EVOLUTION OF CONSTITUTION AND ITS MAIN PROVISIONS

The Constitution of India came into force on 26 January 1950. Since then the day has been celebrated as Republic Day. But before 1950, 26 January was called Independence Day. The elective principle was first introduced by the British in the Indian Councils Act of 1892. The 1892 Act introduced elected members but they were still in a minority and had very few powers. In 1895, there appeared the Constitution of India Bill, also known as the Home Rule Bill; was probably issued under Lokamanya Bal Gangadhar Tilak’s inspiration’, which conceived of basic human rights such as freedom of expression, equality before the law, right to the inviolability of One’s home, right to property, etc., for all citizens of India.

1. Constitutional Development

1.1. Home Rule

• The Home Rule Movement in India, which gained momentum in the first decades of the 20th century, significantly contributed to the constitutional development of the country.
• Led by prominent leaders such as Annie Besant and Bal Gangadhar Tilak, the movement aimed at achieving self-rule for India within the British Empire.
• While the immediate objectives of the Home Rule Leagues were not fully realized, the movement played a crucial role in shaping the political landscape and influencing subsequent constitutional developments.

1.2. Congress-League Pact of 1916

• The Congress-Muslim League Scheme for constitutional reforms which emerged out of the Congress-League Pact of 1916 demanded that four-fifths of the members of the provincial legislatures be elected ‘by the people on as broad a franchise as possible.
• In 1918, the Congress session at Delhi resolved that: ‘Given the pronouncement of President Wilson, Mr Lloyd George, and other British statesmen, that to ensure the future peace of the world, the principle of Self-determination should be applied to all progressive nations, this Congress claims recognition of India  as one of the progressive nations to whom the principle of Self-determination should be applied.’ The arguments did not impress the British rulers.

1.3. Morley Minto Reforms 1919

The Morley-Minto Reforms of 1909, also known as the Indian Councils Act of 1909, played a complex and indirect role in the development of the Indian Constitution. While they didn't directly draft the final document, they had a significant impact on the political landscape and influenced key debates that eventually led to the Constitution's creation.

• This was a major point of contention, as it sowed the seeds of communal division in Indian politics. While the intention was to safeguard the interests of minorities, it ultimately led to the Muslim League's demand for a separate Muslim state, culminating in the partition of India in 1947. This legacy of communal representation continues to be debated in India today.
• The reforms expanded both central and provincial legislative councils and increased the number of Indian members. This gave Indians a greater voice in the administration of their country and laid the groundwork for future demands for self-government.
• The limitations of the reforms, such as the retention of British control over key portfolios and the restricted franchise, led to growing calls for further constitutional reforms. These debates helped shape the arguments for a more representative and democratic government, ultimately contributing to the drafting of the Constitution.
• The divisive nature of the separate electorates and the growing Muslim separatism underscored the importance of national unity and the need for a common Indian identity. This became a crucial factor in the drafting of the Constitution, which sought to create a united and secular nation.
• The Morley-Minto Reforms, despite their shortcomings, opened the door for further negotiations between the British government and Indian leaders. These later agreements, such as the Government of India Act of 1935, incorporated some of the reforms' principles while addressing their limitations, ultimately leading to a framework for a more autonomous Indian government.

1.4. Swaraj Party

The Swaraj Party, formed in 1923, played a significant yet indirect role in the development of the Indian Constitution. While they weren't directly involved in drafting the final document, their actions and ideologies paved the way for crucial discussions and influenced the political landscape that ultimately led to an independent India with a homegrown Constitution.

• The Swaraj Party, a breakaway faction from the Indian National Congress, adopted a strategy of "responsive cooperation." They contested elections and entered the Legislative Councils to oppose British policies from within. This helped expose the limitations of the existing constitutional framework and highlight the demand for self-government.
• The Swaraj Party's disruptive tactics in the Councils, such as walkouts and boycotts, sparked heated debates on constitutional reform. These debates focused on issues like federalism, provincial autonomy, and minority rights, all of which became central themes in the eventual drafting of the Constitution.
• By demonstrating the flaws of the British-imposed constitutional system, the Swaraj Party emphasized the need for a Constitution drafted by Indians for India. This idea gained momentum and contributed to the eventual formation of the Constituent Assembly.
• The Swaraj Party, with its mix of moderate and radical leaders, acted as a bridge between different factions within the independence movement. Their willingness to engage in political processes, while advocating for self-rule, paved the way for future negotiations and agreements with the British government.
• The Swaraj Party's success in winning seats in the Councils and their experience in legislative procedures provided valuable training and experience for Indian leaders. This expertise was later utilized in the Constituent Assembly and the early years of independent India's Parliament.

1.5. Commonwealth of India Bill

• One initiative in which Annie Besant, Tej Bahadur Sapru, and V.S. Srinivasa Sastri played a leading role, was the Commonwealth of India Bill which was drafted in India, revised by Labour Party leaders, accepted unanimously by the Executive Committee of the Parliamentary Labour Party, and had its first reading in the House of Commons in December 1925.
• It could not, however, survive the defeat of the Labour government. It is significant that the Bill, which had the support of very wide sections of Indian opinion, specified in clear terms that ‘India shall be placed on an equal footing with the Self-Governing Dominions.’

National Demand

• At this juncture, a very prominent role was also played by Motilal Nehru, who introduced a resolution on 8 February 1924 in the Central Legislative Assembly which asked the government ‘to summon, at an early date, a representative Round Table Conference to recommend, with due regard to the protection of the rights and interests of important minorities, the scheme of a constitution for India.
• ‘This scheme would be ratified by a newly elected Indian legislature and then sent to the British parliament to be embodied in a statute.
• This was the first time that the demand for a Constitution and the procedure for its adoption were spelt out in such clear terms.
• This resolution, which came to be known as the ‘National Demand’, was passed by a large majority in the Central Legislative Assembly, 76 for and 48 against.

1.6. Simon Commission

The Simon Commission, appointed in 1927 by the British government to investigate the workings of the Government of India Act of 1919 and recommend constitutional reforms, had a complex and indirect role in the development of the Indian Constitution. While it wasn't directly involved in drafting the final document, it played a significant part in shaping the political landscape and influencing key debates that eventually led to the Constitution's creation.

• The Commission's all-white composition, excluding any Indian representatives, was met with widespread criticism and protests across India. This fueled nationalist sentiments and highlighted the demand for self-government. The Indian National Congress, led by Mahatma Gandhi, boycotted the Commission, further solidifying the opposition to British control.
• The Commission's report, published in 1930, acknowledged the limitations of the Government of India Act and recommended various changes, including the abolition of dyarchy and the introduction of provincial autonomy. This report, while not universally accepted, opened up discussions and debates on the future of India's constitutional structure.
• The Commission's work, despite its shortcomings, paved the way for subsequent attempts at constitutional reform, such as the Round Table Conferences and the Government of India Act of 1935. These later agreements incorporated some of the Commission's ideas while addressing its limitations, ultimately leading to the framework for a more representative and autonomous Indian government.
• The Commission's recommendations on issues like federalism, provincial autonomy, and minority representation sparked discussions and debates that eventually influenced the drafting of the Indian Constitution. While the final document took a different approach to some of these issues, the Commission's work provided a starting point for these crucial discussions.
• The Commission's work, along with the subsequent agreements and negotiations it helped facilitate, ultimately contributed to the process of Indian independence. The demand for self-government, fueled by the Commission's perceived bias and the limitations of the existing constitutional framework, became increasingly difficult for the British to ignore.

1.7. Nehru Report

• The move was roundly condemned by all sections of political opinion in India. All Parties Conference was called in May 1928 which appointed a committee chaired by Motilal Nehru ‘to determine the principles of the Constitution for India.’
• The Nehru Report, submitted on 10 August 1928, was in effect an outline of a draft Constitution for India. Most of its features were later included in the Constitution of India.
• It visualized a parliamentary system with a fully responsible government and joint electorates with time-bound reservation of seats for minorities.
• The Nehru Report laid special emphasis on securing fundamental human rights for the people of India.
• These included the right to ‘the freedom of conscience and the free profession and practice of religion,’ ‘the right of free expression of opinion, as well as the right to assemble peaceably and without arms, and to form associations or unions,’ equal rights for men and women, the right to form unions, and the right to free elementary education.
• Interestingly, the secular character of the State was listed as a fundamental right.
• Of the nineteen rights listed in the Nehru Report, ten were incorporated into the Constitution.
• The Nehru Report also recommended that ‘the redistribution of provinces should take place on a linguistic basis.

1.8. Civil Disobedience Movement

• In December 1929, the Congress declared complete independence as its goal and followed this up with the launching of the mass Civil Disobedience Movement in April 1930 which brought hundreds of thousands onto the streets and saw around one hundred thousand in jail.
• It was becoming increasingly clear that Indians were unlikely to be satisfied with anything less than the right to frame their own Constitution.
• In June 1934, the Congress Working Committee, while rejecting the White Paper presented by the British government on further constitutional reform, resolved that the ‘only satisfactory alternative to the White Paper is a constitution drawn up by a Constituent Assembly elected based on adult suffrage or as near it as possible.
• In August, the Working Committee of the Congress accepted a draft resolution prepared by Acharya Kripalani, which was sent to Congressmen in the provincial assemblies.
• Between August and October 1937, all the Congress provinces Bombay, Madras, U.P., Bihar, Orissa, Central Provinces, North-West Frontier Province as well as Sind passed this resolution which demanded that ‘the Government of India Act, 1935  be repealed and replaced by a constitution for a free India framed by a Constituent Assembly elected based on adult franchise.’
• On 17 September 1937, a resolution recommending the replacement of the Government of India Act 1935 by a constitution framed by a Constituent Assembly was introduced in the Central Legislative Assembly.

• It was made by Viceroy Linlithgow in 1940 in an attempt to Secure Indian cooperation in the War effort for the first time conceded that the framing of the new Constitution should be primarily (though not solely) the responsibility of Indians themselves.
• It also offered to set up, after the conclusion of the War, a body representative of the principal elements in India’s national life to devise the framework of the new Constitution.’
• How this body was to be constituted by direct or indirect elections based on adult or restricted franchise, or by nomination was not spelt out. 

1.10. Cripps Proposal 

• In March 1942, in the wake of the British collapse in Southeast Asia and three days after the fall of Rangoon, Winston Churchill, the prime minister of Britain, announced the dispatch to India of Sir Stafford Cripps, a prominent Labour Party member of the War Cabinet and a friend of Nehru.
• The Cripps proposals, as these constitutional concessions came to be called, for the first time spelt out the procedure for the setting up of the Constituent Assembly.
• The Cripps’ proposals were a major advance in the position of the British government. For the first time, it was accepted that the Constitution would be the sole responsibility of Indians alone. The idea of a Constituent Assembly was also unambiguously accepted and its modalities spelt out.
• However, other aspects of the Cripps’ proposals, which had divisive potential, stood in the way of the scheme being accepted by Congress.
• The famous AICC resolution of 8 August 1942 which asked the British to ‘Quit India’ and exhorted the Indians to ‘Do or die’, also said that the provisional government of free India would evolve a scheme for a Constituent Assembly.

1.11. Wavell Plan

The Wavell Plan, officially known as the Wavell-Baluchistan Plan, was a proposal put forward by the British Viceroy of India, Lord Archibald Wavell, in 1945. It aimed to address the political deadlock and communal tensions in British India during the closing stages of World War II. The plan was named after Lord Wavell, who served as Viceroy from 1943 to 1947.

• The plan proposed the formation of an Executive Council at the national level, consisting of political leaders. The Viceroy would retain certain powers, but the majority of the Council would be composed of Indian leaders.
• The plan aimed to ensure adequate representation for different communities, particularly Muslims. It proposed the inclusion of more Muslim members in the Executive Council to address the concerns of the Muslim League, led by Muhammad Ali Jinnah.
• The Wavell Plan recommended greater autonomy for the provinces. Provinces were to have the authority to determine their own constitutions and the distribution of powers between the centre and the provinces.
• The plan suggested that a constituent assembly be formed to draft a new constitution for India. However, the Wavell Plan did not provide a clear roadmap for how the constituent assembly would be constituted or how it would function.
• The plan proposed the formation of an interim government, pending the adoption of the new constitution. This government would include representatives from different political parties.
• The Wavell Plan faced opposition from various quarters. The Indian National Congress, led by Jawaharlal Nehru, and the Muslim League had reservations about certain aspects of the plan. The plan was criticized for being vague and lacking concrete details on the formation of the constituent assembly.
• The Wavell Plan was part of a series of initiatives by the British to address the political situation in India. Earlier, the Cripps Mission in 1942 had proposed certain constitutional changes, but it did not find acceptance among Indian political leaders.

1.12. Cabinet Mission

• The Cabinet Mission, which arrived in India on 24 March 1946, held prolonged discussions with Indian leaders.
• On 16 May 1946, having failed to secure an agreement, it announced a scheme of its own. It recognized that the best way of setting up a constitution-making machinery would ‘be by election based on adult franchise.
•  It was decided that the newly-elected legislative assemblies of the provinces were to elect the members of the Constituent Assembly based on one representative for roughly one million of the population.
• The Sikh and Muslim legislators were to elect their quota based on their population. There were numerous other details about procedures and suggestions about the powers of the Union and the provinces.
•  Particularly important were the provisions relating to grouping of provinces into sections A, B, and C. Section A consisted of Madras, Bombay, U.P., Bihar, the Central Provinces and Orissathe ‘Hindu-majority’ provinces.
• Sections B and C similarly consisted of the ‘Muslim-majority’ provinces of Punjab, NWFP and Sind in the west and Assam and Bengal in the east.
• The Cabinet Mission scheme proposed that the Constituent Assembly, after meeting to elect the chairman and complete other formalities, should divide into sections.
• The provincial representatives meeting in their respective sections should first decide the constitutions of the constituent provinces and also whether they want to adopt any group constitution.
• It was only after this process had been completed that the representatives of all the provinces and those of the princely states were to meet again to settle the Constitution of the Union.
• The Union of India was to deal with foreign affairs, defence and communications.

2. The Constituent Assembly: Indian Constitution's Main Provisions

The Constitution of India lays down a set of rules to which the ordinary laws of the country must conform. It provides a framework for a democratic and parliamentary form of government. The Constitution includes a list of Fundamental Rights and Directive Principles.

• The Constitution includes a list of Fundamental Rights and Directive Principles, the first, a guarantee against encroachments by the state and the second, a set of directives to the state to introduce reforms to make those rights effective. The core of the commitment to the social revolution lies in parts Ill and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience of the Constitution. While Fundamental Rights are justiciable and Directive Principles are not, the latter are no less important for that reason. 
• The reason for the distinction between the two is very simply that while the state could straightaway guarantee political and civil liberties contained under ‘Fundamental Rights’, it could only secure economic and social justice over some time as the economy developed and social change took place. The latter set of rights could not therefore be made justiciable, i.e., a citizen could not go to a court of law in case of denial. Nonetheless, the state was enjoined to do its utmost to apply these precepts when making laws.
• The only question was, how to distinguish between those rights that could be granted immediately, such as political rights, and those that should be there as ideals to be reached and could be granted only over time, such as social and economic rights. The solution was found by borrowing a concept from the Irish Constitution and encoding the socioeconomic rights as ‘Directive Principles of State Policy’. These were made non-justifiable.
• The Fundamental Rights are divided into seven parts: the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, the right to property and the right to constitutional remedies. These rights, which are incorporated in Articles 12 to 35 of the Constitution, primarily protect individuals and minority groups from arbitrary state action. But three of the articles protect the individual against the actions of other private citizens:
• Article 17 abolishes untouchability; Article 15(2) says that no citizen shall suffer any disability in the use of shops, restaurants, wells, roads, and other public places on account of his religion, race, caste, sex, or place of birth; and Article 23 prohibits forced labour, which, though it was also extracted by the colonial state and the princely states, was more commonly a characteristic of the exploitation by big, semi-feudal landlords. These rights of citizens had to be protected by the state from encroachment by other citizens.
• A citizen whose fundamental right has been infringed or abridged could apply to the Supreme Court or High Court for relief and this right cannot be suspended except in case of declaration of Emergency. The courts have the right to decide whether these rights have indeed been infringed and to employ effective remedies including issuing of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
•  The Directive Principles have expressly been excluded from the purview of the courts. The essence of the Directive Principles is contained in Article 38 which lays down that ‘the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life.’ The state was thus to ensure that all citizens have adequate means of livelihood, that there is equitable distribution of material resources, and concentration of wealth and means of production is avoided.
• There is to be equal pay for equal work for men and women and the health of workers, children and pregnant women was to be protected. Workers should get a living wage and just and humane conditions of work. All citizens should have the right to work, education and public assistance in case of unemployment, old age, sickness, etc.
• The state was to take steps to organize village panchayats, improve standards of living and nutrition, provide free legal aid, and promote educational and other interests of Scheduled Castes and Tribes and other weaker sections. It was to protect and improve the environment and safeguard the forests and wildlife of the country. The state was also to promote international peace and security, maintain just and honourable relations between nations, inculcate respect for international law and treaty obligations and encourage the settlement of international disputes by arbitration.

• Article 326 of the Indian Constitution deals specifically with the representation of the people. It provides for the adult suffrage principle, stating that elections to the House of the People (Lok Sabha) and the Legislative Assemblies of States shall be based on adult suffrage. The right to vote is granted to every citizen who is not otherwise disqualified under the provisions of the Constitution or any law made by Parliament.
• The framers of the Indian Constitution adopted the principle of universal adult suffrage, allowing every citizen who is 18 years of age or older to vote. This provision was a significant departure from the limited suffrage prevalent during the colonial period.
• The Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth in granting the right to vote. This ensures that voting rights are extended to all citizens without any form of discrimination.

• The Preamble itself was based on the Objectives Resolution drafted by Nehru and introduced in the Assembly in its first session on 13 December 1946 and adopted on 22 January 1947.
• The Preamble states that the people of India in the Constituent Assembly made a solemn resolve to secure all citizens, ‘Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and to promote among them all,
• Fraternity assuring the dignity of the individual and the unity of the nation.’ It has been pointed out that the priority given to the concept of justice as compared to liberty, equality, fraternity, and to social and economic as compared to political justice, was deliberate.
• The order of the words indicates that the concept of social and economic justice was perhaps considered ‘the most fundamental norm’ of the Constitution of India

• Even though the terms secular (and socialist) were added only by the 42nd Amendment in 1976, the spirit embodying the Constitution was secular. In 1973 the Supreme Court held the secular character of the Constitution to be one of the basic features of the Constitution.
• The Fundamental Rights include the prohibition of discrimination on grounds of religion and the right to freedom of religion including freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs, freedom to pay taxes for promotion of any particular religion and freedom on attendance at religious instruction or religious worship in certain educational institutions, cultural and educational rights including protection of interests of minorities and their right to establish and administer educational institutions.
• In India, the concept of secularism evolved as part of the struggle of nationalist forces against communal forces that wanted to use religion for political purposes and divide the emerging nation based on religion.