THE CONSTITUTION OF INDIA: BASIC FACTS

The Constitution of India is the supreme law of the land, deriving its supremacy from the sovereign authority, the People of India.

The fountain source of law in India is the Constitution, which, in turn, gives due recognition to statutes, case law, and customary law consistent with its dispensations.

It defines the basic political code, structure, procedures, powers, and duties of government institutions and sets out the fundamental rights, guiding principles, and duties of citizens.

The Indian Constitution was drafted at the All Parties Conference in Lucknow in 1928.The parties included the Indian National Congress, the All India Liberal Federation, the All India Muslim League, and the Sikh Central League. The notable members of this committee were: Motilal Nehru as chairman, Sir Ali Imam, Tej Bahadur Sapru, and Subash Chandra Bose. Mukund Ramrao Jayakar and Annie Besant

The All Parties Conference received a report in August 1929.The very first article of the report unequivocally claimed dominion status for India. Other notable features included a section on fundamental rights: the right to free expression and opinion; equality before the law; the right to bear arms; freedom of conscience; freedom of profession; and propagation of religion. The most remarkable provision was the right to free and basic education. The report introduced a parliamentary system of government along with universal adult suffrage. On the communal question, the report proposed reservations for Muslims in legislatures; however, these were restricted to only those constituencies where Muslims were a minority. Also, there was no mention of separate electorates for Muslims.

The Constituent Assembly of India, presided over by Dr. Rajendra Prasad, framed, deliberated, formulated, and adopted the Indian Constitution.

It became effective on January 26, 1950.On that day, India became a republic following Dr. Rajendra Prasad’s election as the first President of India by the Constituent Assembly of India.

1. The Constituent Assembly

The idea for a Constituent Assembly was first proposed by Manabendra Nath Roy, born Narendra Nath Bhattacharya, in December 1934; it was later raised by the Indian National Congress in 1935 and followed up by Chakravarti Rajagopalachari in November 1939.

Total members: Originally, there were 389 members, including 292 from the provinces, 93 from the princely states, and four from the chief commissioner provinces of Delhi, Ajmer-Merwara, Coorg, and British Baluchistan. Following reorganisation under the Mountbatten Plan, the Constituent Assembly of India had 299 members and the Constituent Assembly of Pakistan had 90 members.

Dr. Sachchidananda Sinha presided over the first meeting of the Constituent Assembly on December 9th, 1946, as its pro tem president.

Regular President: Dr. Rajendra Prasad, elected as the President of the Constituent Assembly on December 11th, 1946, continued to discharge that role until his assumption as the first President of the Republic of India on January 26, 1950. On December 11th, 1946, Shri Harendra Coomar Mookerjee was appointed as the first Vice President, and Sir Vangal Thiruvenkatachari Krishnamachari was appointed as the second Vice President on July 16th, 1948.

Constitutional Advisor: Sir Benegal Narsing Rau, jurist and diplomat, retired from the Indian Civil Service, served as Prime Minister of the erstwhile princely state of Jammu and Kashmir, and served as Judge in the International Court of Justice in The Hague, the Netherlands.

Dr. Bhimrao Ramji Ambedkar chairs the Constitution Drafting Committee, which also includes Kanhaiyalal Maneklal Munshi, Sir Syed Muhammed Saadullah, Sir Alladi Krishnaswamy Iyer, and Diwan Bahadur. Sir Narasimha Gopalswamy Ayyangar, Sir Nyapathi Madhava Rau, Shri Tiruvellore Thattai Krishnamachari

Shri Surendra Nath Mukherjee was the chief draftsman of the Constitution in the Constituent Assembly.

The Objective Resolution: Jawaharlal Nehru presented the draught Objective Resolution before the Constituent Assembly on December 13th, 1946, and the same was adopted on January 22nd, 1947. It later became the basis for the Preamble to the Constitution of India.

·     This Constituent Assembly declares India as an independent, sovereign republic and declares the creation of a constitution to run its future administration.

·     All territories in British India, all territories included in the Indian states, and all such territories outside India and other territories as they may wish to join, shall be part of the Indian Union.

·     All the areas mentioned above and their boundaries will be determined by the Constituent Assembly. And for this, according to the later rules, if they wish, their residuary powers will be vested in them, and for the conduct of administration, all those powers will be available to these states except those that will be vested in the Union.

·     The source of all the powers and authority of a sovereign, independent India, including its integral parts and parts of government, shall be the people of India.

·     Justice, social, economic, and political freedom and security, equality of opportunity, equality before the law, freedom of thought and expression, belief, travel, freedom to form organizations, and the establishment of public morality will be ensured for all the people of India.

·     Minorities, backward classes, and tribal residents will be adequately protected.

·     The unity of the Union will be maintained intact, and its land, sea, and airspace will be protected according to the justice and law of all countries.

·     And this ancient land will be given its rightful and proper place in the world, and its contribution towards promoting world peace and human welfare will be ensured.

Adoption of the National Flag: The national flag in its present form was adopted by the Constituent Assembly on July 22, 1947.

The national flag of India is a horizontal tricolour of deep saffron (kesari) at the top, white in the middle, and dark green at the bottom, in equal proportions. The ratio of the width of the flag to its length is two to three. In the centre of the white band is a navy blue wheel, which represents the chakra. Its design is that of the wheel that appears on the abacus of the Sarnath Lion Capital of Ashoka. Its diameter approximates the width of the white band, and it has 24 spokes.

Adoption of the Constitution of India: November 26, 1949 This day is being celebrated as "Constitution Day" to promote constitutional values among citizens. The Constitution of India was signed and accepted by all members of the Constituent Assembly on January 24, 1950, with 395 articles, 8 schedules, and 22 parts.

Illustration and calligraphy

Calligraphed and illustrated by Prem Behari, Narain Raizada, and Nandalal Bose.

Provisional Parliament: The Constituent Assembly continued to function as a provisional parliament till the First General Elections in 1952 (25 October 1951 to 21 February 1952), conducted by the Election Commission of India along with most other state legislatures.

2. The Constitution of India

2.1. The preamble, a part of the Constitution, was decided by the Supreme Court in the Keshavananda Bharati Case, 1973. For the first time, a bench of 13 judges assembled and sat in its original jurisdiction to hear the writ petition. The court held that

a. The Preamble to the Constitution of India is part of the Constitution.
b. that the Preamble is neither a source of power nor a source of limitation. The Preamble has a significant role to play in the interpretation of statutes as well as in the interpretation of provisions of the Constitution.

The preamble is amended once to include "socialist," "secular," and "integrity"; see The Constitution (Forty-Second Amendment) Act, 1976.

2.2. Total No. of Parts: 22

2.3. The total number of Articles:  395.

2.4. Total No. of Schedules: 12

2.5. Total No. of Appendices: 5

2.6. Amendments:  105 amendments, as of August 10, 2021.

2.7. Amendments Declared Void by the Supreme Court of India

The Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014.

Declared fully null and void.

For the first time in independent India, the Supreme Court of India on October 16, 2015, by a 4-1 majority, struck down the twin acts of the Parliament of India, the Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, in their entirety as unconstitutional as they violate the basic structure of the Constitution of India.

Justices J. S. Khehar, MB Lokur, Kurian Joseph, and Adarsh Kumar Goel declared the 99th Amendment and NJAC Act unconstitutional, while Justice Chelameswar upheld it.

The Constitution (Ninety-Seventh Amendment) Act, 2011

Declared partially void

A three-judge bench of the Supreme Court on July 20, 2021, quashed part of the 97th Amendment Act and Part IX B of the Constitution, which governs "cooperative societies" in the country. On July 20, the Supreme Court, in a 2:1 majority verdict, upheld the validity of the 97th constitutional amendment that deals with issues related to the effective management of cooperative societies but struck down a part inserted by it that relates to the Constitution and the working of cooperative societies. A three-judge bench of the Supreme Court on Tuesday quashed parts of the 97th Amendment Act and Part IX B of the Constitution, which govern the "cooperative societies" in the country.

The Constitution (Fifty-Second Amendment) Act, 1985

Declared partially void

"The court overturned paragraph 7 and invoked the doctrine of severability to support the remainder of the paragraphs of the tenth schedule." The removal from the courts' jurisdiction under paragraph 7 was a byproduct of the main goal, which was to combat the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions of the tenth schedule if it had known that paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule alone cannot stand, even if the paragraph is deemed unconstitutional. "The provisions of paragraph 7 can, therefore, be considered separable from the rest of the provisions," the court stated.

The Constitution (Twenty-second Amendment) Act, 1976

Declared partially void

Part XIVA of the Constitution was incorporated through Section 46 of the Constitutional Law (42nd Amendment) of 1976, with effect from March 1, 1977. It included two provisions, Articles 323A and 323B. The Court ruled clauses 2(d) of article 323A and clause 3(d) of article 323B to be unconstitutional to the extent that they exclude the jurisdiction of the high courts and the Supreme Court under articles 226 and 227 and 32 of the Constitution.

The Constitution (Twenty-second Amendment) Act, 1976

Declared partially void

"The Supreme Court in Miranda Mills Ltd. and others vs. Union of India (1980) and Constitution (42nd Amendment) Act, 1976—Limitations on Judicial Review" stated that Section 4 of the Constitutional Amendment Act 42 is outside the amending power of Parliament and is void since it damages the fundamental or essential characteristics of the Constitution and destroys its basic structure."

The Constitution (Thirty-Ninth Amendment) Act, 1975

Declared partially void

Clause 4 of this Act inserted Articles 71(2) and 329A, which provided that disputes regarding the election of four high officials, namely, the President, Vice President, Prime Minister, and Speaker of the Lok Sabha, should be adjudicated by whatever authority and procedure were provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void. This was struck down as unconstitutional in Indira Gandhi vs. Raj Narain (1975). The 39th Amendment also extended immunity to a number of statutes from judicial purview on the ground of infringement of fundamental rights by including them in the Ninth Schedule. But only clause 4 was challenged in Indira Gandhi.

The Constitution (Thirty-Second Amendment) Act, 1973

Declared partially void

It inserted Article 371D of the Constitution, which excluded the High Court’s power of judicial review. In P. Samba Murthy vs. State of Andhra Pradesh (1986), the court struck down Clause of of Article 371D along with the proviso as unconstitutional and void. This provision conferred power on the state government to modify or annul the final order of the Administrative Tribunal.

The Constitution (Twenty-Fifth Amendment) Act, 1971

Declared partially void

The Court in Kesavananda Bharati Vs. the State of Kerala (1973) and Constitution (25th Amendment) Act, 1971, held that the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament?

The thirteen-judge bench of the Supreme Court in Keshwanand Bharti Case 1973, by a majority of 7:6, held that the Parliament has the authority to amend any clause of the constitution as long as the amendment does not violate the Basic Structure of the Constitution.

The apex court upheld the entire 24th Constitutional Amendment Act 1971 but considered the first part of the 25th Constitutional Amendment Act 1972 to be intra vires and the second part to be ultra vires.

The court, using social engineering and balancing the interests of both litigants, determined that neither the Parliament nor the Supreme Court has the authority to corrode the basic structure of the Constitution, nor can it withdraw the mandate to create a welfare state and a fair society. The Basic Structure Doctrine was thus formulated in the Kesavananda case, which implied that, although the Parliament has the authority to amend the entire Constitution, they must do so in a way that does not contradict the features so fundamental to the Constitution that it would be spiritless without them.

3. Unique Features

3.1. The President of India is the only constitutional functionary who is duty bound as per oath and affirmation under Art. 60 of the Constitution of India that he "will do the best of my ability to preserve, protect, and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India." By that authority, the President is the preserver, protector, and defender of the Constitution and the law of the land.

3.2. The Supreme Court of India, besides judicial review and appellate jurisdiction, has also been endowed with original jurisdiction as per Art. 131, writ-issuing power as per Art. 139, and enforcement of fundamental rights as per Art. 32 of the Constitution.

Besides, it is the only court in the democratic systems of the world that completely insulates itself from the executive through its power of appointment of judges in the highest judiciary.

The Supreme Court, in Supreme Court Advocates-on-Record Association (SCARA) vs. Union of India, 1993, overruled its earlier decision in the S.P. Gupta case, or First Judges case, 1982, that the word "consultation" under Art. 124 means "concurrence," thus binding the President of India with the consultation of the Chief Justice of India. This is how the "Collegium System" for the appointment and transfer of judges in the higher judiciary came into being.

The "Collegium System" gets institutionalised in the Presidential Reference Under Article 143(1) of the Constitution, in People v. Unknown on October 28, 1998, the Court questioned the meaning of the word "consultation" in articles 124, 217, and 222 of the Constitution. The Court opined that consultation would include a collegium of four senior-most judges of the Supreme Court, besides the Chief Justice of India.

3.3. Fundamental Rights (Part III of the Constitution of India)

The Fundamental  Right to Property under Art. 31 was repealed in order to become a legal right under Art. 300A (no one shall be deprived of his property except by authority of law). Fundamental rights under Art. 20 (Protection with respect to conviction for offences) and Art. 21 (Right to life and personal liberty) cannot be suspended under the emergency provision powers of the Parliament. These are amended as per the Constitution (Fourty-Fourth Amendment) Act, 1978.

Remarks

It is a fundamental fact that the final authority regarding interpretation and guardianship of the Constitution of India and any other statutory laws, rules, or regulations that in any way concern the constitutional framework rest with the judicial system of India.

-Asutosh Satpathy