Indian Constitution Historical Background and Introduction

Introduction to the Constitution

Constitution is the supreme law of the land, which is fundamental in the governance of country.

It is considered to be the mother of all the laws and considered as document of hope which provides legitimate rights and ensure justice to the people of India. All the laws in India derived their sanctimonious sanctity with the very constitution itself.

Whereas, polity can be understand as practical application and study of not only constitutional framework but also the judgement given by the judiciary, it also includes the analysis of law made by the legislature mainly statutory laws and the understanding of political structure, recommendations committees, judgements of court from time to time and its analysis in a comprehensive manner essential for governance in India.

Early Demands of Constitution

During colonialist imperialist past, the Indian citizens were not treated as the citizens of the country in their own land. However, they were just treated as subject to the mighty British Empire which caused massive suppression of liberty their freedom, grave injustice were casted upon them, their wilful demands, legitimate rights were deprived resulting in trust deficit between the government and governance.

In the year 1895, it was Bal Gangadhar Tilak who raised his first legitimate demand of constitutional framework in the format of "Swaraj Bill" (According to the aspiration of people).

Later 1922-23, Mohandas Karamchand Gandhi categorially demand that Indian Constitution must be made after consulting Indians. This idea were supported by Motilal Nehru, as a result 1927-28, Nehru Report was drafted, considered to be official draft containing the letter and spirit of constitution that they believe would bring justice to the people.

In 1930, Indian National Congress (INC) under the leadership of Jawaharlal Nehru on 26^th January 1930 declared Purna Swaraj is the ultimate goal and objective for future course of action against the British Empire. 26^th January was celebrated as freedom day in 1930. The demand continued in 1934 MN Roy, one of the pioneers in the communist movement of Calcutta, demanded the very first time that India and Indian people must make constitution assembly formed it to draft constitution.

In 1935, INC the principal political party of India officially demanded for separate constituent at National level for Indian. In 1937 Congress intensified this demand at the provincial level by every party workers in every possible provincial meetings.

In 1939, the power and political dynamics were shifting towards Draconian Wars between the countries, World War II was proclaimed. Lord Linlithgow announced Indian participation against the Fascist forces without even consulting Indian leadership in the provinces. Linlithgow said that it is a war of freedom. Indian leadership said that the same freedom is denied to us. As a result Indian leadership resigned from the majority of provinces and intensified their demand for freedom.

In the year 1945 the war ended on a very sad note of Hiroshima and Nagasaki. The war resulted in the decline and stagnant economic growth, resulting in the change of government. In 1946 the government in Britain also got changed and the Labour Party, under the prime ministership of Clement Attlee, came to power. On seeing the situation of hostility in India and non-cooperation from the Indian people, Attlee declared the fate of Indian political discourse could be decided by the Indian themselves. As a result the arrival of cabinet mission happen.

Cabinet Mission

on 24 March 1946 a three-member delegation arrived from Britain, which included A.V. Alexander, Patrick Lawrence, Stanford Cripps for discussing the political discourse in India and its future. They primarily recommended two things in this regard

• Formation of Interim Government
• Formation of Constituent Assembly

Which was to happen after the election. Elections were organized in the provinces and the members in the centre constituent assembly were to be represented through indirect election to the constituent assembly. Also these were representations from princely and native princes who nominated a member to the constituent assembly.

India's population was roughly 39 crore so one billion per seat was the formula.

Diagram Here

When the Muslim League withdrew its support, the strength of the Constituent Assembly fell down. The remaining strength continued their aspiration towards making the Constitution. Finally in 2 years, 11 months, and 18 days, we made our Indian Constitution.

On 26 November 1949 we adopted the Indian Constitution but also enforced a few provisions of the Constitution in 1949, like provisions related to the citizenship, Article 60, Article 324, provisions related to the Constitution Assembly function as constituted parliament, etc.

However we finally enforce the Indian Constitution on 26 January 1950.

Why on 26 January 1950?

It has historical importance because on 26 January 1950 we declared freedom day and Purna Swaraj was the objective. Therefore to commemorate this day we decided to enforce this constitution on 26 January 1950.

The Political Status of India

Before Indian independence, i.e. 15 August 1947, the day of our Independence, India was a dependency, meaning a colony. After 15 August 1947, as we find, India and Pakistan were already created as two separate dominions so the status of India was a dominion. Dominion means a state with self-governing power, not fully independent.

Dominion refers to the self-governing political entity within the British Commonwealth. Post 26 January 1950 India became a sovereign democratic republic.

Constitutionalism

The theory of constitutionalism advocates that the authority of government must be defined by the law. The government must be limited in its actions.

Constitutionalism, in simple words, is a mechanism that provides legitimacy to a democratic government. Constitutionalism should not be confused with the legalities of the act or action of officials in the government setup.

Constitutionalism is even far more important than having a constitution itself. It can be regarded as the principle on which the fundamental governance is carried in a democratic set-up as it is considered a natural corollary of governance. The countries in the world may have a constitution but only a democratic country will follow constitutionalism.

Postulate is premised upon seven pillars:

1. popular sovereignty
2. responsible government
3. civilian control of military
4. police accountability
5. rule of law
6. independence of judiciary
7. separation of powers

Popular Sovereignty

Popular sovereignty lays down that the government authority or the government derives its legitimacy from people. No cooperative body, institution, or individual may exercise any authority that does not emanate from people.

Even though there is a sovereign entity which governs, ultimate sovereignty rests in the hands of the people of India only. It is the people of India that control the real power.

Separation of Power

Separation of powers divides and postulates that the mechanism of government and governance must be divided into three separate branches, i.e., legislative, executive, and judiciary.

As it abhors absolutism, prevents concentration of power, prevents tyranny, prevents total and improves efficiency in the governance structure.

Independence of Judiciary

An independent judiciary is a must for a liberal democracy to function and it is considered to be the foundational law of a free society. An independent judiciary ensures that the rights given to the people are not curtailed. For it to protect and act as a guardian.

Responsible government

In a democratic setup government is elected so that it can serve people who had elected them. The electorate choose their representative in a hope and aspiration that the government who is there in power would function according to the aspiration of the people with the responsible. It means accountable governance. Accountability means answerability.

Rule of law

This concept was popularized by A.V. Dicey, a British jurist, who considered the rule of law a foundational pillar in a democratic society. He said there are three important pillars:

1. Breach of law: It means a man is punished only if he has broken a law.
2. Equality before law: It means everyone should be treated equal in the eyes of the law.
3. Respect for Individual Rights: It means the rights of an individual must be protected.

Civilian Control of Military

Civilian control of military explained that the military or the defence forces should be under the control of civilized government or civilian government elected by the people. This has been manifested reciprocated in Article 53, Clause 2, in the Constitution of India, which says the President of India is the Supreme Commander of the Armed Forces.

This is a clear testimony that countries in the world may have had military coups. However India has a successful history of democratic ownership as a democracy is owned by people and protected by the Constitution.

Police Accountability

Police is an important pillar that is there to protect the rights in a civilized society, control law and order issues, and establish order. Therefore the police should be made accountable for its actions and inactions.

A good police is one which prevents crime, decreases the crime rate, ensures a higher conviction rate, and anticipates crime and takes appropriate action. Therefore it is essential for the police to be in check to prevent the establishment of a police state.

This concept of Constitutionalism is a living concept and is considered to be an inspiration to the very existence of our Constitution. This concept is also recognized in the landmark judgment of the Supreme Court, that is, Rameshwar Parshad V. Union of India, 2006.

Some Important Points Regarding Constituent Assembley

• Constitution was made in 11 sessions. However one more session was held to sign the Constitution.
• 24^th January 1950, we organized a special session for signing the Pandit Jawaharlal Nehru, who was the first, Firoz Gandhi, in the members was the last one to sign the Constitution out of 284 members. After that the President of the Constitution assembled. The Presiding Officer, Dr. Rajendra Prasad, signed the Constitution. On this very day we officially adopted the National Anthem.
• The Constitution had 15 women and the only Muslim woman was Begum Azal Rasool.