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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.”
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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: -
-
Right
to Equality
-
Right
to Particular freedoms
-
Right
against Exploitation
-
Right
to freedom of religion
-
Cultural
and educational rights
-
Right
to Constitutional remedies
-
Right
to property – has been eliminated by the 44th
amendment Act, thus only six freedom now remain, in Article 19
(1).
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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.
Under
this Article, it shall be the duty of every citizen of India: -
I.To
abide by the Constitution and respect the national flag and the
national anthem;
II.To
cherish and follow the noble ideals which inspired our national
struggle for freedom;
III.To
protect the Sovereignty, unity and integrity of India;
IV.To
defend the country;
V.To
promote the spirit of common brotherhood amongst all the people of
India;
VI.To
preserve the rich heritage of our composite culture;
VII.To
protect and improve the natural environment;
VIII.To
develop the scientific temper and spirit of inquiry;
IX.To
safeguard Public property;
X.To
strive towards excellence in all spheres of individual and
collective activity.
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.
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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.
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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.
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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.
Writ Of Habeas Corpus For Securing Liberty:
The concept of writ essentially originated in England & to issue
appropriate writ.....
Nature Of The Indian Constitution: Judicial
Exposition: The Constitution of India is not an end but a
means to an end, not mere democracy...
Doctrine Of Constitutional Tort:
Under the English Common Law the maxim was "The King can do no
wrong" and therefore, the King was not liable for
Right to die- " To be or not to be?":
The care of
human life and happiness and not their destruction is the first
and only legitimate object
Sustainable Development and Indian Judiciary:
Right to wholesome environment is a fundamental right protected
under Article 21 of the
Austianinan Concept Of Sovereignty:
Austin places the notion of sovereignty at the basis of his theory
of law. Austin borrowed from
Legality Of Foreign Judgments: The
article/paper aims to study the binding nature of the foreign
judgments i.e. judgments...
The Supreme Court of Sri Lanka:
was created in 1972 after the adoption of a new Constitution. The
Supreme Court is the highest and final superior court of record
and is empowered to exercise its powers, subject to the provisions
of the Constitution...
The Supreme Court of England:
was established to achieve a complete separation between the
United Kingdom’s senior Judges and the Upper House of Parliament,
emphasising the independence of the Law Lords and increasing the
transparency between Parliament and the courts....
The Supreme People's Court (SPC)
is the highest judicial organ in China and is responsible to the
NPC and its Standing Committee....
The Supreme Court of Canada
came into existence more than a century after the first courts
appeared in what is now Canada. Its role has evolved considerably
since its creation in 1875, as it stands today as the final court
of appeal in the Canadian judicial system, a status that it did
not originally have....
Supreme Court of Bangladesh:
The territorial area of Bangladesh originally being a part and
parcel of the then Indian Sub-continent, the history of its legal
system may be traced back from the year of 1726,when King George-I
issued a Charter changing the judicial administration of the
Presidency towns of Calcutta, Bombay and Madras, through which the
Civil and Criminal Courts, as established, started deriving their
authority from the King....
The International Court of Justice
is the principal judicial organ of the United Nations. Its seat is
at the Peace Palace in The Hague (Netherlands). It began work in
1946, when it replaced the Permanent Court of International
Justice which had functioned in the Peace Palace since 1922. It
operates under a Statute largely similar to that of its
predecessor, which is an integral part of the Charter of the
United Nations....
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