We discuss below sources of the constitution which can be described as:
(i) Seminal and
(ii) Developing.
I. Seminal Sources:
These are those sources which were responsible for influencing the framing of the constitution of India. The fathers of the constitution ransacked top constitutions of the world and adopted those features which they considered suitable to the genius of the country. These sources already existed. We only owned them from foreign sources.
They are as follows:
(A) Government of India Act 1935:
A critic has portrayed the Indian constitution “as a glorified edition of the 1935 Act”. Robert Hardgrave is of the view that out of 395 articles 250 articles are such which have either been adopted in toto from 1935 Act or have been slightly amended and then adopted. Dr. D.D. Basu also holds similar opinion. He feels that 75 per cent/ of the Indian constitution has been adopted from the Articles of 1935 Act.
Dr. Jennings remarks, “The Constitution derives directly from the Government of India Act of 1935 from which in fact many of the provisions are copied almost textually”. Articles 256, 351, 352, 353, 356 are carbon copies of sections 126, 107, 102 and 93 of 1935 Act respectively. The federal system of government, the autonomy of units, the three lists, the reservation of seats for backward classes, the constitutional relations between the states and the centre, and the Federal Judiciary are borrowed from the Act of 1935.
Srinivesan aptly remarks, “both in language and substance it is a close copy of the Act of 1935.” In fact, the size, the contents, arrangements of provisions in the Indian constitution bear close resemblances to Government of India Act 1935. Dr. Panjab Rao Deshmukh said, “The constitution is essentially the Government of India Act with only adult franchise added.” Though we have drawn tremendously from the Act of 1935, yet the difference between the two cannot be easily ignored.
Difference between Indian Constitution and Act of 1935:
(i) The Act of 1935 was a creation of an alien parliament whereas Indian Constitution is a fundamental law framed by a free nation to shape its destiny.
(ii) Separate Electorates which sowed the seeds of dissensions was the keystone of the Act of 1935. The Indian Constitution abolished separate electorates and substituted joint electorates in their place, though with reservation of seats for scheduled castes, scheduled tribes and also special provision for Anglo Indians.
(iii) The Act of 1935 gave right to vote only to 14 per cent of the population. The Constitution of India introduced universal adult franchise.
(iv) There was no provision of Fundamental Rights in the Act of 1935. Articles 298 and 299 made only a mention of few rights.
(v) The act of 1935′ did not make mention of ideals to be followed by the Government.
(vi) The Act of 1935 did not confer right of self government on the princely states (Indian India). The Constitution of India abolished the distinction between Indian India and British India (Indian provinces) and brought the entire country under single uniform policy. Process of Integration and democratization of states reduced about 500 princely states into a few units under the Indian Government. The autocratic rulers of states of the British times were replaced by democratically elected ministers.
(vii) The Act of 1935 had vested lot of discretionary powers with the Governor General at the Centre and to the Governors in the Provinces. Besides, they were vested with ‘special responsibilities’, in the fulfillment of which they could consult the ministers but were allowed to act according to their Individual judgement. The Indian Constitution abolishes such discretionary powers of the Heads both at the centre and in the states and does not vest with them the special responsibilities which previously allowed their counterparts to exercise individual judgement.
(viii) The Act of 1935 did not empower central or state legislatures to effect amendment in the Act. The requisite power was vested with the British Parliament. The Indian Constitution vests this power with the Parliament and also the state assemblies in certain vital matters.
(ix) The Act of 1935 set up Federal Court but the final appellate authority was the Judicial Committee of the Privy Council. The Constitution of India on the other hand vests supreme judicial authority with the Supreme Court, whose decisions are final. The differences pointed out above reflect that we did take certain provisions of the 1935 Act but we modified them according to our circumstances and exigencies of times.
(B) Influence of Foreign Constitutions:
An analysis of the Indian Constitution reveals that it has been substantially influenced by well framed constitutions of some of the developed democracies of the world.
1. Impact of British Constitution:
The British Imperialists ruled over India for over 200 years. Under the influence of perpetual struggle for Independence since 1857, the British rulers have been gradually setting up representative institutions to appease the Indian leaders. These institutions attracted the attention of leaders of times and were owned when Independence was conferred. Besides some of their conventions and Institutions considered useful for running of our democratic set up, were adopted.
The following were some of such institutions and practices adopted by us and duly adapted to the genius of our country:
(i) Parliamentary system of Government which provides for constitutional head of the state and also real head of the Government is an import from Great Britain. They have monarch as the nominal head of the state and prime minister, the elected head of the majority party in the lower house as the head of the government enjoying the real powers. We had opted for Republic instead of monarchy.
Hence President was to be nominal head of the state (a constitutional ruler) and Prime Minister elected head of the majority party (now a coalition) as the head of the government. The council of ministers headed by the prime minister is collectively responsible to the lower house in both the countries.
(ii) The speaker of the Lok Sabha like his counterpart in Great Britain is neutral in politics in the House. He is to be non-partisan. However unlike British speaker he does not get sentence of exile from politics. He remains a partyman outside the House. Hence unlike in U.K. the Indian speaker is changed when the other party comes in power. In U.K. ‘once a speaker always a speaker’ principle is followed. That is not the case in India. For example Manohar Joshi was the speaker in the preceding Lok Sabha dominated by NDA led by BJP. Prior to the constitution of XVth Lok Sabha, Som Nath Chatterjee a marxist supported by Congress and other members of UPA (United Parties Alliance) happened to be the speaker. Presently Meira Kumar holds the office of the speaker.
(iii) Like Great Britain India has opted for Bicameralism. Lok Sabha (the lower house) like its counterpart, the House of Common in U.K. is more powerful than Rajya Sabha (the Upper House). House of Lords—the Upper House in U.K. and the Rajya Sabha—the Upper House in India are secondary chambers both in powers, and influence.
(iv) Like U.K. India has opted for the concept of Rule of Law. Equality before law prevails in both the countries. Though we have opted for Parliamentary form of Government as in U.K., yet we have not hesitated to mould it according to our circumstances. Besides, U.K. Constitution is convention-ridden mostly unwritten whereas Indian Constitution is a bulky document—presently comprising 443 articles.
2. Imprint of USA:
The Constitution of USA also had tremendous influence on the Indian Constitution. Like USA India opted for written constitution. Though ours’ is a huge document unlike that of American Constitution which is too brief written constitution, the following features have still been adopted from American Constitution.
(i) Like USA we have provided Preamble of the Constitution which is not part of the constitution but which precedes it. Our Constitution commences like that of American Constitution, with the words, “We the, people of…….. ” i.e. In case of USA, it is the people of USA, in our case, the people of India.
(ii) The Supreme Court of India which is the chief appellate authority in the country is the counterpart of American Supreme Court. Both are the saviors of the constitution and guardian of Fundamental Rights. Both possess judicial review authority which has turned them into third chambers. Judicial over-activism of Indian Supreme Court is comparable with judicial despotism of American Supreme Court. Independence of judiciary is considered the hall mark of judicial system in both the countries
(iii) The constitution amending procedures in both the countries bear similarity to a considerable extent. In certain matters, in both the countries besides ratification of central legislature, the ratification of state legislatures is also required.
(iv) The powers and status of Vice-Presidents in both the countries is almost the same. In India, however, the Vice-President is the ex-officio chairman of the Rajya Sabha but that is not the case in USA. Besides if President of USA dies in office, the Vice-President becomes the President for the remaining period of Presidential tenure.
In India, the Vice-President can hold the office in case of vacancy till the President is elected. He can enjoy this tenure during vacancy of office maximum for six months. In other words, the Constitution of India makes it obligatory to re-elect the president within six months of Presidential vacancy. This clearly reflects deviation from American practice suiting our circumstances.
3. Canadian Influence:
We have opted for Federal structure of Government on Canadian pattern. Like Canada, we have made centre more powerful. Our Federal structure is termed ‘Quasifederal’ i.e., Federal with unitary bias’. Canadian Centre is very powerful, so is the case with Indian Union government. Special powers have been accorded to the Union government for meeting all possible eventualities.
The division of subjects between the centre and the units and provision of lists is to a great extent on Canadian lines. The Canadian constitution provides for lists of legislative powers, central and provincial. The residuary powers have been given to the centre. The Indian Constitution refers to three lists—union, state and concurrent. The residuary powers have been entrusted to the centre. Evidently Indian Constitution has ‘Concurrent List’ an additional list, the rest of division of powers seems to be similar to the Canadian Constitution.
4. Australian Constitution’s Impact:
In drawing up an elaborate concurrence List, the fathers of Indian Constitution followed the Australian pattern. Under the Australian Constitution, the subjects in the concurrent list are 39. In India the Concurrent list had 37 subjects to begin with. They were increased to 52 subsequently. The method of resolution of disputes between the centre and the states has also been taken from Australia (Article 251 by the Indian Constitution.
5. Irish Constitution’s Influence:
(i) The directive principles of state policy have been adopted from Irish constitution.
(ii) The system of election of President of India through specially constituted Electoral College has been drawn from Irish constitution.
(iii) Representation of talent in the Rajya Sabha (to the extent 12) has been adopted from Irish Republic (Sinead Eireaun). In case of India, these 12 nominated members are to be drawn from persons having special knowledge or practical experience in respect of matters like science, art, literature or social service.
6. Impact of Constitution of Japan:
(i) A balance between Parliamentary sovereignty and judicial supremacy has been maintained on the lines of constitution of Japan.
(ii) The law making procedure laid down in the Indian Constitution has also been considerably influenced by the constitution of Japan.
7. South Africa’s Influence:
The procedure of constitutional amendment and also the method of election of the members of Rajya Sabha have been drawn from the constitution of South Africa.
8. Influence of Weimer Constitution of Germany (1926):
The Emergency powers vested with President of India are on the lines of similar powers conferred on the President of German Republic according to Article 48 of Weimer constitution of Germany. However these powers were later abused by Hitler when he came to power and assumed dictatorial authority. In India also emergency powers are said to have been abused during the Prime Minister ship of Mrs. Indira Gandhi. These emergency powers when incorporated in the Indian Constitution led a member of the Constituent Assembly to remark “It is a day of shame, God save the Indian people.”
II. Developing Sources:
The developing sources also have played a vital part in the evolution of the constitution.
These sources are as under:
(A) Acts of the Parliament:
In order to meet administrative exigencies the Parliament is empowered to pass acts. Numerous acts have been passed in this respect which has added to the bulk of our constitution.
Some of these acts are as under:
(i) Presidential and Vice Presidential Act, 1952:
The election of the President and the Vice-President are conducted according to this Act.
(ii) President Act of 1974:
The act lays down that the chief justice of India will work as President of India in case office of the President falls vacant and the Vice- President is also not available for the purpose. In case Chief Justice of India is also available, the senior most judge of the Supreme Court will discharge the duties of the President.
(iii) The Finance Commission Act 1951:
The organisation and functioning of the Finance Commission is governed by the Act.
(iv) Conditions of Service Act, 1976:
The duties of the Comptroller and Auditor General of India have been elaborated in his powers and conditions of service, through this Act.
(v) Inter State Water Disputes Act, 1956:
The Interstate river waters disputes Tribunal has been set up to decide interstate water disputes.
(vi) Representation of People Act, 1951:
The elections to the Union and State Legislatures are conducted according to this Act (as amended from time to time).
(vii) The Delimitation Commission Act, 1962 as amended in 1972:
The territorial constituencies for elections to Parliament and State Legislatures and constituted by Delimitation Commission according to this Act.
(viii) Preventive Detention Act 1950 and Prevention of Terrorism Act 2002 are two important acts which entailed lot of criticism at the hands of various sections of society.
(ix) Besides the above, the reorganization of states acts has been passed from time to time to carve out new states. Likewise parliament has been passing Acts every now and them to enhance the number of judges of the Supreme Court. The salaries and allowances of ministers out the legislators have been governed by the Acts of Parliament.
The governors’ emoluments, allowances and privileges have been re-fixed by Amendment Acts. On December 12, 2003 Lok Sabha passed a Bill amending the representation of Peoples’ Act debarring convicts of heinous crimes from contesting elections for 6 years. Such examples have been multiplied.
(B) Judicial Decisions:
Judicial decisions have enabled the judiciary to arrogate to itself supreme position. Judicial activism is being portrayed as judicial despotism by the Indian critics. There is however no denying the fact that some of the decisions have resulted in evolution of the constitution on right lines. However at times decisions of Judiciary have been reversed causing confusion and entailing legal complexities. At times such decisions have come to the rescue of union government to bridle state chief ministers going beyond their jurisdiction on defying state agreements. Here are a few examples.
(a) In Beruhari Reference Case (1960) the apex court decided that any part of the territory of India could be ceded to a foreign state by effecting amendment in the constitution. The act of 1976 (42nd amendment made directive principles sustainable). Supreme Court’s decision of May 9, 1980 reversed the ascendency of directive principles which was accorded to them by Act of 1976. The decision of the Court struck down section 55 of amendment act 1976 which had vested unlimited powers with Parliament to amend the constitution.
It also struck down section 4 of the act which accorded privacy to the directive principles over fundamental rights, (d) In Balaji case (1963) the Supreme Court laid down that the percentage of reservation of schedules castes and scheduled tribes in recruitment to public services should not be more than fifty.
In 1974 the Supreme Court opined the Presidential Elections must be held irrespective of the fact that a state had no legislative assembly at that time. In the Mandal case (1992) the reservation favouring socially and educationally backward classes and castes was allowed on the condition that the total number should not exceed the limit of 50 per cent of the jobs or seats.
In famous Bommai case (1994) the apex court ruled that the satisfaction of the Indian President in invoking article 356 was challengeable in the court, though President could use his discretion in the matter. On January 23, 2004 the Supreme Court held that the citizens had fundamental right to hoist the national flag on premises.
On March 13,2003 Supreme Court struck down a provision in the representation of the People Act. Thus voters had fundamental right to know the antecedent of a candidate. The act on the other hand, provided that the candidates were not bound to furnish certain information. The Supreme Court held, a voter is a first citizen of this country and apart from statutory rights he is having fundamental rights conferred by the constitution.
On December 17, 2003 it held that lawyer’s strike was illegal. They should not resort to even a token strike or give a call to boycott. In a historic judgement on April 17, 2008 the Apex Court held that a tenant occupying commercial premises was no different from the one who lived in a rental house and can be evicted by the landlord. It declared section 14(l) (e) of 1958 Act unconstitutional as it violated the doctrine of equality embodied in Article the 14 of the constitution. It had deep impact on numerous shopkeepers in the capital.
(C) Orders and Decrees of the Chief Executive:
The chief executive is empowered to pass orders or issue decrees in order to implement various provisions of the constitution.
To quote a few examples:
(a) President of India has been issuing orders from time to time to extend jurisdiction of the Election Commission and the Supreme Court to Jammu and Kashmir,
(b) The President by orders have been fixing the number of judges in the State High Courts,
(c) In 1969, the President not only invoked Article 356 for imposing emergency in West Bengal but dismissed speaker of the Assembly in contravention with article 179(c),
(d) In 1970, president by an order derecognized the rulers of the Princely states. This order was later declared null and void by the Supreme Court. However 26th Amendment Act 1971 again reorganized them. The rulers of the states were deprived of even the privy purses,
(e) The union territories and scheduled areas administered by the orders and decrees of the President,
(f) On October 21, 2003, the union cabinet cleared two ordinances—(a) to amend the Delimitations Act 2002, so as to proceed on the basis of 2001 census for carrying out exercise of removing of disparities in the size of electoral constituencies and refaxing the number of constituencies for scheduled castes and tribes, (b) The ordinance may substitute the year 1991 by 2001.
Such orders and decrees which have the force of law, are later approved by the Parliament.
(D) Amendments of the Constitution:
Though the Indian Constitution is the bulkiest constitution yet from time to time amendments have been required to meet the exigencies of time.
Some of the most important amendments are referred below:
(a) The first Amendment Act 1951 initiated protective discrimination favoring scheduled castes and scheduled tribes. This has been done to usher in era of social justice in the country. This has been implemented while making recruitment to the public services or college and school admissions.
(b) The 15th Amendment Act 1963 raised the age of retirement of the judges of the High Court’s from 60 to 62 years,
(c) The 25th Amendment Act (1971) substituted word ‘Amount’ for ‘compensation’ in order to end disputes on the acquirement of private property for a public purpose,
(d) The 28th Amendment Act (1972) abolished certain privileges of the officers retired from Indian Civil Service,
(e) The 42nd Amendment Act (1976) introduced words ‘secular’ and ‘socialist’ in the preamble to the constitution. It bound the President to act on the advice of the ministers,
(f) The 44th Amendment Act (1978) repeated most of the provisions of 42nd Amendment Act. It removed the right to private property from the list of Fundamental Rights. It converted it into ordinary legal right. Some changes in emergency provisions were also made,
(g) The 73rd Amendment Act (1992) conferred constitutional status on the village panchayats.
(h) The 74th Amendment Act (1992) added schedule XII in the constitution specifying eighteen powers of the municipalities.
(i) The 79th Amendment Act 1999 extended the reservation for the scheduled castes and scheduled tribes in Parliament and State Legislatures from 1999 to 2009.
(j) The 80th, 81st and 82 Amendments were effected in 2000 for carving out three new states of Chhattisgarh, Uttaranchal and Jharkhand.
The 93rd Constitution Amending Bill which was passed by the President of India on December 13, 2003 makes elementary education a fundamental right and makes education compulsory till IXth class. All the children in the age group of 6 to 14 have been assured fundamental right to free and compulsory education. It is the fundamental duty of parents/guardians to provide opportunities for education to children of this age group.
The 94th Amendment Bill (2003) made a provision for setting up a national commission for the schedule tribes and another to keep intact the existing representation of tribal and non-tribals in Assam Legislative Assembly.
The 96th Amendment Bill passed by the Lok Sabha and Rajya Sabha on 6th and 8th May, 2003 respectively sought to make the 2001 census the basis for delimitation of constituencies of the Lok Sabha and State Legislatures. The 93rd Amendment Act 2005 was put into effect on January 20, 2006. Ninety four amendments have been effected so far. A few are in the process.
(E) Conventions:
Conventions provide flesh to the dry bones of law. In U.K. conventions have erected constitutional edifice. They did not formally frame the constitution. In India we have a very comprehensive constitution. It contained 395 articles to begin with. Presently, it has 443 articles. Still conventions followed in India have been very significant.
A few examples are as under:
(a) Prior to the passage of 42nd Amendment Act 1976 the advice of the Council of Ministers was to be accepted by the President in keeping with parliamentary convention. It entailed speculation and controversy. Hence the Act of 1976 made the advice of the Council of Ministers binding on the President.
The 44th Amendment Act 1978 authorized the President to ask the Council of Ministers to reconsider this advice. However the President is required to act on the advice after reconsideration of a Bill by the Council of Ministers. In the recent past ‘office of profits bill’ which was sent back by President on May 30, 2006 but on repassing of the same without amendment President had to accord his consent on August 18, 2006.
(b) If the President of India hails from the North the Vice President should be drawn from the South on vice versa.
(c) A Governor of a particular state must belong to state other than the one where assigned this position.
(d) If the Lok Sabha Speaker belongs to the ruling party, the Deputy Speaker must be drawn from the opposition.
(e) If the President appoints a Prime Minister not backed by absolute majority the latter must seek the vote of confidence of the Lok Sabha within a month.
(f) Chief Justice of India should be appointed on the basis of the rule of seniority of the judges of the Supreme Court.
(g) Vice-President should succeed the President.
(h) The speaker of Lok Sabha should be non-partisan in the House though he may remain a party man outside the House.
(i) There should at least be one Muslim judge in the Supreme Court, in consonance with secular spirit.
(j) Prior to the issuing of summons to the members of Parliament for the attendance of session and before the sessions of Parliament, the President consults the Presiding officers of both the Houses.
(k) The Introduction of railway budget before the presentation of the main Budget is to be done in the last week of February.
(l) The Chairman of Public Accounts Committee of the Parliament is to be drawn from any party in the opposition.
Ours’ is a developing democracy. Some of healthy precedents have been dishonored with the fast erosion of principled politics. For example Speaker of Lok Sabha at times could not leave party colour even in the House, senior most judge was superseded and office of Chief Justice was entrusted to a junior man. The unwritten maxims of the constitution termed conventions have in fact filled up the ‘vacuum’ in the constitution and made it more workable.