Constitution Important Sources,Features and Preambles

A Brief Introduction and Historical Background
(Source of Our Constitution)

Most of the provision of the Indian constitution have been borrowed from the constitution of several other countries as well as from the government of India Act 1935. Though sometimes this borrowing become a matter of criticism but no doubt the framers of our constitution deserve our gratitude for collecting the best features of other constitutions and modifying then in order to avoid the problems faced by them and making them suitable to the Indian Politico-Administrative system.

The major sources from which the constitution has been drawn are a follows:
A) The Government of India Act 1935: The Government of India Act 1935 provided the structure post of the constitution, and the federal scheme, judiciary, governors, emergency powers the Public Service Commissions have been borrowed from it.

B) The British Constitution: The political parts of the constitution i.e. the system of parliamentary government, cabinet system, single citizenship. Rule of law have been drawn from it.

C) The United States Constitution: The U.S. constitution became the source of the charter of Fundamental Rights, federal structure of the government, electoral college, judicial review and independence of judiciary.

D) The Irish Constitution: It provided the philosophical part i.e. the Directive Principles of State Policy method of Presidential election and the nomination of members to Rajya Sabha.

E) The Canadian Constitution: The concept of a quasi-federal form of government a federal system with a strong central government and the idea of residuary power of legislation with the centre has been borrowed from it.

F) The Australian Constitution: The various provisions regarding freedom of trade & commerce, the concurrent list of legislative subjects and the provisions for the joint sitting of the Parliament have been borrowed from the constitution of Australia.

G) The Weimar Constitution of Germany: The provision of suspension of fundamental rights during emergency has been borrowed from this constitution.

H) Constitution of the Soviet Union: On the recommendation of Sardar Swaran Singh Committee (1976), fundamental duties were incorporated into our constitution from the Soviet union Constitution.

I) Other: South Africa: Amendment of Constitution. Japan : Procedure established by Law.

(Features of The Constitution)

A. Lengthiest Written Constitution of the World

The constitution of India is the lengthiest of all the written constitutions of the world. Initially, it contained a Preamble, 395 Articles, 22 parts & 8 schedules. As of now, it has a Preamble, about 450 Articles, 24 parts and 12 schedules. Some of the factors leading to the elephantine nature of our constitution can be summarised as follows:

i) Since Government of India Act 1935 was adopted as a model for the Indian Constitution and it was a very voluminous document in itself. Thus it naturally made the constitution a lengthy document.

ii) The Indian constitution has elaborated provisional for Judiciary, Public Service Commissions, Election Commission, Controller and Auditor General of India etc. Which also makes it voluminous as compared to other constitutions.

iii) The Indian constitution has provisions regarding the administration of states. This is unlike the U.S. constitution where the state from their constitution separately. Since the federal constitutions is supposed to describe in details the rights and jurisdictions of the centre and the states. Thus making it more bulky in nature.

iv) The diversity and the vastness of the country with a pluralist tradition and variety of problems demanded varied solution. Thus it became the utmost priority for the constitution framers to tackle these issues with detailed solution and various provision, for example Part XVI of the constitution is related to Schedule Caste, and Schedule Tribe and Backward Classes separately, While the Fifth and Sixth Schedule are related to tackle the issues related to Scheduled Areas and Tribes separately.

v) In order to meet the growing region demand from several state such as Nagaland, Assam, Manipur, Andhra Pradeh, Maharashtra, Sikkim etc. Some specific articles have been inserted for example article 371, 371 A to 371-I, Thus making the constitution lengthier.

B. Parliamentary form of Government

In order to represent the pluralist tradition and interest of country, the framers of the Indian constitution have adopted the British Parliamentary System of Government rather than the American Presidential System of Government. This Parliamentary form of government ensures participation of the citizens in electing their representatives who in turn are responsible for the welfare of the former (citizen). Also, Parliamentary form of government reduces the risk of dictatorship and our man monopolistic approaches in the governance.

C. Federal Polity with a Unitary Spirit

The India constitution is considered as federal during normal circumstances while during the time of emergency it has the possibilities and provisions of being converted into a unitary one.

Some of the features of Indian constitution being a blend of federal unitary can be listed as below:
FEDERAL» One Government at the centre and other at the state level.
» Distribution of power between both the government.
» Written constitution.
» Supremacy of constitution.
» Independent judiciary and bicameralism.

UNITARY» Presence of strong centr al government
» Single constitution
» Single citizenship
» Appointment of state government by the centre
» All-India services
» Emergency provisions

However, the term ‘Federal’ has not been used anywhere in the constitution. And - ‘Article - I’ describes India as a ‘Union of States’ which is not the result of an agreement by the states; and no state has the secede from the federation. Hence, our constitution is described as ‘quasi-federal’ i.e. federal in form but unitary spirit.

D. Rigid as well as Flexible Constitution

A rigid constitution is that type of constitution which requires a special procedure of its amendment, while a flexible constitution can be amended like an ordinary law.

The Indian constitution is a combination of both, for example article 2,3,4, & 169 can be amended like ordinary legislation by simple majority in the Houses of Parliament, while article 368 provides special procedure of the amendment, which are:

i) Some provision can be amended by a special majority of the Parliament, i.e. a 2/3 majority of the members of each house present and voting, and a majority (more than 50%) of the total membership of each House.

ii) Some other provision can be amended by a special majority of the Parliament and with the ratification by half of the total states.

An authentic justification of this blended characteristic of the constitution was given by Pt. Jawaharlal Nehru, he said - “Our constitution in to be as solid and permanent as we can make it, yet there is no permanence in a constitution, There should be a certain amount of flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of living vital organic people”.

E. Secular State

The India costitution stands for a Secular State, it does not promote any particular religion as the official religion of the Indian states.

Some of the provisions which reveal the secular character of the Indian states are:i) The preamble secular to all citizens of India, likely of belief, faith and worship.
ii) Article - 4: The state shall not deny to any person equality before the law or equal protection of the laws.
iii) Article -15: The state shall not discriminate against any citizen on the ground of religion.
iv) Article - 16: Equal opportunity for all citizens in the matter of Public employment.
v) Article - 25: Freedom of practising and propagating any religion.
vi) Article - 27: No person shall be forced to pay any tax for the promotion of a particular religion.
vii) Article - 28: No religion instruction shall be provided in any educational institution by the state.
viii) Article - 29: Any section of the citizen shall have the right to conserve its distinct language, script & culture.
ix) Article - 30: All minorities shall have the right to establish and administer educational institution of their choice.
x) Article - 44: The state shall endeavour to secure for all the citizens a Uniform Civil Code.

While talking about the Western concept of secularism, it shows a complete isolation between the religion and the state. However being a multi religious country this type of isolated concept is not possible in India. hence, the Indian constitution gives equal respect to all the religious being practised in the country.

F. Fundamental Rights

Considered as the hallmark of the democracy fundamental rights are meant for the development of the individual as well as the society. They are justiciable in the nature and they operate as limitations of the executive and arbitrary laws of the legislature.

Broadly fundamental Rights are classified into the following groups:1) Right to equality (Art. 14-18)
2) Right to freedom (Art. 19-22)
3) Right to against exploration (Art. 23-24)
4) Right to freedom of religion (Art. 25-30)
5) Cultured and educational rights (Art. 29-30)
6) Right to constitutional remedies (Act. 32)

(*) The right to property was deleted as a fundamental rights by the 42nd Constitutional Amendment Act, 1978 & is and ordinary constitutional right now (Act 300-A).

G. Directive Principle of State Policy

Defined by Dr. B.R. Ambedkar as a novel feature of the Indian constitution, DPSP’s are a set of social and economic obligation imposed on the government (Union & State) to establish a welfare society. These principles are fundamental in the government of the country and are not enforceable by the courts for their violation.

DPSP’s are comprehensive in nature and they direct the activities of the state in political, economic, social, environmental, educational, cultural and international areas.

Furthermore, they can be classified into the following categories:

(i) Socialistic Category: Under this category the government aims to prevent concentration if wealth in few heads and provides right to work as well as participates actively in socio-economic affairs for the welfare of the poor, elderly & women (Art. - 38, 39, 41, 42, 43, 45, & 46 - discussed ahead).

(ii) Gandhian Principles: The Gandhian ideology revolves around the concept of empowerment of the citizens by means of decentralization of power to village the Gram Panchayat and Municipal Bodies, promotion of village and cottage consumption of intoxicating substance.

(iii) Social Integration: DPSP’s contain instruction for the Union & the State government to eradicate social disparities such as, gender biasness, casteism, exploitation of backward classes etc. (Art. - 39, 42, 44, 45, 46, 47)

(iv) International Relation: Since Independence, the Indian foreign policies has been the promoter & supporter of non-alignment and world peace in order to diffuse global tension and seeking international peace and cooperation (Art. - 50).

(The Preamble)

The Preamble refers to the introduction or preface to the constitution. It contains the essence of the entire constitution. The Constituent Assembly first met on Dec. 9th, 1946 and the preamble to the Indian constitution based on the ‘Objective Resolution’ drafted and moved byPandit Nehru on Dec. 13th, 1947.

Text of the Preamble

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 nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Components of the Preamble

Some of the important components of the preamble are as follows:(a) Firstly, It indicates the source of authority of the constitution i.e. it states that the constitution has to derive its authority from the people of India.
(b) Secondly, it defines declares India as a Sovereign, Socialist, Secular, Democratic and Republican State.
(c) And, it defines the objects which the constitution seeks to promote, such as - justice, liberty, equality & fraternity etc.

Preamble as a Part of the Constitution

The Supreme Court of India in the Berubari Case (1960) specially opined that Preamble is not of part of the constitution. (Verdict by Justice Gajendragadkar)
(*) Reference by the President of India under article 143 of the constitution on the implementation of the Indo-Pakistan agreement relating to Berubari Union and exchange of enclave - 1960.

Later on in the Kesavahanda Bharati case (1973) Justice Sikri of the Supreme court rejected the earlier opinion and stated the Preamble is a past of the constitution. However is not enforceable.
The Supreme court observed that the Preamble is of extreme importance and the constitution should be read and interpreted in the light of the grand noble vision expressed in the preamble.

Amendment of the Preamble

The question as whether the preamble can be amended under Article 368, arose for the first time in Kesavananda Bharati case (1873). It was urged that the preamble cannot be amended as it is not a part of the constitution. The petitioner contended that the amending power in Article 368 cannot be used to destroy or damage the basic elements of the constitution.

The Supreme Court, however held that the preamble is a part of the constitution, and hence it can be amended, subject to the condition that the basic or the fundamental features of the constitution as contained in the preamble cannot be altered by an amendment sender Article 368. So far, the preamble has been amended only once, i.e. in 1976, by the 42nd constitutional Amendment Act, which inducted three new words - Socialist, Secular & Integrity to it.

Conclusion / Importance

Like, any other part of the constitution, the Preamble was also enacted by the constituent Assembly, but it was inducted in the end. The main reason this was to ensure that the preamble has to be in conformity with the constitution as adopted by the Constituent Assembly. While forwarding the Preamble for voting, the President of the Constituent Assembly said. “ The question is that Preamble stands part of the constitution”

Hence the opinion held by the supreme court that the Preamble is a part of the constitution, is totally in consonance with the opinion of the framers of the constitution. Furthermore, the recognition if the Preamble as the part of the constitution has enhanced its value as an aid to interpretation of the constitution.

However, it is important to keep several in notice:

(i) The Preamble is not a source of power, Power must be founded on a specific provision.
(ii) Preamble cannot be regarded as a source of probation or limitation upon the powers of a legislature.
(iii) It is non-justiciable, i.e. its provisions are not enforceable in courts of law.