IMPACT OF THE WORLD CONSTITUTIONS ON THE FRAMING OF INDIAN CONSTITUTION
IMPACT OF THE WORLD CONSTITUTIONS ON THE
FRAMING OF INDIAN
CONSTITUTION
Dr. Ashish Shrivastava
ABSTRACT
The constitution of the Indian
Republic is written. It contains 395 articles and 10 Schedules, According to
the proposals of the Cabinet Mission Plan; Constituent Assembly was set up for
framing a constitution for the Union of India.
The Assembly consisted of the
representatives of the provinces and the nominees of the states, ft met in New
Delhi in December 1946. After nearly three years of deliberations if finally
adopted the constitution on November 26, 1949.
The Indian Republic was
inaugurated on January 26, 1950. The constitution is rigid in the sense that
most of its parts cannot be amended by the ordinary law-making process. There
are three methods of amending the constitution. Some of its facts can be
amended by the ordinary law-making process by Parliament. Certain provisions
can be amended provided that a Bill for that purpose is passed in each House of
Parliament by a majority of the total membership of the House and by a majority
of not less than two-thirds of the members present and voting; the Bill then is
presented to the President who has to give his assent. Then there are certain
other provisions which can be amended if a Bill for that purpose is passed by
the second method described above and ratified by the Legislatures of not less
than one-half of the states before being presented to the President. Thus the
constitution is rigid as well as flexible.
A distinguishing feature of the
Indian constitution is that it was prepared after transacting all the known
constitutions of the world. So it is a borrowed constitution, it is a patchwork. For example, the Parliamentary System has been borrowed from England, the
concept of an independent judiciary and judicial review and fundamental rights
from the U.S. Constitution, the federal features from Canada and the Directive
Principles from Ireland. However, the Government of India Act of 1935 has the
greatest impact on our constitution. As Prof. Jennings observes, "the
constitution derives directly from the Government of India Act of 1935 from
which, in fact, many of its provisions are copied almost textually In the words of Dr. Punjab Rao
Deshmukh, the constitution of India is "essentially the Government of
India Act with only adult franchise added."
But it is also true that whatever
.the framers of the constitution borrowed from different source's, they
modified it .with a view to avoiding the faults that have been disclosed in its
working and adopted it to the existing conditions and needs of the country.
IMPACT OF THE WORLD CONSTITUTIONS ON THE FRAMING OF INDIAN
CONSTITUTION
INTRODUCTION:
The constitution of India is The fundamental and Supreme law of the country which lays down the framework
defining fundamental political principles, establishes the structure,
procedures, powers, and duties of government institutions, and sets out
fundamental rights, directive principles, and the duties of citizens.• It has
been adopted and adapted from various constitutions framed before its formation
to suit the needs of the country, rectifying the mistakes committed by the
earlier versions.• The nations acting as main source of adoption are England
and the USA, the main principles of government being derived from these nations.• The main
principles and concepts derived from various countries are:
The Preamble:
The Preamble is a brief introductory statement that sets
out the guiding purpose and principles of the document. The language and the
structural format of the Preamble of India have been derived from United States
of America. In India In USA
Written Constitution:
The concept of a written the constitution has been taken from America, which was the first written
constitution in the world.• This allows ease of access and revision, as and
when required, and also renders all the laws immune to any interference by the government at its free will.
Nominal Head:
PresidentIn England In India• The Queen is
Head of State The President of India is: in the United Kingdom. As a • The head
of state and a first constitutional monarch, she citizen of India. does not rule
the country, • The Supreme but fulfills important Commander of the ceremonial
and “formal” Indian Armed Forces. roles with respect to • S/He is also the
“formal Government. head” of all the three branches of Indian Democracy - The legislature, Executive and Judiciary.
Cabinet System of Ministers Both in
India and in England:• The Cabinet is the collective decision-making body of
the government consisting of Prime Minister and his Council of Ministers.• PM
chooses the Cabinet of Ministers appointed by the head of the state(President
in India and Sovereign in England.)• Cabinet ministers are at disposal of PM
and can be dismissed at any time on the advice of PM by the Head of State.
Parliamentary form of Government• A
parliamentary system is led by representatives of the people. Each is chosen as
a member of a political party and remains in power as long as his/her party
does.• This system is followed in England and is adopted in India too.• It is very
useful in a diverse nation like India where legislation and passing of bills
can be slowed down because of the difference in opinions.• Parliamentarianism helps
in quicker decision making.
Bicameral system of parliament
bicameral parliament or bicameral legislature is a legislature which consists
of two chambers or houses. England India• There is the House of • There is Lok
sabha(House of Commons and the House of People) and Rajya Lords. Sabha(Council
of states).
Lower House more powerful:
The Lok Sabha or the house of
people in the lower house. In England In India• House of Lords or Upper • Money
bills can only be a house is restrained from any introduced in the Lok financial
bills. Sabha.• It can only delay the bills • Rajya Sabha cannot reject passed
in the lower house, not any bills passed in Lok reject it, for a maximum of Sabha,
only delay it by two parliamentary terms. maximum of 14 days.• PM loses his
post if he loses • PM loses his post if he loses majority support in lower
majority support in the lower house. house and motion of no confidence can only be
introduced in Lok sabha.
Speaker in the Lower house in England
In India,• The Speaker of the House of Commons • The Speaker of the Lok Sabha
conducts chairs debates in the Commons the business in the house. chamber and
the holder of this office are • He/she decides whether a bill is an MP who has
been elected by other a money bill or a nonmoney bill. Members of Parliament.
• He/she maintains discipline and• The Speaker is the chief officer and decorum
in the house and can punish the highest authority of the House of the member for
their unruly behavior by Commons and must remain politically suspending them.
impartial at all times. During debates, • He/she permits the moving of various
they keep order and call MPs to speak. kinds of motions and resolutions like•
The Speaker also represents the motion of no confidence, the motion of Commons
to the monarch, the Lords adjournment, motion of censure and other
authorities and chairs the calling attention notice as per the rules. House of
Commons Commission. • The Speaker decides on the agenda to be taken up for
discussion during the meeting.
Welfare:
Ø Education, andØ HealthØ CommunicationsØ TransportationØ AgricultureØ Consumer goods (e.g. chairs,
carpets, and irons)Ø Capital goods (those used to
produce other goods, like coal, iron, and machinery)Ø11. Five year plans• The whole
concept of a five-year plan has been derived from the constitution of the Soviet Union.• Each five-year plan dealt with all aspects of development:
JUDICIARY ADAPTATIONS:
Concept of Supreme Court- It was
adapted from the United States of America. The US was the first country to
introduce the highest court of justice, called the Supreme court. It is
essential for a federal form of government, for various reasons like solving
disputes between center and states, amongst states, etc.
Law on which supreme court functions:
This has been adopted from the constitution of
Japan, as: In Japan, In India,• The Chief Justice is appointed • The chief Justice
is appointed by the head of the state-Emperor. by head of state-President.• The
Supreme Court is • the Supreme Court is the highest judicial authority of the nation.• Other judges in the
supreme • Other judges in the supreme court form smaller benches for the hearing of cases. • Supreme court mainly
acts as • Supreme court mainly acts as an appellate court, most an appellate
court, most hearings being appeals and hearings being appeals and petitions
against unsatisfactory decisions of lower courts.
Independence of Judiciary and judicial review:
Independence of the judiciary is
the principle that the judiciary should be politically shielded from the
legislative and executive power. That is, courts should not be subjected to
reprehensible influence from the other branches of government, or from personal
or adherent interests.• Judicial review is the doctrine under which legislative
and executive actions are subject to review (and possible invalidation) by the
judiciary. Specific courts with judicial review power must annul the acts of
the state when it finds them incompatible with a higher authority such as the
constitution.• Both of these principles are adopted from the constitution of the USA.• They are very important to keep a check on the other two branches of
government.
Method of removal of Supreme/High court judges:
This has been adopted from the constitution of the United States. In the USA In India • Impeachment requires an• It varies from state
to order of the President passed state, where sometimes after an address in
each House recommendation of inquiry of Parliament, supported by a committee is
enough, while the majority of the total in some majority support by the membership of
that House of not less than two-thirds of more than two-third members present
and voting, members of both houses is and presented to the required for impeachment
President in the same Session of the judge. for such removal on the ground of
proved misbehavior or incapacity.
Right to the constitutional constitution. remedies(32-35)ü
Cultural and educational adoption
from the french rights(29-30) ü Right to freedom of religion(25-•
The right to freedom and 28) equality before the law are an ü Right against exploitation(23-24) ü Right to freedom (19) from USSR. ü Right to equality (14-18) religion
have been adopted ü16. Fundamental Rights The Purpose
of the Fundamental Rights is to act as limitations not only upon the powers of
the Executive but also upon the power of the Legislature. In Other countries In
India• The concept of fundamental • Fundamental rights in the constitution of
India has the rights comes from the USA. longest description in the whole world.•
The right to freedom of • They include: speech, assembly and
Suspension of Fundamental Rights during Emergency:
This concept of suspension of
rights during an emergency has been adopted from the Weimar constitution of
Germany, i.e. at the time of Adolf Hitler.• This is very important as it vests
the supreme power in the head of the state-The President.• During an emergency, only 3 rights of the citizens stand valid-Right to equality, Right to o
freedom(in certain cases) and the Right to Life.
Fundamental Duties:
The fundamental duties of India, seem to be an
adoption from the Constitutions of Japan, Yugoslavia, the Republic of China as well
as the Constitution of Soviet Union (USSR)• These have been incorporated in the
Indian Constitution to remind every citizen that they should not only be
conscious of their rights, but also of their duties.
These include:
(a) To abide by
the constitution and respect its ideals and institutions, the National Flag and
the National Anthem; (b) To cherish
and follow the noble ideals which inspired our national struggle for freedom; (c) To uphold and protect the
sovereignty, unity, and integrity of India; (d)
To defend the country and render national services, when called upon to do so; (e) To promote harmony and the spirit
of common brotherhood amongst all the people of India transcending religious,
linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women; (f)
To value and preserve the rich heritage of our composite culture; (g) To protect and improve the natural
environment including forests, lakes, rivers and wildlife, and to have
compassion for living creatures; (h)
To develop the scientific temper, humanism and the spirit of inquiry and
reform; (i) To safeguard public
property and to abjure violence; (j) To
strive towards excellence in all spheres of individual and collective activity
so that the nation constantly rises to higher levels of endeavor and
achievement; (k) Who is a parent or
guardian to provide opportunities for education to his child or as the case may
be ward between the age of six to fourteen years.
Scheme of federation:
This refers to the Distribution of
powers between the center and the states.• It is very significant in the case
of a diverse country like India, to handle the local issues effectively.• This
has been done in case of both legislative and administrative powers.
Scheme of federation with a strong
center• Both the Centre & the states are co-operating & coordinating
institutions having independence & ought to exercise their respective
powers with mutual-adjustment, respect, understanding & accommodation.•
Prevention, as well as amelioration of conflicts, is necessary. Thus, the
Indian-federation was devised with a strong-center.
Freedom of trade and commerce In Australia In India:
There is a free trade clause • Article 301
containing the free under section 92 of Australian trade clause in Indian the constitution has been taken constitution which provides almost verbatim from the section that “on the imposition of 92 of Australian constitution uniform duties • The court considered that customs, trade, commerce, and legislature should
be given intercourse among the States more powers than judiciary and all trade
and commerce whether by means of internal activities were subjected to carriage
or ocean reasonable restrictions, navigation, shall be absolutely imposed by
the State as free” mentioned in the constitution
Advantages of this adoption• Free movement and
exchange of goods throughout the territory of the country is essential for the
economic unity of the nation• Therefore in all federations, an attempt is made
through constitutional provisions to prevent local barriers to economic
activity, to remove the impediments in the way of inter-state trade and
commerce and thus to make the country as one in economic resources• Thus the base of freedom of trade and commerce was quite adopted from Australian
constitution with amendments.
Directive Principles of State Policy:
These are principles laid down to
create social and economic conditions under which citizens can live a good
life.• In India, the Directive Principles of State policy have been adopted
verbatim from the Constitution of Ireland.• The DPSP of Ireland were in turn
adopted from Spain.• The state shall aim for securing equal rights to an
adequate means of livelihood for all citizens.
Election of members by Nominal Head of Upper house:
The upper house in India consists of 250
members from which 12 are nominated by the Nominal head-the President of the
country for their exemplary work in their respective fields.• This system has
been adopted from the constitution of Ireland.• This saves these members from
the turmoil of election.
•Nominal Head – President (like
Queen) •Cabinet System of Ministers •Post of PM •Parliamentary Type of Govt.
From U.K. •Bicameral Parliament •Lower House more powerful •Council of Ministers
responsible to Lowe House •Speaker in Lok Sabha •Written Constitution
•Executive head of state known as President and his being the Supreme Commander
of the Armed Forces •Vice- President as the ex-officio Chairman of Rajya Sabha
•Fundamental Rights From U.S. •Supreme Court •Provision of States •Independence
of Judiciary and judicial review •Preamble •Removal of Supreme court and High
court Judges •Fundamental Duties From USSR •Five year Plan •Concurrent list
From AUSTRALIA •Language of the preamble •Provision regarding trade, commerce
and intercourse From JAPAN •Law on which the Supreme Court function from WEIMAR
CONSTITUTION OF GERMANY •Suspension of Fundamental Rights during the emergency
•Scheme of federation with a strong center From CANADA •Distribution of powers
between the centre and the states and placing. Residuary Powers with the center
•Concept of Directive Principles of States Policy(Ireland borrowed it from
SPAIN) From IRELAND •Method of the election of President •Nomination of members in
the Rajya Sabha by the President
CONCLUSION:
Mr. Justice H. R. Khanna in his ‘Making
of Constitution said: “The framing of a Constitution calls for the highest
statecraft. Those entrusted with it have to realize the practical needs of the
government and have, at the same time, to keep in view the ideals, which have
inspired the nation. They have to be men of vision, yet they cannot forget the
grassroots”1. A Constitution at the
same time has to be a living thing, living not for one or two generations but
for succeeding generations of men and women. It is for that reason the
provisions of the Constitution are couched in general terms, for the great
generalities the Constitution have content and significance that vary from
age to age and have, at the same time transcendental continuity about them. …A
constitution states, or ought to state, not the rules of the passing hour, but
the principles for an expanding future2.
The Indian Constitution is based on the
philosophy of evolving an egalitarian society free from fear and bias based on
promoting individual freedom in shaping the government of their choice. The
whole foundation of constitutional democracy is building a system of governance
in systematic machinery functioning automatically on the wheels of norms and regulations
but not on individual whims and fancies. It is easy to dream such a system of
rule of law than framing a mechanism for it. The Indian Constitution is a
marathon effort to translate philosophical rule of law into practical set up
divided into three significant estates checking each other exercising parallel
sovereignty and non-egoistic supremacy in their own way. Apart from excellent
separation of powers to avoid the absolute concentration, the Constitution of
India envisages a distinct distribution of powers between two major levels of
Governments- central and provincial with a fair scope for a third-tier – the
local bodies. However, the operation of the system came in contrast with men
and their manipulations leading to different opinions and indifferent options.
Whatever may be the consequential aberrations, the system of rule of law is
perfectly reflected in framing of the Constitutional norms codifying the best
governing mechanisms tested and trusted in various democratic societies world
over. The Indian government is thus
federal in the form(during normal times) but unitary in spirit during emergencies.
Thus these various adoptions from the various countries thus help to make the
supreme law of the country as flawless as it could be. All these rectifications
render India one of the most successful democracies of all times.
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enumerations. For example, Article 21A pertaining to Right to Education was
inserted by the 86th Amendment Act.
·
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