CONSTITUITION NOTES

The Constitution of India is the supreme law of the Republic of India. It lays down
the framework for the country’s political system, defining the powers and
responsibilities of government institutions, safeguarding fundamental rights, and
outlining the principles of governance. It is a set of rules and regulations guiding the
administration of a country.

Structure of the Indian Constitution

The Indian Constitution is one of the longest and most detailed written constitutions
in the world. Various components of the structure of the Indian Constitution can be
seen as follows:

Parts

 A “Part” of the Constitution refers to a division within the Constitution that

groups together Articles on similar subjects or themes.

 The Indian Constitution is structured into various Parts, each dealing with a
specific aspect of the country’s legal, administrative, or governmental
framework.

 Originally, there were 22 parts in the Constitution of India. As of now,

there are 25 parts of the Indian Constitution.

Articles

 An “Article” refers to a specific provision or clause within the Constitution

that details various aspects of the country’s legal and governmental
framework.
  Each part of the constitution contains several articles numbered sequentially.

 Originally, there were 395 articles in the Constitution of India. As of now,

the Indian Constitution contains 448 articles.

Schedules

 A “Schedule” refers to a list or a table attached to the Constitution that

details certain additional information or guidelines relevant to the
constitutional provisions.

 They provide clarity and supplementary details, making the Constitution

more comprehensive and functional.

 Originally, there were 8 schedules in the Constitution of India. As of now,

there are 12 schedules in the Indian Constitution.

Enactment and Adoption of the Indian

Constitution
 The Constitution of India was framed by a Constituent Assembly which
was established in 1946. The President of the Constituent Assembly was Dr.
Rajendra Prasad.

 On 29th August 1947, a resolution was moved in the Constituent Assembly

for the appointment of a Drafting Committee to draft a permanent
constitution of India. Accordingly, the Drafting Committee was appointed
under the chairmanship of Dr. B.R. Ambedkar.

 The Drafting Committee took a total of 166 days, which was spread over 2
years, 11 months, and 18 days to prepare a draft constitution. The final draft
of the Constitution was introduced in the Constituent Assembly on 4th
November 1948.
  After many deliberations and some modifications, the Draft Constitution
was declared as passed by the Constituent Assembly on 26th November
1949. This is known as the “Date of Adoption” of the Constitution of India.

 A few provisions of the Constitution came into force on 26th November

1949. However, the major part of the Constitution came into force on 26th
January 1950, making India a sovereign republic. This date is known as the
“Date of Enactment” of the Constitution of India.

Salient Features of the Indian Constitution

 Lengthiest Written Constitution – The Constitution of India is
the lengthiest of all the written Constitutions of the world. It is a very
comprehensive and detailed document.
o Several factors that have contributed to its elephantine size include
– the need to accommodate the vast diversity of the country, a
single constitution for both the Center and States, the presence of
legal experts and luminaries in the Constituent Assembly, etc.

 Drawn from Various Sources – The Constitution of India has borrowed

most of its provisions from the Government of India Act of 1935 as well
as from the constitutions of various other countries.

 Blend of Rigidity and Flexibility – Constitutions are classified into

– rigid (requires a special procedure for its amendment) and flexible (can be
amended in the same manner as ordinary laws are made).
o The Constitution of India is neither rigid nor flexible, but a
synthesis of both.

 Federal System with Unitary Bias – The Constitution of India establishes

a federal system of government and contains all the usual features of a
 federation. However, it also contains a large number of unitary or non-
federal features.

 Parliamentary Form of Government – The Constitution of India has

adopted the British Parliamentary System of Government. The
parliamentary system is based on the principle of cooperation and
coordination between the legislative and executive organs.

 Synthesis of Parliamentary Sovereignty and Judicial Supremacy – The

synthesis of parliamentary sovereignty and judicial supremacy in India
represents a delicate balance between the authority of the legislature to enact
laws and the power of the judiciary to review and interpret these laws in
light of constitutional principles.
o While Parliament retains the ultimate authority to make laws,
the judiciary serves as the guardian of the Constitution, ensuring
that parliamentary actions adhere to constitutional norms and
protect fundamental rights.

 Integrated and Independent Judiciary – The Indian Constitution

establishes an integrated and independent judicial system in the country.
o An integrated judicial system means that a single system of
courts, comprising of Supreme Court, High Courts, and
Subordinate Courts, enforces both the central laws as well as the
state laws.

o An independent judicial system means that the Indian judiciary

operates autonomously, free from the influence of the executive
and legislative branches of government.

 Fundamental Rights – The Indian Constitution guarantees 6 fundamental

rights to all citizens, which promotes the idea of political democracy in the
 country. They operate as limitations on the tyranny of the executive and
arbitrary laws of the legislature.

 Directive Principles of State Policy – The Indian Constitution contains a

set of principles in the form of Directive Principles of State Policy
(DPSPs), which denote the ideals that the state should keep in mind while
formulating policies and enacting laws.
o The Directive Principles seek to establish a ‘Welfare State’ in
India by promoting the ideal of social and economic democracy.

 Fundamental Duties – The fundamental duties are a set of moral and

civic obligations outlined in the Constitution of India.
o These duties serve as a guide for citizens to contribute towards
building a strong and harmonious nation.

 A Secular State – The Constitution of India does not uphold any particular
religion as the official religion of the Indian State. Instead, it mandates that
the state treat all religions equally, refraining from favoring or
discriminating against any particular religion.

 Universal Adult Franchise – The Indian Constitution adopts universal

adult franchise as the basis of elections to the Lok Sabha and the State
Legislative Assemblies.
o Every citizen who is not less than 18 years of age has a right to
vote without any discrimination based on caste, race, religion, sex,
literacy, wealth, and so on.

 Single Citizenship – Single citizenship is a constitutional principle in India

whereby all citizens irrespective of the state in which they are born or reside
enjoy the same political and civil rights of citizenship all over the country,
and no discrimination is made between them.
  Independent Bodies – The Indian Constitution has established certain
independent bodies which are envisaged as the bulwarks of the democratic
system of Government in India.

 Emergency Provisions – The Indian Constitution contains emergency

provisions to enable the President to meet any extraordinary situation
effectively.
o The rationale behind the incorporation of these provisions is
to safeguard the sovereignty, unity, integrity, and security of
the country, the democratic political system, and the
Constitution.

 Three-tier Government – The three-tier government refers to the division

of governmental powers and responsibilities among three levels- the central
government, state governments, and local governments (Panchayats
and Municipalities).
o This decentralized system allows for effective governance by
delegating authority to address regional and local issues,
promoting participatory democracy and grassroots development.
Co-operative Societies – The 97th Constitutional Amendment Act of 2011 gave
constitutional status and protection to co-operative societies

Significance of the Constitution of India

 Rule of Law – The Constitution establishes the framework for governance
based on the rule of law, ensuring that no individual, including government
officials, is above the law.

 Protection of Rights – It guarantees fundamental rights to citizens,

safeguarding their freedoms of speech, expression, religion, and more, while
also providing mechanisms for legal redress if these rights are infringed
upon.
  Structure of Government – The Constitution delineates the structure of
government, defining the roles, powers, and limitations of the executive,
legislative, and judicial branches. This separation of powers prevents the
concentration of authority and promotes checks and balances.

 Democratic Principles – Through provisions like a universal adult

franchise, the constitution upholds democratic principles by ensuring
citizens’ participation in governance through free and fair elections.

 Stability and Continuity – The constitution provides stability and

continuity in governance, serving as a framework for guiding successive
governments and preventing abrupt changes in the political system.

 National Unity – It fosters national unity by recognizing and respecting the

diversity of the populace while also promoting a sense of common
citizenship and allegiance to the nation.

 Legal Framework – The constitution serves as the legal foundation upon

which all laws and regulations are based, providing consistency and
coherence in the legal system.

 Adaptability – While providing a stable framework, the constitution also

allows for necessary amendments to accommodate changing societal needs
and values, ensuring its relevance over time.

 What is the purpose of constitution?

• 1. the empowerment of state
• 2. establishment of unifying factors
• 3. provision of government stability
• 4. protection of freedom and rights
• 5. it helps legitimise administration
Basis For Distinguishing Types Of Government
• From the types identified above, four things may be used in distinguishing types of
constitution.
• 1. the first is the form of a constitution or status of its rule. It is with this that one
distinguished whether a constitution is written or unwritten, or whether it is codified
or uncodified.
• 2. the second is the ease with which the constitution can be changed. When this is
used in distinguishing the type of constitution, one may talk of rigid and flexible
constitution.
• 3. the third is the degree to which the constitution is observed in practice. This leads
to distinguishing between whether a constitution is effective, nominal, or façade
constitution.
• 4. the content of the constitution and the structure of governance that the constitution
establishes will determine if the constitution is monarchical or republican, federal or
unitary, presidential or parliamentary.
Written Constitution Vs Unwritten Constitution
• The distinction between a written constitution and an unwritten constitution may be
misleading in one takes the words: written and unwritten at the face value. No
constitution is entirely written and no constitution is entirely unwritten depending only
on conventions, customs and traditions. Truth is every constitution is a blend of
written and unwritten parts. Just that one is more dominant.
• A written constitution is enshrine in laws. Written constitutions are often created.
This is to say it is written.
• The unwritten constitution is not documented, rather it is found in customs and
traditions. Unwritten constitutions are organic entities which have evolved over time
in history. While a number of state now have written constitution, Israel, New
Zealand, and the United Kingdom do not have written constitution. Likewise, states
like Bhutan, Saudi Arabia, and Oman, which are not democratic states operate on the
model of unwritten constitution.

Codified Constitutions and Uncodified Constitution

• A codified constitution is one in which key constitutional provisions are collected
together within a single document, known as “written constitution.” A codified
constitution is made of higher laws, which ordinary laws can not contradict. It is the
highest law of the land. This means a country with a codified law has hierarchy of
laws.
• A country running an uncodified law is one in which there are various sources for its
laws. Some of which include statutes laws, made by parliament, common law,
conventions, and various works of authority that clarify and explain the constitution
unwritten elements.
• In addition, the absence of a codified constitution means that the legislative arm
enjoys freedom to interpret the law as it likes, and the right to make and unmake any
law, since there is no supreme body of laws that renders other laws altra vires.
Rigid Constitution and Flexible Constitution
• The difference between a rigid constitution and a flexible one is based on the issue
of how easy it is to amend a constitution. In flexible constitution, laws of great
importance can be changed through ordinary legislative processes and conventions.
• While written and codified constitutions are likely to be rigid and unwritten and
uncodified constitutions are likely to be flexible, it does not follow that written
constitutions are rigid and unwritten ones flexible.
• A rigid constitution may require a referendum to amend or even a special majority in
the legislative arm. For instance, there may be a special requirement of a two-third
majority of the two houses. In the USA, three-quarter of the states must in addition
give support.
• The only source of change of rigid constitutions has been with continuous
interpretation by the courts.
Effective, Nominal, Or Façade Constitution
• This distinction rests on the relationship between what obtains in the constitution and
what obtains in the actual practical day to day running of government. it boils down to
the issues about constitutional rules and principles and the practice of government.
• An effective constitution fulfils to criteria:
• 1. in a major respect, an effective constitution ensures that the practical affairs of
government correspond to the provision of the constitution.
• 2. what obtains in condition is so because the constitution has the capacity to limit
government behaviour.
• An effective constitution is not a situation whereby a constitution obtains but one in
which the constitution constrains government actions and inactions, thereby
establishing constitutionalism.
• A nominal constitution is one in which its principles actually state how government
should behave but such constitution fail to limit government behaviour. E.g USSR.
The court often has little or no power to enforce the constitution.
• In the case of façade constitution what we have is that there are constitutions that are
mere decorations but the dictatorial tendencies of the government will not allow such
constitutions to have any relevance.
• Monarchical constitutions confers constitutional supremacy in a dynasty.
• Republican Constitutions invests constitutional supremacy or political authority in
the people.
• Unitary constitutions establishes a single national body.
• Federal constitution divides power between a federal government and other levels of
government.
• Parliamentary constitution ensures that the executive derives and is accountable to
the assembly.
• Presidential constitutions separates the executive arm and the legislative arm.
Republican and monarchical constitution:
In republican constitution that provides for the position of an elected head of state for
a fixed term of office who is usually known as president and in monarchical
constitution the government is led by king, queen or emperor and it will be succeeded
to his or her children or other heir from generation to generation or from one ruling
house to another.
There are two subdivisions of monarchical constitution
• Absolute monarch-in this kind all the powers are vested with ruler and not
limited by any constitution
• Constitutional monarch- in this type where the monarchy is just a ceremonial
head of state and a symbol of the nation with limited powers only.
Presidential and parliamentary constitution
Presidential constitution is that kind of constitution where all the executive powers are
vested with president who is head of state and head of the government, he may
exercise the executive powers through vice-president or ministers or officers who are
in public service on the other hand in parliamentary constitution the executive powers
are vested with prime-minister who is head of government but not head of state.

Historical Background of Indian Constitution

The historical background of the Indian Constitution can be traced to many

regulations and acts passed before Indian Independence. Read further to learn the
evolution of the Constitution comprehensively.
Before 1947, India was divided into two main entities – British India which consisted
of 11 provinces and the Princely states ruled by Indian princes under a subsidiary
alliance policy.

The two entities merged to form the Indian Union, but many of the legacy systems in
British India are followed even now. The historical underpinnings and evolution of the
Indian Constitution can be traced to many regulations and acts passed before Indian
Independence.

Table of Contents

• Historical background of the Indian Constitution

• Regulating Act of 1773
• Pitt’s India Act of 1784
• Charter Act of 1813
• Charter Act of 1833
• Charter Act of 1853
• Government of India Act of 1858
• Indian Councils Act of 1861
• India Council Act of 1892
• Indian Councils Act of 1909
• Government of India Act of 1919
• Government of India Act of 1935
• Indian Independence Act of 1947
• Points to be noted

Historical background of the Indian Constitution

Indian democracy is a Parliamentary form of democracy where the executive is
responsible to the Parliament. The Parliament has two houses – Loksabha and
Rajyasabha. Also, the type of governance is Federal, ie there is a separate executive
and legislature at the Center and States. We also have self-governance at local
government levels.
All these systems owe their legacy to the British administration. Let us see the
historical background of the Indian Constitution and its development through the
years.

Regulating Act of 1773

• The first step was taken by the British Parliament to control and regulate the affair of
the East India Company in India.
• It designated the Governor of Bengal (Fort William) as the Governor-General (of
Bengal).
• Warren Hastings became the first Governor-General of Bengal.
• Executive Council of the Governor-General was established (Four members). There
was no separate legislative council.
• It subordinated the Governors of Bombay and Madras to the Governor-General of
Bengal.
• The Supreme Court was established at Fort William (Calcutta) as the Apex Court in
1774.
• It prohibited servants of the company from engaging in any private trade or
accepting bribes from the natives.
• The Court of Directors ( the governing body of the company) should report its
revenue.
Pitt’s India Act of 1784
• Distinguished between commercial and political functions of the company.
• Court of Directors for Commercial functions and Board of Control for political
affairs.
• Reduced the strength of the Governor General’s council to three members.
• Placed the Indian affairs under the direct control of the British Government.
• The company’s territories in India were called “the British possession of India”.
• Governor’s councils were established in Madras and Bombay.
Charter Act of 1813
•The Company’s monopoly over Indian trade was terminated; Trade with India was
open to all British subjects.
Charter Act of 1833
• Governor-General (of Bengal) became the Governor-General of India.
• The First Governor-General of India was Lord William Bentick.
• This was the final step towards centralization in British India.
• The beginning of a Central legislature for India as the act also took away legislative
powers of Bombay and Madras provinces.
• The Act ended the activities of the East India Company as a commercial body and it
became a purely administrative body.
Charter Act of 1853
• The legislative and executive functions of the Governor-General’s Council were
separated.
• 6 members in the Central Legislative Council. Four out of six members were
appointed by the provisional governments of Madras, Bombay, Bengal, and Agra.
• It introduced a system of open competition as the basis for the recruitment of civil
servants of the Company (Indian Civil Service open for all).

Government of India Act of 1858

• The rule of the Company was replaced by the rule of the Crown in India.
• The powers of the British Crown were to be exercised by the Secretary of State for
India
• He was assisted by the Council of India, having 15 members
• He was vested with complete authority and control over the Indian administration
through the Viceroy as his agent
• The Governor-General was made the Viceroy of India.
• Lord Canning was the first Viceroy of India.
• Abolished Board of Control and Court of Directors.
Indian Councils Act of 1861
• It introduced Indian representation in institutions like the Viceroy’s executive
and legislative council (non-official). 3 Indians entered the Legislative Council.
• Legislative councils were established in centers and provinces.
• It provided that the Viceroy’s Executive Council should have some Indians as
non-official members while transacting the legislative businesses.
• It accorded statutory recognition to the portfolio system.
• Initiated the process of decentralization by restoring the legislative powers to
the Bombay and the Madras Provinces.
India Council Act of 1892
• Introduced indirect elections (nomination).
• Enlarged the size of the legislative councils.
• Enlarged the functions of the Legislative Councils and gave them the power to
discuss the Budget and address questions to the Executive.
Indian Councils Act of 1909
1. This Act is also known as the Morley- Minto Reforms.
2. Direct elections to legislative councils; first attempt at introducing a representative
and popular element.
3. It changed the name of the Central Legislative Council to the Imperial Legislative
Council.
4. The member of the Central Legislative Council was increased to 60 from 16.
5. Introduced a system of communal representation for Muslims by accepting the
concept of a ‘separate electorate’.
6. Indians for the first time in the Viceroy’s executive council. (Satyendra Prasanna
Sinha, as the law member)
Government of India Act of 1919
• This Act is also known as the Montague-Chelmsford Reforms.
• The Central subjects were demarcated and separated from those of the Provincial
subjects.
• The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial
subjects.
• Under the dyarchy system, the provincial subjects were divided into two parts –
transferred and reserved. On reserved subjects, the Governor was not responsible to
the Legislative council.
• The Act introduced, for the first time, bicameralism at the center.
• Legislative Assembly with 140 members and Legislative Council with 60 members.
•Direct elections.
• The Act also required that three of the six members of the Viceroy’s Executive
Council (other than Commander-in-Chief) were to be Indians.
• Provided for the establishment of the Public Service Commission.
Government of India Act of 1935
•The GoI Act of 1935 provided for the establishment of an All-India Federation
consisting of the Provinces and the Princely States as units, though the envisaged
federation never came into being.
•Three Lists: The Act divided the powers between the Centre and the units into items
of three lists, namely the Federal List, the Provincial List, and the Concurrent List.
•The Federal List for the Centre consisted of 59 items, the Provincial List for the
provinces consisted of 54 items and the Concurrent List for both consisted of 36 items
• The residuary powers were vested with the Governor-General.
• The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial
Autonomy’.
• It provided for the adoption of Dyarchy at the Centre.
• Introduced bicameralism in 6 out of 11 Provinces.
• These six Provinces were Assam, Bengal, Bombay, Bihar, Madras, and the United
Province.
• Provided for the establishment of the Federal Court.
• Abolished the Council of India.
Indian Independence Act of 1947
• It declared India as an Independent and Sovereign State.
• Established responsible Governments at both the Centre and the Provinces.
• Designated the Viceroy India and the provincial Governors as the Constitutional
(normal heads).
• It assigned dual functions (Constituent and Legislative) to the Constituent Assembly
and declared this dominion legislature as a sovereign body.
IMPORTANT POINTS
• Laws made before the Charter Act of 1833 were called Regulations and those made
after are called Acts.
• Lord Warren Hastings created the office of District Collector in 1772, but judicial
powers were separated from District Collector later by Cornwallis.
• From the powerful authorities of unchecked executives, the Indian administration
developed into a responsible government answerable to the legislature and people.
• The development of the portfolio system and budget points to the separation of
power.
• Lord Mayo’s resolution on financial decentralization visualized the development of
local self-government institutions in India (1870).
• 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local self-
government. He is regarded as the ‘Father of local self-government in India’.
• 1924: The Railway Budget was separated from the General Budget based on the
Acworth Committee report (1921).
• From 1773 to 1858, the British tried for the centralization of power. It was from the
1861 Councils act they shifted towards devolution of power with provinces.
• 1833 Charter Act was the most important act before the Act of 1909.
• Till 1947, the Government of India functioned under the provisions of the 1919 Act
only. The provisions of the 1935 Act relating to Federation and Dyarchy were never
implemented.
• The Executive Council provided by the 1919 Act continued to advise the Viceroy till
1947. The modern executive (Council of Ministers) owes its legacy to the executive
council.
• The Legislative Council and Assembly developed into Rajyasabha and Loksabha
after independence

Elements of constitutionalism
According to Louis Henkin Constitutionalism implies,
1. Popular sovereignty
2. The supremacy of the Constitution and Rule of Law
3. Political Democracy
4. Representative Limited Government
5. Separation of Power
6. Civilian Control of the Military force
7. Police governed by Law and Judicial Control
8. An Independent Judiciary
All these elements restrict the power of the State in a particular way.
Negative constitutionalism- The traditional view of Constitutionalism focuses
negatively on limiting state power, viewing the State as a threat that must be
constrained. It restricts the executive and legislative branches to protect citizens'
liberty, as seen in the separation of powers. However, this negative approach can
hinder the State’s ability to provide essential services like healthcare and poverty
alleviation, which require government intervention. This view is less suitable for a
welfare state like India, which seeks social, economic, and political justice.
Positive constitutionalism- Positive Constitutionalism views the State as a "Welfare
State," emphasizing the creation of effective institutions to ensure citizens' well-being.
According to M.P. Singh, a Constitution must accommodate diversity and plurality to
meet the true essence of constitutionalism. Many older constitutions that initially
ignored this aspect have incorporated it through judicial interpretations, amendments,
legislation, or constitutional application.
A Constitution Alone Does Not Guarantee Constitutionalism
A constitution alone does not guarantee constitutionalism. Even Nazi Germany had a
constitution, but it did not adhere to the principles of constitutionalism. As the
Supreme Court stated in *S.R. Chaudhuri v. State of Punjab (2001)*, "the mere
existence of a Constitution does not ensure constitutionalism; it depends on the
political traditions and the determination of the people to uphold democratic values."
For constitutionalism to survive, there must be a focus on democratic policies and
individual rights. Subtle assaults on these rights, like sedition laws and surveillance,
undermine constitutionalism. In *R.C. Poudyal v. Union of India (1994)*, the court
emphasized that "the existence of a Constitution alone does not ensure
constitutionalism; it is the political maturity and traditions of the people that give
meaning to it."A constitution must either restrain the government from acting against
its citizens or compel it to ensure a dignified life for all.
Article 21 and Due Process of Law
Article 21 of the Indian Constitution states that life and liberty cannot be deprived
except by a procedure established by law, requiring legal justification for such
deprivation. This serves as a check on arbitrary power by the legislature and
executive. The law must meet the standards of "Fundamental Fairness" akin to the
American concept of Due Process. In *Swaran Singh v. State of U.P. (1998)*, the
Court held that public power must be exercised fairly, not arbitrarily or with malice,
adhering to constitutional principles. These legal requirements ensure that the state’s
power is limited and can be challenged if violated.
Fundamental Rights
Fundamental Rights protect against the arbitrary exercise of state power, acting as
restraints on the state. In *IR Coelho v. State of Tamil Nadu and Ors (2007)*, the
Court affirmed that constitutionalism requires governmental power to be controlled to
safeguard democratic principles, including Fundamental Rights. The principle of
legality assumes that Parliament does not intend to legislate against these rights.
While the Legislature can restrict Fundamental Rights, it cannot repeal them
implicitly.
For example, Article 14 prohibits the state from treating individuals unequally in
similar circumstances, ensuring equality. Article 19(1)(a) guarantees freedom of
speech, which can only be restricted on specific grounds under Article 19(2), such as
threats to sovereignty, public order, or morality. These restrictions define the limits of
state power, preventing undue interference with individual freedoms.