The Making of Constitution

The Making of Constitution

 “It is always profitable to remember that a Constitution is “written in blood, rather than ink”

–Manoj Narula v. Union of India, (2014) 9 SCC 1 : 2014 SCC OnLine SC 640 at page 49

Introduction

In the words of author, Constitution is that basic document by which a nation is governed. It lays down the structure of government along with their powers and duties. In language of Hans Kelson, it may be termed as “Grundnorm”.

Historical Background 

There was numerous documents that lead to the development of India’s Constitution but for the sake of examinations, we have to study only few important documents.

                     

 

Now coming up to the point, that how the questions will be framed from Historical Background. For this purpose, only 3 documents are important namely The Government of India Act, 1935, Cabinet Mission, 1946 and Indian Independence Act, 1947.  So for the sake of convenience one have to remember some more facts about these 3 documents.

• The Government of India Act,1935

It was one the most lengthy document containing detailed provision all around in 321 sections and 10 Schedules. Some the important features of this Act are listed below:

• Formation of All India Federation

It provides for establishment of All India Federation comprising of the British India Provinces and those Indian State that are willing to join federation.

• Abolishment of Dyarchy at Centre and introduction of Federal System of Government.
• Establishment of Federal Court.
• Most of the provisions of Constitution are taken from this Act.
• Cabinet Mission,1946

The mission recommended following proposals:

• For framing of Constitution a Constituent Assembly was to be elected.
• The Indian Independence Act, 1947

Some of the important provisions of this act is as follows:

• It provides for creation of 2 Dominion nation namely: India and Pakistan.
• Constituent Assembly so formed will have the power to frame laws for their respective nations.
• After 15 August, 1947 British Government will have no control over the 2 Dominion.
• The Act declared lapse of paramountcy over Indian States.

Question might asked like which document aimed at providing a federal structure for India?

(A)Indian Council Act, 1909 (B) Montague-Chelmsford Reforms Act. 1919 (C) Charter Act, 1831 (D) Government of India Act, 1935 .

Answer D.

Indian Constitution-Nature And Features

Nature of Indian Constitution- Whether Federal Or Unitary?

Constitutional Scientist has classified constitution in 2 types namely: Unitary and Federal. So far as Indian Constitution is considered, it is hybrid of unitary and federal features meaning thereby that it has some Unitary feature and some Federal feature but a close analysis will led to the conclusion that it has more Federal feature than Unitary one.

So let us analyse what are features that make a constitution Federal in nature:

• Dual System of Government along with Distribution of power so as the both Government work independently in their own sphere or arena.
• Supremacy of Constitution meaning thereby that all authority including Legislature, Executive and Judiciary are sub-ordinate to it.
• A Written Constitution.
• It must be a Rigid Constitution.

On the other hand, the features of Unitary Constitution are completely opposite meaning thereby that it has Single Government, may have written or unwritten constitution with flexible provision of amendment.

Hence, it is submitted that Indian Constitution is federal in nature but some scholar hesitate in calling it truly federal.

Austin and A.R. Birch calls it Co-operative Federation.

Ivor Jenning opines that Indian Constitution as Federation with strong centralising tendency.

KC Wheare calls it Quasi-Federal. He further adds that India is unitary state with subsidiary feature rather than a federal state with subsidiary unitary feature.

D.D. Basu calls it neither unitary nor federal but a combination of both.

Prof Alexandrowic said that it is Federation Sui- Generis.

 

Question

 

• Consider the following statement

The Indian Constitution is

a)Unwritten Constitution

b)Written Constitution

c) Largely based upon Government of India Act,1935

 

Choose the best option

1. B and A are correct
2. B and C are correct
3. A and B are correct
4. A and C are correct

 

View of Supreme Court

 

In State of West Bengal v. UOI[1], it was said by SC that Indian Constitution is not truly federal.

In S.R. Bommai v. UOI[2], the Apex Court in para 276 said that ‘federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. …enough to note that our Constitution has certainly a bias towards center vis-a-vis the States’ .

In Kuldeep Nayar v. UOI[3], SC held that India is ‘pseudo-federation or quasi- federation in an amphibian form’.

 

Indian Constitution vis-a-vis other Constitution

Indian Constitution is not original in its form but various provisions have been borrowed from Constitution of other nations. Following is the table which enlighten you upon this point:

 

Sr.No.	Provision	Country
1.	Judicial Review	United State
2.	Fundamental Rights	United State
3.	Impeachment	United State
4.	Equality before law	United State
5.	Parliamentary System	United Kingdom
6.	Art 14 ( Rule of Law)	United Kingdom
7.	Suspension of Fundamental Rights	United Kingdom
8.	Parliamentary Privileges	United Kingdom
9.	Equal protection of law	United Kingdom
10.	Idea of Preamble	United Kingdom
11.	Idea of Federalism with strong Centralised Government	Canada
12.	Residuary Power of Centre	Canada
13.	DPSP	Ireland
14.	Amendment of Constitution	South Africa
15.	Freedom of Trade	Australia
16.	Procedure Establish by Law	Japan
17.	Fundamental Duties	USSR
18.	Emergency Provisions	Germany & Government of India Act, 1935

 

Questions

1. The concept of Directive Principles of State Policy was borrowed from
2. Germany b) France c) Ireland d) USA
3. The Indian Constitution has borrowed the idea of the Preamble to the Constitution from the- (A) Italian Constitution (B) Canadian Constitution (C) French Constitution (D) Constitution of the USA

[1] State of West Bengal v. UOI, AIR 1963 SC 1241.

[2] S.R. Bommai v. UOI, (1994) 3 SCC 1

[3] Kuldeep Nayar v. UOI., (2006) 7 SCC 1