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Making of The Constitution of India

Making of The Constitution

Making of The
Constitution of India

Constitutional Background, Preamble of the constitution of India, Fundamental Rights, Fundamental Duties, Directive Principles
Parliament, Political Parties

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Making of The Constitution
The Constituent Assembly which had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). According to the schemes recommended by the Cabinet the essentials of the Schemes were as follows: -
1. Each Province and each Indian State or group of States were allotted the total no. of eats proportional to their respective population roughly in the ratio of 1:1000000. As a result The Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats.

2. The seats in each Province were distributed among the three main communities, Muslims, Sikh and general, in proportion to their respective populations.

3. Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representations with single transferable vote.

4. The method of selection in the case of representatives of Indian States was to be determined by consultation.


Unfortunately as a result of a partition under the plan of June3, 1947.The territories, which fell under Pakistan and those members who were part of The Constituent Assembly, ceased to be members of the Constituent Assembly, which re-assembled on the 31st Oct.1947. The members of the house was reduced to 299 of these 284 was actually present on the 26th Nov. 1949 and appended their signature to the Constitution as finally passed.

Constitutional Background
The constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950. Thanks to the help of Prof. K.B. Agrawal, the ICL-Edition of the Constitution now incorporates all amendments until and including the 78th amendment (1995) [30 Aug 1995]; there are no newer amendments until Dec 1996. Amendments after Dec 1996 have not yet been included. 

India is a federal democratic republic of 25 states and seven Union Territories. Each state is administered by a Governor appointed by the President while each Union Territory is administered by the President through a Minister. The bicameral parliament is composed of the Council of States, Rajya Sabha, and the House of the People, Lok Sabha. The Council of States will consist of 250 members out of which the President of India will nominate 12 persons having special knowledge or practical experience in respect of literature, art, science and social service. The remaining 238 seats are to be filled in by the persons to be elected by the legislative assemblies of their respective states in staggered re-elections of one-third every second year. The House of People is composed of 550 members, i.e., 530 members from the States and 20 members from the Union Territories. 

The states of Bihar, Jammu and Kashmir, Karnataka, Maharshtra, and Uttar Pradesh have bicameral legislatures while the other 20 states have unicameral legislatures. Upper houses (Legislative Councils) are re-elected to one-third of their members every two years. Legislative Assemblies are chosen by direct election. 

There are some extraordinary features of the Indian system of government. For example, the Constitution encourages the states to introduce the prohibition. The states of Andhra Pradesh, Manipur, and Haryana have already banned the production, possession, and consumption of alcohol.

Commencement:
The provisions relating to Citizenship, elections, provisional Parliament, temporary and transitional positions were given immediate effect on The 26th Nov.1949. While the rest of the Constitution came into force on the 26th Jan. 1950. And this date is referred to in the Constitution as The Date of its Commencement.  

Preamble : 
The Preamble to the Constitution, which as amended in 1976, summarizes the aim and objective of the Constitution: -

WE THE PEOPLE OF INDIA, having solemnly resolved to Constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

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 HEREBY ADOPT, INACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.
The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams,

An India in which the poorest shall feel that it is their country in whose making they have an effective voice; "an India in which all communities shall leave I perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man."

Fundamental Rights:

The provisions of Part III of our Constitution, which enumerates the Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World and cover a wide range of topics.

The Purpose of the Fundamental Rights are to act as limitations not only upon the powers of the Executive but also upon the power of the Legislature. The model has been taken from the Constitutions of The United States, though The Indian Constitutions does not go so far, and rather affects the compromise between the doctrines of Parliamentary Sovereignty and Judicial Supremacy.       

The Constitutions itself classifies the Fundamental Rights under seven groups as follows: -

  1. Right to Equality

  2. Right to Particular freedoms

  3. Right against Exploitation

  4. Right to freedom of religion

  5. Cultural and educational rights

  6. Right to Constitutional remedies

  7. Right to property - has been eliminated by the 44th amendment Act, thus only six freedom now remain, in Article 19 (1).

Fundamental Duties:
A countervailing factor has been introduced by the 42nd amendment Act of 1976, known as the Fundamental Duties. These duties are mentioned in Art. 51A.

1.Each Province and each Indian State or group of States were allotted the total no. of eats proportional to their respective population roughly in the ratio of 1:1000000. As a result The Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats.

2.The seats in each Province were distributed among the three main communities, Muslims, Sikh and general, in proportion to their respective populations.

3.Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representations with single transferable vote.

4.The method of selection in the case of representatives of Indian States was to be determined by consultation.

These duties are not themselves enforceable in The Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a Fundamental Right is sought to be enforced, has to be read all parts of the Constitution, it may refuse to enforce a Fundamental Right at the instance of an individual who has patently violated any of the duties specified in Art. 51A.

Directive Principles:

 PART IV of the Constitution Art. (36-51) Contains the Directive Principles of State Policy. These Principles are in the nature of instruments of instruction to the govt. of the day to do certain things and to achieve certain ends by their actions in other words 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 the color of a Directive. Further still the Directives are not enforceable in the Courts and do not create any justicable rights in favor of the individuals.

Incase of a conflict between Directive Principles and Fundamental Rights of the Constitution, the latter shall prevail.

These Directive Principles may be classified as follows: -
a) Certain ideals, particularly Economic, which according to the framers of the Constitution, State should strive for.
b) Certain directions to the legislature and the executive intended to show in which manner The State should exercise their legislative and executive powers.
c) Certain Rights of the citizen shall not be enforceable by The Courts (Fundamental Rights) nevertheless The State Govt. shall aim to secure by regulations of its legislative and administrative policy.
 It shall be the duty of The State to follow these Principles both in the matter of Administration as well as in the making of Laws.
 

Parliament:
The Parliament of India consist of The President and two houses. The upper house (Rajya sabha) the Presiding Officer is called The Chairman, popularly known as The Vice President The members of this house are indirectly elected by proportional representation by means of the single transferable vote The total strength of the house is 250 members of whom 12 are nominated by the President, the purpose of the house is to serve a check on the hasty laws passed by the lower house.  Whereas the lower house (Lok Sabha) is presided over by The Speaker. The members are elected directly by the people; the total strength of the house is 545 members of which 2 are nominated by The President.
 

Functions of The Parliament are as follows:
Providing The cabinet:  The first function of The Parliament is that of providing the Cabinet and holding them responsible. Thought he responsibility of The Cabinet is to the popular chamber (Lok Sabha), the membership of the cabinet is not necessarily restricted to that chamber.

Control of The cabinet
:  It is a necessary corollary from the theory of Ministerial responsibility that it is a business of the popular house to see that The Cabinet remains in power so long as it retains the confidence of the majority in that house.
Criticism of The Cabinet & of individual Ministers:  While The Cabinet is left to formulate The Policy, the function of The Parliament is to bring about a discussion and criticism of that Policy on the floor of the house, so that not only The Cabinet can get the advice of the deliberative body and learn about its own errors and deficiencies.

An Organ of Information:  As a organ of Information, Parliament is more powerful than the Press, for parliament secures information authoritatively, from those of The know of things.

Legislation: Since the inauguration of The Constitution the volume of Legislation is steadily rising. In order to carry out the manifold development and other measures necessary to establish a welfare state.

FINANCIAL CONTROL:  Parliament has the sole power not only to authorize expenditure for public service and to specify the purposes to which that money shall be appropriated but also to provide the ways and means to raise the revenue (Taxes, and other impositions) and also to ensure that the money granted has been sent for authorized purposes.

Political Parties :

General elections  in May 1996 made the Bharatiya Janata Party (BJP) the biggest party capturing 161 seats along with Shiv Sena (15), Samata Party (8), and HVP (3) totalling 195. A.B. Bajpai (BJP) became Prime Minister but could not muster majority in the House of People and as such had to resign after holding the office for 13 days. The Congress Party of former Prime Minister Narasimha Rao is the second biggest force in the House of Peoples having 138 seats. The National Front and the Leftist Front secured 118 seats. H.D. Deve Gowda (National Front) became the new Prime Minister with the union of 13 parties and the support of the Congress Party.

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