Making of the Constitution and its salient features

The first principle

The Constitution of India was not written on a blank page. It took the administrative machinery that two centuries of British rule had built, and the representative institutions that the national movement had forced out of that rule, and gave both a new source of authority: "We, the people of India". Its framers wanted a strong Union that could hold a divided and poor country together, and also a democracy that would protect the individual against that Union. Almost every salient feature of the document, from its length to its unitary bias to its chapter of rights, follows from that double aim of unity and liberty.

The core

The colonial Acts: from Company rule to provincial autonomy

• Regulating Act, 1773. It was the first step by the British Parliament to control the East India Company. It made the Governor of Bengal the Governor General of Bengal, created an executive council, and led to a Supreme Court at Calcutta in 1774.
• Pitt's India Act, 1784 and the Charter Acts. The 1784 Act set up a Board of Control in London, the Charter Act of 1833 created the Governor General of India, and the Charter Act of 1853 separated legislative from executive work and opened the civil services to competition.
• Government of India Act, 1858. After the revolt of 1857 the Crown took over from the Company, and a Secretary of State, answerable to the British Parliament, ruled through a Viceroy.
• Councils Acts of 1861, 1892 and 1909. Indians entered the legislative councils in small numbers, at first nominated and later partly elected. The 1909 Act (the Morley Minto reforms) introduced separate electorates for Muslims, which deepened communal politics.
• Government of India Act, 1919. The Montagu Chelmsford reforms divided subjects into central and provincial, introduced dyarchy in the provinces (transferred subjects under ministers, reserved subjects under the Governor), created a bicameral central legislature and introduced direct elections on a limited franchise.
• Government of India Act, 1935. The longest of the Acts, it proposed an all India federation (which never came into being), divided powers into Federal, Provincial and Concurrent Lists, gave the provinces autonomy with responsible government, and set up a Federal Court (1937) and Public Service Commissions. A large part of the administrative structure of the present Constitution comes from it.

The Constituent Assembly

• The demand. The idea of a constituent assembly was first put forward by M. N. Roy in 1934 and became an official demand of the Indian National Congress in 1935. The British accepted it in principle in the August Offer (1940).
• Composition under the Cabinet Mission Plan (1946). The Assembly was to have 389 members: 296 from British India, elected indirectly by the provincial assemblies roughly in proportion to population, and 93 nominated by the princely states.
• Working. The Assembly first met on 9 December 1946 with Sachchidananda Sinha as temporary President, and elected Dr Rajendra Prasad as its President two days later. The Muslim League stayed away. On 13 December 1946 Jawaharlal Nehru moved the Objectives Resolution, adopted on 22 January 1947, which later became the Preamble. The Indian Independence Act, 1947 made the Assembly a fully sovereign body, and it also worked as the first Parliament of free India. After partition its strength fell to 299.
• Drafting. A Drafting Committee of seven members under Dr B. R. Ambedkar was set up on 29 August 1947, working on a draft prepared by the constitutional adviser B. N. Rau. The Constitution was adopted on 26 November 1949, after about two years and eleven months of work, and came fully into force on 26 January 1950, the anniversary of the Purna Swaraj pledge of 1930. Provisions on citizenship, elections and the provisional Parliament came into force on 26 November 1949 (Article 394).

Borrowed, but adapted

• What was borrowed. The framers studied the constitutions of their time and took what suited Indian conditions. Critics called the result a "borrowed constitution" or a copy of the 1935 Act; Ambedkar's reply was that nothing in a constitution can be new in its fundamentals, and that the framers had varied the borrowed forms to suit India and avoid the faults others had shown.

Dimensions

The Preamble

• Content. The Preamble states the source of authority (the people of India), the nature of the state (sovereign, socialist, secular, democratic republic), its objectives (justice, liberty, equality and fraternity, assuring the dignity of the individual and the unity and integrity of the nation) and the date of adoption (26 November 1949).
• Is it a part of the Constitution? In In re Berubari Union (1960) the Supreme Court said the Preamble was a key to the minds of the makers but not a part of the Constitution. In Kesavananda Bharati (1973) the Court held that it is a part of the Constitution, can be used to interpret ambiguous provisions, and can be amended under Article 368 so long as the basic structure is not damaged. The Preamble is neither a source of power nor a limit on power, and it is not enforceable in a court by itself.
• The only amendment. The Forty second Amendment (1976) added "socialist", "secular" and "integrity". In Dr Balram Singh v Union of India (2024) the Supreme Court dismissed petitions challenging these additions, noting that both words describe values the Constitution already contained.

Salient features

• Lengthy and written. The original Constitution had 395 Articles, 22 Parts and 8 Schedules. It is long because it covers the Union and the states in one document, carries administrative detail from the 1935 Act, and provides for the special needs of Scheduled Castes, Scheduled Tribes and particular regions.
• A blend of rigidity and flexibility. Some provisions change by simple majority, most by special majority, and federal provisions also need ratification by half the states, so the document is neither as rigid as that of the United States nor as flexible as the British.
• Federal with a unitary bias. India has two levels of government, a written Constitution, a division of powers and an independent judiciary, but also a strong Centre, a single Constitution, appointed Governors, emergency powers and Parliament's power to redraw state boundaries. K. C. Wheare called it "quasi federal", and Ambedkar said it could be both unitary and federal according to the requirements of time and circumstances.
• Parliamentary form of government. Taken from Britain, it makes the executive collectively responsible to the Lok Sabha, with the President as the nominal head. The framers preferred its daily accountability to the stability of a presidential system.
• Single citizenship and an integrated judiciary. There is one citizenship for the whole country and a single hierarchy of courts, with the Supreme Court at the top, enforcing both Union and state laws.
• Fundamental Rights, Directive Principles and Fundamental Duties. Rights in Part III are justiciable limits on the state; the Directive Principles of State Policy in Part IV are non justiciable guides to law making; Fundamental Duties were added in Part IVA by the Forty second Amendment on the recommendation of the Swaran Singh Committee.
• Universal adult franchise. Every adult citizen got the vote from the first general election of 1951 to 1952, without any test of property, education or sex, at a time when literacy was below one in five. The voting age was lowered from 21 to 18 by the Sixty first Amendment (1988).
• Emergency provisions. Articles 352, 356 and 360 allow the federal system to turn unitary in a crisis, with the safeguards that the Forty fourth Amendment (1978) later added.
• Independent bodies and secular state. The Election Commission, the Comptroller and Auditor General and the Public Service Commissions are given constitutional status to insulate them from the government of the day, and the state has no official religion.

In practice

• Federal and unitary at once. The same document that lists federal features allows the Centre to take over a state's government under Article 356 and to legislate on the State List in a national emergency, so the balance in practice has depended on politics and the courts. The S. R. Bommai case (1994) declared federalism a basic feature and limited the misuse of Article 356.
• A living document. More than a hundred amendments have changed the Constitution's working, from the First Amendment (1951) to the Goods and Services Tax amendment of 2016, while the basic structure doctrine has kept the core stable through these changes (see the note on amending power).
• Borrowing reshaped by Indian courts. The phrase "procedure established by law" came from Japan, but the Supreme Court in Maneka Gandhi (1978) read it to require a just, fair and reasonable procedure, close to the American due process the framers had rejected.

Issues and way forward

• A lawyers' paradise? Sir Ivor Jennings criticised the length and legalism of the text, but its detail has kept many issues out of political dispute.
• Was the Assembly representative? It was elected indirectly on a limited franchise. Its legitimacy came instead from its diverse membership, its open debates and the first elections held under universal franchise.
• Centralising tilt. The unitary features have at times been used against states. Commissions from Sarkaria (1988) to Punchhi (2010) have recommended restraint in Article 356, consultation on the Concurrent List and a stronger Inter State Council.
• Gap between ideals and reality. Ambedkar warned on 25 November 1949 that India was entering a life of contradictions, with political equality but social and economic inequality. Closing that gap remains the unfinished task of the Constitution.

Common confusions

• Adoption and commencement. The Constitution was adopted and enacted on 26 November 1949, now observed as Constitution Day, but came fully into force on 26 January 1950, observed as Republic Day.
• Objectives Resolution and Preamble. The Objectives Resolution (1946) was a statement of aims moved by Nehru; the Preamble is its revised form placed at the head of the adopted Constitution.
• Berubari and Kesavananda. Berubari (1960) said the Preamble is not part of the Constitution; Kesavananda (1973) said it is, and it can be amended within the basic structure.
• Government of India Acts of 1919 and 1935. Dyarchy was introduced in the provinces in 1919; the 1935 Act ended it there, gave provincial autonomy and proposed dyarchy at the Centre, which was never brought into force.

For the exam

• Keyword bank: Regulating Act 1773, dyarchy, Government of India Act 1935, Cabinet Mission, Constituent Assembly, Objectives Resolution, Drafting Committee, Preamble, Berubari Union, quasi federal, blend of rigidity and flexibility, parliamentary form, integrated judiciary, universal adult franchise, single citizenship.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "Drafted over nearly three years by an Assembly that met for the first time on 9 December 1946, the Constitution began with 395 Articles and is today one of the longest written constitutions in the world."
  • Introduction with a quote: "Ambedkar described the Constitution as workable, flexible and strong enough to hold the country together in peace and in war, which explains its blend of federal and unitary features."
  • Conclusion: "The Constitution borrowed its machinery from the 1935 Act and from other democracies, but its spirit, set out in the Preamble, is Indian, and it is that spirit which has kept it alive through more than a hundred amendments."
  • Conclusion: "Its salient features are best read together: a strong Union to secure unity, and justiciable rights with an independent judiciary to secure liberty."