The Being Of Indian Constitution

G. L. Batra, ST Guest Columnist, Writer & formerly Addl. Secretary, Indian Parliament and Chairman, Public Service Commission of the Indian State of Haryana

“However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot”. Dr. B. R. Ambedkar

The word ‘Constitution’ is derived from the Latin “constituere”; ‘con’ meaning together and ‘statuere’ meaning to make to stand. It refers to the fundamental ideological and political principles which forms the edifice of any system of government.

A Constitution is the basic and paramount law of a country. All other laws in order to stand, must derive their validity from, and conform to, the Constitution.

THE CONSTITUENT ASSEMBLY

The need for creation of a Constituent Assembly that would draft the Constitution for independent India was felt during struggle for national freedom itself. Pandit Jawahar Lal Nehru’s report in 1928, first suggested the creation of a Constituent Assembly to prepare a Constitution for free India. Later, in the year 1934, the Indian National Congress declared that “the only method of truly enforcing the principle of self-government is to convene a Constituent Assembly, representative of all sections of the Indian people, to frame an acceptable Constitution.”

With the conclusion of the Second World War, the Labour Party under the premiership of Clement Attlee came into power in England and the British finally conceded to the demand for creation of the Constituent Assembly, in the Cabinet Mission Plan of 1946.

The Congress Party, which represented leaders from all walks of life, religions, castes and regions and was the dominant party in the independence movement, wanted the Constituent Assembly to represent the aspirations of every section of Indian society, and ultimately, the Anglo-Indian community, Parsees, backward classes and women inter-alia participated in the democratic process. The members of the Constituent Assembly were indirectly elected by the members of the Provincial Legislative Assembly.

In the elections to the Constituent Assembly, the Congress Party captured 202 out of 210 seats from the general quota, and the Muslim League 73 out of 78 seats reserved for Muslims. The Muslim League refused to participate in the deliberations and discussions of the newly constituted Constituent Assembly, boycotted its meetings and resorted to a policy of obstruction. The reason for such conduct was obvious as the Muslim League desired a separate state for the Muslims of heretofore undivided India, and this approach taken by the Muslim League ultimately led to the creation of Pakistan. Pakistan later on resolved to be an Islamic nation.

The Partition of the country was driven by people with ulterior motives, despite strong opposition from freedom fighters, and caused irreparable damage to India. Who is to blame for the partition of our country and who not, is a matter of conjecture embroiled in  controversy, but the serious damage caused by this episode of our history to life, property and the psyche of India and Indians is undeniable. Who has gained by the creation of Pakistan is obvious and there is really no need to elaborate on that. The gainer is definitely not Pakistan which today stands as a divided a dependent nation and a failed state.

After its election, the Constituent Assembly, despite the obstructionist attitude and non-cooperative approach of the Muslim League, proceeded to undertake the mammoth and historic task assigned to it. The first meeting of the Assembly was held on December 9, 1946 with Dr. Sachchidananda Sinha (provisional chairman), the senior-most member, in the chair. In his address that day he said[i],

“I wish your labours success, and invoke Divine blessings that your proceedings may be marked not only by good sense, public spirit, and genuine patriotism, but also by wisdom, toleration, justice, and fairness to all; and above all with a vision which may restore India to her pristine glory, and give her a place of honour and equality amongst the great nations of the world.”

The Assembly thereafter unanimously elected Dr. Rajendra Prasad as its permanent chairman on December 11, 1946. His name was proposed by Acharya Kriplani and seconded by Sardar Vallabhbhai Patel. On Dr. Prasad’s election, eminent leaders and freedom fighters like Dr. S. Radhakrishnan and Sarojini Naidu paid tributes to him. Dr. Radhakrishnan, paying glowing tributes to Dr. Rajendra Prasad said[ii],

“In Dr. Rajendra Prasad, we have one who embodies the spirit of gentleness. He is the soul of goodness; he has great patience and courage, he has suffered…. Rajendra Prasad is the suffering servant of India, of the Congress who incarnates the spirit for which the country stands. I only hope that this spirit of amity, concord and harmony which has come down to us from the image of Siva in the Indus civilization down to Mahatma Gandhi and Dr. Rajendra Prasad will inspire our efforts.”

The Assembly thereafter commenced the task of framing the Constitution. The aims and objects of the assembly were contained in a resolution moved by Pandit Nehru and seconded by Shri Purushottam Das Tandon. The aims and objectives were to form the basic framework of the Constitution. This resolution reproduced below, embodies the aspiration and ideals which our country had cherished during its historical national struggle and was described as a solemn pledge to our people:

“(1) This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;

(2)  WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

(3) WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the Law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting there from; and

(4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

(5) WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action, subject to law and public morality; and

(6) WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

(7) WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to Justice and the law of civilized nations, and this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

(8) This ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind[iii].”

The resolution on the Objectives was adopted on January 22, 1947. A number of committees were constituted by the Assembly, which were required to submit their reports on the Constitution to be framed. The Constituent Assembly set up a Drafting Committee on August 29, 1947 with Dr. B.R. Ambedkar as its Chairman and consisting of the other illustrious members like Shri Alladi Krishnaswami Ayyar, Shri N. Gopalaswami Ayyangar, Shri K. M. Munshi, Saiyid Mohd. Saadulla, Sir B. L. Mitter and Shri D. P. Khaitan. The Drafting Committee was assisted by Sir B.N. Rau, an able administrator, scholar and jurist by experience; and S.N. Mukherjee as its principal draftsman. It had particularly, the guidance of Pandit Jawahar Lal Nehru, recognized for his rich and diverse knowledge of foreign affairs, and Sardar Vallabhbhai Patel, the able administrator, visionary and ‘iron-man’ of India.

The Drafting Committee submitted the draft Constitution consisting of about 395 articles and eight schedules. Each and every article was duly debated and deliberated at length in the Constituent Assembly and only then adopted.

The Indian Constitution is unique as it contains in a single document characteristics which are not found in any other Constitution in the world. Our Constitution contains several features drawn from other Constitutions of the world, which the framers thought would be best suited for our country. It is one of the longest and most detailed written Constitutions in the world. It has elaborate provisions on fundamental rights, directive principles of state policy, organisation of government at the centre and the states, relation between the centre and the states, independence of judiciary, trade and commerce, emergency, amendments to Constitution, among others.

Our Constitution is both flexible and rigid. Certain Provisions can be amended by a simple majority of Parliament, whereas other provisions can be amended only by two-thirds majority while some provisions in addition to two third majority require ratification by the States. Pandit Jawahar Lal Nehru in one of his speeches in Parliament has said, “A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable……It is not like the unalterable law of the Medes and Persians that it cannot be changed, although the world around may change”.

Justice Bose of the Supreme Court has succinctly described our Constitution, by saying, “….they are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing would with its shifting emphasis and differing needs.[iv]

The Constitution though adopted on November 26, 1949, came into effect only on 26 January, 1950 and from that day India became a Sovereign Democratic Republic. The choice of enforcing the Constitution of our country on the 26th of January is significant. On December 31, 1929 the Lahore Session of the Indian National Congress had resolved that they would struggle to make India a sovereign democratic republic and in 1930, the Congress resolved that January 26 be observed as poorna swaraj day each year.

The ‘founding fathers’ of our Constitution framed the Constitution on behalf of the people of India and it is evident on a reading of the Preamble to the Constitution that it is,’By the People, For the People and of the People of India.

The Indian Constitution which is unparalleled in its length and content, comprises all the provisions which our founding fathers could imagine to the best of their ability and intelligence, and the final draft showed the magnitude of their vision and foresight. All the provisions were duly deliberated at length before being incorporated. The struggle to evolve a framework of government that would be suitable in a complex society like India divided along lines of religion, language, caste, creed etc and constituting the world’s second largest populous society, was a hard one. The expectations of the people of India were also high at the time of independence because they had suffered enormously at the hands of British who had exploited them while keeping the vast populations deprived of educational and material gains.

The Constitution was framed by gentlemen, and from the nobility of the ideals enshrined in it and the sentiments expressed by the Hon’ble members of the Constituent Assembly in their various speeches, it is apparent that, our Constitution was meant for gentlemen. The founding fathers believed that the people who were to control and operate the Constitution in the years to come would remain true to the soul and spirit of the Constitution. Every provision of the Constitution was framed by the Constitution makers to the best of their wisdom and foresightedness in their respective fields.

THE PREAMBLE

The Constitution of India begins with the preamble. The preamble is the manifestation of the longings, ideals, aspirations and objectives of the founding fathers of the Constitution. It contains the very basis, principles and foundations of our Constitution framed for the welfare of the citizens of India and the objects which the creators of our Constitution sought to realize. In general a preamble can be said to contain a recital of the facts and circumstances of law for which legislation is proposed, the object and policy of the legislation, and the evils or inconveniences it seeks to remedy. The preamble is the spirit, heart and soul of the Constitution. Nani Palkhivala, the eminent jurist aptly describes it as the ‘identity card of the Constitution’. The principles of statutory interpretation state that the proper function of a preamble is to explain certain facts which are necessary to be explained before the enactment contained in the Act can be understood.

The preamble to the Constitution of India reads as follows:

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 twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Supreme Court in some of its earlier judgments, was of the opinion that the preamble is not a part of the Constitution, but in 1973, in the landmark case of Keshavananda Bharati v. Union of India[v], a full bench of the court, by majority set the controversy at rest, holding that unlike the preamble in an ordinary statute, the preamble to our Constitution should be interpreted as part of the Constitution. This meant that the preamble like any other part of the Constitution, was subject to amendment under the provisions of Art. 368. However, the Court in this case also held that certain features of the preamble, including, the sovereign, democratic and republic character of our State; the provisions of social, economic and political justice; liberty of thought, expression, belief, faith and worship; and equality of status and opportunity were part of the ‘basic structure’ of the Constitution, and could not be amended. Thus, it can now be said, that while the words in the preamble that pertain to the basic or fundamental features of the Constitution cannot be deleted, the Preamble can however, be amended to add new ideals or values which are in the interest of the nation, and which are consistent with the ‘basic structure’ of the Constitution.

The Supreme Court has, while interpreting the status and role of the Preamble, in various cases, held that the Preamble is not the source of any substantive power, prohibition or limitation conferred or imposed on the government. It should be seen only as a general purpose behind the several provisions of the Constitution. Various decisions of the Supreme Court reveal that it is now inclined to take a larger cognizance of the preamble as setting forth the goal of our political society so that it may be invoked to determine the ambit of fundamental rights[vi], the fundamental rights and the directive principles because it is the ideals of socialism, secularism and democracy which are elaborated by the enacting provisions.

In State of West Bengal v. Anwar Ali Sarkar[vii], the Calcutta High Court held that when the words of an act are clear in themselves, their meaning cannot be cut down, or enlarged, or otherwise affected by reference to the Preamble, but when the meaning of any provision is not clear or is doubtful or ambiguous, the preamble may be referred to for the purpose of interpreting and ascertaining the aim and objective of the legislation, if the knowledge of such aim and objective will remove the ambiguity of a provision. The Supreme Court endorsed this view in Golak Nath v. State of Punjab[viii]. In short, in the matter of interpretation of the provisions of the Constitution, as well as when the Constitutionality of a statute has to be tested, the courts are to rely on the objects enshrined in the preamble only where the language of the enacting provision permits.

The Preamble states that ‘We the people of India” have solemnly resolved to constitute India as a sovereign, socialist, secular, democratic republic. The word ‘sovereign’ has a special significance, as apart from asserting the political sovereignty of newly independent India, it also denotes the end of 200 years of British rule in India, and the independence of the new-born nation from external control, interference or influence. The Framers of our Constitution attached importance to the sovereignty of the people[ix]. It is the people of India who are sovereign.

The words ‘socialist’ and ‘secular’ were added to the preamble by the Constitution (42nd Amendment) Act) in 1976. This amendment was made to spell out expressly the high values and ideals of socialism and secularism which are inherent in our Constitution. Socialism can be described as an ideology which seeks to establish political and economic equality in society, and eliminate the difference between the rich and the poor, and the powerful and the weak. This amendment sought to ensure that every government would make efforts for the economic development of society which would reach every section of the populace, and eliminate the scourge of poverty. The word ‘secular’ on the other hand, means that the state has no preference for any particular sect or religion. Though it appears only in the preamble, it pervades the entire Constitution. India has historically been the home of several religions and faiths, and the ideal of secularism inspires in the members of every faith, community or denomination, the confidence that they are free to profess, practice and preach the religion of their choice. Secularism denotes not only a set of individual rights but represents a broader ideal of fraternity and symbiosis.

The Indian Constitution basis the Indian State on a foundation of Democracy, not merely as a system of governance, but rather as an ideology and way of life. The starting words of the preamble “We the people….” signify the undercurrent of democracy running through our political system. Similarly, the Constitution makers have opted for a Republican form of government, wherein the head of the State, The President of India, is elected, albeit indirectly, to that august office for a fixed period of time.

The Preamble also specifies the objectives the Constitution seeks to achieve namely Justice – social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and to promote among all citizens, Fraternity assuring the dignity of the individual and the unity and integrity of the nation.  These objectives are sought to be achieved through specific provisions contained in the Constitution, especially, the Fundamental Rights enshrined in Part III.

Thus, our Constitution is seen to lay down the ideals, values and ideologies according to which the government of our Country is to be carried out. It is the solemn duty of every representative of the public to perform their duties in accordance with the Constitution and to sincerely work in applying and enforcing the principles enshrined in the Preamble.

It is to achieve this end that our Constitutional authorities or legislators are administered an oath to safeguard the interest of the Constitution even before they ascend office. The legislators have to take an oath at the time of filing nomination to contest the elections and upon being elected they have to take the oath as per the provisions of the Constitution before they can participate in the proceedings of the house. The violation of oath is punishable, but, can punishment serve any purpose? In such situations, it is the moral as well as legal duty of the individuals who control and apply the provisions of our Constitution, to religiously follow the duties enjoined upon them. If they ethically and diligently perform their functions, it will create confidence in the minds of the electorate who vote for them, to elect them to the temples of democracy, namely the Lok Sabha, Rajya Sabha, Vidhan Sabha or the Vidhan Parishad.

It has been said in the Nitivakyamrita, “when The King is righteous, who will not be righteous?” It is for our political leaders to set the example by observing and carrying out their Constitutional responsibilities with courage, sincerity and integrity.

Moreover, we citizens should never forget that it is also our bounden duty to follow the principles laid down in our Constitution if we are to enjoy the rights, privileges and benefits conferred upon us by the Constitution. Our illustrious leader, Pt. Jawaharlal Nehru said, “There is no right without a corresponding responsibility and obligation. We claim rights, but we forget the obligations that accompany the rights and such right will not be a blessing to us, and may even be a curse.” Specifically Part IVA relating to Fundamental Duties enumerated in Art. 51-A was added to our Constitution by the 42nd amendment in 1976. This addition was in pursuance to the recommendations made by the Swarn Singh Committee. By this amendment, it brought our Constitution in tune with Article 29(1) of the Universal Declaration of Human Rights, and the Constitutions of Japan, China and the erstwhile U.S.S.R. Article 51-A states that it shall be the duty of every citizen of India:

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

(k) who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

The Supreme Court has held that it is a fallacy to think that under our Constitution, there are only rights and no duties. The provisions in Part IV A enable the legislature to impose various duties on the citizens. The mandate of our Constitution is to build a welfare society and that object may be achieved to the extent the Directive Principles are implemented by legislation[x].

Fundamental Duties are not enforceable by Mandamus or any other legal remedy[xi]. However, the courts may also look at the duties while interpreting equivocal statutes which admit two constructions and also uphold the Constitutionality of a Statute that is in consonance with the provisions of Art. 51 A[xii].

It would be worthwhile to say that a citizen of India who has a right to vote and is eligible to exercise it, should be administered an oath with respect to upholding the Constitution, more particularly the Fundamental duties enshrined in Art 51 A (Part IV A) of the Constitution and violation of this oath at any time should punishable and should be made more stringent.


[i] Constituent Assembly Debates  –  Official Reports, Vol. I, p 7, Lok Sabha Secretariat, 2nd Reprint 1989

[ii] Ibid Vol I, pp 36-37

[iii] Ibid Vol I, p 59

[iv] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75

[v] AIR 1973 SC 1461

[vi] Shorter Constitution of India (13th Ed 2001), Durgadas Basu, p2

[vii] AIR 1952 Cal. 150

[viii] AIR 1967 SC 1643

[ix] Motilal v. State of U.P. AIR 1951 All. 257

[x] Chandra Bhavan Boarding v. State of Mysore AIR 1970 SC 2042 (3.5584)

[xi] Suryanarain v. U.O.I. AIR 1982 Raj. 1 (para19)

[xii] Mumbai Kamgar Sabha v. Abdul Fazlubhai AIR 1976 SC 1955. Also

 Mohankumar Singhania v. U.O.I.  AIR 1992 SC 1