SOURCES OF INDIAN CONSTITUTION

 

Sources of Indian Constitution

CONTENTS

1.     Introduction

2.     Meaning

3.     History

4.     Sources

5.     Important cases

6.     References

Introduction

The constitution of India was adopted on 26^th November, 1949. This day is also known as the “law day”. The constitution of India is the supreme law of India. It lays down the framework which defines and determines the relations between the institution and the area of government like the legislature, the executive and the judiciary. There is an independent and impartial judiciary to determine issues between the Union and states or between one state with another state. It establishes the structure, powers, procedure and duties of government institution. It is the longest written constitution in the world which contains 448 articles in 26 parts, 12 schedules, 5 appendices and 101 amendments. Our constitution sets out the fundamental rights and directive principles of state policy. The constitution of India drew much from the American constitution and some from other sources and especially much from the government of India act 1935.

 

Meaning of Constitution

A constitution means the rule which regulates the structure of the principle organs of the government and their relationship to one another and determines their principle functions.

In English dictionary general meaning of constitution “the set of political principles by which a state or organization is governed especially in relation to the rights of the people it governs.”

 

History

Government of India Act, 1858

This act was introduced to calm down the effect of 1857 revolt. The British parliament passed this act for the better government i.e. government of India act, 1858. The act of 1858 transferred east India Company to the British crown. The provisions of the act are:

·       Abolishment of double government, board of control and the court of directors

·       Powers of the crown were transferred to the secretary of the state and assisted by a council of 15 members.

·       This was known as the “Council of India”.

·       The council was an advisory body and the secretary of the state was made the chairman of council.

 

Indian Council Act of 1861

Indian council act, 1861 was enacted by the parliament of the United Kingdom that transformed the Viceroy of India's executive council into a cabinet run on the portfolio system. The 1861 Act restored the legislative power which is taken away by the Charter Act of 1833. The governor general was given the power for the purpose of making laws and regulations by the addition of not less than 6 and not more than 12 additional members (half of them were non-official members). The features of the act are:-

·       The term of the office of the members was of 2 years.

·       The assent of the governor general was necessary on every bill passed by the legislative council then only it could become an act.

·       The governor-general had also the power of veto and issue ordinances.

 

Defects

The Indian council act, 1861 has suffered from many defects:-

·       It provides unlimited power to the governor-general

·       The non-official members had no rights in the governor-general’s council and they also could not ask any questions and discuss the budget.

 

Indian council act, 1892

·       The Indian council act, 1862 was enacted on the demand of the Indian national congress to expand legislative council. This act achieved three things:-

·       The number of members was increased in the central and provincial.

·       Introduced the election system

·       Enlarged the functions of the council and gave power to discuss the budget and to ask questions from the government subjected to certain restrictions.

Defects

Indian council act, 1862 has suffered from many defects:-

·       The election system was defective.

·       Certain classes of people were over-represented while others had no representation.

For instance

In the Bombay council six seats were allotted to the European merchants but Indian merchants were given none.

 

Indian council act, 1909

Indian council act 1909 is commonly known as the morley-minto reforms. This was an Act of the Parliament of the United Kingdom that brought about a limited increase in the involvement of Indians in the governance of British India. This act has following features:-

·       The nominated and elected members of the central legislative council were increased from 16 to 60. The number did not include ex-officio members.

·       It changed the name of the central legislative council to the imperial legislative council.

·       The council got the power to discuss any matter and ask any supplementary questions.

·       Enlarged the size of the legislative councils i.e. central as well as provincial.

·       Introduced a communal representation system for Muslims by accepting the concept of “separate electorate”.

 

Government of India act, 1919

Government of India act 1919 most commonly known as the Montague-Chelmsford Reforms. The main features of this act are:-

·       It promised a responsible government to the Indians

·       It divided the provincial subjects into two parts- transferred and reserved and governor was not responsible for the reserved subjects.

Example of reserved subjects: - Jail, Justice, Police, Finance and irrigation.

·       Introduction of dyarchy in the provincial subjects which means double rule.

·       The central legislature was a bicameral legislature and had power to legislate on any matter.

·       In case of controversy governor-general and courts had power to decide whether a particular subject was central or provincial subjects.

Defects

·       This act failed to fulfill the aspirations of the people of India.

·       Failure of dyarchy.

 

Sources of Indian Constitution

The constitution of India drawn from several sources such as government of India act 1858,Indian councils act 1861, Indian councils act 1909, government of India act 1919, government of India act 1935 and the Indian independence act 1947. The main sources may be identified as:

Government of India act, 1935:

·       Federal scheme

·       Office of governor

·       Judiciary

·       Public service commission

·       Emergency provisions

·       Administrative details

 

British constitution:

·       Parliamentary form of government

·       The idea of the rule of law

·       Lawmaking procedure

·       Procedure established by law

·       The idea of single citizenship

·       Institution of speaker and his role

·       Prerogative writs

 

United States Constitution:

·       Preamble

·       Judicial review

·       Electoral College

·       Fundamental rights

·       Independence of judiciary

·       Separation of powers

·       Federal structure of government

·       Removal of Supreme Court and High Court Judges

·       President as supreme commander of armed forces

·       Post of vice-president

 

Irish constitution:

·       Directive principles of state policy

·       Nomination of member into Rajya Sabha

·       Electoral College in election of president

·       Election of president

 

Canadian constitution:

·       Residuary power with the centre

·       Federation with a strong centre

·       Advisory opinion of the Supreme Court

 

Soviet Constitution:

·       Fundamental duties   

 

Australian constitution:

·       Concurrent list

·       Freedom of trade and commerce

·       Joint sitting of the two houses of parliament

 

Weimar constitution:

·       Suspension of fundamental rights during emergency

 

South African constitution:

·       Procedure for amendment

·       Constitution and election of the members of Rajya Sabha

 

Japanese constitution:

·       Procedure established by law

 

Cases

Berubari Union Case AIR 1960 SC 845

In this the Supreme Court held that preamble is not an integral part of the Indian Constitution. It is not enforceable in the court of law. This decision was reversed by the Supreme Court in the case of Keshvananda Bharati v. Union of India 1973.

 

Keshvananda Bharati Case 1973 4SCC 225

This case is a landmark decision of the Supreme Court that outlined the basic structure doctrine of the constitution. This Supreme Court overruled earlier decision and Preamble was held to be part of the basic structure of Indian Constitution.

 

Union of government v. LIC of India 1995 AIR 1811, SCC (5)482

In this case Supreme Court once again held that preamble is an integral part of the Indian Constitution.

 

References:-

Websites:-

http://indiankanoon.org

http://www.supremecourtcases.com

Books:-

Pandey, Dr. J.N.’ the Constitutional law of India, (Central law agency, 52^nd edition, 2015)

Cases Referred:-

Berubari Union Case AIR 1960 SC 845

Keshvananda Bharati Case 1973 4SCC 225

Union of government v. LIC of India 1995 AIR 1811, SCC (5)482