UPSC Indian Polity and Civics The Indian Constitution Short Notes - Making of the Constituent Assembly

 

Making of the Constituent Assembly

 

• The Indian National Congress had officially, for the first time, demanded a Constituent Assembly in 1935, the idea was the brainchild of N. Roy.
• The British government accepted the demand in the ‘August Offer' of 1940 and finally 'the Cripps Proposal' on the framing of Constitution came out in 1942.
• Under the 'Cabinet Mission Plan' the Constituent Assembly came into exis- tence in November, 1946.

Its main features were:

1. Total strength=389. Out of these 296 were allotted to British-India and 93 to Princely states.
2. Every province and Princely state was allotted seats in proportion to their population.
3. The seats for British were divided among Muslims, Sikhs and General.
4. The representatives from each com- munity were elected by voting in the provincial legislative assembly.
5. The heads of Princely states nominated their members.

The elections were held in July-August, 1946.

• The first meeting was held on December 9, 1946 with only 211 members (Muslim league boycotted).
• Princely states decided to stay away so their seats remained vacant.

However, after the acceptance of Mount batten plan on June 3, 1947 most of the Princely states joined. The other significant changes were declaring the assem bly to be a fully sovereign body and also a legislative body.

 

Functions

The Constituent Assembly drafted the Constitution and also:

• Ratified India's membership of the Commonwealth in May 1949.
• Adopted the National Flag on July 22, 1947. It was designed by Pingali Venkiah.
• Adopted the National song on Janu ary 24,1950.
• Adopted the National anthem on January 24, 1950.
• Elected Rajendra Prasad as the first President of India on January 24,1950.

Drafting committee

• The Constituent Assembly contained many committees for various purposes such as House committee, Rules of Procedure committee etc. but the most important of these was the Drafting Committee.
• It was set up on August 29, 1947 and was tasked with preparing a draft of the new Constitution.

 

The seven members of the Committee were:

1. B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. K M Munshi
4. T Krishnamachari
5. Syed Mohammmad Sadullah
6. Madhav Ran
7. Alladi Krishnaswamy Ayyar

 

• The first draft of the Constitution was published in February, 1948. The people had eight months to discuss the draft. After discussions, suggestions and proposed amendments were considered and a second draft was prepared by the Assembly. The second draft was published in October, 1948.

The Drafting Committee met for a to tal of 141 days and took less than six months to prepare its draft.

 

Enactment of Constitution

• Enactment and enforcement of the Constitution took place on November 26, 1949 and January 26, 1950, However, some parts had come into force on 26 November, 1949 itself with the passing of the motion 'the Constitution as settled by the As- sembly be passed'.
• In all 284 of the Assembly signed the official copies of the Indian Constitution which came into effect on Jan 26, 1950.
• The Constitution adopted on 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.
• The Constituent Assembly took 2 years 11 months and 18 days to complete the Constitution.

 

The Preamble

• The Preamble to Indian Constitution is based on "Objective Resolution" of Nehru, jawaharlal Nehru introduced an objective resolution on December 13, 1947 and it was adopted by Constituent Assembly on 22 January, 1947.
• The Drafting Committee of the Assembly in formulating the Preamble in the light of "Objective Resolution" felt that the Preamble should be restricted to defining the essential features of the new state and its basic sociopolitical objectives and that the other matters dealt with Resolution could be provided in the substantive parts of the Constitution.
• The Committee adopted the expression 'Sovereign Democratic Republic' in place of 'Sovereign Independent Republic' as used in the "Objective Resolution".
• The Committee added the word Fraternity which was not present in the Objective Resolution. The Committee felt that the need for fraternal concord and goodwill in India was never greater than now.

• The term 'Preamble' means the introduction to a statute. It is the introductory part of the Constitution.
• Initially, the Preamble was drafted by B. N. Rau in his memorandum of May 30, 1947 and was later reproduced in the Draft of October 7, 1947. In the context of the deliberations by the Constituent Assembly, the Pream-ble was reformulated.
• The Preamble does not grant any power but it gives a direction and purpose to the Constitution.
• It outlines the objectives of the whole Constitution. The Preamble contains the fundamentals of the Constitution. The Preamble to an Act sets out the main objectives which the legislation is intended to achieve.

 

 The Preamble reads

 

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECU- LAR, DEMOCRATIC, REPUBLIC and to secure to all its citizen:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation:

IN OUR CONSTITUENT ASSEMBLY, this 26th day of November 1949, do here- by ADOPT, ENACT and GIVE TO OUR-SELVES THIS CONSTITUTION.

 

• The word socialist and secular have been added to the Preamble by 42nd amendment Act 1976. Also unity of nation was amended to read unityand integrity of the nation.

Salient Features

• Originally our Constitution contained 395 Articles divided in 22 Parts and 8 Schedules.
• Our Constitution is the most comprehensive constitution in the world.
• The Constitution, in its current form, consists of a Preamble, 24 Parts containing 448 articles, 12 schedules.
• It is designed to work as Federal Government in normal times and as a Unitary Government in an emergency.
• It establishes a Parliamentary System of Government in India.
• It introduces adult franchise.
• India is a union of 29 States and 7 Union Territories.
• It abolishes untouchability in India.
• It guarantees Fundamental Rights to all citizens of India.
• It lays down Directive Principles of State Policy for the guidance of Legislature and the Executive of the country.
• It establishes independence of judiciary from the executive.
• It declares Hindi as the official language of India which would replace English as early as possible.
• Provision has been made for amending the Constitution.

 

Provisions of Constitution & Their Source

 

Provision		Country
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.   26. 27.   28. 29.	The Preamble President as Executive head President as Supreme Commander of the Armed Forces Vice-President as the ex-officio Chairman of the Council of States Fundamental Rights Independence of Judiciary Judicial Review Removal of Supreme Court & High Court Judges Concept of Due Process of Law Concept of Equal Protection of Law Concept of Public Interest Litigation (PIL) Fundamental Duties Concept of Republic Rule of Law Concept of Equality before Law Concept of Procedure Established by Law Office of Comptroller & Auditor General Concept of Writs Law making procedure System of Single Citizenship Parliamentary form of Government Directive Principles of State Policy Nomination of Members of Rajya Sabha by the President Federation with strong Centre Distribution of powers between Union & the States and placing residuary powers with the Centre The concurrent list Provisions regarding trade, commerce & inter-  course Constitutional Amendment  Emergency & its effect on Fundamental Rights	U.S.A. Constitution           Japan & USSR French Constitution       U.K. Constitution         Irish (south) Constitution Irish Constitution   Canadian Constitution   Australian Constitution     South African Constitution Weimar Constitution of Germany

 

Important Articals of Indian Constitution

 

Part 1 - Art. 1 to Art. 4

• Article 1- Name and territory of the Union, (i.e. India)
• Article 2 - Admission and Establishment of the new state.
• Article 3 - Formation of new states and alteration of areas, boundaries, and name of existing states.

 

Part 2 - Art. 5 to Art. 11

• Article 5 - Citizenship at the commencement of the Constitution.
• Article 6- Rights of citizenship of certain person who have migrated to India from Pakistan.
• Article 10- continuance of rights of citizenship.
• Article 11- Parliament to regulate the right of citizenship by law.

 

Part 3 - Art. l2 to Art 35

• Article 12-Definition of the state
• Article 13 Laws inconsistent with or in derogation of the Fundamental Rights.
• Originally, Constitution provided for 7 basic Fundamental Rights, -now there is only six rights, one Right to Property U/A 31 was deleted from the list of Fundamental Rights by 44th Amendment Act 1978. It made a legal right U/A 300-A in Part XII of the Constitution.

 

Some important Fundamental Rights are as:

 

Right to Equality; Art. 14 to Art. 18

 

• Article 14- Equality before the law.
• Article 15- Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
• Article 16- Equality of opportunity in matters of public employment.
• Article 17- Abolition of the untouchability.
• Article 18- Abolition of titles

 

Right to Freedom: Art. 19 to art. 22

• 19 guarantees to all the citizens the six rights :
  1. Right to freedom of speech and expression.
  2. Right to assemble peacefully and without arms.
  3. Right to form associations or unions.
  4. Right to move freely throughout the territory of India.
  5. Right to reside and settle in any part of the territory of India.
  6. Right to practise any profession or to carry on any occupation, trade, and business.

 

• Article 20- Protection in respect of conviction for offences.
• Article 21-Protection of life and personal liberty.
• Article 22- Protection against arrest and detention in certain cases.

 

Right against Exploitation: Art.23 & Art. 24

• Article 23- Prohibition of traffic in human beings and forced labour.
• Article 24- Prohibition of employment of children in factories and mines under age of 14.

 

Right to Freedom of Religion: Art.25 to Art. 28

• Article 25- Freedom of conscience and free profession, practice and propagation of religion.
• Article 26- Freedom to manage religious affairs.
• Article 27- Freedom as to pay taxes for promotion of any particular religion.
• Article 28- Freedom from attending religious instruction.

 

Cultural and Educational Rights: Art. 29 & Art. 30

• Article 29- Protection of interest of minorities.
• Article 30- Right of minorities to establish and administer educational institutions.
• Article 32- Remedies for enforcement of Fundamental Rights.

 

Part 4 - Directive Principles of States

 

Policy: Art 36 to Art. 51

• Article 36- Definition
• Article 37-Application of DPSP
• Article 39A- Equal justice and free legal aid.
• Article 40- Organisation of Village Panchayat.
• Article 41- Right to work, to education, and to public assistance in certain cases.
• Article 43- Living Wages, etc. for workers.
• Article 43A- Participation of workers in management of industries.
• Article 44- Uniform Civil Code. (applicable in Goa only).
• Article 45- Provision for free and compulsory education for children.
• Article 46- Promotion of educational and economic interest of Scheduled Castes, ST, and OBC.
• Article 47-Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
• Article 48-Organisation of agriculture and animal husbandry.
• Article 49- Protection of monuments and places and objects of natural importance.
• Article 50- Separation of judiciary from executive.
• Article 51- Promotion of international peace and security.

 

Part lV-A- Fundamental Duties: Art 51A

• It contained, originally 10 duties, now it contains 11 duties by 86th amend- ments Act 2002.

 

Part 5 - Union (52-151)

• Article 52-The President of India.
• Article 53- Executive Power of the Union.
• Article 54- Election of President.
• Article 61- Procedure for Impeachment of the President.
• Article 63- The Vice-President of India.
• Article 64- The Vice-President to be ex-officio chairman of the Council of States [Rajya sabha]
• Article 66- Election of Vice-President.
• Article 72- Pardoning powers of President.
• Article 74- Council of Minister to aid and advice President.
• Article 76- Attorney-General for India.
• Article 79- Constitution of Parliament.
• Article 80- Composition of Rajya Sabha.
• Article 81- Composition of Lok Sabha.
• Article 83- Duration of Houses of Parliament.
• Article 93- The speakers and Deputy Speakers of the House of the People.
• Article 105- Powers, Privileges, etc. of the House of Parliament.
• Article 109- Special procedure in respects of Money Bills.
• Article 110- Definition of "Money Bills".
• Article 112- Annual Financial Budget.
• Article 114- Appropriation Bills.
• Article 123- Powers of the President to promulgate Ordinances during recess of parliament.
• Article 124- Establishment of Supreme Court.
• Article 125-Salaries of Judges.
• Article 129- Supreme Court to be Court of Record.
• Article 130- Seat of the Supreme Court.
• Article 136- Special leaves for appeal to the Supreme Court.
• Article 137- Review of judgement or orders by the Supreme Court.
• Article 141- Decision of the Supreme Court binding on all the courts.
• Article 148- Comptroller and Auditor-General of India.
• Article 149- Duties and Powers of CAG

 

Part 6 - States (152-237)

• Article 153-Governors of State.
• Article 154- Executive Powers of Governor.
• Article 161- Pardoning powers of the Governor.
• Article 165- Advocate-General of the State.
• Article 213- Power of Governor to promulgate ordinances.
• Article 214- High Courts for states.
• Article 215- High Courts to be Court of Record.
• Article 226- Power of High Courts to issue certain writs.
• Article 233- Appointment of District judges.
• Article 235- Control over Sub-ordinate Courts.

 

Part 7 - 238 - Repealed

 

Part 8 - 239-242 - Union Territories

 

Part 9 - 243-243 0 - Panchayats

• Article 243A- Gram Sabha.
• Article 243B- Constitution of Panchayats.

 

Part 9A - 243 P-243 ZG - Municipalities

 

Part 10 : Scheduled and Tribal Areas (-244)

 

Part 11 : Center- State Relations (Arts 245 - 263)

 

Part 12 ; Finance, Property, Contracts and Suits (264 - 300A)

• Article 266- Consolidated Fund and Public Accounts Fund.
• Article 267- Contingency Fund of India Article 280- Finance Commission.
• Article 300-A- Right to property.

 

Part 13 : Trade, Commerce and Intercourse within the territories of India (301-307)

• Article 301-Freedom to trade, commerce, and intercourse.
• Article 302- Power of Parliament to impose restrictions on trade, commerce, and intercourse.

 

Part 14 : Services Under Centre and State (308-323)

• Article 312- All- India-Service.
• Article 315- Public Service Commissions for the Union and for the States.
• Article 320- Functions of Public Service Commission.

Part 14A : Tribunals (323A-323B)

• Article 323A- Administrative Tribunals.

 

Part 15 : Elections (324 - 329)

• Article 324- Superintendence, direction and control of elections to be vested in an Election Commission.
• Article 325- No person to be ineligible for inclusion in or to claim to be included in a special, electoral roll on grounds of religion, race, caste, or sex.
• Article 326- Elections to the house of the people and to the legislative assemblies of states to be on the basis of adult suffrage.

 

Part 16 : Special Provisions to SC, ST,

OBC, Minorities etc. (330 -342)

• Article 338- National Commission for the SC, & ST.
• Article 340- Appointment of a commission to investigate the conditions of backward classes.

 

Part 17 : Official Language (343- 351)

• Article 343- Official languages of the Union.
• Article 345- Official language or languages of a state.
• Article 348- Languages to be used in the Supreme Court and in the High Courts.
• Article 351-Directive for development of the Hindi languages.

 

Part 18 : Emergency (332-360)

• Article 352- Proclamation of emergency (National Emergency).
• Article 356- State Emergency (President's Rule).
• Article 360- Financial Emergency.

 

Part 19 : Miscellaneous (361-367)

• Article 361- Protection of President and Governors.

 

Part 20 : Amendment of Constitution (368)

• Article 368- Powers of Parliament to amend the Constitution.

 

Part 21: Special, Transitional and Temporary Provisions (369 - 392)

• Article 370 - Special provision of J&K.
• Article 371A - Special provision with respect to the State of Nagaland.
• Article 371-J: Special Status for Hyderabad-Karnataka region.

Part 22 : Short Text, Commencement, Authoritative Text in Hindi and Repeals (392 - 395)

• Article 393 - Short title - This Constitution may be called the Constitution of India.

Right to Education (Article 21-A)

• The Constitution   (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine.

 

The Union & Its Territory

• Article 1 stipulates that India, that is Bharat, shall be Union of states.
• The country is described as 'Union' because it is indestructible.
• The 'territory of India' includes the entire area over which the Sovereignty of India extends. .
• Under Articles 2 & 3, Parliament has the power to establish new States, form a new State from the territory of any State or by uniting two or more States, increase or decrease the area of any State, or after the boundaries 01- the name of any State.
• First Linguistic State - Andhra Pradesh.
  • States Reorganisation Act 1956
  • States Reorganisation Act 1956 was adopted by the Govt. of India that resulted in the formation of new states & UTs.

 

 

List of New States & UTs Created after 1956

 

STATES/UTs	YEAR
1. Maharashtra & Gujarat	1960
2. Dadra & Nagar Haveli	1961
3. Goa, Daman & Diu	1962
4. Goa [Statehood)	1987
5. Puducherry	1962
6. Nagaland	1963
7. Haryana, Chandigarh	1966
8. Himachal Pradesh [Statehood)	1971
9. Manipur, Tripura & Meghalaya [Statehood)	1972
10. Sikkim (full - fledged State)	1975
11. Arunachal Pradesh & Mizoram	1987
12. Chhattisgarh, Uttarakhand & Jharkhand	2000
13. Telangana	2014

 

 

 

Broadly Fundamental Rights are classified into the following groups:

Right to Equality {Art. 14-18): Equality Be-fore Law under Article 14- No Discrimination on Grounds of Religion, Race, Caste, Sex, Place of Birth or any of them, Article 15- Equality of Opportunity in Matters of Public Employment Article 16- Abolition of Untouchability under article 17- Abolition of Tides: under Article 18

Right to Freedom, (Art. 19-22): Our

Constitution in Article 19 guarantees six Fundamental Freedoms against state action and not private individuals. These freedoms ensure free speech, discussion and exchange of opinions, including freedom of the press. However these freedoms are not absolute. During National Emergency these are restricted.

 

Right against Exploitation (Article 23-24):

• Right against exploitation prohibits all forms of forced labour as well as human trafficking. Any violation of this provision is an offence punishable under law.
• Prohibition on employment of children below the age of 14 years in any factory, mine or hazardous occupations.

 

Right to Freedom of Religion (Art. 25-30)

• The Constitution guarantees to every person freedom of conscience and the right to practise and propagate any religion.
• It also permits every religious group, the right to manage its own affairs in matters of religion.
• Constitution lays down that no religious education can be imparted in any educational institution which is wholly maintained out of the state funds.
• Right to Freedom of Religion is not absolute and can be restricted on the grounds of public order, morality and health.
• But, the state shall not impose restrictions arbitrarily.

 

Cultured and Educational Rights (Art. 29-30)

• Article 29 and 30, provide guarantees to preserve, maintain and promote culture and language of its citizens.
• The Constitution allows minorities to establish and maintain educational institutions of their own.
• It also provides that the state shall not discriminate against any educational institution while granting financial aid on the grounds that it is being run by a minority community.
• These rights ensure that minorities will get assistance by the state in the preservation of their language and culture.

 

Right to Constitutional Remedies (Act.32)

• Article 32 of our Constitution provides for legal remedies for the protection of all these rights against their violation by the State or other institutions or individuals.
• It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights. Any law that may be in conflict with the Fundamental Rights stands null and void.

 

Dr BR Ambedkar said, Article 32 is the heart and soul of the Constitution.

 

• In case of any one of the Fundamental Rights being deprived or denied to the resident of the country, the individual or the party has the right to present their case in a court. In this case/the court has the flexibility to assign writs to the public in the form of habeas corpus, mandamus, prohibition, quo- warranto and certiorari.
• In the case or a national emergency, the Government has the flexibility to append or repeal the right of the citizen. According to Article 32, Indian citizens can stand up and fight for their fundamental rights if they are breached.

 

Types of Writs

 

Writs	Meaning	Purpose
Habeas Corpus	The Latin word means to have a body	It is a remedy to a common man when he is imprisoned without legal sanction.
Mandamus	The Latin word, means ?we order? or ?We command?	It is a remedy in which an order is passed on from a superior institution to a supplementary, subordinate court or authority that prohibits the court or government official from performing a certain act under the nature of statutory obligation.
Prohibition	Forbid	Prohibition is writ issued by the High Court or the Supreme Court to the local courts to prevent them from proceeding with a case which does not fall under its jurisdiction. When a subordinate court (Ex. Tribunals) exceeds its jurisdiction, Prohibition issued by Supreme Court or High Courts before the trial of the Courts.
Certiorari	Means 'to be informed' of	This writ orders issued to a subordinate court transfer a suit to a superior court. It is issued before a trial, when a lower court acts without jurisdiction.
Qua-Warranto	Means what is your Authority	Issued by the court to enquire into the legality of claim which a person asserts to a public office.

 

 

Directive Principals of State Policy

 

PART IV of the Constitution Article (36-51)

• These Principles are in the nature of instruments of instruction to the govt.
• Directive Principles are essentially guidelines to the State.
• A Directive Principle required to be implemented by legislation and so long as there is no Law carrying out the Policy laid down in a Directive, neither the State nor an individual can violate any existing Law or legal right under a Directive.
• Directives are not enforceable in the Courts and do not create any justiciable rights in favour of the individuals.
• In case of a conflict between Directive Principles and Fundamental Rights of the Constitution, the latter shall prevail.
• Article 36-37 of the Constitution lays down that it shall be the duty of State to apply these' directives in making laws.
• Article 355 and 365 of the Constitution can be applied for enforcing implementation of directive principles.
• Article 38(1) provides that the State shall strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of national life. Further, the State hall strive to minimize inequalities.
• Article 39 - specifically requires the state to direct its policy towards securing economic justice.
• Article 40 - ensures organising village panchayats as units of self-government.
• Article 41 - Right to work, education and public assistance in cases of un- employment, old-age, sickness, and disablement.
• Article 42 - Just and humane conditions of Work.
• Article 43 - the concept of living wage includes in addition to the bare neces sities of life (food, shelter and clothing), provisions for education of children and insurance, etc.
• Article 44 - Deals with Uniform Civil Code.
• Article 45 - The State shall endeavor to provide early childhood care and education for all children until they complete the age group of six years.
• Article 46 - Promotion of education and economic interests of weaker sections.
• Article 47 - Duty to raise the Standard of living and improvement of health. It includes, in particular, the prohibition of liquor.
• Article 48 - Organisation of Agriculture and Animal Husbandry.
• Article 49 - Protection of Monuments, etc.
• Article 50 - Separation of Judiciary from Executive.
• Article 51 - Promotion of internation- al peace and security.

 

Fundamental Duties

 

Part IV-A-Article 51-A, added by 42^nd Amendment, 1976

 

• It says that it shall be the duty of every citizen of India (there are eleven such duties, after the 86th Constitution Amendment Act, 2002]:

 

(a) To abide by the Constitution and respect its ideals and institutions, the, National Flag and National Anthem,

(b) To cherish and follow the noble ideals which inspired our national struggle for freedom,

(c) To   uphold   and   protect   the sovereignty, unity and integrity of India,

(d) To defend the country and render national service when called upon to do so,

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities: to renounce practices derogatory to the dignity of women,

(f) To value and preserve the rich heritage of our composite culture,

(g) To protect and improve the natural environment   including   forests, lakes, rivers and wildlife and to have compassion for living creatures,

(h) To develop the scientific temper, humanism and the spirit of inquiry and reform,

(i) To safeguard public property and to abjure violence,

(j) To strife towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements,

(k) Who is parent or guardian, to provide opportunities for education to his child or ward between the age 6 and 14 years [inserted by the 86^th Constitutional Amendment Act 2002.]

 

The Union (Article 51-151)

 

The President of India

• Article 52 says that "There shall be a President of India."
• Article 53 says that the executive power of the Union shall be vested in the President.
• The President is the head of Indian State but he is only a nominal executive head.
• Election Petitions under Part III of the Presidential and Vice Presidential Elections Act, 1952 are also filed directly in the Supreme Court and the SC decides in case of Presidential election disputes.

 

Resignation/Impeachment of the President

The President can resign his office before the expiry of his tenure by writing under his hand addressed to the Vice President. This resignation is required to be communicated by the Vice-President to the Speaker of the Lok Sabha (Art.56).

The President may be removed from his office before the expiry of his term, by the process of impeachment (Art.56) under   grounds   of Constitutional violation. When a vacancy occurs in the office of the president the vice-President acts as the President.