Sources Of Indian Constitution

Table of Contents hide

Introduction

The Constitution of India is the supreme law of India. It was ratified on 26th November 1949 by the Constituent Assembly, and finally, it came into force on 26th January 1950. It is regarded as the lengthiest written Constitution in the world, comprising 395 Articles in 22 Parts and 12 Schedules. It is the quintessential document of the eclectic compendium of the prominent features or ideals of the contemporary Constitutions of many other countries. The ideals or political thoughts of the Constitutional democracy and the Rule of law greatly inspired the framers of the Constitution to draw the distinctive elements of the numerous sources. The father of the Indian Constitution, Dr. B.R Ambedkar, often termed it ‘the bag of borrowers’ because it was framed after ransacking the elements of other contemporary Constitutions of the world. Because of its borrowings from numerous resources, diversity, plurality, vastness, and distinctiveness are some of the intrinsic characteristics.  The noticeable sources of the Indian Constitution are discussed below.

The Government of India Act, 1935

The Government of India Act, 1935, was enacted by the British Parliament in the year 1935. It contained 321 Sections and 10 Schedules. It is considered one of the most significant sources of the Indian Constitution because considerable essential features of the Constitution were borrowed from the same Act. It was the supreme law of the land till 26th January 1950 when the Constitution of India, 1950, replaced it. The following features of the Indian Constitution have been borrowed from the Government of India Act, 1935 —

1. The federal structure

Federalism is an intrinsic feature of the Indian Constitution. It is basically adopted from the Canadian model of federalism. Federalism refers to a type of Government where the executive and legislative powers are distributed amongst the Union and State Governments, and both the Governments exercise some extent of autonomy in their functions.

However, the Indian Constitution is quasi-federal because it consists of both the Unitary and Federal characters. It is said that “the Indian Constitution is federal in structure but unitary in spirit.” Thus it is different from the federal structure of Government in the United States.

Part XI of the Indian Constitution lays down the Union-State relations, and the 7th Schedule also enumerates the subjects under Union, State, and Concurrent Lists on which the Union and State Governments are empowered to make legislations. The Constitution sets up a bureaucratic structure of the Government of India that must be a ‘Union of States.’

2. Administrative details

The Constitution of India gives insight into the governance and administration at the Central, State, and local levels as well. The fundamental structure of the Government of India, also known as the Union of India, resembles the British Westminister System for governing the State.

Parts V and VI of it lay down the provisions for Union and States respectively containing the appointments and powers of President, Vice President and Governors of the States, composition, powers, privileges, immunities, disqualification of members, legislative procedures, and conduct of the businesses of the Union Parliament, and State Legislatures; the Council of Ministers led by the Prime Minister to aid and advise the President who is the Chief Executive of the Country (Articles 74 & 75); the Council of Ministers led by the Cheif Ministers of the States to aid and advise the Governors(Articles 163 &164); Executive and Legislative Powers of President and Governors of the States; Comptroller and Auditor General of India, etc.

Besides these, Parts VIII, IX, and X deal with the administrations of the Union Territories, Panchayats (including Municipalities and Co-operative Societies), and Scheduled and Tribal Areas, respectively.

3. Emergency provisions

Part XVIII of the Constitution deals with the Emergency provisions. The President, if satisfied with the certain conditions, can proclaim three types of Emergencies— (a) National Emergency under Article 352; (b) President’s Rule or State Emergency under Article 356; and (c) Financial Emergency under Article 360. The provision of State Emergency has been directly adopted from Section 93 of the Government of India Act, 1935.

4. Public Service Commissions

Chapter II (Article 315-323) of Part XIV of the Constitution describes the establishments, compositions, appointment, and removal of the members, powers, independence, and functions of the Public Service Commissions in the States as well as the Union. The major functions of the Union Public Service Commission (UPSC) are to conduct examinations for the recruitments to the various All Indian Services, other Higher Central Services and advise the President on disciplinary matters. Likewise, the functions of the State Public Service Commissions are to conduct examinations for the recruitment to the State Services and advise the Governors of the States on disciplinary matters.

5. Office of the Governor

Chapter II (Articles 153-162) of Part VI of the Constitution spells out the qualifications, appointments, conditions, powers, terms, functions, and extents executive powers of the Governors of the States. The Governors are the Chief Executives of the States, and they can hold their offices during the President’s pleasure. Article 213 confers ordinance making powers to the Governors. They act on the pieces of advice given by the Councils of Ministers of the States. Unlike the President, the Governors are necessarily neither directly nor indirectly elected by the people.

6. Judiciary

Chapter IV (Articles 124-147) of Part V of the Constitution states the Constitution, jurisdictions, appointment, and removal of the judges of the Supreme Court of India. It is the highest judicial body of India. It replaced the Federal Courts established under the Government of India Act, 1935, to interpret and adjudicate laws, solve disputes pertaining to federal matters, and hear the appeals from the High Courts. It is the custodian of the Indian Constitution, and unlike the Executive and Legislative branches, the Judicial branch is integrated.

Britain

As Britishers ruled India for nearly 200 years, some of the characteristics of the British Governance have become part of Indian governance, and those were subsequently embodied in the Constitution by its framers. Some of those notable features are—

1. Parliamentary form of Government

We already know that the framers of the Indian Constitution were inspired by the British Westminister System of Governance. Like the Westminister Model, Indian Constitution also incorporates a modern ‘Parliamentary form of Government.’ The Parliamentary form of Government refers to that type of Government where the Political Executives, i.e., Ministers, derive their legitimacy from the Parliament as opposed to the Presidential form of Government. As per the federal scheme of the Government, there is a Union Parliament that consists of Lok Sabha or House of Commons (Lower House), Rajya Sabha or Council of States (Upper House), and the President. On the other hand, there are State Legislatures that consist of a Governor and either one or two houses.

2. Bicameral Legislature

Bicameral Legislature denotes the type of Legislature that consists of two houses- one lower House and one upper House. The Parliament of India is the supreme legislative body of the country, and it is bicameral in structure. It has two houses- one lower House called Lok Sabha (House of People) and one upper House called Rajya Sabha (Council of States). The people of India directly elect the members of the Lower House while the members of the Upper House are indirectly elected.

3. Cabinet system

Cabinet Council is a smaller executive body that consists of the Prime Minister and other senior ministers. Union Cabinet is the supreme executive and policy decision-making body of the Government of India. It is one of the constituting organs of the Council of Ministers, and it was inserted in Article 352(3) by the 44th Constitutional Amendment Act, 1978. It is the chief coordinator of Central administration and an advisory body to the PresidentOn the other hand, it also plays a pivotal role in being chief crisis manager and exercises control over higher appointments like constitutional authorities and senior secretariat administrators.

There are also Cabinet Councils in the State Governments led by the Chief Ministers of the States. In both Union as well as State Cabinet Councils, the ministers are assigned with different portfolios to formulate Government policies.

4. Parliamentary or Legislative privileges

The lawmakers, i.e., the members of the State Legislatures and Union Parliament or the committees thereof, according to Articles 194 and 105, respectively, are conferred few privileges and immunities. They are exempted from any civil or criminal liabilities for any statements made by them on the floors of any of the houses Parliament and State legislatures during the course of discharging their duties.

However, as an exception, according to Articles 121 and 211 in case of the members of the Union Parliament and State legislatures, respectively, these privileges and immunities are not available to any member who makes any discussion regarding the conduct of any judge of the High Courts and Supreme Court while discharging of his duties. But, the restriction under Article 121 is not applicable when a motion for the impeachment of a judge is introduced in any house of the Union Parliament.

5. Prerogative writs

As per English law, Prerogative writs, also known as extraordinary remedies or official orders, mean the discretionary and extraordinary powers vested upon the British Crown to direct another organ of the Government, agency, or other Courts. In the current Indian context, these prerogative writs have been available to the High Courts and Supreme Court under Articles 226 and Article 32 of the Constitution of India, respectively. The High Couts and Supreme Court can issue the following writs— Habeas Corpus, Certiorari, Prohibition, Quo-warranto, and Mandamus.

6. Single citizenship

Articles 5-11, contained in Part II of the Indian Constitution, deal with Indian citizenship. As opposed to ‘Dual or Multiple citizenships,’ ‘Single citizenship’ means an Indian citizen cannot possess citizenship of India and another nation at the same time. Suppose any Indian citizen voluntarily acquires the citizenship of another nation without expressly renouncing the Indian citizenship. In that case, he/she will be deemed to have been ceased to be a citizen of India.

7. The ideals of the Rule of law

In a democratic country, ‘Rule of law,’ e., ‘Supremacy of the law,’ is the most cherished ideal. It means the nation will be governed by the law, not by the whims of the State, Government, few groups of aristocrats or politicians, or any other State machinery. Every machinery acting on behalf of the State has to strictly adhere to the due process of law to govern the nation. The true essence of democracy lies in the enthronement of law as the supreme ruling body.

United States of America

The United States of America is the oldest democracy in the world, and like India, it has a written Constitution. The Indian Constitution owes some of the essential features to the US Constitution. Those notable features are —

1. Fundamental rights

Part III (Articles 12-35) of the Indian Constitution contains ‘fundamental rights.’ These are some minimal rights guaranteed by the Constitution to every citizen of India (some rights are guaranteed to non-citizens as well). These are available mostly against the State actions but can also be actionable against private bodies in few cases. However, these are subject to some reasonable restrictions. The notable fundamental rights as enshrined in the Constitution are—

  • Right to equality,
  • Right to freedom,
  • Right against exploitation,
  • Right to freedom of religion,
  • Cultural and educational rights, and
  • Right to Constitutional remedies.

2. Functions of the President and Vice-President

Articles 52 to 73 of Chapter I of Part V of the Constitution enumerates various provisions containing the President and Vice-President. The President of India is the Constitutional Head of the State of India, or Chief Executive of the Union Government, and Commander-in-Chief of the Armed Forces. He acts on the aid and advice of the Prime Minister and Union Cabinet. The Vice-President of India is the 2nd Highest Constitutional Position next to the President. He is the ex-officio Chairman of the Rajya Sabha (the Upper House of the Union Parliament).

He also acts as acting President in the absence of any incumbent President till the election of the new President and discharges President’s functions in other contingencies.

3. Impeachment of the President

Article 61 of the Constitution states the impeachment procedure, i.e., the removal of the President from his office. In case the President violates the Constitution, he can be removed by a resolution that has to be passed by a majority of not less than two-thirds of the total membership of the same House.

4. Independence of the Judiciary

The Judiciary is deemed one of the most crucial pillars of democracy besides the Legislature and Executive. It is widely established that the survival of a healthy democracy depends on the independence and impartiality of the Judiciary. The framers of the Constitution, through their deliberations, exerted efforts to make the Judiciary aloof and free from the interferences of the other organs.

5. Judicial Review

The Judiciary plays the most crucial role in upholding the Rule of Law and Supremacy of Law in a democratic setup. The power of Judicial Review signifies the powers of the Constitutional Courts of a Country to declare any law unconstitutional if it is found inconsistent with the Constitution. Any law passed by the Parliament is subject to scrutiny by the Courts. The Indian Judiciary is considered the custodian of the Constitution and protector of people’s fundamental and other Constitutional or legal rights. Like the power of Judicial Review is implied under Articles III and VI of the US Constitution, it is also mentioned under Article 13 of the Indian Constitution.

The High Courts and Supreme Court are vested with the power of Judicial Review in India. By exercising this power, any law, if found violative of the citizen’s fundamental rights or repugnant to the basic structure of the Indian Constitution or any part thereof, can be struck down by the Courts.

6. Removal of the judges of the High Courts and Supreme Court

As per Article 124(4) of the Constitution, a judge of the Supreme Court can be removed in case any incapacity or misbehavior is proved only by order of the President after an address by each House of the Parliament if the impeachment motion is supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present. The same procedure is followed in case of the impeachment of a judge of a High Court as per the proviso adduced in Article 217(1).

7. The Preamble of the Constitution

The Preamble of any Act or Constitution indicates a prelude or introduction, and it puts forth the ideals, aims, or aspirations of the makers of the same. In the same way, the Preamble of the Indian Constitution is not an exception to it. We can contemplate that the makers of the Indian Constitution in the Constituent Assembly aspired to make India a “Sovereign Socialist Secular Democratic Republic” by securing “Justice, Liberty, Equality, and Fraternity” to all its citizens.

Canada

As mentioned earlier, the cardinal ideas of the federal form of Government embodied in the Indian Constitution have been taken from the Canadian model of federal Government. Some of those most important features are—

1. Federation with a strong Centre

The makers of the Indian Constitution in the Constituent Assembly perceived that India being a large nation, consists of diverse religions, cultures, languages, etc., had to adopt a federal structure of Government to ensure unity and integrity of the nation while maintaining regional autonomies. By adopting a unitary form of Government, a single Central Government couldn’t efficiently govern a large nation like India. On the other hand, it was also necessary to make the Centre strong in some matters having national importance to be a “Union of States,” not the “United States of India.”

It differs from a Confederation and Unitary State. As per the Canadian ideas of the Federal Government, it is said that— A true federation, in the modern sense, is a state in which the smaller parts are not sovereign and cannot legally secede.”[1] It is because if a nation is not united by a strong Central Government, there have been possibilities of the rise of separatism, and the unity and integrity of the nation may be disrupted. Thus we can say that the founding fathers of the Indian Constitution felt the need for a federation maintaining a balance of powers between a strong Centre and the States having been conferred with some autonomies, and framed the Constitution accordingly.

2. Appointment of the State Governors by the Centre

Articles 153-162 lay down the provisions containing the appointments, qualifications, terms, functions, and powers vested in the Governors of the States. As per Article 155, the Governors of the States can only be appointed by “the President by warrant under his hand and seal.” Since the President of India acts on the aid and advice of the Prime Minister and the Union Cabinet led by him, it is evident that the Central Government appoints the Governors of the States.

3. Vesting residuary powers in the Centre

The 7th Schedule comprises the three lists, namely— Union, State, and Concurrent Lists, and in accordance with those lists, the Central and State Governments are empowered to make legislations on their respective subjects enumerated in the lists. But, Article 248 confers special authorities to the Centre to legislate on those subjects that are not present in any of the lists mentioned above, and these powers to legislate on such subjects are called residuary powers of legislation.

4. Advisory jurisdiction of the Supreme Court of India

Article 143 of the Constitution encompasses the Advisory Jurisdiction of the Supreme Court. As per this jurisdiction, the President of India may seek advice on any legal or Constitutional matter from the Supreme Court. However, it is noteworthy that neither the Supreme Court is bound to advise on all of the issues specifically referred by the President to it nor is the President bound to accept the advisory opinions given by the Supreme Court.

France

The salient features or ideals of the Preamble of the Indian Constitution, such as ‘Republic,’ ‘Liberty,’ ‘Equality,’ and ‘Fraternity,’ were borrowed from France. These are discussed below—

1. The ideals of Republic

The expression ‘Republic’ is derived from the Latin word ‘Res Republica,’ and its literal meaning suggests a public affair, public matter, or public thing in reference to the State as a whole. A ‘Republican form of Government’ denotes a Government in which the Chief is directly or indirectly elected, i.e., the Head of the State is not a hereditary monarch, but directly or indirectly elected for a fixed tenure. Similarly, the Preamble of the Indian Constitution also signifies that India is a ‘Democratic Republic,’ which means the office of the President is not a hereditary one; in other words, nobody holds any proprietary right over the public office, and it is open for every citizen. Any Indian citizen can hold the office of the President of India after fulfilling some specific qualifications in accordance with the procedures stated in the Constitution. It is opposed to the Monarchy.

2. The ideals of Liberty

The expression ‘liberty’ is synonymous with freedom. In concise meaning, it connotes the freedom of any individual to do any act, not transgressing the boundaries of the law. The Preamble of the Constitution of India envisages “Liberty of thought, expression, belief, faith, and worship.” Article 21 of the Constitution also guarantees the ‘personal liberty’ along with the ‘right to life’ of every individual subject to reasonable restrictions. It is evident that the State can’t impose arbitrary or unreasonable restrictions in exercising someone’s liberty. In a country like India, where Constitutional democracy prevails, it is regarded as one of the most cherished rights conferred to the citizens.

3. The ideals of Equality

The word ‘Equality’ as envisioned by the Preamble of the Constitution denotes treating everyone equally irrespective of status, keeping them on equal footings, and provide for appropriate opportunities without any discrimination on any ground. In a country, to uphold the supremacy of law, ‘equality before it’ as enshrined in Article 14 is an indispensable aspect because no one should be above the law.

4. The ideals of Fraternity

The word ‘Fraternity’ stands for a spirit of common belongingness or brotherhood among natives of a nation. The Constitution makers also felt the need to inseminate the sense of common fellowship or togetherness among the citizens of India by assuring the dignity of the individuals and the unity and integrity of the nation. It is because Indians must be united by the thread of kinship despite being the homeland of numerous diverse cultural, linguistic, religious, regional groups. On the other hand, it also obviates the evil spirits of separatism, communal hatred, intolerance, racism, casteism, etc., that create barriers to peace, stability, unity, and integrity in the nation.

Australia

Few significant characteristics of the Indian Constitution were adopted from Australia. Those characteristics are adduced here—

1. Freedom of trade, commerce, and intercourse

Part XIII (Articles 301-307 ) of the Indian Constitution stipulates the provisions comprising trade, commerce, and intercourse within the territory of India. Article 301 enunciates that subject to reasonable restrictions stipulated under Articles 302-305, trade, commerce, and intercourse throughout the territory of India will be free. It can be noted that the Parliament can impose certain reasonable restrictions for the interest of the public at large as per Article 302. Article 303 embodies the restrictions of legislative powers of both Union and State Legislatures in this regard. Article 304 specifically authorizes State Legislatures to make laws and reasonable restrictions in some cases.

2. Joint sitting of the two Houses of Parliament

The Indian Parliament being bicameral in structure, the President may call for a joint sitting of both Houses of the Union Parliament in certain cases. Article 108 of the Constitution specifies the same elaborately.

3. Concurrent List

The Seventh Schedule of the Constitution contains three Lists, and the third List in the Schedule is called Concurrent List. The States and Central Governments are both empowered to make laws on the subjects enumerated in this List. It consists of 52 subjects in total enlisted in 47 Entries.

Ireland

Some unique features of the Irish Constitution were too incorporated into the Indian Constitution—

1. Nomination of the members to Rajya Sabha

Chapter II of Part V of the Constitution of India deals with the provisions regarding the Union Parliament. Article 80(1)(a) prescribes the provision containing the power of the President to nominate 12 members to the Council of States, e., Rajya Sabha. The persons who have special knowledge or practical experience in the fields of literature, science, art, and social service.

2. The election of the President and its manner

Article 54 stipulates that the President will be elected by the members of an electoral college consisting of elected members of both houses of the Parliament as well as the elected members of the State Legislatures. According to Article 55(3), the manner of the Presidential election will be “in accordance with the system of proportional representation by means of the single transferable vote, and the voting at such election shall be by secret ballot.”

3. Directive Principles of the State policy

Articles 36 to 51 lay down in Part IV of the Constitution constitute the underlying principles of governance of the country that should be the duty of the State to implement while making laws, and these are called Directive Principles of the State Policies (DPSPs). However, these principles are not justiciable in the Courts of law.

USSR (Erstwhile Soviet Union)

Some of the hallmarks of socialism were also assimilated into the Indian Constitution—

1. Fundamental duties:

Article 51A (Part IVA) sets out 11 fundamental duties, i.e., a set of some moral obligations of the citizens towards the nation. These are indispensable not only to uphold the unity, integrity, sovereignty of the nation but also to inculcate the cardinal ideals of the Constitution and noble thoughts or teachings that inspired the freedom struggle. This part was inserted into the Constitution by the 42nd Constitutional Amendment Act, 1976.

These duties can not be enforced by the Courts of law by writs; nevertheless, they can be promoted through Constitutional methods and can also be taken into account to interpret statutes by removing the ambiguities.

2. The ideals of Justice in the Preamble

The Preamble of the Constitution imparts ‘Justice’ as one of the goals that must be secured to all citizens. It connotes specifically social, economic, and political justices that should not be denied to any citizen on any ground.

South Africa

The notable features that were borrowed from the South African Constitution are—

1. Election of members to Rajya Sabha

The composition of the Council of States, e., Rajya Sabha, is set out in Article 80 of the Constitution. It comprises a maximum of 238 representatives of the States and Union Territories and 12 members of the House nominated by the President. According to Article 80(4), “the representatives of each State will be elected by the elected members of the State Legislative Assemblies in accordance with the system of proportional representation by means of the single transferable vote.”

The allocation of the seats to be filled by the State representatives is held as per the provisions laid down in the 4th Schedule of the Constitution on that behalf.

2. Procedure to amend the Constitution

Article 368 (Part XX) of the Indian Constitution talks about the procedure of amendment of the same. By exercising powers conferred by this Article, the Parliament can amend, repeal or bring about any change as it may deem fit without changing its ‘Basic Structure.’

Weimar Republic of Germany

Even though it lasted for a short time (1919-1933), the Weimar Republic, which was formed after the end of the 1st World War, established Parliamentary Democracy in Germany for the first time. The framers of the Indian Constitution also took into account one noticeable feature—

1. Suspension of fundamental rights when a proclamation of emergency is in operation

Articles 358 and 359 expressly provide that the fundamental rights guaranteed under Part III of the Constitution can be suspended when a proclamation of emergency is in operation except for Articles 20 and 21.

Japan

The only noteworthy feature that has been taken from the Japanese Constitution is—

1. The idea of procedure established by law

The expression ‘Procedure Established by Law’ as enshrined in Article 21 signifies that a law enacted by the Legislature or any other competent authority is valid only when the correct and proper procedure has been followed duly in the enactment of that law. It is different from the ‘Due Process of Law,’ which checks procedure as well as justness or fairness of the laws enacted by competent bodies. In the case of ‘Procedure Established by Law,’ where the correct and proper procedure has been followed to enact any law, justness or fairness cannot be considered. Article 21 states in the same way that the right to life and personal liberty of individuals cannot be taken away unless the law, which has come into existence only after abiding by the correct procedure, permits the same.

Conclusion

It is obvious that the cardinal features of the Indian Constitution have been drawn from the numerous sources and contemporary Constitutions of the other countries in the world. But, the mere resemblance with external sources does not render it a facsimile compilation. It cannot be perceived that it lacks genuineness. Despite being influenced by external ideas or sources, the Constitution of India possesses a number of unique properties as well that cannot be ruled out at any time.

[1]https://www.thecanadianencyclopedia.ca/en/article/federalism

Note - The information contained in this post is for general information purposes only. We try our level best to avoid any misinformation or abusive content. If you found any of such content on this website, please report us at [email protected]

Interested to publish an article at Law Corner? Click Here to submit your article.

Souvik Roychoudhury

My name is Souvik Roychoudhury. I am 20 years old and hailing from Ranaghat, West Bengal. I am a 2nd year Law Student pursuing BA.LL.B(Hons.) course at S'O'A National Institute Of Law, Siksha 'O' Anusandhan University, Bhubaneswar. I am interested in Legal Content Writings and Researches regarding various aspects of law and contemporary legal affairs of India and the International field as well.

4th Lex Research Hub National Research Paper Writing Competition, 2021

Publish your research paper and win exciting rewards including cash & part time work from home job offer!

Submit your research paper on any theme relating to law!

I Am Not interested
internship paid
lawsikho contract drafting