Structure of Indian Constitution

The Constitution, the holy book of Indian law, in its current form (2015), consists of: 

• Preamble: It is an 'introduction' or a 'preface' to Indian Constitution. The Preamble simply reveals the source, nature, objectives and the date of adoption of the constitution.

• Parts: 
• Indian constitution contains list of articles with clauses and sub-clauses under them. In the below picture '6.' represents Article 6 and Article 6(b) represents a clause under article 6. And Article 6(b)(i) represents a sub-clause under (b) clause of Article 6.

• These articles are grouped together as parts. Refer below table.

• Original Indian Constitution had 22 parts and 395 articles. Later 4 parts were added to it as amendments ( 4A - Fundamental Duties, 9A – Muncipalities, 9B – co-operative societies and 14A tribunals). Now there are 25 parts consisting of 448 articles. Articles added by constitutional amendments are not added as a new article but are listed as articles under existing related articles. So at any time, number of articles numerically will be 395. 

e.g 1: 1st Constitutional Amendment Act of 1951 inserted articles 31A and 31B instead of adding Article 396. Note that Article 31A refers to an article while Article 31(a) refers to a clause under Article 31.

e.g 2 :New article inserted for 'Fundamental duties' under the 42nd constitutional amendment act 1976 is added as Article 51A. Article 51 is the last article of Directive Principles of State Policy.  Hence although total articles are 448, one will find only 395 articles in constitution.

• Schedules: These are long arduous lists which categorize and tabulate the bureaucratic activity and policy of government. These are basically lists and tables giving out information. Eg: Schedule I deals with the names of states and their territorial jurisdiction. These are kept separate and not a part of original text of constitution due to their bulkiness of over 100 pages even with small microscopic font(that we usually see for terms and conditions on official documents). But these schedules are very much part of the constitution. Indian Constitution originally had 8 schedules. Four more schedules were added by different amendments, now making a total tally of 12. 

PS: Earlier many acts were included in the ninth schedule to escape from the Judicial review, but after Kesavananda Bharati case, Court has taken steps to curtail that practice too.

Watch this for detailed info on Schedules.

• Appendices 
• Appendix I—The Constitution (Application to Jammu and Kashmir) Order, 1954.

• Appendix II— Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir.

• Appendix III—Extracts from the Constitution (Forty-fourth Amendment) Act, 1978.

• Appendix IV—The Constitution (Eighty-sixth Amendment) Act, 2002.

• Appendix V— The Constitution (Eighty-eighth Amendment) Act, 2003.

PREAMBLE

A Preamble in general sense is an 'introduction' or a 'preface' to something, which in our case is Indian Constitution. Eminent Jurist and Constitutional expert N A Palkhivala referred Preamble as the 'Identity card of the Constitution'.

To begin with, American constitution was the first to include/adopt a preamble. Many countries including India later followed this practice. Preamble of Indian Constitution was in fact based on the Objective Resolution adopted by the Constituent assembly on January 22nd, 1947.


Following is the text of the Preamble of Indian Constitution as is on January 26th, 1950:

“

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN 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 of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

”

26 years later, under the rule of Prime Minister Smt. Indira Gandhi the 42nd Constitutional Amendment Act was passed and made following changes in the Preamble of 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 twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

”

Amendability of the Preamble 

In 1960, in Berubari vs Union of India, Supreme court, the apex court of Indian Judiciary and the highest authority to interpret the Constitution as a part of its judgment, has ruled that Preamble is not an Integral part of the Constitution hence cannot be amended. It also ruled that 'it is key to open the mind of the makers' which shows general purposes for which they made provisions in the constitution. 

However, in 1973, in Kesavananda Bharti vs Union of India, supreme court held that its opinion tendered as a part of Berubari case was wrong and stated that Preamble is a part of constitution. Hence it can be amended as per Article 368 but without altering its basic structure. Further, in 1995 in LIC OF INDIA case the supreme court again held that Preamble is an integral part of the constitution. 

Further, Preamble of Constitution is non-enforceable and non-justiciable. It is neither source of power nor prohibiting on it.

Analysis of the Preamble 

The Preamble simply reveals the source, nature, objectives and the date of adoption of the constitution.

WE, THE PEOPLE OF INDIA - Indicates that people are the source of power, meaning that the constitution derives its authority from the people. People are the popular sovereign and constitution is the embodiment of the sovereignty of the people of this country.

SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC: It indicates the nature of Constitution.

JUSTICE, LIBERTY, EQUALITY AND FRATERNITY: Indicates the objectives of the constitution.

26th DAY OF NOVEMBER : Indicates the date of adoption and enactment of Constitution.

Terminology 

1. Sovereign: 

Primarily the word sovereign here means that India is neither a colony nor a dominion anymore. But it is a supremely independent state. The people are the popular sovereign and they enjoy this sovereignty with highest authority both internally and externally.   

Internally, as the people are free to elect the government which makes laws for the country. Also people are free to remove the government if they loose confidence in the existing government. Further, people of India are free to participate and elect at 3-tiers of the government.

Externally, as no foreign power can dictate terms or control India. Only people of this country, holding sovereign authority, can dictate the Government of India.

Note: India has been a member of UNO since 1945. India has declared her continuation of full membership of Commonwealth of Nations in 1949, accepting British crown as the head of the commonwealth . This extra-constitutional declaration does not affect the sovereignty of India as it is an alliance or association of nations for mutual benefits. As Nehru clarifies on the similar doubts in the assembly: 

'It is an agreement by free will, to be terminated by free will.'

2. Socialist: 

This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was implicitly present and followed in the Directive Principles of State Policy(DPSP). However this constitutional amendment act made it explicit by including it in the Preamble.

India follows its own brand of 'Democratic socialism' which aims to end poverty, ignorance, disease and inequality of opportunity(as told by a Judge of Supreme Court). While the popular 'Communistic Socialism' involves nationalization of all means of production and distribution, abolition of private property. Indian socialism is a mix of Marxism and Gandhism with high inclination towards Gandhism. Hence, it is popularly called 'Gadhian Socialism'  However on this issue, Indira Gandhi has clarified saying: 

'We always said that we have our own brand of socialism. We will nationalize the sectors where we feel the necessity. Just nationalization is not our type of socialism'.

The LPG economic policy - Liberalization, Privatization, Globalization of 1991 has highly diluted socialistic credential of Indian Sovereign. 


3. Secular: 

This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was very much part of the constitution implicitly as mentioned in Articles 25 to 28 (Guarantees fundamental right to religion). However this constitutional amendment act made it explicit by including it in the Preamble. 

Indian Constitution promises a positive secularism i.e., irrespective of which religion you belong to, you will get same treatment and support from the state. Simply put, constitution considers religion as an individual's private affair and hence do not impose or restricts individual's right to religion. Indian State do not support or have any foundation based on religion. P B Gajendragadkar, Former Chief Justice of Supreme Court defined secularism in Indian context as:

'The state does not owe loyalty to any particular religion as such; it is not irreligious or anti-religious. It gives equal freedom to all religions.'

On the basis of attitude of states towards religion, three types of states can be conceived of:

Atheistic state: Anti-religious and hence condemns all religions. Eg: Albania, North Korea were once Atheistic.

Theocratic state: Pro-religion. Hence declares one religion as the state religion. Eg: Pakistan.

Secular State: Neutral in religious affairs. Does not uphold any religion. Eg: USA, INDIA.


4. Democratic:

This feature of the Preamble is based on the doctrine of popular sovereignty. That is possession of supreme power by the people. Democracy literally means 'people's rule'. 

There are two forms of democracy - direct and indirect. Direct form of Democracy can be seen in the cantonments of Switzerland. In direct democracy, Referendum, Initiative, recall and plebiscite are used as mechanisms.

Referendum - A proposed legislation is put before electorate for their direct voting.
Initiative - Any member of the electorate can propose a bill to legislation for enactment.
Recall - Voters can remove a representative/officer before the end of his term if he fails to discharge his duties.
Plebiscite - Method of obtaining the opinion of people on matters of Public importance. Usually used to solve territorial disputes. Eg: Scotland went for a plebiscite to get out of UK. 

India however follows Indirect democracy. Indirect democracy can take either Presidential or Parliamentary form. U.S.A follows Presidential form of democracy. Parliamentary system is followed in India, an idea borrowed from the British or the Westminster model.

In Parliamentary system of democracy, the executive is responsible for the legislature for all the policies and actions. Universal adult franchise, Periodic election, Rule of law (by A.V. Dicey) and  Impartial, Integrated and Independent judiciary are the key features of democracy of Indian polity. 

Ambedkar paid greater attention to social linkage among people than separation of powers and constitutional safeguards for democracy. The concept of power contained in his thinking has a direct relationship between social power and political power. He was conscious of the social and economic inequalities which corrode the national consciousness of the Indian people. Ambedkar said, “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”.


5. Republic: Re-public :- Representation of Public.

Any democratic polity can be classified into two categories - Monarchy or Republic. Democratic Monarchy means, the supreme head of the state is the King and 'head of the state' is a hereditary position like in Britain. However, in a Democratic Republic, head of the state is 'President' and he/she is elected directly(like in USA) or indirectly like in India. President of India is elected indirectly for a period of 5 years.

A republic also means vesting political sovereignty in the people and not in an individual King. It also means that there is no privileged class and hence all offices being open to all citizens without discrimination.


6. Justice: 

The idea of justice in the Indian Constitution is embraced in three forms: Social, Economic and Political. This ideal of Justice has been borrowed from the Russian Revolution(1917-23). It has been enforced in the constitution through Fundamental rights and Directive Principles of State Policies.

Social Justice promises Indian citizens the immunity from discrimination on the basis of caste, creed, religion, sex, color, race and so on. It means that there will no special privileges extended to particular section of society and improvement in the conditions of backward classes.

Economic Justice promises that no individual or group will be discriminated on the basis of economic factors. It involves reduction and elimination of glaring inequalities in wealth, income and property. Social Justice with Economic Justice is called 'Distributive Justice'.

Political Justice: It means that there is no privileged class and all political offices including that of President and Prime Minister shall be open to all citizens without discrimination.
  

7. Liberty: 

The idea of Liberty in the Constitution is defined as the absence of restraints from performing activities and further providing opportunities for development on individuals in the society. These are enforced in Constitution through Fundamental rights. This ideal of Liberty has been borrowed from the French Revolution(1787-99). 

Ideal of Liberty promises liberty or freedom of thought, expression, belief, faith and worship. This does not give 'license' to do whatever one likes. Liberty is to be enjoyed with certain limitations. It is to be noted that liberty that is conceived by Preamble and Fundamental rights is not absolute but qualified.


8. Equality: 

The ideal of Equality means that there is no privileged class and hence all citizens are treated without discrimination. Also, there must be a provision for adequate opportunities for all individuals. The ideal of equality is enforced in constitution through Fundamental rights and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99). 

Ideal of Equality promises equality of status and opportunity. Article 14-18 of Constitution guarantees right to equality. Further, 

Article 39 states(DPSP): Equal pay for equal work, for men and women after securing livelihood.

Article 325 states: 'No person shall be declared ineligible for electoral rolls on the basis of caste, creed, religion, race, color or sex. 

Article 326 states: Elections to the Lok Sabha and state assemblies to be on the basis of adult suffrage. 


9. Fraternity:

The ideal of Fraternity simply means the sense of brotherhood(brotherhood+sisterhood) among the citizens of India. The ideal of equality is enforced in constitution through Fundamental rights, Fundamental Duties and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99). 

The ideal of Fraternity promises: 

Dignity of individual: This means the constitution besides ensuring material betterment also promises to recognize the personality of individual as sacred. and,

Unity and Integrity of the country: It embraces both psychological and territorial integrity of the nation. It promotes sense of brotherhood and aims at overcoming communalism, regionalism, casteism, linguism etc.,

Additional info

Dicey thought that there were 3 facets to the rule of law:

"[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts".

"[E]quality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts".

"[W]hereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals."


'Preamble is the horoscope of the Constitution'  - K M Munshi, Constituent Assembly member

'Preamble is the soul of our Constitution'  - Pandit Thakur Das Bhargava, Constituent Assembly member.

Indian Constitution - Behind the scenes

This post marks the start of posts on Indian Polity. Before we jump into the ocean-size subject, let's take a glimpse of what happened before the Indian Constitution came into force i.e., January 26th 1950.

1934 A.D

The idea of Constituent Assembly was put forward for the first time by M. N. Roy, a pioneer of Communist movement in India and an advocate of Radical democratism. 

'A constituent assembly or a constitutional convention or constitutional assembly, is a body or assembly of representatives composed for the purpose of drafting or adopting a constitution.' 

1935 A.D

Indian National Congress(INC) officially demands the British to setup a constituent assembly to frame the constitution of India.

1940 A.D  

A change of government took place in Britain in May, 1940 and Winston Churchill became the prime minister (1940–45). As the war(WW-II) was taking a menacing turn congress offered to cooperate in the war if transfer of authority in India is done to an interim government. The governments response was a statement of the viceroy known as the august offer. On 8 August 1940, early in the Battle of Britain, the Viceroy of India, Lord Linlithgow, made the so-called August Offer, a fresh proposal promising:

• The expansion of the Executive Council to include more Indians.

• The establishment of an advisory war council, giving full weight to minority opinion, and 

• The recognition of Indians' right to frame their own constitution (after the end of the war). But the constituent assembly will have both British officials and Indians from different states.

In return, it was hoped that all parties and communities in India would cooperate in Britain's war effort. The declaration marked an important advance over the existing state of things, as it recognised at least the natural and inherent right of the people of the country to determine the form of their future constitution, and explicitly promised dominion status. However, The Congress Working Committee and the Muslim League on August 21, 1940 rejected this offer, and asserted its demand for complete freedom from the imperial power. Muslim League further demanded for partition of India.

1942 A.D

Sir Stafford Cripps, member of the cabinet of Winston Churchill came to India with a proposal of the British Government on framing of an Independent Indian Constitution to be adopted after the WW II. Muslim League rejected this proposal demanding a partition of India into two separate states with two constituent assemblies. 

The main proposals of the Cripp's mission were as follows:

• An Indian Union with a dominion status would be set up. It would be free to decide its relations with the Commonwealth and free to participate in the United Nations and other international bodies.

• After the end of the war, a constituent assembly would be convened to frame a new constitution. Members of this assembly would be partly elected by the provincial assemblies through proportional representation and partly nominated by the princes.

• The British Government would accept the new constitution subject to two conditions.(i) any province not willing to join the Union could have a separate constitution and form a separate Union, and (ii) the new constitution- making body and the British Government would negotiate a treaty to effect the transfer of power and to safeguard racial and religious minorities.

• In the meantime, defense of India would remain in British hands and the governor-general’s powers would remain intact. 

1945 A.D

The Simla Conference was a 1945 meeting between Viceroy Archibald Wavell and the major political leaders of India at Simla, India. Convened to agree on and approve the Wavell Plan for Indian self-government. The conference broke down on the insistence of Jinnah that his party should have an exclusive right to nominate Muslim members of the Viceroy’s Executive Council. This was something which the Congress could not concede without repudiating its national composition. This scuttled the conference, and perhaps the last viable opportunity for a united, independent India. 

On June 14, 1945, Lord Wavell came out with a plan which had the following schemes: 

• A new Executive Council was to be formed at the Centre in which all but the Viceroy and the Commander in Chief will be Indians. This executive council was for the time being till a new permanent constitution could be agreed upon and come to force. 

• All portfolios except the Defense would be held by the Indian Members.

1946 A.D

The United Kingdom Cabinet Mission of 1946 to India aimed to discuss and plan for the transfer of power from the British Government to Indian leadership, providing India with independence. Formulated at the initiative of Clement Attlee, the then Prime Minister of the United Kingdom(Labour party), the mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. Lord Wavell, the Viceroy of India, did not participate.

The Cabinet Mission's purpose: i. Hold preparatory discussions with elected representatives of British India and the Indian states in order to secure agreement as to the method of framing the constitution. ii. Set up a constitution body. iii. Set up an Executive Council with the support of the main Indian parties.

Plan of 16 May: Promulgated on 16 May 1946, the plan to create a united dominion of India as a loose confederation of provinces came to be known by the date of its announcement:

• A united Dominion of India would be given independence. Muslim-majority provinces would be grouped - Sind, Punjab and North-West Frontier Province would form one group, and Bengal and Assam would form another. Hindu-majority provinces in central and southern India would form another group.

• The Central government, stationed in Delhi, would be empowered to handle nationwide affairs, such as defense, currency, and diplomacy, while the rest of powers and responsibility would belong to the provinces, coordinated by groups.

Plan of 16 June: The plan of 16 May 1946 had envisaged a united India in line with Congress and Muslim League aspirations. But, it failed as INC feared that the idea of grouping India on basis of religion with intention of 'balancing' each other at central legislature would lead to communal distress. However, Muslim league was backing the idea of 'groups' to ensure the prevention of absolute rule of Hindus over Muslims. Reaching an impasse, the British proposed a second, alternative plan on 16 June 1946. This plan sought to arrange for India to be divided into Hindu-majority India and a Muslim-majority India that would later be renamed Pakistan. A list of princely states of India that would be permitted to accede to either dominion or attain independence was also drawn up. 

Constituent Assembly was finally constituted in November 1946 under the scheme formulated by the Cabinet Missions plan of 16th June.

Timeline: 

December 9th, 1946: First meeting of the constituent assembly. Total strength (389 = 296 British Indian seats and 93 Princely states seats). Muslim League boycotts demanding for a separate Muslim nation. Princely states stay away from the constituent assembly. 

December 13th, 1946: Jawaharlal Nehru moved the Historic Objectives Resolution which would later become the core of PREAMBLE OF INDIAN CONSTITUTION. 

January 22nd, 1947: The Objectives Resolution was unanimously adopted by the Assembly.

April 28th, 1947: Representatives of six princely states join the constituent assembly.

June 3rd, 1947: The historic Mountbatten plan for partition of Country was accepted by the members.   All the princely states and the members of Muslim Leagues from Indian Dominion also entered the assembly.

July, 1947: Adopted the national flag of DOMINION OF INDIA. The flag is based on the Swaraj flag, a flag of the Indian National Congress designed by Pingali Venkayya. It continued to be the flag of REPUBLIC OF INDIA.

August 15th, 1947

Indian Independence Act, 1947 made India attain 'dominion' status from its previous 'colony' status. The Indian Independence Act made the Assembly fully sovereign body, legislative body. Whenever the Assembly met as a Constituent body, Dr. Rajendra Prasad was the Chair and when it met as legislative body G.V Mavlankar would chair. Muslim league members left the assembly making the strength (299 = 229 Indian Provinces seats + 70 Princely state seats).

May 1949: Constituent Assembly ratified the India's membership of Commonwealth.

November 26th, 1949: Indian Constitution was adopted.

January 24th, 1950: Indian National Anthem was adopted.

January 26th, 1950: Indian Constitution came into force. 

Till August 15th,1947: India was a colony of British Empire.

From 15th August, 1947 - January 26th, 1950: India was a dominion under British.

After January 26th, 1950: India became sovereign democratic republic. Article 395 of the Indian constitution therefore repeals the Indian Independence Act, 1947. Hence republic of India came into being replacing the Government of India Act, 1935.

FYI: Pakistan remained dominion under British from 14th August 1947 and 23rd March 1956.