In this essay we will discuss about the constitution of India. After reading this essay you will learn about: 1. Introduction to the Constituent Assembly 2. History of the Constituent Assembly in India 3. Main Features of the Constitution of India 4. Constituent Assembly at Work 5. Important Sources of Indian Constitution 6. Ideological Basis of Indian Constitution and Other Details.
List of Essays on the Constitution of India
Essay Contents:
- Essay on the Introduction to Constituent Assembly
- Essay on the History of Constituent Assembly in India
- Essay on the Main Features of the Constitution
- Essay on Constituent Assembly at Work
- Essay on the Important Sources of Indian Constitution
- Essay on the Ideological Basis of Indian Constitution
- Essay on the Problems of Constituent Assembly
- Essay on the Critical Appraisal of Nature of Constitution
1. Essay on the Introduction to Constituent Assembly:
Steel frame work of a nation is its Constitution, which reflects both will as well as wishes of the people. It is embodiment of their desires and reflects the intentions of the-people and objectives for which the nation stands and which it will struggle to preserve.
It also indicates the method of governance of the people. In some cases, the Constitution is given to the people by some superior authority and the people are expected to obey and accept that. They are not consulted at any stage in its framing. This happens in dictatorships and absolute monarchies. In several cases the Constitution gradually evolves.
But a good Constitution is one which is framed by a Constituent Assembly comprising of representatives of the people. The Constitution of India has been given to the people by a Constituent Assembly which laboured hard for 3 years. In India much controversy has arisen about the very representative character of the Constituent Assembly.
Not only this, but the Assembly itself was faced with many serious problems, and it was really a Herculian task in itself to face and solve these problems to the satisfaction of vast majority of Indians. The Constitution could be framed so quickly and so smoothly because of towering personalities of the leaders of those days.
2. Essay on the History of Constituent Assembly in India:
Till 1947, the responsibility of giving some constitutional system to India was squarely that of the British government and Indians had for that matter nothing to do. If that was not acceptable to them they could only agitate for that. But it does not mean that they did not demand a Constituent Assembly till then. It was as early as in 1934 that M.N. Roy made a suggestion for a Constituent Assembly.
The proposal was endorsed by the Swarajist party. In 1936, at its Faiz Pur session the Congress party demanded that India should have a Constituent Assembly of its own, which should give a Constitution to the country.
In that year Pt. Jawahar Lal Nehru said, “Politically and nationally, if it is granted, as it must be, that the people of India are to be the sole arbiters of Indian’s fate and must, therefore, have full freedom to draw up their Constitution, it follows that this can only be done by means of a Constituent. Assembly elected by widest franchise.”
In 1933, the British government published a white paper outlining proposals for constitutional reforms in India.
This paper did not satisfy any political party in the country and every political organisation felt that the proposals contained in the white paper were much below the expectations of the people.
The Congress Working Committee then resolved that, “The only satisfactory alternative to the white paper is a constitution drawn up by a Constituent Assembly elected on the basis of adult franchise or, as near as it is possible, with the power, if necessary to the important minorities to have their representatives elected exclusively by the electors belonging to such minorities.”
It was, therefore, demanded by the Congress party that there should be a Constituent Assembly for India and accepted that if need be for religious minorities there should be reservation of seats.
In 1936, in its election manifesto Congress party clearly stated that it stood for setting up a Constituent Assembly for India, which should give Constitution to the country.
This was again repeated in 1938 when at the Congress session held in that year Pt. Jawahar Lal Nehru declared that, “Congress party has proposed that the Constitution of free India must be framed without outside interference by a Constituent Assembly elected on the basis of adult franchise.”
The British government was, however, in no mood to accept a proposal for an independent Constituent Assembly for the people of India with rights to frame a Constitution for the country.
In 1939, Second World War broke out and with that every resource was channelled by the British government to war fronts. But in order to win the co-operation of the people in 1940 Cripps Mission was sent to India to find a solution to India’s constitutional problems.
The Mission failed. In 1942, Quit India Movement started. Thereafter intensity came in India’s national struggle. At every step British government was made amply clear that the people of India would not be satisfied unless and until they was given a Constitution by their own Constituent Assembly.
Indian National Congress was very much prepared to reserve seats for religious minorities in that Assembly to accommodate religious minorities.
In 1946, Cabinet Mission came to India to find a solution to the constitutional problem of the country. Its proposals contained setting up of a Constituent Assembly. It was proposed in the scheme that for this Assembly each province was to be assigned specific number of seats.
This number was to be proportionate to the population of the province. Seats in each province were to be allotted to different communities in that province, which was again to be linked with the population of the community in that province.
Total number of seats in the Constituent Assembly was fixed at 389; to be divided as under: 
Division of seats of the Constituent Assembly, in-so-far as British Indian Provinces were concerned, was fixed as under:
It was also provided in the plan that the representatives of British Indian provinces were to be elected by single transferable vote system but no formula was prescribed about representatives to be sent by princely states. It was, however, provided that till such formula was evolved the States would be represented by a Negotiating Committee.
The plan also suggested that the Assembly at its first meeting will elect its own chairman and other office bearers. It will elect members of the Advisory Committee on the Rights of the Citizens; Minorities and Tribals and excluded areas.
It will also divide Provincial representatives into three sections, namely, A, B and C as detailed below:
It was left to each section to frame provincial constitution and also to decide whether the group constitution should be applied to those provinces and if so what subjects should be transferred to the centre and which ones will be dealt with by the provinces.
Each group was also at liberty to come out of the group and such a decision was to be taken only by the new legislature of the province, after the first general elections under the new Constitution.
It was also provided that the representatives of the provinces and the Indian states will re-assemble for framing the new Constitution. In the Union Constituent Assembly resolutions regarding the distribution of subjects between the centre and the provinces or raising any major communal issue were to be passed by majority of representatives present and voting, of each of the two major communities.
The Plan, however, had its own problems and both the Congress and the Muslim League objected to some of the proposals contained in it. Ultimately Congress decided to accept the Constituent Assembly, whereas Muslim League protested against it. But ultimately when the time came League also contested the elections.
Elections to the Constituent Assembly were held in July 1946. Out of 210 general seats of British India provinces, 199 were won by the Congress.
Party-wise position was as under:
As regards Muslim seats, the position being that Muslim League won 73 seats Congress 3; Punjab and Unionist Party one and Krishak Praja Party one
In August of the same year 4 Sikh representatives also joined the Assembly.
As a result of the election it became clear that Congress party was in a commanding position. The League developed fear psychology that this majority could be used by the Congress for making the centre strong and provinces weak. The League, therefore, decided to withdraw from the Assembly.
Not only this, but Mr. Jinnah charged the Viceroy of partiality. He said, “It is quite obvious that the Viceroy is blind to the present serious situation and the realities facing him and is entirely playing in the hands of Congress and appeasing it in complete dis-regard of the Muslim League and other organisations and elements in the national life of the country.”
He, therefore, appealed to Muslim members not to join the Assembly.
The Assembly met on December 9, 1946, without representatives of the Muslim League. Out of total 296 members, only 207 belonging to Congress party attended Assembly meet. The Assembly elected Dr. Rajendra Prasad as its President. He made it amply clear from the very beginning that this Assembly was a sovereign body and no outside power was to be allowed to interfere in its proceedings in any manner.
Four days later Pt. Jawahar Lal Nehru in the objective resolution pointed out that it was our firm decision that India should be a sovereign republic. He also appealed to the Muslim
League to join it when he said, “It has ever been and shall always be our ardent desire to see that the people of India united together, so that we may frame a Constitution which will be acceptable to the masses of Indian people.’ On the other hand, the working Committee of the Muslim League in a Resolution declared that the proceedings of the Constituent Assembly are ultra-vires of the Constitution. The Resolution said, “…. the Constitution of the Constituent Assembly and the proceedings and decisions are ultra-vires, invalid and illegal and it should forthwith be dissolved.”
It was in these circumstances that the country was partitioned. But Constituent Assembly of India continued to work with its task of giving a Constitution to free India. But its composition somewhat changed due to partition, as some of the provinces and parts of provinces had to be ceded to Pakistan.
Total strength of the Assembly came down to 299, as against 389 originally fixed in 1946. The strength of princely states was reduced from 93 to 70 and those of British India and Chief Commissioner Provinces from 296 to 229.
Comparative position was:
In November, 1948 the Assembly had a total strength of 324 of which232 were from the provinces.
The party-wise strength of the post-partition Assembly, including representatives from the states was as follows:
Out of the elected representatives from the states most belonged to States’ People’s Conference, which was also an associated body of the Congress. Some other organisations which had representation in the Assembly included The Depressed Classes League, The All India Scheduled Caste federation, The All India Women’s Conference, The All India Landholder’s Conference, etc.
The Marxists were conspicuous by their absence. Lower rank of Congress party had almost no say in Constituent affairs. On caste basis out of 83% of Hindu members 45% were Brahmins, who were economically quite well off; 13% were Kayasthas, majority of whom were self-employed professionals like doctors and pleaders, 10% were Baniyas with business interests and 6% were Rajputs belonging to land owning class.
Thus, about 74% belonged to upper castes. Only 18% belonged to lower middle castes and 6% came from scheduled castes and scheduled tribes. Majority of the members of the Assembly belonged to small westernised professional middle class which was under the influence of old English education system.
These came from higher caste background. The core group of 20 influential group which was really engaged in the task of constitution making had alien social perspective. They had love for liberty, equality and were interested to introduce these concepts in the constitution.
3. Essay on the Main Features of Constitution of India:
The present Constitution of India was inaugurated on 26th January, 1950. It has made India a sovereign democratic republic and ensured equality of every citizen before law. By an amendment of the Constitution it has become a sovereign socialist, democratic republic. It has adopted basic concept of human equality before law and provided for universal adult franchise.
Constitution of India, which is one of the bulkiest constitutions of the world, has certain unique and novel features. It has combined in itself both unitary and federal features. It is unitary in emergencies and federal during normal times. For the first time, it has extended certain fundamental rights to the people of India.
Under the provision of constitution, Indian federation is over-centralised and according to few critics states in India are merely dignified municipalities. Centre-State relationship is one of the major and complex problems of country’s political system which is posing a serious problem after the fourth General Elections held in the country in 1967 when political face of the country rapidly changed.
It was after this election that one party dominant system received serious set back.
It was on the midnight of 14th- 15th August, 1947, when the whole world was asleep, that new India awoke. The first Prime Minister of India, Pt. Jawahar Lai Nehru, unfurled tricolour on the rampats of historic Red Fort to mark India’s independence. It was on this day that India occupied her place, as a sovereign state, in the family of free nations.
The task of giving a new constitution to the people of India, on the principles enunciated by Indian National Congress during freedom struggle had already started. The Constituent Assembly under the presidentship of Late Dr. Rajendra Prasad, the First President of Republic of India, laboured hard for two years, eleven months and 18 days before it could finish the gigantic task of finishing constitutional document on 26th November, 1949.
It was dedicated to the people of India and formally the Constitution was inaugurated on 26th January, 1950. In the making of country’s constitution the role of Chairman of the Drafting Committee Dr. B.R. Ambedkar was immense.
4. Essay on Constituent Assembly at Work:
It is not an easy task to prepare a constitutional document for any country, because that is the life line of a nation and reflects will and wishes of the people. Therefore, the Assembly had to evolve its own system of working. It was to see that the work ran smoothly and the people of the country had not to wait for a very long time for a constitutional document.
It was also to see that such a document should come up to the expectations of the people and not only that immediate needs of the people are met but also that it is responsive to future needs. It was also to see that such a document was not very rigid and at the same time not inelastic. Thus, the task before the framers of the Constitution was really difficult.
Objectives Resolution:
The first meeting of the Constituent Assembly was held on 11th December, 1946 which elected Dr. Rajendra Prasad as its permanent Chairman. On December 13, 1946, it adopted Objectives Resolution which contained main objectives that were to guide the work of the Assembly.
The Resolution stated as follows:
(1) The Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution.
(2) India shall be a union of territories that now comprise British India, the territories that now form Indian states and such other parts of India as are outside British India and the states as well as such other territories as are willing to be constituted into the Independent Sovereign India.
(3) Such said territories shall possess and retain powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union or are inherent or implied in the Union or resulting therefrom.
(4) All powers and authority of the Sovereign Independent India, its constituent parts and organs of government are derived from the people.
(5) There shall be guaranteed and secured to all the people of India justice; social, economic, and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, association and action, subject to law and public morality.
(6) Adequate safeguards shall be provided to minorities, backward and tribal areas and depressed and other backward classes.
(7) Integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and laws of civilised nations shall be maintained.
(8) It will be ensured that this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
The Committee System:
The Assembly decided to follow committee system and for the purpose several committees were set up. These included Committee on Fundamental Rights, Committee on Supreme Court, Credentials Committee, Advisory Committee on Minorities, Rules Procedure Committee, Steering Committee, Union Powers Committee, Adhoc Committee on National Flag and so on.
But most important Committee was Drafting Committee. It was this Committee which mainly shared the responsibility of giving a constitutional document to the country.
Its composition was:
The Drafting Committee really did a marvellous job. Dr. Ambedkar and other members of the Drafting Committee really defended the draft of the Constitution in a very remarkable manner and did not allow the members go home dissatisfied.
According to some thinkers the members of the Assembly quite often listened to the members of the Drafting Committee, more particularly their Chairman Dr. Ambedkar with great patience.
He could take the Assembly with him. In the Assembly, Dr. Ambedkar and the members of the Drafting Committee played the role of Cabinet Ministers, who took upon themselves the responsibility of piloting each clause of the Constitution and saw to it that each clause was passed. If any change was introduced and accepted, that was also done in a way as if a Minister was accepting the suggestion of the House.
The Committee gave thorough consideration to all the proposals which were received from different Committees. Every care was taken to see that the time was not wasted and in this regard President observed strict control. He did not allow any irrelevant discussions to continue or any irrelevant matter to crop up or was admitted.
At its plenary session held from 20-26 January, 1947, the Assembly adopted an Objective Resolution moved by Pt. Jawahar Lal Nehru. The resolution said that India shall be sovereign democratic state.
It was also accepted that the provinces should be redistributed so as to make these homogenous units based on linguistic, cultural administrative as well as on economic considerations as soon as possible, after the enforcement of the new Constitution.
At its plenary session held from 28th April-2nd May, 1947, the Assembly adopted the following:
(a) That the Union Government should have Defence, Foreign Affairs, Communication, Financial and Miscellany powers.
(b) That fundamental rights should be justifiable.
(c) That fundamental rights should be extended to all citizens of India without taking into consideration caste, creed, religion or sex of the person concerned.
(d) That un-touchability should be abolished and any discrimination against scheduled castes should be treated an offence.
(e) That acceptance of title by Indian citizens from any foreign government should be prohibited.
(f) That the Constitution should be written both in English and Hindustani.
At its meetings held between July 14-31, the following points were considered:
(a) Report of Provincial Constitution Committee in which model Constitution for the provinces was presented.
(b) The Report of the Union Constitution Committee.
(c) Proposal on new Indian National Flag was presented.
At its sessions held from 20 to 29 August, 1947, the Assembly considered the following reports:
(i) Second Report of the Union Powers Committee on Federal and Provincial powers.
(ii) Report by the Advisory Committee on Minorities.
(iii) Report of the Special Committee on the future working of the Constituent Assembly.
The Advisory Committee on Minorities recommended that the system of separate electorates should be abolished. The last mentioned Committee was of the view that the Assembly should work as Dominion Legislature and its sessions should be held not on the same days on which it sat as Constitution making body. When it sat as a Dominion Legislature, it should be presided over by the Speaker.
The Ministers who were not members of the Constituent Assembly were allowed to participate in its deliberation but without voting right. For the first time Assembly met as Dominion Legislature on 17th November, 1947 and elected G.V. Mavalankar as its Speaker. It was also recommended that representatives of princely states should be associated in law making process.
On 29th August, Dr. B.R. Ambedkar was appointed as the Chairman of the Drafting Committee. The Committee presented a Draft Constitution on 21st February, 1948, for the consideration of the Assembly. On 14th September, 1949, the Committee decided that Hindi shall be the official language of the Indian Union and that English shall continue for a period of 15 years from the commencement of the Constitution.
The Assembly adopted Constitution on 26th November, 1949 and came into force on 26th January, 1950. In all the Assembly worked for 165 days, out of which 114 days were devoted to the consideration of the draft constitution.
Dr. Rajendra Prasad who presided over the meetings of the Assembly expressed his satisfaction over the work of the Assembly when he said that, “I to congratulate the Assembly on accomplishing a task of such tremendous magnitude. It is not my purpose to appraise the value of the work that the Assembly has done or the merits or dements of the Constitution which it has framed. I am content to leave that to others and to the posterity.”
Similarly Granville Austin has said, “With the adoption of the Constitution by the members of the Constituent Assembly on 26th November, 1949, India became the largest democracy of the world. By this act of strength and will, Assembly members began what was perhaps the greatest political venture since that originated in Philadephia in 1787.”
5. Essay on the Important Sources of Indian Constitution:
Government of India Acts:
Before India became a sovereign state, the country was governed by the British Parliament which passed Acts from time to time in the name of better governance of India. These Acts were usually passed to satisfy Indian political feelings to some extent and also to cool down people who frequently agitated over British policy of alienation of Indians from their own administration.
The Government of India Acts, 1909, 1919 and 1935 are very significant in this regard. For proper study of India’s Constitution, these Acts provide a very useful background. It is the influence of these Acts that India adopted federal form of government, though with a strong centre. Division of subjects is also based more or less on the pattern of the Act of 1935.
Similarly, it is the influence of these Acts that emergency powers of the President have come to stay and become an integral part of present day state administration.
It is again due to these Acts that Constitution fathers in India decided to have a bicameral system of legislature. Bicameralism had been provided under the Government of India Act, 1935. Not only this, but all subsequent efforts which were made to solve India’s constitutional problems namely, The Cripps Mission Plan, Wavel Plan, Cabinet Mission Plan and Mountbatten Mission Plan all provided a federation for India.
All the proposals, however, provided that in the proposed federation both the Houses of legislature shall have co-equal powers, whereas in the scheme of things which Indian Constitution now envisages, the Lower House of Parliament or of a State Legislature has many more powers than the Upper House.
Arts 352 and 353 of the Constitution which relate to declaration of emergency by the president and Arts 251 and 256 which deals with conflict between the central laws and state laws and which provide that executive powers of every state shall be so exercised as to ensure compliance with the laws made by the Parliament have their basis in the Government of India Act, 1935. Sections 93, 102, 107 and 126 of that Act refer.
It can, in fact, be appropriately said that much of what has been provided in the present constitution of India has the impact of the Act of 1935. A strong and powerful bureaucracy, departmentalisation for running administration, blending of executive with legislature and a separate judiciary but with a unified structure for the whole country, all bear ample testimony to the fact that constitution fathers had much to borrow from the labour of authors of Government of India Act, 1935 and master minds which were put in subsequent plans given to India for solving country’s political deadlocks.
About the impact of Goverment of India Act, 1935, on the present constituion Dr. P.R. Deshmukh has said that it is essentially the Government of India Act with only franchise added. N. Srinivasa also believes that, “The Constitution of India is both in language and substance a close copy of Act of 1935.”
Prof. Jennings is of the view that, “The Constitution derives directly from the Government of India Act, 1935 from which in fact, many of its provisions are copied almost textually. “Though some of these observations may not be fully agreed, but fact remains that the constitution makers in India derived some ideas from the Act of 1935.”
British Parliamentary System:
Since India was much familiar with the working of British Parliamentary institutions, therefore, constitution fathers closely followed the British pattern. India’s Parliamentary system of government is based on British Parliamentary pattern. Similarly bi-cameralism has also been borrowed from that country.
It is on the analogy of British system that the head of State in India (President) is simply a nominal head like a British monarch, who does not interfere in day-to-day working of the government. Not only this, but India has also very closely followed conventions being followed in England.
It is, for example, a convention that the head of the State both in India and Britain will invite the leader of the majority party in the Lower Houses of Parliament to form government. It is conventional that the head of the slate will act on the advice rendered to him by the Council of Ministers, except during a short period in India when Forty-Second (Constitution) Amendment Act, passed and it was made obligatory for the head of the state to act on the advice of his Council of Ministers.
The original position has now been restored in Indian as well. The importance of the study of British Constitution for proper study of Indian Constitution can be realised from the fact that Article 105(3) of constitution of India provides that unless legislated by an Act of Parliament, powers, privileges and immunities of members of Parliament in India shall be the same, as are enjoyed by the members of British House of Commons in England.
Since these have not so far been codified and as such these practically remain the same as those of Members of House of Commons in England. Thus, for a study of India’s Constitution, study of British conventions and parliamentary institutions is most essential and these are important source of Constitution.
Cabinet form of government and the basic principles on which cabinet system functions in India are other borrowings of India from the British parliamentary system. In England cabinet functions on the system of joint and collectively responsibility. Absolute secrecy is maintained about cabinet decisions and each Minister who resigns from the Council of Ministers is not supposed to divulge what happened in the Council meetings.
Again cabinet system in England is based on the principle that Prime Minister is leader of the cabinet and his resignation on political grounds is to be treated as the resignation of the whole cabinet. In England there is also a system that each Minister in the Council of Ministers must belong to either House of Parliament at the time of his appointment and if he is not a member of either House of Parliament at the time of his appointment, he should become a member so within a period of six months. One salient feature of the cabinet system which has coma to stay with the passage of time is, that the Prime
Minister must belong to lower House of Parliament. All these basic principles of Parliamentary form of government have been adopted in India and to that extent India has been influenced by England and thus is source of Constitution of India.
Impact of Other Constitutions: Constitution fathers were also under the influence of some other important working constitutions of the world. It was never the intention of constitution makers to give India a novel document. What actually they aimed at was to produce a workable constitution, suited to Indian conditions and environments.
Therefore, they did not hesitate to borrow from other working constitutions of the world. It is from the constitution of the U.S.A. that they borrowed the idea of giving the people a set of justiciable Fundamental Rights. Similarly U.S. system inspired them to provide for the system of judicial review under which the courts of law could declare any law passed by the legislature as un-constitutional.
It is again from the U.S.A. that constitution fathers borrowed the concept of independence of judiciary so that it could become a balancing wheel between the executive and the legislature. The idea that the judiciary should be the custodian of Fundamental Rights of the people and uphold the values of the constitution on the one hand and decide central-state relations on the other, was again taken from the U.S. constitution.
But it may be worth remembering that the constitution fathers did not borrow blindly any concept from any constitution. The Constitution of U.S.S.R. too had a chapter on Fundamental Rights, in which the people had been given the right to work and also the right to leisure.
Similarly in the constitution of the U.S.A. there are many more rights, without any limitations which have been given to the people of that country, but which the people of India have not been given by the constitution fathers.
While borrowing their most important concern was practical approach under prevailing conditions in the country as well as the situations and circumstances which were likely to develop in the foreseeable future.
India’s constitution has impact of constitution of South Africa in-so-far as provisions concerning the election of members of Rajya Sabha and amendment of the constitution are concerned. Similarly provisions about suspension of fundamental rights during emergency have impact of Weimar constitution of Germany.
It is on the Canadian Parliamentary system that federation in India has a very strong centre, which has made many critics feel that India is over-centralised federation. It is because of this system that residuary powers have been vested in the centre.
Chapter on Directive Principles of the State Policy has been borrowed from Irish Constitution. In it the governments has been given certain directives which these should keep in mind while formulating polices for the country.
Debates of Constituent Assembly:
Then another very useful source of India’s constitution is the debates of the Constituent Assembly which deliberated for about 3 years to give the people of India its present constitution. It was in the Assembly that each and every aspect of the constitutional problem was discussed.
It was here that various alternatives and suggestions on the recommendations of various committees were debated. It was again here that the issues to and various available alternatives were taken into account deliberated. It is through the proceedings of this Assembly that a peep can be had about the ideas and feelings of the constitution makers about every article of constitution of India.
These reflect the intentions of the constitution makers. Therefore, these debates form original source of the study of our constitution. Even up to today our Supreme Court refers to these debates when and where necessary.
The debates are useful source material for the researchers of an aspect of our Constitution, who are always enriching our knowledge by bringing to light either one or the other aspect of the constitution of India with their own orientation and interpretation and so also our lawyers.
Commentaries of the Critics:
The constitution after having been inaugurated and enforced moulds nation’s way of life, and its living and thinking. It reflects conditions and life style of the people. But in a dynamic society, in which we are living and growing today, there can neither be any permanency nor perfection in any walk of life. Moreover, in a democratic set up differences are bound to arise on many issues.
Therefore, the critics and commentators view every article of the constitution according to their own view point. They appreciate, as well as condemn different articles of constitution, real spirit behind their enactment and interpret these in their own but in a logical and convincing way.
These commentaries not only help us in understanding the constitution properly but also make us realise its defects and drawbacks. Many critics, both in India and abroad, have commented on the constitution of India both favourabily and unfavourably. For proper and analytical study of the constitution it is essential that these commentaries should be objective and impartial.
India’s constitution makers wanted to give India only most suitable working constitution most suited to Indian conditions. They, therefore, did not hesitate to borrow from other constitutions, such ideas which suited India.
It is what but natural that the decisions of the courts of these countries as well as enactments of their Parliaments to that extent to which India has borrowed from them, should influence India’s constitution. It is, of course, true that India does not, and in fact, cannot, bodily lift their subsequent enactments, nor courts of law can blindly follow the decisions of these courts, but at times, these can prove useful for providing a comparative study.
For a student of Indian constitution, these enactments and decisions provide a useful background for the study of each part of the their constitution as well as in the constitution of India and the way in which India has subsequently departed from their practice and followed her own.
System of Judicial Review:
In India there independence of judiciary and courts have the power of judicial review. Thus the role of judiciary in India, like that of the judiciary of the U.S.A., is very important. Moreover, in each country, it is judiciary which infuses blood in the skeleton of the constitution.
It has rightly been said that judiciary is responsible for the success and failure of a constitution. Judge made laws are life blood of constitution and legal system in every country. In India our Supreme Court has also played a significent role in the development of India’s constitution. Its decisions particularly on Fundamental Rights, including the Right to
Property composition of multi member Election Commission of India, and powers, privileges and immunities of Members of Parliament, provide an interesting study of these aspects of our constitution. Not only this, but the decisions of our Supreme Court for straightening the relations of three organs of government, have gone a long way in providing practical basis to our constitution.
In many cases, the decisions of the court have paved way for the amendment of the constitution. The beauty of courts in India is their flexibility. The courts are not rigid and do not hesitate even to revoke their own decisions, if the principles of justice so demand.
The courts, where necessary, review their own decision. It is, therefore, essential to study decisions of courts of law for practical working of the constitution and the difficulties which courts in India are experiencing in enforcing different and several provisions of the constitution. Not only this, but these decisions also help in the study of amendments which have been made in the constitution from time to time.
Constitutional Amendments:
India, has adopted Parliamentary form of government which implies supremacy of Parliament over other institutions in the country. One of the most important functions of the Parliament is to give the nation laws needed by it for smooth running of administration.
To amend the constitution when necessary is one of its important functions. In India Parliament has amended country’s constitution more than 80 times in a span of 46 years. Each amendment implies annuling the work of the Constituent Assembly in a limited way and incorporating a new clause in the constitution. Iv is not only useful but equally essential to study the proceedings and deliberations of our Parliament which have led to each amendment.
Since in the Parliament, whole nation is represented and the representatives of all political parties as well as independent candidates have the fullest freedom of expression, to express their view point on each proposed amendment, therefore, each amendment is of great significance.
In other words, national views are available in these deliberations which ultimately result in the enactment of a constitutional amendment. For an up-to-date study of India’s constitution it is essential that Parliamentary deliberations on these amendment should be carefully studied, as these provide a very valuable source material for the circumstances leading to the amendment of a particular clause in the constitution.
Ordinances:
One more important source for the study of India’s constitution is ordinances which are promulgated from time to time by the President of India and the Governors of the States to enable them to discharge their constitutional obligations to meet a particular and peculiar situation, when the Parliament or state legislature is not in session and a situation has arisen for the enactment of a legislative measure.
It is very useful and essential to study the background of these ordinances. It becomes still more interesting to study these because the ordinances are required to meet immediate needs and necessities of the nation.
Here it is worthwhile to remember that these ordinances have same force as that of a law passed by the Parliament or state legislature, but are valid only for a maximum period of six weeks after the re-assembly of Parliament or state legislature as the case may be. The importance of ordinances can be realised from the fact that from 1947 onwards more than 500 ordinances have been promulgated by the President of
India. It makes the executive really powerful because it approaches the Parliament to approve a fait accompli. Since in some cases ordinances are issued to over come some court observations, these provide an interesting study and have become source material for the study of constitution.
A Bag of Borrowing:
Is the Constitution of India then a bag of borrowing ? Since constitution fathers did not hesitate to borrow from other constitutions where necessary, that has made some feel that Indian Constitution is bag of borrowing and nothing else.
But that really means under-estimating the work of constitution makers, who put in hard labour for about 3 years to give such a nice document to India. Constitution makers borrowed only what suited to Indian conditions. They did not blindly borrow anything and everything.
The borrowing was judicious and quite limited. All that they did was that they made themselves wiser by the experience of the others, so that mistakes committed by those nations were not repeated by India. There are many aspects of constitution which have not been borrowed from any other constitution e.g., reservation of seats for Anglo-Indian Community in the Lok Sabha, indirect election of President of India, a unified judiciary, an independent Election Commission and so on.
It will, therefore, be wrong to say that the Constitution (if India is simply a bag of borrowing. In many ways it is absolutely an original document, of course, with the imprint of some western constitutions. In fact, now several new born sovereign states of Asia and Africa are borrowing from the Constitution of India,
6. Essay on the Ideological Basis of Indian Constitution:
In our modem times each constitution tries to follow some particular ideology which it imposes on its people. The Constitution of India does not follow any particular ideology but is a beautiful mix of several ideologies.
During country’s freedom struggle nation had promised a system of government in which it was promised that the administration would be run by directly elected representatives of the people. This is what was proposed in Nehru Report and during the subsequent years.
One ideology was that the whole administration should be run by directly elected representatives of the people with all powers concentrated in their hand. On the other hands on ideological front was Gandhian concept, which laid stress on democratic decentralisation and in which provision was to be made for indirectly elected representatives for state assemblies and Parliament and direct elections at grass root level.
Ideologically India preferred to have directly elected bodies with powers in their hand rather than panchyati raj bodies with maximum power and indirectly elected representatives, as suggested in Gandhian philosophy.
In fact, the Constituent Assembly paid very little attention of decentralisation of authority at panchyat level as the basis of country’s constitution. It always thought in terms of centralisation of powers in the hands of elected representatives both at the centre as well as in the states.
It may, however, be mentioned that now the importance of local self-institutions, including panchyats, is being increasingly realised. The constitution has been amended accordingly. A constitutional amendment bill passed by the Lok sabha in 1989 was defeated in the Rajya Sabha by a very narrow margin. It was, however, got passed in 1994 by Narsimeha Rao Government.
The Act has made provision for holding of elections of panchyat bodies regularly, and finances for developmental activities at village and local levels will be placed directly at their disposal. Women will have due representation in these bodies.
Ideologically constitution makers favoured establishment of society on socialist pattern through democratic process, rather than individualism and capitalism. It was perhaps Pt. Jawaharlal Nehru who was staunch supporter of socialism.
Though at that time, the word ‘socialism’ did not find place any where in the Constitution, yet subsequently it has been given a place in the Preamble of the Constitution. Even political parties have been asked to subscribe to it, before recognition is given to them by the Election Commission, as national or regional political party for the purposes of contesting elections and allotting election symbol.
Thus, socialism through democracy has been accepted as a way of life for us. But country is not blindly following the system as was being followed by Communist nations but it has modified the system which suits most Indian conditions. It was also because when the Constitution of India was being framed at that time socialism was very popular throughout the world.
There was general feeling in the Assembly that India should have a democratic constitution with socialist bias. Indian element in socialist concept is reflected from the fact that the constitution stands for individual liberty with equality of opportunity for all. It believes in the dignity of individual and has provided for Fundamental Rights of citizens.
Both parliamentary system of government and federal system with decentralisation of powers are other such features of Indian system, which are usually not found in socialist societies.
In this connection it may also be pointed out that ideologically Indian constitution is based on liberalism. It was perhaps because most of the Indian rulers during the nationalist movement had become intellectually committed to the liberal democratic traditions through their travels and education.
One, however, finds that whereas on the one hand the constitution makes India more liberal democratic than what socio-economic conditions permitted on the other. With in that system it described socio-economic aims that were still beyond the grasp of Indian society. But on the whole liberalism as philosophy was an important ideological base for framing the constitution of India.
7. Essay on the Problems of Constituent Assembly:
1. The Form of Government:
First major problem before the Constituent Assembly was that it was to decide about the form of government, which India in future should have. Options were either to have Parliamentary or Presidential form of government. India was new to both these.
In India there had been strong bureaucracy. Governor-General, who was the head of administration in India, was neither like the Prime Minister of England, nor near to the President of the U.S.A. He not only enjoyed very many powers, but exercised these is an autocratic manner as well. He was responsible to none in India.
He had his Executive Council, but like a Prime Minister, he was not bound by its advice. He enjoyed and exercised vast powers in his discretion as well as in his individual judgment. Moreover, unlike a Prime Minister or a President he was not sovereign head of the state because he was responsible to the British Parliament, through the Secretary of State, for all his acts of omission and commission.
Moreover, he could only recommend to the Secretary of State on all important matters but final decision laid with the Parliament, though being Crown representative in India his views very much mattered. On many occasions his recommendations were turn down by British Parliament.
Conditions both for Parliamentary and Presidential form of government, were ripe in the country. India had links with Britain which had Parliamentary form of government based on adult franchise. Indian leadership was committed to give to the people of India democratic rights based on adult franchise.
The leadership had been inspired by the working of parliamentary system and institutions. National leaders of those days including Pt. Jawahar Lal Nehru, Maulana Abul Kalam Azad and Mahatma Gandhi were opposed to the concentration of power and authority in one hand, as that could possibly degenerate in Indian situation to absolute dictatorship.
But at the same time Indians had their own problems about this form of government. The people were not prepared for parliamentary system.
They were illiterate and thus it could not be expected of them to all of a sudden become capable of electing their own suitable representatives taking into consideration their abilities, policies and programmes which they were likely to follow and to judge their character and capacity of understanding of every national and international issue.
There was every danger that illiteracy of the masses could be exploited by the educated elites on the one hand and moneyed class on the other. There was also a danger that in this form of government for a very long period urban elite will control the Parliament. There was also every fear that in elections the people would get elected on the basis of caste and religion and thus casteism and regionalism might get encouraged and with the passage of time these might prove dangerous for the very unity of the country as a whole.
Ultimately the founding fathers of the Constitution decided in favour of parliamentary democracy and not presidential form of government for India.
2. Secular or Non-Secular State Problem:
Another issue with which the Assembly was faced was whether free India should be a secular or non-secular state. There was powerful lobby which was convinced that after the partition of country, secularism had no meaning. What had been left of India was now a Hindu India in which about 90% of country’s total population was Hindu population. The Muslims of India under Muslim League had expounded two nation theory.
They had solidly stood behind the Muslim League. They had struggled for a home land for the Muslims and after blood shed and by following and supporting hatred and violence policy they had succeeded in dividing India. Every Muslim of India had every right to go to his home land of Pakistan. If some were not going that was because of their own convenience and also that was matter of individual choice.
Not only this but, this section also believed that history was a witness that for winning freedom, the Hindus made maximum sacrifices. There was no doubt about it that without their supreme sacrifices India would not have won freedom.
They also pleaded that if the Muslims all over the world could have theocratic states, where they could preach and propagate their own faith, then why the Hindus of India should not have their own Hindu state. For the sake of few Muslim patriots who had decided to live in India, the country could not give up its Hindu character.
On the other hand, there were strong and powerful Congress leaders in the Assembly who firmly believed that India should be a secular state. According to them whole freedom struggle was fought on secular principles. The Muslims of India had all along been assured that in free India they will have equal rights with the Hindu majority. Quite a vast majority of the Muslims had fought along with the Hindus for winning freedom for India.
Moreover, it was argued that India had the glorious tradition of being the land of religious toleration. To under-estimate the importance of one religion and over-estimate the other is unknown to India. It was also pointed out that the concept of theocracy was quite outdated. All persons in the society must be respected and valued on the basis of their ability rather than the faith which they practised.
It was argued that even after the partition of the country, crores of the Muslims will be living in India and in case they are treated as second rate citizens, the nation will not get their co-operation and they will not be forthcoming for the task of national reconstruction.
This section also pointed out that history is a witness that in the world only those nations have progressed which can get the co-operation of all sections of their population.
Both sides had strong arguments to advance but ultimately it was decided that India should be a secular rather than a theocratic state and thus secular character of India was accepted as the ultimate goal.
3. Democratic Socialism or Communism:
When India became free and Constituent Assembly embarked upon the difficult task of giving Constitution to India, the world was sharply divided into two power blocs. On the one hand, was the so-called capitalist bloc, whereas on the other, was communist bloc.
India was to decide about the type of society which ultimately should be established in the country. Because of country’s old ties with England and moral support given by the USA in country’s freedom struggle, India was somewhat favourably inclined to it.
Moreover, Indian leadership of those days had some knowledge of what was good or bad in this system. Similarly much had been said and read about Soviet system of government and the society after the revolution of 1917. Many Congress leaders during country ‘s freedom struggle were impressed by Marxist philosophy and progress which Russia was making after adopting it. In fact, several leaders both inside and outside the Congress pleaded that our freedom movement should be organised on communist party lines.
The Assembly ultimate decided in favour of democratic socialist state rather than an authoritarian communist state. It stood between extreme capitalism and ‘ extreme socialism, which it was felt suited India most.
4. Adult or Restricted Franchise:
Then another problem was whether the people of India should be given the right to vote on the basis of universal adult franchise or some restrictions should be put on voting right of the people. For adult franchise it was essential that the people should be politically conscious. They should have enough leisure time to understand political, social and economic problems and the way each political party wants to solve these.
They should be above easy temptations which might be offered to them by the candidates at the time of election. They should realise their responsibilities as a voter and cast their vote on the basis of ability of the candidate. They should have capacity to rise above narrow considerations of regionalism and casteism.
At the time when Constituent Assembly was engaged in framing a Constitution for the country practically the nation was not fit for adult franchise. The people were illiterate. Narrow considerations of caste and region ruled supreme. Vast majority was poor and the people had no leisure to understand political problems.
The society was backward and means of transportation and communication were so difficult that it was difficult for the candidates even to reach the electorates in far-fetching areas.
Equally important problem was that in case adult franchise was not accepted what other alternatives could be. One such other alternative could be manhood franchise. This practically meant defranchising 50% of total population. This also meant accepting that every woman was politically unconscious whereas only men were politically awakened.
This was not acceptable to leadership of those days. During freedom struggle it had been amply demonstrated by Indian women that they were politically conscious and awakened. The women had also suffered along with men in all walks of life. Moreover, all over the world the women were being given the right to vote and it was felt undesirable to keep them out of political race.
Then another way out was that only the literate should be given the right to vote. It was believed that by and large the educated were politically more conscious than the uneducated. In the case of India this was not perhaps true. During country’s freedom struggle the illiterate masses spread in far flunged villages made immense sacrifices.
The illiterate village folk always willingly came forward than white collar, middle class, city dweller educated persons for making sacrifices for the cause of nation. Not only this, but at that time educated population of India was only 7%. There was no justification in giving franchise to only 7% and defranchising 93% of a country’s population.
Still another alternative could be that propertied class only should be given the right to vote. This proposition was also not acceptable, because that would have also meant exclusion of vast majority from right to vote. Not only this but it would have meant government by the elites of the society and a sort of oligarchy.
The Parliament then would have been an elite club and not a representative body. Moreover, the non-propertied class would have taken no interest in national development. It would have also meant rule of minority over majority, which could not be justified on any ground. There is every reason to believe that this vast majority would not have silently accepted the decision.
After a thoughtful consideration it was decided that India should have universal adult franchise. It was felt that each election was bound to educate the masses. Elections in democracy are always of great educative value and gradually and slowly the people realise their responsibilities.
It was felt by the leadership that unless this bold risk was taken, the people shall never get involved in nation building task. It is better to make a beginning for democratic system right now.
5. Republic or Non-Republic Problem:
Then another major decision which was to be taken was whether India should be a constitutional monarchy like England or a republic. India’s past links with England had prompted many to think that she should also have constitutional monarchy.
Whereas it does not stand on the way of smooth working of parliamentary form of government, a constitutional monarch always had the advantage of having experience of facing political upheavals with maturity. Such a monarch can guide the politicians and that guidance is very much needed in India.
But it was on the whole felt that the days of monarchies were over. Even those countries which were having monarchies were over-throwing these and replacing these with republics. Moreover, in India princely state’s peoples had not been well governed by their rulers and as such concept of a hereditary ruler had no place in Indian minds.
Then other alternative was that of having dictatorship or absolute monarchy which was worse than constitutional monarchy and still more unacceptable to the people of India, who had all along been fed with the idea of democracy during country’s freedom struggle.
Therefore, Constitution makers favoured a republic system for India. Since India was to have parliamentary form of government, therefore, there was no idea of having a directly elected President as head of the state who could pose a serious challenge to the authority of the Prime Minister on the plea that he too was elected representative of the people.
It was, therefore, decided that he should be indirectly elected by the elected representatives of the people i.e., members of Parliament and State Legislatures. In order to avoid his becoming autocrat, it was also decided by the Assembly that he should be elected only for a limited period of five years.
Thus, the Assembly opted for a republican system for India, with indirectly elected President for a limited period of five years, as head of the state. It was hoped that then there would be no clash of powers between the President and the Prime Minister.
6. Unitary or Federal Form of System:
Then another problem with v. inch the Assembly was faced was whether India should be a unitary or a federal state. India being a vast country has diversity of races and the people speak different languages and have different ways of living and thinking.
In the words of Rao, “India was museum of races, languages, religions and cultures, but in spite of it all, there was a unity in its diversity, or there was a or cultural unity in its diversity or there was a social or cultural unity and political diversity, the latter never being able to disturb the former.”
India had already been victim of communal hatred and frenzy. Ugly tendencies were raising their heads and trying to take advantage of difficult situation of the country. Regionalism and lingualism were very strong and earing their pressure on the unity of India.
There was communal hatred all over the country. There was, therefore, a strong section in the Assembly relieved that in the present circumstances, India should have a unitary form government, so that the people of India could realise oneness as a nation and country. In case federal form of government was adopted that was likely to promote regionalism.
The people of India will not feel sense of national unity. Every state will try to promote its own interests rather than national interests. Moreover, states may not effectively deal with fissiparous and disintegrating forces which were bound to come to the front and were even now active.
On the other hand, India had already experimented with federal system of government. Under the Government of India Acts, 1919 and 1935, India had been a federation and provinces had been given some powers.
In 1929, Indian National Congress also promised the people of India a federal structure for India after independence. Constitutional scheme envisaged under the Act of 1935 was based on federal pattern. All those Missions which had come to India to solve constitutional problems, started with federation as the basis of Indian political structure.
Due to political situation prevailing in India before partition of India, it had been agreed by both the major political parties not only that India will be a federation but also that the Centre will be weak and provinces will be very strong and powerful.
Therefore, the people of India were psychologically prepared to have a federal set up and it was difficult to all of sudden change that outlook. Not only this, but it was also realised that India was a vast country. In the days to come the nation was to undertake difficult task of building a new India.
In this task, it was more desirable that some responsibilities must be shared by the States otherwise there was every possibility of either some of the tasks being neglected or delayed. It appeared equally difficult for a single central authority to control such a vast country, which had serious problem of maintaining law and order.
Not only these but new and manifold responsibilities were facing free India which were time consuming and Centre needed a lot of time to tackle these.
The Assembly, therefore, decided in favour of India’s having, federal rather than a unitary system of Government. The founding fathers, however, decided that the country should have a strong Centre and the central government should be in a position to check any erring state, which tries to by-pass central authority or fails to maintain law and order in the State.
It, therefore, did not favour a weak Centre. This meant weak federating states. Accordingly in the division of powers the Centre got major share.
7. Problem of Vesting Sovereignty:
Next then came the problem about the authority in whom sovereignty in India should be vested. The question was whether the Parliament in whom the sovereignty was proposed to be vested should or should not have any limitations. On the one hand, was British parliamentary system, where Parliament was supreme and sovereign.
It represented the will of the people and there were no limitations on its authority. It has been said that British Parliament is so powerful that it can do anything except making a man a woman and a woman a man. The laws passed by British Parliament are to be accepted by the courts of law, which cannot declare any law as ultra-vires in any way.
On the other hand, was the American model which followed system of checks and balances. The Supreme Court of the USA in that country has been empowered to review the laws passed by the Congress and can declare any law ultra-vires of the Constitution, if that violates any provision of the Constitution. In other words, sovereignty of the Congress is limited by the power of review of the judiciary. India was to chose between the two.
In India it was decided that the sovereignty should be vested in the people of India and their will should be expressed through the Parliament, which consists of the Lok Sabha and the Rajya Sabha. Thus, in all fairness the Parliament should enjoy supreme and given unbridled authority.
But at the same time India decided to have a federal polity. In a federation courts are the custodian of the rights of the federating units and act as a balancing wheel between the centre and the units. Moreover, the courts are also considered as custodian of the constitution.
It was, therefore, unavoidable that the courts should be given the power of judicial review. Accordingly in India the Assembly decided to blend the two. On the one hand, it was accepted that the Parliament should be supreme, whereas on the other the courts should be given the power of judicial review and if need be they may declare an Act of Parliament as vires of the constitution.
8. Problem of Reservation of Seats:
A very serious problem which the Assembly had to face was that of reservation of seats. Both under the Acts of 1919 and 1935 and even thereafter reservation of seats for religious minorities, both at the political level and also in public services, was continued.
In fact, over the decades it had become a way of country’s political life. Different religious communities always thought in terms of reservation of seats for religious minorities.
But what was the effect? The British government’s policy of divide and rule and reservation of seats for religious minorities gave fillip to anti-national movements in the country. It resulted in communal hatred and communal riots, which became a slur on the fair name of India, which claimed itself to be land of non-violence and religious toleration.
Politics of reservation ultimately resulted in the partition of the country and sowed the seeds of hatred and ill will among different religious communities in India.
Now, therefore, the problem was whether there should or should not be any reservation of seats for religious or any other community. Such reservations could be both for religious as well as economic minorities.
It was almost accepted even by religious minorities that there should be no reservation for any of them and that every Indian citizen should be considered on his/her merits in all walks of life irrespective of religion which one professed. But the case of economic minorities was, of course, considered on different footings.
A case was made out that in the country there are economically the rich and the poor. In case the latter are not given some protection, the former will always have an edge and the poor will never come up of their own. More deserving case, however, was those of the scheduled castes and scheduled tribes.
It was accepted by all sections of society and people of all shades in the Assembly that those belonging to these castes have since centuries been the victim of social injustice penetrated by high caste people of Indian society. In addition to this, it was also felt that due to no fault of theirs, they had to suffer and could not flow in the main stream of national life.
Therefore, it was very essential that they should be given due consideration and weightage.
Thus, whereas, it was thought undesirable to provide for any reservation for economically poor sections of the society, it was considered proper by the Assembly to provide for reservation only for scheduled castes and scheduled tribes for quite some time, till they began to flow in the main stream of national life. Reservation for no other section of society or community was favoured.
8. Essay on the Critical Appraisal of Nature of Constitution:
There is thus a controversy about the very nature of Constitution of India. On the one hand, it is believed that it is a value loaded document which represents the philosophy and ideology of the Congress party alone. It was natural also because at that time this party represented the view point of the nation.
It controlled the government and the Assembly. On the other hand, there is another view point which makes us believe that the document is not wedded to any particular ideology or view point because leaders like Jawahar Lal Nehru, who dominated the show, were very liberal. They were not conservatives.
The leadership was very adjusting to every view point. According to this view point, in case the document was ideology loaded then there would have been loud protests from many quarters even that time. But the document was accepted unanimously, without even a whisper. This shows that in it view point of every shade of public opinion was both accepted as well as accommodated.
The strength of this view point can be appreciated from the fact that even today no loud protest has been raised in the country on the plea that the Constitution should be re-enacted because it does not represent the view point of the nation, but only that of the Indian National Congress. Even today it is accepted that it is a national document.
It has often been argued out that the Constituent Assembly of India was not a representative body of the people of India in spite of the fact that the Assembly included people of great eminence who represented the view point of all sections of Indian society.
There is also no doubt that these people worked in the best interest of the country selflessly and for them paramount consideration was to give the people of India a document which could help improving social, economic and political life of India.
But in spite of this the fact remains that the people of India never elected them for the specific purpose of making Constitution for India. Before the partition of the country, they were sent by the provinces and when Muslim League decided not to participate in the deliberations of the Assembly, they were continued as members of the Assembly and some additional nominations were made to make the Assembly a more representative body. Not only this, even no referendum was held to get the names of the members of the Assembly approved from the people of India.
Thus, technically speaking, the Constituent Assembly of India was not a representative body of specially elected representatives for the specific job of making Constitution of India.
Then it is also argued out that the Constituent Assembly was not a sovereign body in the sense that it was not free from pressures. Of course, it was clear from the very beginning that the Assembly was not under the influence of British Parliament, which even could not dissolve that. But at the same time, it cannot be denied that it was under several internal pressures. The pressure of Congress oligarchy was really very great.
It being the party in majority always guided the proceedings and deliberations of the Assembly. The pressure was so high that it made many remark that Indian Constitution is a Congress document. It is said that once even Dr. Ambedkar remarked that, “I was a hack. I did what I was asked to do. I only carried out the wishes of majority.”
The pressure of majority party was so great that even if the founding fathers of the Constitution wanted to give a different Constitution, perhaps they could not do that. It is quite often said that the Constitution of India would have been a different document had it not been prepared under the close supervision of Congress oligarchy.
Then it is also said that the task as completed by the Constituent Assembly is really great. The Constitution reflects the volume of labour which its founding father put in it and ensured that the people of India got a Constitution at the earliest.
They realised that unless the people of India were given their own Constitution, perhaps they would not have tread on the path of socio-economic transformation. But at the same time, it is also argued that the Constitution is simply an arrangement, better say of interim nature.
The Constitution makers were guided by the motive of pleasing everyone. If some wanted in the Assembly a unitary form of government, the others championed the cause of strong federation for India. The Constitution makers gave India a quasi-federal form of government, so that both were satisfied.
Similarly if few of them stood for parliamentary form of government, for others ideal form of government was Presidential system and Constitution makers kept both happy by steering a middle course. They gave a Constitution which contained the features of both the Parliamentary and the Presidential forms of government.
Then one finds that if few of them opined that the people of India should be given more Fundamental Rights, the others felt that India was not in a position to give such rights to its people. The Constitution makers followed a course of least resistance. They gave the people some rights, while for the satisfaction of many they prepared a long list of Directive Principles of State Policy which were placed in a separate part of the constitution but were not been justifiable like fundamental rights.
Then another criticism which is made against the Constituent Assembly is that it was an Assembly which was dominated only by the politicians and lawyers. It did not give much representation to other sections of Indian society. One reason for this could be that the people belonging to these two sections of society emerged prominently during freedom struggle.
But net result was that they continued to dominate the Assembly. One effect of this domination was that they gave the country a very bulky document. According to some critics the Constitution of India is a lawyer’s paradise. Had they not been in the forefront, perhaps the document would not have been that bulky.
In the words of K.V. Rao, “By far the most important element that was conspicuous by its absence and whose absence had a distinct effect on the Constitution was of the professors of constitutional law and political science.”
Still another point of criticism levied is that the Constituent Assembly took unduly long time to give a Constitution to the people of India. The critics point out that whereas the constitution of U.S.A. was framed within a short period of four months that of the South Africa only one year. On the other hand, framers of Indian Constitution took about three years to complete their work.
It is also said that in the Assembly there was no vocal opposition and there was no representation of various viewpoints. Congress party members were kept under strict discipline. The result was that whereas minor changes were accepted on the suggestions of some critics, basic principles remained untouched.
It is another thing that the party was guided by wider national rather than narrow party interests. Because of lack of vocal opposition many constructive suggestions did not come up for consideration.
It is also said that the Constitution framed by the Constituent Assembly of India was not submitted to any referendum before its final adoption. Needless to say that approval at referendum would have given it more sanctity.
The critics of today have, of course, come up with their own arguments, which appear somewhat justified as well. But all points of criticism cannot be justified. As regards direct election, a counter argument is put forth is whether in India at that time, when the country was in upheavals and there was instability and communal hatred, when forces of disintegration were very active, could the nation afford an election?
In a country like India election are not only costly, but need elaborate arrangements as well. Was nation prepared to make those arrangements and ensure that elections in the country were free, frank and impartial?
Then there are many pre-requisites of an election; namely, who should be entitled to vote, preparation of electoral rolls, etc., was the nation in a position to complete all these pre-requisites? The only other alternative which was left before India, therefore, was either to wait for a long time till the nation held elections for the Constituent Assembly or to go ahead with the task of giving a Constitution.
It goes to the credit of Indian leadership of those days that they did not unnecessarily govern the nation arbitrarily and proceeded with the difficult task of giving a Constitution to the people of India.
Then comes another criticism, namely, that the Assembly was dominated by Congress oligarchy. Even if this is also studied in the background of conditions prevailing in those days, perhaps much reply of the critics will itself be forthcoming.
In those difficult days when Muslim League had boycotted the Assembly, the only other national party which had been left in the field was Indian National Congress and its leadership had definitely caught the imagination of the people. Its leaders were highly respected by the masses and they were not only the leaders of urban but also rural India.
These leaders and this organisation was bound to dominate the Assembly and that was a fore gone conclusion. In fact, it is difficult to think that the Indian National Congress should have waited for that long so that the opposition parties got their roots and thereafter the task of framing a Constitution for the country could start. A question can be asked does it happen anywhere.
As regards criticism about long delay about giving Constitution the critics forget that the size of Indian Constitution is much bigger than that of the U.S.A. or South Africa. The Constituent Assemblies of Canada and Australia took much longer time in producing less comprehensive document than the Constituent Assembly of India. In this connection the critics point out that whereas no other Constituent Assembly simultaneously acted as Dominion Legislature, in India the Assembly simultaneously acted as Dominion legislature as well.
Then comes criticism that the Assembly wanted to give a document which aimed at pleasing every section and view point of the Assembly. A question which can be countered is as to what is wrong in adjusting view point of maximum number of people? The Assembly had before it the knowledge of working constitutions of several other countries and both Parliamentary and Presidential forms of governments. It simply eliminated the defects of both these forms and tried to give India a Constitution, which contained good points of all as these suited to Indian conditions. Perhaps there was nothing wrong in that.
No doubt approval of constitution at a referendum would have given more sanctity to it, but it is equally true that conditions were not favourable for holding a referendum. Not only this but subsequently when elections were held in 1952, Congress party and a vast majority of members of Constituent Assembly were returned either unopposed or got elected to Parliament or State Legislatures, in recognition of their work as a member of the Constituent Assembly.
This was indirect approval of Constitution given by them to the nation. Had their work and labour been not appreciated and had they displeased the masses, they would have been defeated in 1952 general elections to the Lok Sabha.
It can rather very appropriately be said that the Constituent Assembly did a remarkable job of saving India from another revolution. Had the people of India not got this Constitution and had the Assembly not given an unanimously accepted document, what would have been the fate of India is quite unpredictable. With the passage of time disintegrating forces and fissiparous tendencies would have raised their ugly head.
The whole of India would have again got divided and the country would have plunged in chaos and disorder. The Assembly, therefore, saved the country from chaos and anarchy and gave the nation a document which still provides steel frame work of Indian administration.
It will have to be accepted that it is always difficult to produce an unanimously accepted Constitution and in India Constituent Assembly succeeded in accomplishing this difficult task. It has rather very appropriately been said by eminent thinkers in India that if today a new Constituent Assembly is convened, it will not be possible for it to give a Constitution to India.
This itself speaks volumes for the good work that the Constituent Assembly has done for India.
Constitution – A Lengthy Document:
Indian Constitution is a very lengthy document and occupies pivotal and unique position in country’s political arrangements. In India all the laws of the land must be in according to the provisions of the Constitution.
All such laws which go against any article of the Constitution can be declared as unconstitutional or ultra-vires of the Constitution by the courts of law if on a petition made for review it is found that any provision of the constitution has in any way been violated by an Act passed by a legislature body or by any rule made thereunder. Since law making process is very complicated these days, therefore, nation cannot afford to take the risk of violating a constitutional provision.
It is Constitution which gives guide-lines about political, social and economic set up of the country and harmonises relations of executive, legislature and judiciary with each-other. Constitution fathers in India drew inspiration and source material from different sources and as such did not depend only on one source for the framing of Constitution of the country. They incorporated in it what suited most to Indian conditions.
Constitution – A Sacrosant Document:
A question which drew the attention of the nation and became a very focal point, a few years back was whether the Constitution is a sacrosant document or not. There were two different viewpoints. According to one view point, the Constitution was a pious document and it should not be amended quickly to suit the convenience of political party in power.
The party should adjust its policies and programmes to suit the provisions of the Constitution and these should be in keeping with the principles enshrined in it. A constitutional amendment should be brought forward, by the government when absolutely unavoidable.
On the other hand, another view expressed was that every constitutional document is handi-work of human beings. Though the framers of the Constitution, can foresee the things but they can do so only to a limited extent. Beyond that they cannot foresee.
The society is however, dynamic and fast coming social and economic changes cannot wait and adjust themselves to what has been provided in the constitution. It, therefore, must be made an instrument of social change. In case that does not happen the constitution will become a static document and there will be a lag between the society and the Constitution, which will create many social, economic and political problems.
According to this view point there is nothing so sacrosant about the Constitution and it must be amended as the need arises, without much hesitation. A progressive political party in power need not fear of bringing radical changes in the Constitution, if these become unavoidable for achieving ultimate objectives, namely, justice social, economic and political as enshrined in the Constitution or even for achieving national objectives.
Of course, this controversy has now subsided. Today, it is believed that Constitution should be amended when must. It should not be made an instrument for enforcing the policies of political party in power. What always need be remembered is that a Constitution represents the will of the nation whereas political party in power reflects the will of a section of the society.
Frequent amendments and counter amendments are bound to shake the faith of the nation in the supremacy of the Constitution, which is really not in the national interest.