Sources of the Indian Constitution: Government of India Act 1935 & Global Influences Explored

[music] [music] Hello everyone. In week two of our

course on the Indian Constitution, we bring to you the sources of the Indian Constitution.

The constitution of India is the backbone of democracy in our country. It is an umbrella of rights that gives the

citizens an assurance of a free and fair society. It is the constituent assembly which adopted the constitution on 26th

November 1949 and it came into effect on the 26th of January 1950. Let's start therefore by looking at the sources. Now

the sources of the Indian Constitution are a blend of the Government of India Act 1935

which actually provided the structural framework and various other constitutions from around the world. Key

international influences include the British Constitution for its parliamentary system, the United States

Constitution for fundamental rights and judicial review, the Irish Constitution for the directive principles of state

policy and the Canadian Constitution for a strong federal center.

Other sources include the Australian Constitution, the Weimar Constitution of Germany, and

the former Soviet Union USSR Constitution. Let's begin by looking first at the sources that we brought

from the government of India Act of 1935. Now the constitution of 1950 of India

was actually a byproduct of the legacy that was started by the government of India act way back in 1935.

In fact this was the longest act passed by the British government with 321 sections and 10 schedules.

This act had drawn its content from four sources. the report of the Simon Commission and discussions and

deliberations at the third round table at the white paper of 1933 and the reports of the joint select

committees. This act in fact abolished the system of provincial diary and suggested the establishment of diary at

the center and quote unquote a federation of India consisting of the provinces of British India and most of

the princely states. But most importantly, this act established the office of the governor.

All the executive powers and authority of the center was vested in the governor.

Let's look at some features of the government of India act of 1935. Therefore, first was the federal scheme.

Division of powers between the center and the states. The federal legislature.

This act suggested that the legislature will have two houses namely the council of the states and a federal assembly.

The council of the states was the upper house which was a permanent body with a tenure of three years and it composed of

260 members of which 156 were representatives of British India and 101 of the princely Indian

states. The federal assembly was the lower house with a tenure expanding up to five years and its composition

included 250 representatives of British India and 125 members from princely states. The next feature was provincial

autonomy. So this act enabled the provincial governments to be responsible not only to provincial legislatures and

it helped them break free from external control and intrusion. It was the establishment of this act

that the powers between the center and the provinces were divided in terms of three lists. Namely, first the federal

list which had 59 items for the center, secondly the provincial list which had 54 items for provinces and thirdly the

concurrent list with 36 items for both and the residuary powers were handed over to the viceroy.

Other features borrowed from this act were the office of the governor, provisions for the office of the

governor, then also public service commissions, the establishment of these public service commissions.

Thirdly, emergency provisions that means the provisions for emergency situations. Fourthly, judiciary, the structure and

powers of the judiciary. Let's now look at how the British constitution also was a very important source for the Indian

constitution. A lot of concepts and features of the Indian constitutions in fact have its

roots in that of the great Britain. Some of these are first the parliamentary form of government. In such a form of

government, the country is governed by a cabinet of ministers led by the prime minister. The prime minister is the head

of the government whereas the president is the nominal head or the head of the state.

The main feature of this parliamentary form of government is the availability of one or more opposition parties that

exist to keep a check on the ruling party and its functioning. Then we have what we call the rule of

law. And this basically states that a state is not governed either by the representatives or by the people but

only by the law of that country. The concept of rule of law states that everyone is equal before the law even

the ones making it. Article 14 of the Indian Constitution in fact codifies this rule of law. Article

14 talks about the right to equality that the state shall not deny to any person equality before the law or the

equal protection of the laws within the territory of India. The idea of single citizenship this also came from the

British constitution. Well, this implies that a person born or migrated to Indian territory can enjoy the political and

civil rights of India alone and no other country at the same time. Therefore, India at that time did not allow for

dual citizenship which we of course do now. The Indian state did not recognize state citizenship implying that there

should not be any demarcation made between the citizens of two or more states within the entire territory of

India. The idea of rits was also borrowed from the British constitution. The Supreme

Court and the high courts in India have the power to issue rits in order to make the right to constitutional remedies

which is available in article 32 to article 35 to the citizens. In fact there are five rits. First is

habius corpus which means to produce the detained person before the court and release him if detention is found

illegal. Then we have mandemus which is an order from the supreme court or the high court to a lower court to perform a

public duty. Then we have certaray. The supreme court or the high court here issues the writ for quashing the order

already passed by an inferior court. Prohibition. This is a rate which is issued by the Supreme Court or the high

court to a lower court to stop the latter from continuing with the procedures. And finally core warrantto

which restrains a person from holding a public office which he is not entitled to hold. We all know that the Indian

constitution provides for these rights in article 32 and 226. Article 32 part one says the right to

move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is

guaranteed. Article 32 part two says the Supreme Court shall have the power to issue

directions or orders or rates including the rits in the nature of habius corpus mandemus prohibition co-war or certar

whichever may be appropriate for the enforcement of any of the rights that are conferred

by This part article 226 part one says that notwithstanding

anything in article 32 every high court shall have power throughout the territories in relation to which it

exercises jurisdiction to issue to any person or authority including appropriate cases any

government within in those territories, directions, orders or rits including rits in the

nature of habius corpus, mandemus, prohibition, co- wararto and certari or any of them for the enforcement of any

of the rights that are conferred by part three and for any other purpose. Then we have the legislative procedure

that is the process of making laws. Then we also have the cabinet system the structure and function of the

cabinet. We also have the feature of bicamealism that is a two-house parliament and we

also got the idea of parliamentary privileges that are special rights and immunities of parliament members.

Let's look at another source for the Indian constitution and that was the constitution of the United States of

America. Some of the features that are borrowed from the USA are the idea of fundamental rights. Article 12 to 32 of

the Indian Constitution contains all the fundamental rights. Fundamental rights are the basic human

rights that are given to the citizens of the country to assure them an equal stance in society.

The six fundamental rights are the right to equality, the right to freedom, right to exploitation, right to

freedom of religion, cultural and educational rights and the right to constitutional remedies.

We also have the feature of judicial review. The provision of judicial review gives the judiciary an upper hand in

interpreting the constitution. The judiciary can thus nullify any order by the legislature or executive if that

order is in conflict with the constitution of the country. The basic structure doctrine. This also we

borrowed. It is an Indian judicial principle asserting that the power of the parliament to amend the constitution

is limited by the constitution. What does this mean? It means that the constitution has several basic features

that cannot be amended. This applies only to constitutional amendments and not to ordinary acts of

the parliament. The initial stand of the Supreme Court that any part of the constitution

is amendable whilst in compliance with the article 368

including the fundamental rights and the article 368 was first challenged by justice JR Madhulkar in the year 1965. 4

in his descent of the Sajjan Singh versus the state of Rajasthan judgment. We also have the example of the

Keshwanandanda Bharati versus the state of Kerala proceedings of 1973 which was a landmark ruling. In fact,

this ruling answered one main question. Was the power of the parliament to amend any part of the constitution unlimited?

This judgment ruled that the constitution cannot be amended so as to affect the basic structure. In contrast

to the earlier judgment in the 1967 Golaknath case which has concluded that the parliament cannot amend so as to

take away the fundamental right of a citizen. Indra Gandhi in fact violated the

doctrine with the emergency in 1975 and tried to prevent her prosecution by the 39th amendment.

Chief Justice Ry attempted to review the Keshwanandhabi judgment by calling a bench of 13 judges

including himself. But within 2 days he was narrowed down by a majority of 12 is to1

and the 39th and 41st amendment was struck down. We also have the impeachment of the

president and the removal of judges. Article 61 of the Indian Constitution provides for the impeachment

of the president through legislative procedures carried out by the two houses of the

parliament. Article 124 part four of the Indian Constitution and the provisions of the

judges inquiry act of 1968 deal with the removal of the judges. In fact, article 124 part 4 states that

a judge of the Supreme Court shall not be removed from his office except by an order of the president passed after an

address by each house of the parliament supported by a majority of the total membership of that house and by a

majority of not less than 2/3 of the members. Members of that house present and voting has been presented to the

president in the same session for such removal on the ground of proved misbehavior or incapacity.

Let's also look at the independence of the judiciary. the judiciary's ability to operate

without political interference. Removal of the Supreme Court and High Court judges, the procedure for removing

top judges, these features were also brought in. The vice president, the post of the vice

president, that was also brought in. The next source that we're going to look at is the Irish Constitution.

The main feature borrowed from the constitution of Ireland is the famous principle and provision of the directive

principles of state policy which are famously known as DPSP. The DPSP are listed in part four of the

Indian constitution and they clearly state that it is the duty of the state to apply these principles in the process

of law makingaking. There are mainly three categories of these principles. Socialist directives, Gandhian

directives and liberal intellectual directives. The procedure for the nomination of

members to the Raja Sabha is also borrowed from Ireland. The method of election of the president.

The procedure for electing the president is also borrowed from Ireland. The next source is the constitution of Canada. In

fact, the provisions of a federation with a strong center, residuary powers of the center, appointment of state

governors by the center and the advisory jurisdiction of the Supreme Court. They have all been borrowed from the Canadian

Constitution. Article 248 of the Indian Constitution states that the parliament has the sole

power to make laws regarding any item not mentioned in the union and state lists

respectively. Article 143 provides for an advisory jurisdiction for the Supreme Court.

Under this provision, the president may seek opinion of the Supreme Court on public matters and the

Supreme Court may then further give its opinion after studying the case properly.

The appointment of the governors. This also comes from the Canadian Constitution. The appointment of state

governors by the central government. The advisory jurisdiction of the Supreme

Court. All of these are from the Canadian Constitution. The power of the Supreme Court to give advice to matters

of law. Let's look at what we've borrowed from the French Constitution.

The Indian preamble in fact borrows its ideals of liberty, equality and fraternity from the French Constitution.

The Indian state came to be recognized as quote unquote the Republic of India in the lineage of the constitution of

France. We also borrowed from Australia. The constitution of Australia lent us provisions of freedom of trade

and commerce within the country and between the states. The provisions of the same are laid down in article 301 to

307 of the Indian constitution. We also received the provisions of the concurrent list and the joint sitting of

both the houses of the parliament from Australia. Well, South Africa and Germany also gave

us features. While the constitution of South Africa, it gave us the provisions

of the procedure of the amendment and the elections of the Rajya Sabha

members. The German constitution in fact gave us the provision of suspension

of fundamental rights during emergency. So these were the major sources of the

Indian constitution. As the father of our constitution and the chairman of the drafting committee,

Dr. BR Ambedkar said and I quote as to the accusation that the draft constitution has reproduced a good part

of the provisions of the government of India act 1935. I make no apologies what he said. He

said there is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the

fundamental ideas of a constitution. And finally, I'll end by also just stating that there were some other

notable sources like the constitution of the ursw wild Soviet Union USSR constitution from where we borrowed also

the ideas of the fundamental duties of the citizens and the ideals of social, economic and political justice in the

preamble. also finally the Japanese constitution from which we borrowed the procedure

established by law. So these are all the sources of the Indian constitution. [music]