CHAPTER 1: MAKING OF THE CONSTITUTION

Demand For the constitution:

 First Idea of Constituent Assembly M.N.Roy (1934).

 INC officially demanded for the constituent assembly (1935).
 August Offer(1940) : the demand for the constituent assembly accepted.(Muslim league against
it)
 “Cabinet mission” sent to India, their scheme more or less satisfied Muslim league.

Composition of the constitution Assembly:

 Total Strength is 389: 296(British Provisions) + 93(Princely States)

 Each seat is allotted proportional to their population. (roughly one million for one seat)
 296 is divided among the three principal communities. They are selected by members of that
community in the provincial legislature.
 Representatives of the princely states nominated by the heads of the princely states.
 Election july-august (1946) : congress(208), Muslim league(73) and other small groups won 15
seats
 93 seats of princely states are not filled they away from the constituent assembly.

Working of the Constituent assembly:

 First meeting: Dec 9, 1946. Muslim League Boycotted this meeting.

 Dr.Sachchidananda Sinha elected as a President, after Dr. Rajendra Prasad was elected
as a president.
 Two Vice presidents for the constituent assembly (H.C.Mukherjee and
V.T.Krishnamachaari)
 Objective Resolution: On dec13, 1946 Nehru moved the historic objectives Resolution(it consists
of fundamental and philosophy of constituent structure)
 India is the Independent Sovereign, Republic Country
 Constituent parts and organ of the government derived its power from the People.
 Guaranteed and secured justice, equality of status of opportunity, before the law,
freedom thought, expression, belief, faith, worship
 This Resolution is adopted on Jan 22, 1947
 Changes by the Independence Act: After the acceptance of the Mountbatten Plan of June 3,
1947, outside members are gradually joined it.(princely states and the members of the Muslim
under the Indian Dominian)
 Assembly also became legislative body(it is the first parliament of the freedom india). It Enacting
of ordinary laws.
 Dr.Rajendra Prasad : Constituent body & Dr.G.V.Mavalnkar : Legislative body
 Muslim league members under the dominion of Pakistan with drew their seats : so, total seats
became 299 (229 + 70).
 Other Functions of the Constituent Assembly :
  India’s membership of the commonwealth in May 1949.
 It adopted National Flag, National anthem and national song also.
 It elected Rajendra Prasad as a First President of India on Jan 24, 1950
 11 sessions over tow years, 11 months and 18 days. Gone through the constitutions of about 60
countries(64 lakh of total expenditure)
 On Jan 24, 1950: final session of the constitution assembly and it continued as the provisional
parliament till the formation of new Parliament.

Committees of the Constituent Assembly:

 Eight major committees and other minor committees

 8 major Committees :
1. Union Powers Committee : Jawaharlal Nehru
2. Union Constitution Committee: Jawaharlal Nehru
3. States Committee: Jawaharlal Nehru
4. Advisory Committee on Fundamental rights, minorities and tribal excluded areas: Sardar
Patel
5. Provincial Constitution Committee: Sardar Patel
6. Drafting Committee: Dr.B.R.Ambedkar
7. Steering Committee: Rajendra Prasad
8. Rules of Procedure Committee: Rajendra Prasad
 Drafting Committee: Most important committee which posses the responsibility of drafting the
constitution. It consists of seven members
o Dr.B.R.Ambedkar (Chariman)
o Dr.K.M.Munshi
o Alladi krishnaswamy Ayyar
o Gopalaswamy Ayyangar
o Krishnamachari
o Syed Mohammad Saadullah
o Madhava Rau
 First draft was published in Feb 1948, (people of India were given eight months
to discuss and propose amendments)
 Second draft was published in October, 1948
 It took less than 6 months to prepare its draft, totally it sat only for 141 days.

Enactments of the Constitution:

 First reading of the final draft : Nov 4, 1948 - Nov 9, 1948

 Second reading (clause by clause reading : Nov 15 1948 – Oct 17, 1949) (more than 2000
amendments are discussed in assembly)
 Third reading: Nov 14, 1949.
 The motion on draft constitution was declared as passed on Nov 26, 1949 : 284 members are
signed in that motion:
  our constitution is officially adopted on Nov 26, 1949, contained a preamble, 395 articles and 8
schedules.

Enforcement of the Constitution:

 Some provisions are came into force on Nov 26, 1949 itself.
 The remaining provisions of the constitution came into force on Jan 26, 1950 (republic day)
 Jan 26 : the day in 1930 PUrna Swaraj day was celebrated.
 With the commencement of the constitution: Independence Act and Government of India act
are repealed.

Experts Committee of the Congress:

 Congress Party appointed an Experts committee for the purpose of preparing material for the
constituent assembly.
 8 members are in the experts committee chaired by Jawaharlal Nehru. Significant members are
K.M.Munshi and Gopalaswami Ayyangar.

Criticism of the constituent assembly:

 Not a representative Body

 Not a Sovereign Body
 Time consuming
 Dominated by Congress
 Lawyer – Politician Domination
 Dominated by Hindus

CHAPTER 2: PREAMBLE OF THE CONSTITUTION

 American constitution: first to begin with a preamble

 N.A.Palkhivala : eminent Jurist “Identity card of the constitution”.
 It is based on the “objectives resolution” drafted and moved by Nehru
 Preamble of our constitution is amended by the 42nd Constitutional amendment act which
added new three words – socialist, secular and Integrity

Ingredients of the Preamble:

 Source of authority : Derives powers from people

 Nature of Indian State: Sovereign, Socialist, Secular, Democratic, and Republic
 Objectives of the constitution: Justice, liberty, equality and fraternity
 Date of adoption: Nov 26, 1949

Key words in the Preamble

1. Sovereign
 The word “sovereign” implies that india is neither a dependency nor a dominion of any
other nation, but an independent state.
 Full membership of the commonwealth of nations and accepted the british crown as the
head of the commonwealth. India’s membership of the UNO : Not a limitation of
sovereignty.
2. Socialist
 Even before the amendment, socialist content in our constitution in the form of
Directive principles of state policy.
 Congress party : “Avadi session” – 1955
 Indian brand of socialism is democratic socialism instead of Communist socialism.
 As supreme court says, “Democratic socialism aims to end poverty, ignorance, disease
and inequality of opportunity”.
 NEP(1991) : diluted the socialist credentials of the Indian state.
3. Secular
 In 1976: 42nd amendment, in 1974 SC says that “secular state is not expressedly
mentioned in the constitution , there can be no doubt that constitutional makers want
to establish such a state.
 Articles 25 to 28: guaranteeing the fundamental rights of freedom
 Indian constitution embodies the positive concept of Secularism.
4. Democratic
 Possession of supreme power by the people. Democracy is of two types: direct and
indirect democracy
 Democracy two kinds: Parliamentary and presidential
 The term “democratic” is used in the constitution in the broader sense embracing not
only political democracy but also social and economic democracy.
 According to Ambedkar “Social economy means a wasy of life which recognizes liberty ,
equality and fraternity.
5. Republic
 Democratic polity can be classified into two categories: monarchy and republic.
 Republic in our preamble indicates that India has an elected head called the president.
 A republic also means two more things.
 Political sovereignty in the people and in a single individual like a king.
 The absence of any privileged class hence all public offices being opened to
every citizen without any discrimination.
6. Justice
 The term justice in preamble embraces three distinct forms: social, economic and
Political
 Social justice: Equal treatment of all citizens without any social distinction
 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
 7. Liberty
 The term liberty means “ the absence of restraints on the activities of individuals, and at
the same time providing opportunities for the development of individual personalities.”
 Liberty of thought, expression, belief , faith and worship
 Very essential for the successful functioning of the Indian democratic system.
 Liberty conceived by the preamble or fundamental rights is not absolute but qualified.
8. Equality
 The term equality means the absence of special privileges to any section of the society,
and the provision of adequate opportunities for all individual without any
discrimination.
 Three dimensions of equality: Civic, Political and Economic
 Two provisions for achieve political equality:
 No person is to be declared ineligible for inclusion in electoral rolls on grounds
of religion, race, caste or sex (art 325)
 Elections basis fo adult suffrage (Art 326)
9. Fraternity
 Fraternity means a sense of brotherhood.
 Single citizenship and Fundamental Duties.
 Fraternity has to assure two things
 The dignity of the individual
 The unity and integrity of the nation.
 Integrity the word added in the preamble by the 42nd amendment act

Significance of the Preamble

 Alladi Krishnaswami Ayyar – “The Preamble to our constitution expresses what we had
thought or dreamt so long.”
 K.M.Munshi – “horoscope of our sovereign democratic republic”
 Thakur Das – “The preamble is the most precious part of the constitution”
 M.Hidayatullah – “ American preamble resembles the declaration of independence, but
our preamble si more than a declaration and it is the soul of our constitution.”

Preamble at the part of the Constitution:

 Berubari Union Case (1960) : Not the part of the constitution

 Kesavananda Bharathi Case (1973) : integral part of the constitution
 The preamble is neither a source of power to legislature or prohibition upon the powers
of legislature.
 It is non-justifiable, provisions are not enforceable in courts of law.
CHAPTER 3: CITIZENSHIP

 Citizens are full members of the indian state and owe allegiance to it. They enjoy all civil and
political rights.
 Aliens also divided into two types: friendly aliens and enemy aliens. Enemy aliens enjoyed lesser
rights than friendly aliens
 Constitution confers following rights and privileges on the citizens:
 Right against discrimination
 Right to equality
 Right to freedom
 Cultural and educational rights
 Right to vote in elections
 Eligibility to hold certain public offices
 Both a citizen by birth as well as a naturalized citizen are elegible for the office of
president in India.

Constitutional Provisions

 Constitution deals with the citizenship from articles 5 to 11 under Part 2.

 It only identifies the persons who became the citizen of india at its commencement (does not
deal with the problem of acquisition or loss of citizenship
 Four categories of persons became the citizens of India :
i. Domicile in India (born in India , Parents born in India, resident in India
immediately before the commencement of the constitution.
ii. Migrated to India from Pakistan (either of his parents or grandparents are born
in the undivided India. (migrated before july 19,1948 & and resident in India
since the date of migration.
iii. A person who migrated to Pakistan from India after March 1, 1947. But later
returned to India for resettlement could become a Indian Citizen.
iv. A person whose parents or grandparents born in undivided India, but who is
ordinarily lives In outside India: covers the overseas Indians who may want to
acquire Indian citizenship.

Other Constitutional Provisions:

 No person shall be a citizen of India or be deemed to be a citizen of India, if he voluntarily

acquired the citizenship of any foreign state.
 Every person continue as a citizen => after any amendment in the citizenship law
 Parliament shall have the power to make any provision with respect acquisition and termination
of citizenship

CHAPTER 4: AMENDMENT OF THE CONSTITUTION

  Article 368 in part XX of the constitution deals with the powers of parliament to amend the
Constitution and its procedure.
 Indian constitution is neither flexible nor rigid but a synthesis of both.
 Parliament cannot amend those provision which form a basic structures of the constitution
(Kesavandanda Bharathi case 1973)

Procedure For Amendment:

 only Initiated by the either house of the parliament not by the State legislature.
 Can be introduced either by a minister or by a private member (does not need prior Permission)
 Must be passed in each House by a special majority.
 No provision for holding a joint sitting of the two houses.
 If the bill seeks to amend the federal provisions, more than half of the state legislature approval
is needed. (Only simple Majority)
 After duly passed by both the houses, the bill is presented to the president for assent.
 The president must give assent to the bill (24th constitutional amendment act 1971)
 After the president’s assent, the bill becomes an Act

Types of Amendments:

 Article 368 provides two types of amendments:

i. By special majority of the parliament (simple majority of the state legislature)
ii. By Simple majority of the parliament (Out of scope for art 368)
 Therefore, constitution can be amended in Three ways.

i. By Simple majority of Parliament:

 Admission or establishment of new states.

 Formation of new states and alteration of areas, boundaries.
 Abolition or Creation of legislative councils in states.
 Salaries and allowances of the parliament and committees
 Privileges of the parliament, its members and its committees.
 Rules of procedure in parliament
 Quorum in parliament
 Use of English Language in Parliament
 Number of judges in the Supreme court
 Conferment of more jurisdiction on the supreme court
 Use of official Language
 Citizenship – acquisition and termination
 Election to parliament an state legislature
 Second, fifth and sixth schedule
By Special Majority

 Fundamental rights
 Directive Principles of state policy
 All other provisions of the constitution which not covered by the first and third groups.

By special majority of the parliament and consent of the states

 Extent of the executive power of the union and the states

 Distribution of legislative powers between the union and the states.
 GST council
 Any of the lists in the seventh schedule
 Election of the president and its manner
 Supreme court and high courts
 Representation of states in Parliament
 Power of parliament to amend the constitution and its procedure (art 368 itself)

Criticism of the amendment procedure:

I. There is no provision for special body like Constitutional convention as in USA

II. The constituent power is vested in the parliament and only in few cases in the state
legislature.(only half of the state legislature) – incase of USA 3/4th of the states.
III. Power to initiate the amendment to the constitution lies with the parliament (except
one case)
IV. Major part of the constitution can be amended only by the parliament alone
V. No time limit for state legislatures to ratify or reject an amendment submitted to them.
VI. There is no provision for holding a joint sitting of both houses of parliament
VII. The process of amendment similar to that of a legislative process.
VIII. Procedure relative to the amendment is too sketchy. (wide scope for taking matters to
the judiciary)

K.C.Wheare – “Strikes a good balance between flexibility and rigidity”

- “This variety in the amending process is wise but rarely found”

Jawaharlal Nehru – “there is no permanence in a constitution” (very rigid constitution stops the nation’s
growth)

CHAPTER 4: BASIC STURCTUTRE OF THE CONSTITUTION

Emergence of the Basic Structure:

 The question whether Fundamental rights can be amended or not? By means of Art 368 –
Shankari Prasad case (1951) : question of constitutional validity of first amendment Act.
(curtailment of Property act)
 Supreme court held the validity of the First amendment act: Art 13 means “law” only the
ordinary laws not constitutional amendment act
 Golak Nath case (1967 – challenging the constitutional validity of 17th constitutional
amendment(1964) act (inserted the certain states act in the 9th schedule) ) : Supreme court
reversed its earlier stand. In that case, Supreme court ruled that the Fundamental rights are
given a transcendental and immutable position.
 Parliament reacted to the supreme court’s judgement by enacting 24th amendment act(1971).
This act amended article 13 and article 368.
 Parliament has the power to abridge or take away any of the fundamental rights under
article 368 and such an act will not be a law under the meaning of article 13.
 Kesavananda Bharati case (1973) – Supreme court overruled its judgement in the Golak nath
case. It upheld the validity of 24th amendment act: “parliament is empowered to abridge or take
away any of the fundamental rights. At the same time, it laid down a new doctrine of the basic
structure of the constitution”.
 But according to kesavananda bharati case statement, “art 368 does not enable it to alter the
basic structure of the constitution. “so it cannot take away the fundamental rights that forms
the Basic structure of the constitution.”
 Indira Nehru Gandhi case(1975) : supreme court invalidated the provision of 39 th amendment
act (1975). The provision which kept the election disputes involving the prime minister and the
speaker of lok sabha outside the jurisdiction of all courts. “because its under the basic structure
of the constitution.
 Again 42nd amendment act(1976): this act amended article 368 declared that there is no
limitation on the constituent power of parliament and no amendment can be questioned in any
court on any ground.
 In the Minerva mills case (1980): Supreme Court invalidated this provision as it excluded the
judicial review, it is the basic feature of the constitution. Supreme Court held that, “the
constitution had conferred limited amending power on the Parliament the parliament cannot
under the exercise of that limited power enlarge that very power into an absolute power.”
 In Waman Rao Case(1981): the supreme court adhered to the doctrine of the basic structure, it
would apply to constitutional amendments enacted after the april 24, 1973 (the date of
Judgement of Kesavandanda bharati case)
 Elements of Basic Structure:

I. Supremacy of the constitution

II. Sovereign, democratic and republican nature of the Indian polity.
III. Secular character of the constitution
IV. Separation of power between the legislature, the executive and the judiciary
 V. Federal character of the constitution.
VI. Unity and integrity of the nation
VII. Welfare state
VIII. Judicial review
IX. Freedom and dignity of the individual
X. Parliamentary system
XI. Rule of law
XII. Harmony and balance between fundamental rights and DPSP
XIII. Principle of equality
XIV. Free and fair elections
XV. Independence of judiciary
XVI. Limited power of parliament to amend the constitution (art 368 itself)
XVII. Effective access to justice
XVIII. Principles underlying fundamental rights
XIX. Powers of supreme court and high courts

CHAPTER 5 : INTER- STATE RELATIONS

 Successful Functioning of Indian federal system : not only depends on the harmonious
relations between centre and states but also between states.
I. Adjudication of inter-sate water disputes
II. Coordination through inter-stae councils
III. Mutual recognition of public acts, records and judicial proceedings
IV. Freedom of inter-state, commerce and intercourse. (in addition , the
zonal councils)
 INTER-STATE WATER DISPUTES