To enable the students to understand the Historical Background of Indian constitution as well as to interpret the Fundamental Duties and its legal status. It further enables them to understand the Scope of the Right to Life and Personal Liberty.

1. 20AC002-Constitution of India
Dr.S.Mary Praveena
Associate Professor
ECE Department
Sri Ramakrishna Institute of Technology
Coimbatore

2. Unit-I
Historical perspective of the Constitution of
India

3. Meaning of the constitution law and
constitutionalism
The concepts of constitution and constitutionalism
refer to the legal framework of a country.
While constitution is often defined as the “supreme
law of a country,” constitutionalism is “a system of
governance under which the power of the
government is limited by the rule of law”.

4. What is a Constitution?
 The definition of constitution is quite complex and has significantly
evolved during the last two centuries.
 According to the Western conception, constitution is the document
that contains the basic and fundamental law of the nation, setting
out the organization of the government and the principles of the
society.
 Yet, although many countries have a written constitution, we
continue to see the phenomenon of “living constitution” in many
parts of the world. As society change, so do laws and regulations.
 Furthermore, in some cases there is no single document that
defines all aspects of the state, but rather several different
documents and agreements that define the power of the
government and provide a comprehensive legal framework
although they are not unitary.

5. Constitution has also been defined as:
Basic norm (or law) of the state;
System of integration and organization of norms
and laws;
Organization of the government.

6. What is Constitutionalism?
Constitutionalism is a system of governance in which the
power of the government is limited by laws, checks and
balances, in order to reconcile authority with individual
and collective freedoms.
 The principle of constitutionalism must be understood in
opposition to nonconstitutionalism – a system in which
the government uses its powers in an arbitrary fashion,
without respecting the citizen’s rights.

7. • The idea of constitutionalism (and of constitution) is strictly
linked with the progress and spread of democracies.
• In monarchic, totalitarian and dictatorial systems there is
generally no constitution or, if it exists it is not respected.
• Individual and collective rights are often disregarded in
dictatorial regimes, and the government cannot be held
accountable as there is no legal document that defines its
limits.
• The concept of constitutionalism has evolved during the
last few centuries.

8. Different forms of government
 Absolute Monarchy (absolutism)-Absolute monarchy (or
Absolutism as a doctrine) is a form of monarchy in which the
monarch rules in their own right or power. In an absolute
monarchy, the king or queen is by no means limited and has
absolute power, though a limited constitution may exist in
some countries. These are often hereditary monarchies.
 Oman, Saudi Arabia, Vatican City.

9.  Constitutional monarchy, system of government in which a
monarch (see monarchy) shares power with a
constitutionally organized government.
 United Kingdom, Netherlands, Belgium, Norway, Denmark,
Spain.
 Representative democracy is a form of government in which
the people elect officials to create laws and policy on their
behalf. Nearly 60 percent of the world’s countries employ a
form of government based on representative democracy,
including the U.S. (a democratic republic), the UK (a
constitutional monarchy), and France (a unitary state).
Representative democracy is sometimes called indirect
democracy.

10.  Direct democracy describes those rules, institutions and
processes that enable the public to vote directly on a
proposed constitutional amendment, law, treaty or policy
decision.
 Switzerland
 Dictatorship is a form of government in which one person or
a small group possesses absolute power without effective
constitutional limitations.
 Nazi Germany under Hitler and the Soviet Union under Stalin

11.  An oligarchy is a form of government characterized by the
rule of a few persons or families.
Russia, China
 Totalitarianism is a form of government that attempts to
assert total control over the lives of its citizens.
 North Korea
 Theocracy is a form of government by divine guidance or by
officials who are regarded as divinely guided.
 Saudi Arabia, Afghanistan, Iran and Vatican City.

12. Historical perspective of the
Constitution of India
 In 1928, the All Parties Conference convened a committee in Lucknow to prepare
the Constitution of India, which was known as the Nehru Report.
 Most of India was under direct British rule from 1857 to 1947. Upon independence
it became clear an new constitution was need to be created.
 But for that the all of India needed to be brought into the union. This meant the
the Princely States needed to be convinced to become a part of the Indian union.
Either by force or diplomacy.
 Sardar Vallabhai Patel and V.P Menon did this unenviable task. Until this happened
India was still legally a dominion under the British, responsible for external
security.
 Thus, the constitution of India repealed the Indian Independence Act 1947 and
Government of India Act 1935 when it became effective on 26 January 1950.
 India ceased to be a dominion of the British Crown and became a sovereign
democratic republic with the constitution.

13. Historical Evolution of the Indian Constitution
 Regulating Act 1773
 Pitt’s India Act 1784
 Charter Act of 1813
 Charter Act of 1833
 Charter Act of 1853
 Government of India Act 1858
 Indian Councils Act 1861
 India Councils Act 1892
 Morley-Minto Reforms 1909
 Montague-Chelmsford Reforms 1919
 Government of India Act 1935
 Indian Independence Act 1947

14. Regulating Act 1773
 First time the British Parliament resorted to regulating the affairs of the
East India Company.
 The Governor of Bengal was made the Governor-General of Bengal
(Warren Hastings).
 An Executive Council of the Governor-General was created with 4
members.
 Centralized the administration with the Presidencies of Madras and
Bombay being made subordinate to the Bengal Presidency.
 Supreme Court was established at Calcutta as the Apex Court in 1774.
 Prohibited company officials from engaging in private trade and from
accepting gifts from Indians.

15. Pitt’s India Act 1784
Commercial and political functions of the
company separated. The Court of Directors
managed the commercial activities while the
Board of Control managed political affairs.
The company territories in India were called
‘British possession in India’.
Governor’s Councils were set up in Madras and
Bombay as well.

16. Charter Act 1813
This act ended the East India Company’s
monopoly over trade with India except in tea
and opium. Trade with India was open to all
British subjects.

17. Charter Act 1833
Governor-General of Bengal was designated the
Governor-General of India (Lord William
Bentinck).
The legislative powers of the Bombay and Madras
Presidencies were removed.
This act ended the commercial activities of the
company and it was transformed into an
administrative body.

18. Charter Act 1853
The legislative and executive powers of the
Governor-General’s Council were separated.
A Central Legislative Council was created of 6
members out of which 4 were appointed by the
provisional governments of Madras, Bombay,
Agra and Bengal.
The Indian civil service was opened as a means to
recruit officers for administration through open
competition.

19. Government of India Act 1858
 After the 1857 revolt, the rule of the company was ended
and the British possessions in India came directly under the
British Crown.
 The office of the Secretary of State for India was created.
He was assisted by a 15-member Council of India.
 The Indian administration was under his authority and the
Viceroy was his agent. The Governor-General was
designated the Viceroy as well (Lord Canning).
 The Court of Directors and the Board of Control were
abolished.

20. Indian Councils Act 1861
Indians were given representation in the Viceroy’s
Councils. 3 Indians entered the Legislative Council.
Provisions were made for the entry of Indians in the
Viceroy’s Executive council also as non-official
members.
Portfolio system was recognised.
Decentralisation initiated with the presidencies of
Madras and Bombay being restored their legislative
powers.

21. Indian Councils Act 1892
Indirect elections (nominations) were
introduced.
Legislative Councils expanded. Gave more
functions to the legislative councils such as
the discussion of budget and questioning the
executive.

22. Indian Councils Act 1909 (Morley-Minto Reforms)
 Direct elections to the legislative councils were introduced for
the first time.
 Central Legislative Council became the Imperial Legislative
Council.
 The number of members of the legislative council was increased
from 16 to 60.
 The concept of the separate communal electorate was accepted.
 For the first time, an Indian was made a member of the Viceroy’s
Executive Council. (Satyendra Prasad Sinha – Law Member).

23. Government of India Act 1919 (Montague-Chelmsford Reforms)
 Central and provincial subjects were separated.
 Diarchy was introduced in the provincial governments with
executive councillors being in charge of the reserved list and the
ministers in charge of the transferred list of subjects.
 The ministers were nominated from among the elected members of
the legislative council and were responsible to the legislature.
 A bicameral legislature was introduced for the first time at the
centre. (Legislative council and legislative assembly later to become
Rajya Sabha and Lok Sabha respectively).
 It mandated 3 members of the Viceroy’s executive council to be
Indians.
 This act provided for the first time, the establishment of a public
service commission in India.
 This act extended the right to vote and with this, about 10% of the
population acquired voting rights.

24. Government of India Act 1935
 An all-India Federation was proposed which would consist of British
India and the princely states. This never materialized though.
 Subjects were divided between the centre and the provinces.
Centre was in charge of the Federal List, provinces in charge of the
Provincial List and there was a Concurrent List which both catered
to.
 Diarchy was abolished at the provincial level and introduced at the
centre.
 More autonomy was accorded to the provinces and in 6 out of 11
provinces, the bicameral legislature was introduced.
 A federal court was established and the Indian Council abolished.
 Burma and Aden were severed off from India.
 This act provided for the establishment of the RBI.
 This Act continued until it was replaced by the new Indian
Constitution.

25. Indian Independence Act 1947
India was declared independent and sovereign.
The Viceroy and the Governors were made
constitutional (nominal) heads.
Set up responsible governments at the centre and the
provinces.
Assigned both legislative and executive powers to the
Constituent Assembly of India.

26. Salient features and characteristics
of the Constitution of India
The Constitution of India is a very dynamic creation
of our lawmakers.
The Constitution of India as we all know is a supreme
law of the country and every citizen of our country
has to abide by the constitution.
The constitution is a fundamental law of a country
that reflects the fundamental principles on which the
government of the country is based.

27. 1.Modern Constitution
 Drawn from different sources: The Constitution of India is a
unique and remarkable document having various outstanding
features.
 It is said that, the Constitution has been prepared after deep
study of all the known Constitutions of the world.
 U.S.A. 1787 – 7000 Words, 7 Articles
 Australia 1900
 Canada – 1867 / 1982
 Switzerland – 1874
 United Kingdom – Unwritten Constitution
 Most of the provisions substantially borrowed from others.
Gather best features of each Constitution.

28. 2.Longest known Constitutions of the World
 The Indian Constitution has a distinction of being the most lengthy
and detailed constitutional document Structure.
 The Indian Constitution originally consisted of 395 Art, 22 parts, 8
Schedules. But after the Constitution 104th Amendment Act, 2003,
the Indian Constitution Consists of 448 Art, 25 parts, 12 Schedules.
 The volume of the Constitution has increased mainly due to
endeavour of constitutional makers to incorporate detailed
Fundamental Rights, Directive Principles, Parliamentary Systems,
Constitution of the Union and States, Emergency Provisions,
Amendment Provisions, detailed Administrative Provisions
regarding Executive, Parliament, Privileges, Union Judiciary, Union
Legislature, Comptroller and Auditor General, State Legislature,
High Courts in the States, Union Territories, Union and States
Relations, Finance properties Contracts, Services under the Union
and States, Elections, certain provisions relating to certain classes,
language and various schedules etc.

29. 3.More Flexible than Rigid one
Compared to American or Australian Constitution,
the Constitution of India is more flexible than rigid.
The American Constitution of 1787 has been
amended only 27 times so far.
Australian Constitution is known as Frozen
Constitution. Referendum is required to carry out
amendment in the Constitution.
The amending power laid down in Article 368 is
comparatively very much easy, so our Constitution
has been amended 99th time so far.

30. 4.Reconciliation of Written Constitution with
Parliamentary Sovereignty
Written Constitution denotes supremacy of
the Constitution and all three organs of the
Government have to function within the
framework of the principles laid down in the
written Constitution and it is comparatively
rigid one.
The principle of parliamentary sovereignty is
peculiar feature of British Westminster Model.

31. 5.Role of Convention under the Constitution
Most of the British convention of Cabinet system
has been embodied in the Constitution of India.
E.g. Article 75 - Cabinet Responsibility and
Cabinet System, Leader of majority party is called
to form Government.
After passing of No-Confidence motion Ministry
has to resign etc.

32. 6.Justiciable Fundamental Rights
Part III of the Constitution from Article 12 to 35 deals
with Justiciable fundamental rights which is essential
for the all round development of the human being.
The nature of fundamental rights is as such that,
human personality cannot be developed in any
democratic country without these sacred rights.
They are justiciable because the aggrieved person can
move to Court for vindication of his precious rights,
which has been taken from the American Bill of Rights.

33. 7.Non-justiciable Directive Principles
 This principle which is somewhat moral in nature is a gift from Irish
Constitution. The socio-economic democracy is a fundamental
object of Constitution which can be fulfilled by implementation of
these novel directives.
 Of course they are non-justiciable in the sense that, person cannot
move to the Court for non-implementation of the directives.
 Part IV of the Constitution Article 36 to 51 deals with directive
principles. The enforceability of which, as noted author Seervai has
observed, is found out in the mandate of the people to the
Government.
 If the welfare principle has not been taken care, then people are
free to overthrow the Government in general elections.

34. 8.Judicial Review
 In the Constitution of India, the power of judicial review bestowed upon
apex judiciary is one of the novel outstanding 105 features which is also a
part of basic structure of the Constitution.
 Unless, judiciary is given power of declaring any law, rules, regulations,
bye-laws or any administrative action which violates provisions of the
Constitution including fundamental rights, the sanctity of the fundamental
rights cannot be protected.
 Particularly for the protection and to maintain enforceability of
fundamental rights. The Courts of Law is empowered to use this power
against any organ of the State i.e. Legislative or Executive. The power of
judicial review is incorporated in Article 13, 32, 141, 143, 226 and Court is
empower to issue writs in the nature Habeas Corpus, Mandamus,
Prohibition, Quo-warranto, Certiorari.
 The power of judicial review is a precious gift from American Supreme
Court.
 An independent judiciary having the power of judicial review is most
important feature of our Constitution. The judicial power of the State
exercisable by the Courts under the Constitution as sentinels of Rule of
Law is a basic feature of the Constitution.

35. 9.Socio-economic Justice
Constitution aims at securing socio-economic and
political justice and guarantees that State will not
discriminate between one citizen and another merely
on the ground of religion, race, caste, sex or place of
birth in the matter of employment, special provisions
for the women’s, children’s, socially and
educationally backward classes and Scheduled Caste
and Scheduled Tribes including Prohibition of
Untouchability.

36. 10.Fundamental Duties
 Article 51A which is inserted by 42nd constitutional
amendments 1976 enshrined novel fundamental duties
which have no judicial enforceability.
11.Universal Adult Franchise
 This is another outstanding feature of the Constitution. The
entire adult population having a voting age of 18, without
any qualification either of sex, property, taxation can
exercised their voting rights. (Article 326)
 The independent Election Commission of India is entrusted
the job of holding free and fair election in our country.

37. 12.Parliamentary Form of Government
• Our Constitution though federal in nature is
modelled on the British Parliamentary System
where Council of Minister is collectively
responsible to the popularly elected House i.e.
Lok Sabha or Legislative Assembly. They have to
command majority in the Legislature otherwise it
has to resign.
• The President is Head of the State in
Parliamentary System of responsible
Government but he is to act on the advice of the
Council of Ministers.

38. 13.Federal System with Unitary Bias
In various judgements the Supreme Court has described
our Constitution as basically federal with striking unitary
features.
Our federal system is based on American model. It is a
combination of federal and unitary system i.e. quasi-
federal system.
14.Secular State
India has adopted a policy of secularism that means
State does not protect, help, promote any particular
religion and State has no official religion.

39. 15.Basic Structure Theory
The Supreme Court in his landmark judgement
of Keshavananda Bharati Case has devised the theory
of basic feature of the Constitution.
There are certain basic features like Judicial Review,
Parliamentary Form, Secularism, Federal Republic
Nature, Free and Fair Election System etc are immune
from the amending powers of Parliament under Article
368 of the Constitution.
Basic Structure Theory puts implied limitation on the
power of the Parliament and advocated Doctrine of
Limited Government preferred to English Doctrine of
Parliamentary Sovereignty.