Labels

Idea of India is the Constitution.





By Kishore Kulkarni

This article delves into the evolution of India's constitutional history, tracing its roots back to the freedom struggle against British colonial rule. The concept of "poorna swaraj" or total independence was inherently linked to a constitutional mechanism, which was first conceptualized during the Sepoy Mutiny of 1857. Following the mutiny, the British government recognized the need for greater Indian representation in their administration to prevent future disturbances. This led to the establishment of three universities in Bombay, Calcutta, and Madras in 1863, which introduced English education and adopted British norms. This article explores how these developments laid the groundwork for India's constitutional journey, ultimately culminating in the creation of the Indian Constitution after independence in 1947. By examining the historical antecedents of India's constitutional development, this project provides a nuanced understanding of the nation's ongoing quest for self-governance and democracy.

The Indian Constitutional history and the demand for constitution was not from the day we got independence from the British, rather, it was in the nature of freedom struggle that the nation sought it. The very means through which the concept of poorna swaraj (total independence) was conceptualized was, at its core, a constitutional mechanism and through constitutional means.

The inception of constitution was informally started after the Sepoy mutiny of 1857 (First war of Indian Independence). After the mutiny, the power of East India company was withdrawn and the control of British India fell directly under the Queen of England. There was a need of more inclusion of Indian native people in the British government to avoid further disturbance of governance similar to 1857. In around 1863, there was establishment of Three universities in Bombay, Calcutta and Madras. These institutions imparted English education and adopted British Examination system. The reason for establishing theses educational institutions was to ensure that Indians are educated to work for the British Government.

These universities produced high intellectuals and political leaders. The impact of imparting formal education was the formation of a Party. Initially, The Party was established not as a political party but a body of highly educated men who had agreed to meet once in a year to deliberate on political issues. This meet of intellectuals was called Annual Session.

In the Annual session of 1906, It was formally announced by Dadabai Naoroji, Then president of the session, that swaraj (self rule) was the goal and the object of party and to establish a state governing Indians by Indians. M.K Gandhi made a declaration saying that the goal of party would be achieved by "Constitutional Means". It is to be noted here that the Montague-Chelmsford reforms which was implemented by Government of India Act of 1919 also indirectly paved way for the formation of constitution.

The Government of India Act of 1919 created a system of frequent scrutinization. A committee was appointed to study the governance of British India and advice for further improvements. The Lee Commission of 1923, The Muddiman Committee of 1924, The Linlithgow Commission of 1926 are some examples of such. Perhaps, the Controversy arose with the formation of Simon Commission under the Chairmanship of Sir John Simon. It was widely criticized across all political forums cross in India. There were two reasons for the backlash of Simon Commission 1) It was a Seven Member Body consisting only white people (British) and there was no representative of India. The Indians were of the opinion that if there is a commission which is tasked to study the governance of India there must be an Indian Representative to it. 2) The Secretary of State, Lord Birkenhead had frequently said about incapability of Indians to form their own Constitution and further challenged Indians to form Constitution of their own. The Challenge was accepted by all party conference presided by Pandit Motilal Nehru and formed a Report. This Report was called as The Nehru Report of 1928 which laid down the principles of framing the constitution. 

The above events can be considered as the First Phase of framing of Constitution the Second Phase started with the end of Three Round Table Conference of England. The result of these conferences was the White Paper. It consisted a outline of a new British Indian Constitution. After the parliamentary proceedings It became as the Government of India Act of 1935. The enactment of Government of India Act was considered as a turning point for Indian Constitutional formation. It would not be wise to ignore the fact that the constitution which was formed by the constituent Assembly was more over an advance version of 1935 Act. In the sense, majority of the existing constitutional provisions were adopted by the 1935 Act. Hence the Government of India Act of 1935 can be considered as a predecessor of Constitution of India. 

With the end of second World war in 1945, The British Government promised Indians to grant complete freedom. After the war, it was officially announced that India will have its independence and by June 1948, all the British officials will be withdrawn from service. After this, The Government of India Act of 1947 was passed which created two dominions namely India and Pakistan and people were free to reside in any dominion. The Colonial Government approved the plan of Indian to form a constituent assembly to make a Constitution. It was a body which was tasked to make a document to govern India by Indians. Constituent assemble of India was formed with 389 members under the chairmanship of Dr. Rajendra Prasad. 

The Constituent assembly first met of 9th December 1946.  The assembly was addressed by Jawaharlal Nehru on 13th December where he laid down objective resolution for framing Indian Constitution and after 2 years 11 months 18 days the Constitution was  completed on 26th November 1949 and was officially adopted on 26th January 1950. It was indeed a arduous task to form a document for a country like India where there was diversity in every corner of the country.  For the purpose of this article I have restricted myself to only important aspects of our constitution and I have not strictly analyzed the Constituent assembly debates yet.

The Constitution makes a special reference to the Justice, Liberty, Equality and fraternity in the Preamble and it has been held that the preamble is a part of constitution. Enunciating the above principles we must bear in mind that the above mentioned last three words are the watchwords of French revolution. The word Justice is derived from latin word ‘Jus’ means ‘to bind’. The Greek word is ‘Dike’ means ‘nearer to righteousness’. Justice stands for Just conduct, fairness in maintenance of law. Article 38 of the constitution provides: ‘The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life’ Article 39 further directs the state to set out policies to secure objectives mentioned in Article 38. Subsequently the provisions of Liberty are enunciated in Article 19 (1) (a) to (g) but is curtailed in Article 19 (2) and also is Article 25 which speaks about religious freedom. Equality is rather the most popular clauses of the Constitution from Article 14-18 It specifically speaks about equal treatment and equal protection of laws. The concept of fraternity is rather odd one out in the above Four prominent words because the other three words have direct or indirect provisions in the constitution but a specific article has not been reflected for Fraternity.

Bill of Rights (BoR) is essentially the first amendments to the American Constitution. There is a unique relationship between Bill of Rights and the fundamental rights chapter. The First amendment in BoR declared a set of freedom clauses which we have adopted as form of Aritcle 19, Article 25 to 28 in our Constitution, The 4th Amendment which lays emphasis of private spaces and private decisions of a person, from which Indian Supreme Court recognised Right to Privacy as fundamental Right of a individual. The 5th Amendment declares that government cannot take private property without paying compensation, we adopted it as Article 31, which is now repealed. There are Various Constituional amendments of the United States which we have adopted. It would be justified in saying that whole concept of Fundamental rights of Indian Constitution was borrowed from Bill of Rights.

Perhaps the most important part of our constitution is the part III which speaks about Fundamental Rights. These rights, as enacted in our Constitution, not only recognizes the dignity of individuals, to which the Preamble refers, but also recognizes the necessity for the full development of the individual and also preserving the unity of India. Articles from 12-35 combined makes the chapter of Fundamental rights which are divided in 6 categories ex. Right to equality, right to freedom so on and so forth. A mere declaration of rights is of no use if there are no means to enforce it. The framers of the Constitution were aware of such, hence, provided firstly Article 13, which can declare a law which violated the Fundamental rights of the individual, as void and Secondly Article 32 which empowered the Supreme Court to issue Writs for the enforcement of Fundamental Rights. Further, the same power is conferred to High Courts through Article 226 and 227. The American Bill of Rights, which was adopted in India as Fundamental rights indicates that rights cannot be abrogated by ordinary process of legislation and if done so, such legislation can be declared invalid by the courts.

The American Bill of Rights proclaims rights with seemingly absolute terms, entrusting the courts to interpret these rights, while our constitution both declares rights and sets boundaries for the Constitution itself. The right to approach the Court under Article 32 was the creation of a new fundamental right by the Constituent Assembly. The power conferred to the Courts by Article 32 and 226 is also called as Judicial review thereby, the power of court to pronounce a law as invalid. This is a common feature of all constitutions which follow the doctrine of Ultra vires adopted by the Common Law of England. Hence, such power is not exclusive to Indian Constitution. The part IV of the Constitution speaks about the Directive Principles. This was adopted by following Irish Constitution. These principles were declared as fundamental for governance but were not enforceable by courts.

Concept of Indian constitution is neither federal nor unitary rather it is quasi-federal. The Government of India Act of 1935 makes special reference to the division of legislative lists. Divided into various lists, these lists confer the power to legislate and confer the power to make laws according to the three lists. The first reference to such division of law-making power between the centre and state was in the 1935 act as it introduced the concept of Dyarchy in India. This, essentially divided certain subjects into three lists in the 7th schedule namely Federal List, Provincial List and Concurrent list which was renamed as Centre list, State List and Concurrent list. Further a detailed explanation of this is not the ambit of this article. The emphasis of Judicial independence is paramount.

 Article 50 mentions that there should be a separation of judiciary and executive. The reading of the judges’ case is necessary in understanding the evolution of this doctrine. Judicial officers and judges must be faithful for the institution of Judiciary and maintain its sanctity. The Judiciary is said to be independent when 1) It possess the full freedom to administer justice impartially and independently 2) It has the authority to protect individual freedom and uphold the Rights 3) It is empowered to check and balance to other organs 4) the Court is empowered to strike down laws which are not consistent with constitutional principles. If these are slightly tampered then such instances are vicious for Judicial Independence. These are the concepts of India Constitution which speaks that India is a country where Justice, Liberty, Equality is guaranteed to its people. Fundamental rights are given as a gift in all circumstances. Judiciary is the protector of Individual Rights and Liberties. The inception, history, and evolution of the whole constitutional philosophy of this country reflects ‘IDEA OF INDIA IS THE CONSTITUTION’

It is worth remembering the words said by Justice Hegde and Justice Mukherjea in Thirteen Judges case that

 “Our Constitution is not a mere political document. It is essentially a social document. It is based on social philosophy. A Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.”


Thank You for your time.

Kishore Kulkarni
BA LLB Student 

References


 





Labels:

Comments

Post a Comment

Popular Posts