the rich heritage of the country`s composite
culture;
7. To protect and improve the natural environment including forest,
lakes, rivers and wildlife and to have compassion for living creatures;
8. To develop scientific temper, humanism and the spirit of inquiry
and reform;
9. To strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher level of
endeavour and achievement;
10. To safeguard public property and to abjure violence.
11. To provide opportunities for education to his child or ward
between the age of six and fourteen years. This duty was added by the
86th constitutional amendment act 2002.
 DIRCTIVE PRINCIPLES OF STATE POLICY

The principle of state policy are enumerated in part IV of the

constitution from Article 36 to 51. The framers of the constitution
borrowed this idea from the Irish constitution of 1937, which had
copied it from the Spanish constitution. Dr B R Ambedkar described
these principles as novel features of the Indian constitution. The
directive principles along with the fundamental right contain the
philosophy of the constitution and is the soul of the constitution.
Granville Austin has described the Directive principles and the
fundamental right as the conscience of the constitution

FEATURES OF THE DIRECTIVE PRINCIPLES

1. The phrase directive principles of state policy denotes the ideals
that the state should keep in mind while formulating policies and
enacting laws.
2. The directive principles constitute a very comprehensive economic,
social and political programme for a modern democratic state they
aim at realising the high ideals of justice, liberty, equality and
fraternity as outlined in the preamble to the constitution.
3. The directive principles are non-justiciable in nature that is they are
not legally enforceable by the court for their violation.
4. The directive principles, through non-justiciable in nature, help the
court in examining and determining the constitutional validity of a
law. The Supreme Court has ruled many a times that in determining
the constitutionality of any law, if a court finds that the law in
question seeks to give effect to a directive principle, it may consider
such law to be reasonable in relation to Article 14 and thus save such
law from unconstitutionality.
CLASSIFICATION OF THE DIRECTIVE PRINCIPLES

They can be classified into three board categories, Socialistic,

Gandhian and liberal-intellectual.

SOCIALISTIC PRINCIPLES:
These principles reflect the ideology of socialism. They lay down the
framework of a democratic socialist state, aim at providing social and
economic justice, and set the path towards welfare state. They direct
the state;
1. To promote the welfare of the people by securing a social order
permeated by justice social, economic and political – and to minimise
inequalities in income, status, facilities and opportunities
(Article 38)
2. To secure (a) the right to adequate means of livelihood for all
citizens; (b) the equitable distribution of material resources of the
community for the common good; (c) prevention of concentration of
wealth and means of production; (d) equal pay for equal work for men
and women ;(e) preservation of the health and strength of workers and
children against forcible abuse; and (f) opportunities for healthy
development of children (Article 39).
3. To promote equal justice and to provide free legal aid to the poor
(Article 39 A)
4. To secure the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disablement (Article 41)
5. To make provision for just and humane conditions for work and
maternity relief (Article 42).
6. To secure a living wage, a decent standard of life and social
cultural opportunities for all workers (Article 43).
7. To take steps to secure the participation of workers in the
management of industries (Article 43 A).
8. To raise the level of nutrition and the standard of living of people
and to improve public health (Article 47).
GANDHIAN PRINCIPLES:
These principles are based on Gandhian ideology. They represent the
programme of reconstruction enunciated by Gandhi during the
national movement. In order to fulfil the dreams of Gandhi, some of
his ideas were included as directive principles. They require the state;
1. To organise village panchayats and endow them with necessary
power and authority to enable them to function as unit of self-
government (Article 40)
2. To promote cottage industries on an individual or co-operative
basis in rural areas (Article 43).
3. To promote voluntary formation, autonomous functioning,
democratic control and professional management of co-operative
societies (Article 43B)
4. To promote the educational and economic in terests of SCs, STs,
and other weaker sections of the society and to protect them from
social injustice and exploitation (Article 46)
5. To prohibit the consumption of intoxicating drinks and drugs which
are injurious to health (Article 47)
6. To prohibit the slaughter of cows, calves and other milch and
draught cattle and to improve their breeds (Article 48)

LIBERAL-INTELLECTUAL PRINCIPLES:
The principles included in this category represent the Ideology of
liberalism. They direct the state;
1. To secure for all citizen a uniform civil code throughout the
country (Article 44).
2. To provide early childhood care and education for all children until
they complete the age of six years (Article 45).
3. To organise agriculture and animal husbandry on modern and
scientific lines (Article 48)
4. To protect and improve the environment and to safeguard forests
and wild life (Article 48 A)
5. To protect monuments, places and objects of artistic or historic
interest which are declared to be of national importance (Article 49).
6. To separate the judiciary from the executive in the public services
of the state (Article 50).
7. To promote international peace and security and maintain just and
honourable relations between nations; to foster respect for
international law and treaty obligations, and to encourage settlement
of international disputes by arbitration (Article 51).

DISTINCTION BETWEEN FUNDAMENTAL RIGHTS

AND DIRECTIVE PRINCIPLES

Fundamental Rights Directive principles

These are negative as they These are positive as they require
Prohibit the state from doing the state to do certain things.
certain things.
These are justifiable, that is, These are non-justifiable, that is,
they are legally enforceable they are not legally enforceable
by the courts in case of their by the court for their violation.
violation
They aim at establishing political They aim at establishing
democracy in the country. social and economic democracy
in the country
These have legal sanctions These have moral and
political sanctions
They promote the welfare of the They promote the welfare of the
individual. Hence, they are community. Hence, they are
personal and individualistic. societarian and socialistic.
They do not require any They require legislation for their
legislation for their implementation they are not
implementation. They are automatically enforced.
automatically enforced.