Samvidhan Diwas: Adoption of Indian Constitution and The Preamble

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Constitution Day is also celebrated as National Law Day (or Samvidhan Diwas) in India. It is celebrated on 26th November every year to commemorate the adoption of the Constitution of India. On 26th November 1949, the Constituent Assembly of India formally adopted the Constitution of India. It came into force on 26th January 1950.

History of how the Constitution of India came into being:

The two-month period between the adoption and enforcement of the Constitution was used for a thorough reading and translation from English to Hindi. The Constituent Assembly met for 166 days spread over two years, 11 months and 18 days before the Constitution was adopted.

The members of the Constituent Assembly signed two hand-written copies of the document (one each in Hindi and English) on January 24, 1950. Two days later, the Constitution of India became the law of the land. There were several critical issues debated including language, rights, minorities, governance structures.

On November 25, 1949, the day before the Constituent Assembly wound up its proceedings, BR Ambedkar made a moving speech. It ended with three warnings for the future. The first was regarding the place of popular protest in a democracy. “One must abandon the methods of civil disobedience, non-cooperation and satyagraha,” he said.

The second warning dealt with the unthinking submission to charismatic authority. “Bhakti in religion may be the road to the salvation of a soul. But in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship,” Ambedkar said.

His final warning was that Indians should not be content with political democracy as inequality and hierarchy were still embedded in Indian society. “If we continue to deny it (equality) for long, we will do so only by putting our political democracy in peril,” he said.

Significance of Constitution Day:

26th November was marked as the Constitution Day of India by Prime Minister Narendra Modi in the year 2015 as a part of a year-long celebration of the 125th birth anniversary of Dr B R Ambedkar. Constitution Day of India aims to bring awareness on the importance of the Indian Constitution and its architect, Dr B R Ambedkar.

Ambedkar was a renowned social reformer, politician and jurist and is also called the Father of Indian Constitution. He was appointed as the chairman of the constitution drafting committee on August 29, 1947.

Sources of Indian Constitution

The Constitution of 1950 was a by-product of the legacy started by the Government of India Act 1935. This was the longest act passed by the British government with 321 sections and 10 schedules. This act had drawn its content from four sources– Report of the Simon Commission, discussions and deliberations at the Third Round Table Conference, the White Paper of 1933 and the reports of the Joint select committees.

This act abolished the system of provincial dyarchy and suggested the establishment of dyarchy at the centre and a ‘Federation of India’ consisting of the provinces of British India and most of the princely states.

Most importantly, the act established the office of the Governor; all the executive powers and authority of the centre was vested in the Governor.

Some features of the Government of India Act 1935 were:

Federal Legislature: The act suggested that the legislature will have two houses, i.e., the Council of States and a Federal Assembly. The Council of States was the upper house which was a permanent body with a tenure of three years and composed of 260 members of which 156 were representatives of British India and 101 of the Princely Indian states. The Federal Assembly was the lower house with a tenure expanding up to five years and its composition included 250 representatives of British India and 125 members from Princely states.

Provincial Autonomy: This act enabled the Provincial Governments to be responsible only to Provincial Legislatures and helped them break free from external control and intrusion. It was with the establishment of this act that the powers between the centre and provinces were divided in terms of three lists – Federal list (59 items for the Centre), Provincial list (54 items for Provinces) and Concurrent list (36 items for both). The Residuary powers were handed over to the Viceroy.

The United Kingdom

A lot of concepts and features of the Indian Constitution have its roots in Great Britain. Some of those are:

Parliamentary form of government: In such form of government, the country is governed by a cabinet of ministers led by the Prime Minister. The Prime Minister is the head of the government whereas the President i.e. the nominal head, is the head of the state. The main feature of the parliamentary form of government is the availability of one or more opposition parties that exists to keep a check on the ruling party and its functioning.

Rule of Law: This basically states that a State is not governed either by the representatives or by the people but only by the law of that country. The concept of rule of law states that everyone is equal before the law; even the ones making it. Article 14 of the Indian Constitution codifies the rule of law.

Article 14: Right to Equality; The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The idea of a single citizenship: This implies that a person born or migrated to Indian Territory can enjoy the political and civil rights of India alone and no other country at the same time. Therefore, India does not allow dual citizenship. Indian state also does not recognize state citizenship implying that there should not be any demarcation made between the citizens of two or more states within the territory of India.

Writs: The Supreme Court and High Courts in India has the power to issue writs in order to make the Right to Constitutional Remedies [Article 32 to 35] available to the citizens. There are five writs – Habeas Corpus (produce the detained person before the court and release him if the detention is found illegal), Mandamus (an order from the Supreme Court or the High Court to a lower court to perform public duty), Certiorari (SC or HC issues the writ for quashing the order already passed by an inferior court), Prohibition (issued by the SC or the HC to a lower court to stop the latter from continuing with the procedures) and Quo-Warranto (restrains a person from holding a public office he is not entitled to hold). The Indian Constitution provides for these writs in Articles 32 and 226.

Article 32 (1): The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

Article 32 (2): The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

Article 226 (1): Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

The United States of America

Some of the features borrowed from the USA are:

Fundamental Rights: Articles 12 to 32 of the Indian Constitution contains all the fundamental rights. Fundamental rights are the basic human rights given to the citizens of the country to assure them an equal stance in society. The six fundamental rights are – Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies.

Judicial Review: The provision of Judicial Review gives the judiciary an upper hand in interpreting the Constitution. The judiciary can thus nullify any order by the legislature or executive if that order is in conflict with the Constitution of the country.

The Basic Structure Doctrine is an Indian judicial principle asserting that the power of the Parliament to amend the Constitution is limited by the Constitution.

It means that the Constitution has several basic features that cannot be amended. This applies only to Constitutional amendments and not to ordinary acts of the Parliament.

The initial stand of the Supreme court, that any part of the Constitution is amendable, whilst in compliance with the article 368, including the Fundamental Rights and the Article 368 was first challenged by Justice JR Madholkar in the year 1964, in his dissent of the Sajjan Singh vs State of Rajasthan judgement.

The Kesavananda Bharati vs State of Kerala proceedings (1973), a landmark ruling, answered one main question: Was the power of the Parliament to amend any part of the Constitution unlimited? This judgement ruled that the Constitution cannot be amended so as to affect the basic structure, in contrast to the earlier judgement in the 1967 Golaknath case, which had concluded that the Parliament cannot amend so as to take away the Fundamental Right of a citizen.

Indira Gandhi violated the Doctrine with Emergency in 1975 and tried to prevent her prosecution by the 39th amendment. Chief Justice Ray attempted to review the Kesavananda Bharati judgement by calling a bench of 13 Judges, including himself, but within two days, he was narrowed down by a majority of 12:1; and the 39th and 41st amendment were struck down.

Impeachment of the President and Removal of Judges: Article 61 of the Indian Constitution provides for the impeachment of the President through legislative procedures carried out by the two houses of the Parliament. Article 124 (4) of the Indian Constitution and the provisions of the Judges Inquiry Act of 1968 deal with the removal of judges.

Article 124 (4): A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Ireland

The main feature borrowed from the Irish Constitution is the provision of the Directive Principles of State Policy (DPSP). The DPSP are listed in Part IV of the Indian Constitution and it clearly states that it is the duty of the State to apply these principles in the process of law-making. There are mainly three categories of these principles – Socialist Directives, Gandhian Directives and Liberal Intellectual Directives. The procedure for the nomination of members to the Rajya Sabha is also borrowed from Ireland.

Canada

The provisions of a Federation with a strong centre, Residuary powers of the Centre, the appointment of State governors by the Centre and the advisory jurisdiction of the Supreme Court, have all been borrowed from the Canadian constitution. Article 248 of the Indian Constitution states that the Parliament has the sole power to make laws regarding any item not mentioned in the Union and State lists respectively. Article 143 provides for an advisory jurisdiction for the Supreme Court. Under this provision, the President may seek the opinion of the Supreme Court on public matters and the Supreme Court may then further give its opinion after studying the case properly.

France

The Indian Preamble borrowed its ideals of Liberty, Equality and Fraternity from the French Constitution. The Indian state came to be recognized as the ‘Republic of India’ in the lineage of the Constitution of France.

Australia

The Constitution of Australia lent us the provisions of Freedom of Trade and Commerce within the country and between the states. The provisions of the same are laid down in the Articles 301-307 of the Indian Constitution. We also received the provisions of the Concurrent List and the joint sitting of both the Houses of Parliament from Australia.

South Africa and Germany

While the Constitution of South Africa gave us the provisions of the procedure of the amendment and the Election of the Rajya Sabha members, the German Constitution, gave us the provision of suspension of fundamental rights during the emergency.

The Preamble to the Constitution of India:

“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.”

Adoption of The Preamble

In the nationwide protests against the Citizenship Amendment Act, many have held up the Constitution of India, saying the Act goes against it. Many of the programmes have been marked by a reading of the Preamble, which is reflective of the essence of the Constitution of India.

The original Preamble, adopted by the Constituent Assembly in 1949, declared India a “Sovereign Democratic Republic”. By the 42nd Amendment of 1976, enacted during the Emergency, the words “Socialist” and “Secular” were inserted; the Preamble now reads “Sovereign Socialist Secular Democratic Republic”.

Resolution and discussion

The Preamble is based on the Objective Resolution moved by Jawaharlal Nehru in the Constituent Assembly on December 13, 1946. The Resolution was adopted on January 22, 1947.

Constituent Assembly President Rajendra Prasad told members: “The time has now arrived when you should give your solemn votes on this Resolution. Remembering the solemnity of the occasion and the greatness of the pledge and the promise which this Resolution contains, I hope every Member will stand up in his place when giving his vote in favour of it.”

The Resolution was adopted, all members standing.

On October 17, 1949, the Constituent Assembly took up the Preamble for discussion.

Hasrat Mohani proposed that India, instead of being designated as “a Sovereign Democratic Republic”, be made “a Union of Indian Socialistic Republics to be called UISR, on the lines of USSR”. This was objected to by Deshbandhu Gupta, who contended that “it is out of order because it goes counter to the Constitution we have passed”. Mohani replied that he had not said “we should go and merge in the USSR or that you should adopt the same Constitution; but what I want to say is that we should work out our Constitution along the lines and on the pattern of Soviet Russia. It is a special pattern and also republican pattern and also it is of a centrifugal pattern”.

After Prasad informed the Assembly that members had given notices for moving a number of amendments, H V Kamath moved a motion proposing the Preamble begin with: “In the name of God, We, the people of India…”

“Let us consecrate this Constitution by a solemn dedication to God in the spirit of the Gita: Yatkaroshi yadashnasi Yajjuhoshi dadasi yat Yattapasyasi kaunteya Tatkurushwa madarpanam.”

He said: “Whatever our shortcomings, whatever the defects and errors of this Constitution, let us pray that God will give us strength, courage and wisdom to transmute our baser metal into gold, through hard work, suffering and sacrifice for India and for her people. This has been the voice of our ancient civilisation, has been the voice through all these centuries, a voice distinctive, vital and creative, and if we, the people of India, heed that voice, all will be well with us.”

Thirumala Rao argued that “it should not be subjected to the vote of a House of 300 people whether India wants God or not. We have accepted that God should be there in the Oath, but for those who do not believe in God, there is an alternative there, but there is no possibility of a compromise which can provide for both the things in the Preamble”. He suggested Kamath withdraw his amendment.

Hriday Nath Kunzru regretted that “our most sacred feelings should have been brought into the arena of discussion”. He felt Kamath’s proposal was “inconsistent with the Preamble which promises liberty to thought, expression, belief, faith and worship to everyone”. Rohini Kumar Chaudhuri endorsed Kunzru. He cited Vande Mataram and said: “It means an invocation to a Goddess… We who belong to the Sakthi cult, protest against invoking the name of God alone, completely ignoring the Goddess… If we bring in the name of God at all, we should bring in the name of the Goddess also”.

Rejecting pleas by both Prasad and B R Ambedkar to drop his amendment, Kamath pressed his motion along with a demand for a division. A vote was taken, and the motion was rejected 41-68. Kamath’s reaction was: “This, Sir, is a black day in our annals. God save India.”

Gandhi and the Preamble

Shibban Lal Saksena moved a motion proposing that the Preamble read: “In the name of God the Almighty, under whose inspiration and guidance, the Father of our Nation, Mahatma Gandhi, led the Nation from slavery into Freedom, by unique adherence to the eternal principles of Satya and Ahimsa, and who sustained the millions of our countrymen and the martyrs of the Nation in their heroic and unremitting struggle to regain the Complete Independence of our Motherland..”

Brajeshwar Prasad opposed this, arguing: “I do not want that the name of Mahatma Gandhi should be incorporated in this Constitution because it is not a Gandhian Constitution. The foundation stones of this Constitution are the decisions of the American Supreme Court. It is the Government of India Act, 1935, repeated again. If we had a Gandhian Constitution, I would have been the first to offer my support. I do not want that the name of Mahatma Gandhi should be dragged in the rotten Constitution.”

Observing that “it is not behoving us to vote on this amendment”, J B Kripalani made a request to Saksena to withdraw it. He said: “I yield to nobody in my love and respect for Gandhiji. I think it will be consistent with that respect if we do not bring him into this Constitution that may be changed and reshaped at any time.” Saksena withdrew the amendment.

Govind Malaviya had given a notice for moving an amendment, which ran: “By the grace of Parameshwar, the Supreme Being, Lord of the Universe (called by different names by different peoples of the world). From whom emanates all that is good and wise, and who is the Prime Source of all Authority, We the people of Bharata (India), Humbly acknowledging our devotion to Him, And gratefully remembering our great leader Mahatma Mohandas Karamchand Gandhi and the innumerable sons and daughters of this land who have laboured, struggled and suffered for our freedom…”

Ambedkar and P S Deshmukh noted the Assembly had already decided on the names of God and Mahatma Gandhi. This was accepted by Rajendra Prasad and Govind Malaviya.

‘Secular’ & ‘Sovereign’

Brajeshwar Prasad felt the word ‘Secular’ should “be incorporated in our Preamble because it will tone up the morale of the minorities…” He also wanted the word ‘Socialist’ included in the Preamble because “I believe that the future of India is in Socialism”. He was against “any undue emphasis upon this word sovereignty” because he felt that “sovereignty leads to war; sovereignty leads to imperialism”. His amendment was negatived.

Purnima Banerji proposed an amendment with “the sovereignty of the people” mentioned. Mahavir Tyagi supported her. “The sovereignty must be vested in so many words in the people as a whole,” he argued.

“Sir, you like a good host, have reserved the choicest wine for the last,” said J D Kripalani. “This Preamble should have come at the beginning of the Constitution even as it is given in the beginning of the Constitution… It would have cautioned us that we were not deviating from the basic principles which we have laid down in the Preamble…”

Kripalani added: “As we have put democracy at the basis of your Constitution, I wish Sir, that the whole country should understand the moral, the spiritual and the mystic implication of the word ‘democracy’. If we have not done that, we shall fail as they have failed in other countries. Democracy will be made into autocracy and it will be made into imperialism, and it will be made into fascism… I also say democracy is inconsistent with caste system… Then we have said that we will have the liberty of thought, expression, belief, faith and worship… All these freedoms can only be guaranteed on the basis of non-violence… Mere tolerance will not carry us far… We have to respect each other’s faith.”

He suggested that the Assembly adopt the amendment proposed by Banerji. He said: “A Minister says ‘Our Government’ not ‘The People’s Government’. The Prime Minister says ‘My Government’ not ‘The People’s Government’. Therefore, on this solemn occasion, it is necessary to lay down clearly and distinctly, that sovereignty resides in and flows from the people.” The members responded with loud applause.

‘From the people’

Ambedkar, who replied to the discussion, said the point was whether the Preamble as drafted conveyed any other meaning than what was the general intention of the House — “that this Constitution should emanate from the people and should recognise that the sovereignty to make this Constitution vests in the people”. “My contention is that what is suggested in this amendment is already contained in the draft Preamble.”

Ambedkar said: “No person in this House desires that there should be anything in this Constitution which has the remotest semblance of its having been derived from the sovereignty of the British Parliament… In fact, we wish to delete every vestige of the sovereignty of the British Parliament such as it existed before the operation of this Constitution.” He declared: “I say that this Preamble embodies what is the desire of every member of the House that this Constitution should have its root, its authority, its sovereignty, from the people. That it has.”

Ambedkar rejected Banerji’s amendment. It was also negatived.

Thereafter, the Preamble was adopted.

The constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens' justice, equality and liberty, and endeavours to promote fraternity. The original 1950 constitution is preserved in a helium-filled case at the Parliament House in New Delhi. The words “secular” and “socialist” were added to the preamble in 1976 during the emergency.

The Constitution of India lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth.

It is influenced by other constitutions. The concepts of Liberty, Equality, and Fraternity were taken from the French Constitution.

The concept of five-year plans was taken from the USSR. The Directive Principles were taken from Ireland. The laws on which the Supreme Court functions were taken from Japan.

Various departments of the Government of India celebrated the first Constitution day in 2015. The preamble of the constitution was read in all schools by all students. In addition, there were quiz and essay competitions both online and offline on the subject of the constitution of India. There was a lecture on salient features of the constitution in each school.

The Department of Higher Education requested various universities to arrange mock parliamentary debates in colleges, and the University Grants Commission (UGC) arranged an all-India quiz competition at Ambedkar University, Lucknow.

The Ministry of External Affairs directed all overseas Indian schools to celebrate 26th November as Constitution Day and directed embassies to translate the constitution into the local language of that nation and distribute it to various academies, libraries and faculties of Indology.

The Constitution of India is the backbone of democracy in our country. It is an umbrella of rights that gives the citizens an assurance of a free and fair society. We must abide by it at all costs.

Fundamental Duties = Fundamental Rights

Fundamental duty is a moral and socio-civic duty that every responsible citizen should follow and practice. The strict following of fundamental duties is quite imperative but failure to do so will not impose any sanctions. It is just a remainder and mere obligation to the citizens who live in a democratic country.

Every accountable and responsible citizen of India must know the fundamental duty provided by the Constitution. The need to follow becomes mandatory in one hand but failed to do so will not impose any legal sanction on the other hand. This unrestricted nature of these duties paved way for the observance or ignorance.

Thus, the fundamental duties become a mere obligation. The constitution of India provides some fundamental rights and duties in the PART - III and PART – IV A. Individual should know that rights and duties cannot go separate. To ensure one's claim towards the fundamental right the fundamental duties followed by that person will be checked before the court of law. Failure of performance of duty the person claims for his/her fundamental rights becomes invalid.

As an instant remainder to the citizens following and practising fundamental duty is necessary. This should be realized by every citizen of the State. We people are the State and the State is by the people. Every responsible individual must understand the need to follow the fundamental duties to attain unity and to develop the integrity of the nation.

As Winston Churchill said: “The price of greatness is responsibility”

Under PART – IV A of the Indian Constitution article 51A deals with the fundamental duties. These duties are inserted by the 42nd and 86th amendment act of the constitution. A fundamental duty plays a vital role in the society of every individual.

The phrase mentioned in article 51A itself indicates that the duties are obligatory since it says that, 'It shall be the duty of every citizen of India'. It does not impose any command to follow the duty. It uses the word 'shall' and not must. Thus, Article 51A lays down a total number of 11 fundamental duties.

Every patriotic citizen must try to know the importance of fundamental duties beforehand the fundamental rights. The fundamental duties in India are given under article 51A of PART – IV A of the Indian Constitution.

It is crucial that we must carry out our fundamental duties as much we enjoy our fundamental rights; thus, honouring our constitution!


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