The Constitution of India (issues)
This is a collection of articles archived for the excellence of their content. Readers will be able to edit existing articles and post new articles directly |
The Constitution of India
Contents |
The drafting of the Constitution of India
The Times of India, Nov 27 2015
How we codified what India stands for WHEN DID THE PROCESS OF DRAFTING INDIA'S CONSTITUTION BEGIN?
In 1934 Indian leaders demanded a constituent assembly to draft a Constitution reflecting the ideals of an independent India, the process began more than a decade later. The constituent assembly first met on December 9, 1946 in the Central Hall of Parliament, then called Constitution Hall; more than 200 representatives attended, including nine women. Sachchidananda Sinha was elected temporary chairman, to be soon replaced by Rajendra Prasad.
How was the assembly constituted?
Constituent Assembly members were chosen mainly through indirect election by provincial assemblies, as per Cabinet Mission recommendations. 292 members were elected through provincial assemblies, 93 represented princely states and four represented chief commissioners' provinces, including the Northwest Frontier Province, Balochistan, Coorg, Ajmer-Merwara, Andaman and Nicobar. Total membership: 389.
How did it function?
On December 13, 1946, Nehru moved the `Objectives Resolution' stating the assembly's declaration proclaiming India an independent sovereign republic. It resolved to draw the operational characteristics of government in independent India. Soon after Mountbatten's partition plan was declared on June 3, 1947, a separate constituent assembly was set up for Pakistan, reducing the Indian body's members to 299. Before Independence, legislation was through the Central Legislative Assembly . On August 14, 1947 midnight, this was replaced by the constituent assembly. It had 17 committees to discuss all aspects of the new democracy .
How often has the Constitution been amended?
The Constitution has been amended 100 times, making it the world's mostamended statute. The first amendment came in 1951, a year after the Constitution came into effect. The last one became effective this May to make it possible for the India-Bangladesh land boundary agreement to be implemented. The Constitution framers felt the process of amending it should be neither too easy , which would defeat the very purpose of having a Constitution, nor too difficult, which would make it impossible for the document to keep up with changing social values. For amending the Constitution, a Bill can be intro duced in either House, but must win support of a majority of the total membership of each House (including vacancies, if any) and two-thirds of those present and voting (including “ayes“ and “nays“, excluding those abstaining) in each
House. If the Bill fails to pass this test in one House, no joint sitting of Houses can be used to get it passed. Where the proposed amendment imping es on the power of the states, it must be ratified by at least half the state legislatures. Which are the important amendments? Some amendments have been significant. The first amendment in 1951 introduced Schedule 9 to protect laws that are on the face of it contrary to constitutionally guaranteed fundamental rights from judicial review.For example, a law allowing the state to forcibly acquire land for public good would seem to violate the right to property, but placing it in Schedule 9 (as the 17th amendment of 1964 did) was to put it beyond the reach of the courts. In 2007, the SC ruled that even laws under Schedule 9 are open to judicial review, if they violate the basic structure of the Constitution.
The Seventh Amendment of 1956 was to enable creation of linguistic states and of UTs while abolishing the earlier classification of Class A, B, C and D states.The 39th and 42nd amendments passed during Emergency in the mid-70s were controversial. The 39th placed restrictions on judicial scrutiny of the PM and the 42nd curtailed fundamental rights while introducing the concept of fundamental duties. It added the words secular and socialist to the preamble that defines the republic's nature.
The 43rd and 44th amendments passed after Emergency reversed some of the excesses. Rajiv Gandhi's tenure saw some crucial changes. The 52nd amendment of 1985 was to introduce an anti-defection bill while the 61st in 1989 reduced voting age to 18 from 21. The 73rd and 74th amendments allowed creation of a third tier of government through local bodies in rural and urban areas. The 86th amendment of 2002 conferred the right to education.
How long did it take to draft the Constitution?
It took two years, 11 months and 17 days to compile the world's longest national statute. The constituent assembly held 11 sessions over 165 days. On August 29, 1947, it set up a drafting committee under Ambedkar.The constitution was adopted on November 26, 1949. It came into force on January 26, 1950. That day the assembly became the provisional Parliament of India. This date was chosen to honour the “purna swaraj“ declaration of 1930.
The making and implementation of the Sublime Constitution
Nov 27 2015 : The Times of India (Delhi)
STATUTE OF LIBERTY - Constitution is sublime, failings are of our own making
Harish Salve
As a college student, I remember hearing a speech by the legendary Palkhivala on what he called “the Sublime Constitution“. There can be no doubt that the epithet coined by him was anything but fully deserved. The government's decision to characterise November 26 as Constitution Day is a remarkable step -albeit a token of gratitude which this nation owes to one who can fairly be called the principal architect of the Constitution.
The framing of the Constitution was a painstaking exercise. On August 29, 1947 the Constituent Assembly appointed a drafting committee (B R Ambedkar was chairman) which presented a draft in February 1948. This draft was discussed and altered and finally adopted by the Constituent Assembly on November 26, 1949. The Indian Constitution drew upon models in countries such as the US, Australia, Canada, Ireland, but crafted its own architecture.
Ambedkar in his speech to the Constituent Assembly quoted the powerful words of Grote [the Greek historian] “...The diffusion of constitutional morality.... Is the indispensable condition of government at once free and peaceable...Since even any powerful and obstinate minority may render the working of a free institution impracticable even without being strong enough to conquer ascendancy for themselves.“
With his characteristic bluntness Ambedkar said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.“
We are no longer an infant democracy -65 years is a fairly long time in the life of a nation, sufficient to assess whether we have imbibed constitutional morality, in sufficient measure. India has had its share of problems, the biggest being the economic non-inclusiveness of nearly 13rd of its population. Sociologically , we continue to let caste and religion divide us. Gender justice is a distance away .
India is the perfect social cauldron where strife could be a way of life. Add to this mix the freedom of speech and a media driven by popularity ratings -there's hardly any surprise that on its surface India has started to appear as an intolerant society . But the gains of six decades of democracy should never be underestimated.
The biggest success of Indian democ racy has been its ability to sustain the system of a popular government -the experiment of 1975 and its aftermath has hopefully dispelled any fantasies of dictatorship harboured by any political leader.
The second has been that, despite populist attempts at dismantling the basic freedoms as a ruse to usher in a socialist order, we have maintained the fundamental freedoms engrafted in the Constitution -the gift of freedom for which our forebears took on the might of the British Empire and sacrificed their lives.
An adjunct of this is that the Supreme Court in particular, and judiciary generally, is considered perhaps the world's most powerful institution of its kind.Barring certain aberrations, SC has been at the forefront of the battle to preserve these freedoms, using judiciously its power to enforce constitutional rights and fundamental freedoms even if it meant overriding popular sentiment. The SC has been proactive in attempting to make constitutional rights a living reality even for those who do not have the resources to seek redress of the judicial system, and to use these as a weapon to address executive and legislative lethargy.
Ambedkar, in his speech in the constituent assembly on November 4, 1948, expostulated the features of the draft Constitution. He explained the relative strengths and weaknesses of the Presidential form of government and the Westminster form of democracy . He said a democratic executive must satisfy two conditions -it must be a stable executive and it must be a responsible executive.
The presidential forms impart greater stability but lesser responsibility as the executive isn't dependent for its existence on a majority in Congress. The British system imparts greater responsibility because of an executive dependent on Parliament for its existence, but this is at times at the cost of stability. It isn't that the former is unaccountable -it's the degree of accountability and its pervasiveness that differs in the two systems.By this touchstone, Indian democracy is clearly work in progress. The lack of stability in government inherent in the Westminster system has taken its toll -coalition politics has seen national interest being sacrificed for political stability -the need for consensus has been seen to constrain ambitious economic measures.
Constitutional morality is another area which is shown up in grey light.Some areas of dismal failure are crimi nalisation of politics, radicalisation and intolerance, populist measures that fester the caste divide, and, most of all egregious, corruption. We replace governments every five years, unfortunately each government uses the same red beacons to torment the common man.
And when all else fails, we blame the Constitution. Amendments to the Constitution have been made designed to emasculate the courts and make our fundamental freedoms subject to the whim and caprice of those in power, on the excuse that it was the fundamental rights that prevented removal of poverty .
Such attempts are now dust on the shelves of history . No government in present times would dare tinker with the basic values enshrined in the Constitution. In a broadcast on the Cabinet Mission plan in 1946, Lord Wavell had in prophetic words said “... No country and no form of government can work satisfactorily without goodwill; with good will and determination to succeed even an apparently illogical arrangement can be made to work....“ Our Constitution is truly sublime if there have been any failings we have only ourselves to blame.
The basic structure doctrine
When Constitution got a judicial shield
40 years ago, the Supreme Court held that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework
Manoj Mitta | TNN
New Delhi: It was the mother of all judgments, delivered in 1973. The largest ever bench, consisting of 13 judges of the Supreme Court, came up with the “basic structure” doctrine in the Kesavananda Bharati case. The verdict was as political as it was legal, prompting the Indira Gandhi government to mount an audacious attack on the independence of the judiciary.
On April 24, 1973, the bench headed by the outgoing Chief Justice of India, S M Sikri, held with a 7-6 majority that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework. The very next day, the government appointed A N Ray as CJI, superseding three of the seven judges who had laid down the basic structure as the line that the Parliament could not cross while amending the Constitution.
For better or for worse, the Kesavananda Bharati judgment thwarted Indira Gandhi’s much-touted socialist policies of serving the collective interest at the expense of individual rights.
Long before the initiation of economic reforms in 1991, Kesavananda Bharati was the most significant triumph for the right, thanks to the exertions of legendary advocate Nani Palkhivala. In fact, it was seen as an instance when the right was on the right side of history.
The basic structure doctrine came on top of three judicial setbacks she had already suffered. While dealing with laws eroding the right to property, which was then a fundamental right, the Golaknath judgment of 1967 ruled that Parliament could not amend any of the fundamental rights guaranteed by the Constitution.
Two years later, the apex court struck down the first-ever nationalization of banks, because of inadequate compensation to the original owners. In 1970, it also invalidated the government’s decision to abolish privy purses, which had been conferred on erstwhile princes at the time of the integration of their states into the country.
If the basic structure doctrine was a path-breaking innovation, the manner in which it was laid down was no less unprecedented. For, 12 of the 13 judges on the bench were equally divided on whether there was any implied limitation in Article 368 on Parliament’s power to amend the Constitution. CJI Sikri, who was on the side of the judges who believed in the implied limitation, tilted the balance by using the ambivalent opinion of the 13th judge, H R Khanna.
Sikri adopted the stratagem of writing a note titled “View by the Majority”, which was endorsed by most of his fellow judges. Khanna came on board as the crucial sentence in that summary about the basic structure was lifted from his opinion.
Thus was born the basic structure doctrine, through an addendum of doubtful legal sanctity.
Though it did not attempt to provide an exhaustive list of the basic features of the Constitution, the Kesavananda Bharati verdict cited illustrative examples: supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, federal character of the Constitution, mandate to build a welfare state, free and fair elections and unity and integrity of the nation. The premise of the verdict was that an amendment to any of these basic features would amount to abrogation of the Constitution, as it would have changed beyond recognition.
In the event, many of the constitutional amendments made during the Emergency did violate the basic structure and were therefore removed from the Constitution by the Morarji Desai government.
During that infamous phase, the Supreme Court under justice Ray even made an abortive attempt to review the Kesavananda Bharati verdict.
Though the judgment played a historic role in preserving democracy in India, it has its share of critics among legal scholars. They allege that by placing the Constitution above Parliament, the basic structure doctrine was actually anti-democratic.
But there is no denying that it has stood the test of time.
The Constitution and the Scheduled Castes
The Times of India, Nov 27 2015
Chandra Bhan Prasad In the popular Dalit imagina tion, the Constitution is the anti-thesis of Manusmriti, the ancient text whose laws governed the caste Hindu society . Manusmriti belongs to antiquity, very few might have seen the book, let alone read it.However, its impact over the Hindu consciousness continues over vast swathes of India. That's why in MP's Ratlam district this year, stones were thrown at a Dalit groom who needed the protection of a kind policeman's helmet to avoid serious injury . His crime: Daring to ride a ghodi (mare) for his wedding.One also recalls the case of two Dalit brothers in UP's Pratapgarh district whose house was stoned after they cracked this year's IIT entrance exams. Such tales are endless.
The question that needs our attention is simple: Who were the Ratlam groom and the Pratapgarh brothers defying? Were they defying Hinduism? With all the brilliance at its command, caste Hindu India is yet to explain the relationship between Hinduism as faith and the caste as a social organization. The sad truth is that historically, Hinduism never rejected the caste order. And the caste order always justified its authority citing Dharma! Manu's law book, which also earned Chanakya's approval, lays down prohibitions against Dalits, ranging from food to lifestyle to occupation. The world of letters is forbidden to Dalits. It says, “A king must confiscate the wealth of a Shudra even if it is accumulated through enterprise.“
An effort to change such discrimination was first made by Macaulay , who created the Indian Penal Code in the first half of the 19th century . But a complete rejection of Manu's laws occurred when India turned into a republic with its own book of law: The Constitution.
The Constitution gave enormous confidence to Dalits. It always filled me with pride that BR Ambedkar, a Dalit, was the architect of the Constitution. And as a teenager, I was always upset that April 14 (Ambedkar's birthday) was not observed as a public holiday .
I recall how older Dalits spoke of the Constitution as their book of faith. I know I was able to join JNU for higher studies only because the Constitution created a pathway for me. Society , as we know it, would have hardly allowed a Dalit, someone from the community of rat hunters, to voice these words in The Times of India.
With the Indian society, its political arm in particular, accepting the Ambedkarauthored Constitution, a huge majority of Dalits feel integrated with the national mainstream. One can say that the Constitution allowed India to walk into a new era of egalitarianism, even if only theoretically .
While Manu's laws may still continue to impinge our lives adversely for another couple of generations, the government needs to be congratulated for this defining moment of observing November 25 as Constitution Day .For many decades, that's what many Dalits have been wishing for. Thank you Mr Prime Minister for making it happen.
See also
The Constitution of India (articles about) <> The Constitution of India: Amendments<> The Constitution of India: Amendments 1-25<> The Constitution of India: Amendments 26-50<> The Constitution of India: Amendments 51-75<> The Constitution of India: Amendments 76-100
