The constitution of India is the longest written constitution in the world with 448 articles in 25 parts and 12 schedules. As the saying goes Rome wasn’t built in a day, similarly, the constitution of India took two years, 11 months and 18 days to be formed by the constituent assembly. Even after 1950, the constitution has witnessed several changes and amendments made.
BEFORE THE CONSTITUENT ASSEMBLY
The British East India Company started colonizing the country beginning from the 18th century and later was handed over to the crown for direct control. The rule of the company ended in 1858 after the revolt of the 1857 when the crown took over with the passage of the Government of India Act of 1858.
INDIAN COUNCILS ACT 1909
- Popularly known as the Morley Minto reform, it introduced separate electorates for Muslims and greater representation for Indians in the councils.
- Indians were given membership to the Imperial Legislative Council for the first time.
- The size of the legislative councils at the Centre and provinces were increased and they could discuss matters of public interest.
THE GOVERNMENT OF INDIA ACT 1919
- Dyarchy was introduced which meant that there were now two classes of administrators- executive councilors and the minsters.
- Out of the 6 members of the Viceroy’s executive council, 3 had to be Indians.
- A bicameral legislature was set up, the two houses legislative assembly and council of states became the predecessors for the Lok Sabha and the Rajya Sabha in independent India.
THE GOVERNMENT OF INDIA ACT 1935
- Firstly, this law divided powers of governance into a Federal List, a Provincial List and a Concurrent List.
- A federal court to be set up which later became the supreme court of India.
- Continued till the new constitution was formed in 1950.
In 1935, the Indian national Congress demanded a constituent assembly to form the constitution of India. In February 1946, Clement Atlee (the then prime Minister of Britain) sent a cabinet mission to discuss the transfer of power from the British crown to the Indians. It had put forth a scheme for the constituent assembly.
The constituent assembly had 299 members who discussed and revised the drafts. The objective resolution passed by Jawaharlal Nehru in 1946 become the Preamble of the constitution. The constitution was passed on 26 November, 1949 with 395 articles, 8 schedules and 22 articles.
The constitution of India borrowed a lot of its features from the constitution of other countries. Some of the major features adopted were: –
U. S.- fundamental rights, electoral college, judicial review, federal structure
Canada- strong central government, advisory role of the supreme court, distribution of powers between state and the center
Britain- parliamentary form of government, single citizenship
Germany- emergency powers, suspension of fundamental rights during emergency
Australia- concurrent list, joint sitting of the two houses
Ireland- Directive principles of State policy
USSR- fundamental duties
South Africa- amendment to the constitution
Japan- procedure established by law
After independence, the constitution still undergoes amendments by the parliament or changes made by the courts so as to keep the law in line with the spirit and the original intentions of the drafting committee. The power to amend has been mentioned under Article 368, Part XX of the constitution and borrowed from Germany.
The first amendment was made in the year 1951 which made several changes to the Fundamental Rights under Article 19 imposing restrictions on freedom of speech and expression. The ninth schedule was added to the constitution and also set the standard that equality does not prevent from special considerations to be made for the weaker sections of the society.
MAJOR AMENDMENTS MADE
- Seventh Amendment Act, 1956
- Implementing the State Reorganization Committee recommendations, and implementing 1956, State Reorganization Act abolished state boundaries on linguistic basis.
- Extended high court authority to union territories.
- The provision of having a common High Court for two or more states was introduced
- 42nd Amendment Act, 1976 (mini constitution)
- The 42nd Amendment changed the description of India from a sovereign democratic republic to a sovereign, socialist secular democratic republic.
- Shifted five subjects from the state list to the concurrent list, namely education, forests, wildlife and bird protection, weights and measures and the administration of justice.
- Ten fundamental duties were added in Article 51 A.
- 44th Amendment Act, 1948
- The 44th Amendment Act of 1978 reversed the provision made by the 42nd amendment act that allowed the government to amend the constitution on its wish by Article 368.
- Right to Property was removed from the list of fundamental rights (Article 31) and was made a legal right under Article 300A.
- 52nd amendment act, 1958
A Tenth Schedule was added for anti-defection laws. Under the amendment, a Member of Parliament or state legislature was considered to have defected if they either on their own resigned from their party or violated the directions of the party leadership on a vote.
- 73rd Amendment Act, 1992
- Panchayati Raj institutions were given constitutional status. Nagarpalikas and Municipalities were given constitutional status.
- A new Part-IX and 11th Schedule were added in the Indian Constitution to recognize Panchayati Raj Institutions and provisions related to them
As under the power of Judicial review granted to the courts by the constitutions, several landmark judgements have been made wherein the basic structure of the constitution has been laid down and the scope of the Articles have been re defined.
- Golaknath v. state of Punjab (1967 AIR 1643)
- The judgement reversed Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights.
- Since according to Article 13(2), the parliament could not make any law that abridges the Fundamental Rights contained in Part III of the Constitution, a constitutional amendment, could not be in violation of the fundamental rights chapter contained in the Constitution of India. The judgement left Parliament with no power to curtail Fundamental Rights.
- Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970)
- The Supreme Court gave Parliament power to amend any part of Constitution of India, the court further added that such amendment shall not change the basic doctrine of the constitution. Parliamentary democracy, fundamental rights, judicial review, secularism- are all held by courts as basic structure, the list is not exhaustive.
- It is the Judiciary that is responsible to decide what constitutes the basic structure.
- It found the second part of the 25th Constitutional Amendment to be ultra vires. The Supreme Court declared the Article 31C as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away.
- Indira Nehru Gandhi v. Shri Raj Narain, 1975 AIR 2299
- The Supreme Court held clause 4 of 39th amendment as unconstitutional and void as it was outrightly denied of the right to equality enshrined in Article 14.
- The apex Court also added basic features of the constitution to list laid down in Keshavananda Bharti case like democracy, judicial review, rule of law.
- Further, the court added jurisdiction of the Supreme Court under Article 32, which deals with writs basically also forms the basic structure of the constitution.
- Maneka Gandhi vs. Union of India, 1978 AIR 597
- It gave a new and highly varied interpretation of the meaning of ‘life and personal liberty’ under Article 21 of the Constitution.
- This law which prescribes a procedure for depriving a person of “personal liberty” has to fulfil the requirements of Articles 14 and 19 also.
- It was finally held by the court that the right to travel and go outside the country is included in the right to personal liberty guaranteed under Article 21.
- R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264
- The court in this case, decided that the right to privacy subsisted even if a matter becomes one of public record and hence right to be let alone is part of personal liberty.
- This comes under the purview of Article 21.
- The judges held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorization.