SOURCES OF INDIAN CONSTITUTION

The sources of Indian Constitution include the imaginative aspirations of the nationalist leaders, the actual working of the Government of India Act, 1935, and the experience gained from the actual working of some of the Constitutions of important countries of the world. Moreover, its sources include not only the sources upon which the founding fathers of our Constitution drew but also the developmental sources such as the judicial decisions, constitutional amendments, constitutional practices and so on. The sources of the Indian Constitution can thus be divided into the following two categories: 

  1. Seminal Sources

Constituent Assembly Debates: Constituent Assembly was constituted under the Cabinet Mission Plan to frame the Indian Constitution. Its members included distinguished lawyers, intellectuals and patriots who took two years, eleven months and eighteen days to prepare the Constitution. During the course of this period, debates on all the aspects of the Constitution were held in a free and fair manner. These debates produced an intelligent opinion in the light of which every word of the Constitution was screened carefully and intelligently.

Reports of Committees of the Constituent Assembly: The Constituent Assembly appointed various types of committees to make reports on different aspects. Some of the most important committees included Union Powers Committees, Union Constitution Committee, Provincial Constitution Committee, etc. Advisory Committed on the rights of citizens, minorities and tribal and excluded areas ad hoc Committee regarding the Supreme Court Committee on financial relations between the Union and States. The reports of these committees were thoroughly discussed in the Drafting Committee. It was on the basis of the reports made by such committees that the draft of the Constitution was prepared.

ON WHAT POINTS THE INDIAN CONSTITUTION IS INFLUENCED BY THE ACT OF 1935?

The Indian Constitution has been influenced by the Government of India Act, 1935 on the following points:

(i) Federal set-up;

(ii) Distribution of powers in three lists;

(iii) Provincial autonomy;

(iv) Office of the Governor;

(v) Bicameral legislature;

(vi) President’s or Governor’s power to issue ordinances; and

(vii) Structure of the Supreme Court

 Nehru Report: The British Government had announced the formation of the Simon Commission for making a report on the working of he Government of India Act, 1919 and suggest constitutional measures required for the efficient administration of Indian. The Congress decided to boycott this Commission because no Indian was taken on it. Instead it announced the formation of a committee under the leadership of Motilal Nehru to make recommendations about the desired constitutional set up for India. The Committee made certain recommendations which are known as the Nehru Report. The main

Clauses of this Report were : (i) grant of Empire; (ii) Creation of a federal structure for India (iii) bicameralism at the Centre; (iv) Parliamentary and responsible Government in Provinces; (v) guarantee of Fundamental Right; and (vi) establishment of Supreme Court as the final court of appeal.

 Lahore Session of the Congress: The Congress at its Lahore session held in 1929 resolved to make India a Republic.

 Objectives Resolution: Jawharlal Lal Nehru moved in the Constituent Assembly the Objectives Resolution embodying the aspirations of nationalist India. The Objectives Resolution clearly spelled out making India a sovereign republic where the ultimate supreme power should be vested with the people. It stated that the people would get social, economic and political justice, liberties of all types and equality. Upliftment of the backward people and areas would be ensured and the structure of the country would be federal.

 Government of India Act 1935: At the time the Constitution for free India was being framed, India was governed by the Government of India Act, 1935. The fathers of the Indian Constitution drew heavily on the experience and the provisions of this Act. According to Jennings – “The Constitution derives directly from the Government of India Act, 1935 from which, in fact, many of its provision are copied textually.”

 Impact of Various Constitutions: The founding fathers of the Indian Constitution were wise enough to borrow from the experience gained in the working of various other Constitutions. It is on this account that the Constitution of India is regarded as a bag of borrowing from the various working Constitutions.

(1) British Constitution: The British Constitution (Mother of all Constitution) had its impact in the following respects; (i) Constitutional head of State (ii) Lower House of Parliament (Lok Sabha) is more powerful than the Upper House; (iii) Responsibility of Council of Ministers towards Parliament; (iv) Parliamentary system of Government ; and (v) Prevalence of Rule of Law.

(2) US Constitution: The Constitution of the United States had its impact in following respects: (i) Preamble of the Constitution (ii) Provision of Fundamental Rights; (iii) Functions of the Vice-President. (iv) Amendment of the Constitution; (v) Nature and functions of he Supreme Court; and (vi) Independence of Judiciary.

(3) Australian Constitution: Australian Constitution gave us a long list of concurrent powers and the procedure for solving deadlock over concurrent subjects between the Centre and the States.

(4) Irish Constitution: The Irish Constitution gave us the Directive Principles of State Policy and the method of nominating members of the Rajya Sabha.

(5) Weimer Constitution of Germany: The Weimer Constitution of Germany had its impact upon the powers of the President as well as on provisions related to Emergency.

(6) Canadian Constitution: Indian Constitution borrowed the provisions of a strong nation; the name of Union of India; and vesting residuary powers with the Union; from Canada.

(7) South African Constitution: The procedure of amendment with a two-thirds majority in Parliament and the election of the members of the Rajya Sabha on the basis of proportional representation by the State Legislatures have been borrowed from the Constitution of South Africa.

  1. Development Sources

Indian Constitution is not a static document. It has grown with the changing needs. Thus amendments, judicial decisions, political practices, parliamentary statutes, rules, regulations and ordinances are the developmental sources of the Constitution.

Amendments of the Constitution: During the course of 60 years the Constitution has been amended about 94 times and a few other amendments are in the pipeline. In this way, the present shape of the Constitution is quite different from the original document. The 42nd Amendment made it clear that the Indian Constitution is more flexible than rigid. This Amendment is often termed as ‘the mini Constitution of India’ due to enormous changes it effected to the Indian Constitution. 

Judicial Decisions: The judicial decisions given by the Supreme Court on important issues have added new dimensions to the Constitution. It is in the light of such decisions that further constitutional amendments are made in the Constitution. Some of the most important judicial decisions are:

(i) Gopalan vs. State of Madras;

(ii) State of Madras vs. Champakam;

(iii) Golak Nath vs. State of Punjab; and

(iv) Keshavanand Bharti vs. Kerala State.

Parliamentary Statutes: Parliament has also made various statues for furnishing details of the various Articles contained in the Constitution. It is the Constitution which itself empowers the Parliament to enact laws on certain Articles for details. These statues are considered as constitutional laws. Without their existence, a detailed study of the Constitution is not possible.

Commentaries of Constitutional Experts:

While interpreting the Constitution, the views of the distinguished constitutional experts, whether Indian or foreign, enjoy special importance. The most notable constitutional experts are Jennings, Gledhill, Alexandrowit, D.D. Basu, Palkhiwala, V.N. Shukla, etc. Their views are not given legal recognition but due regard is paid to them by the judges. Moreover, true significance of any provision of the Constitution  can be understood in the light of their views.

Rules, Regulations, Ordinances, etc.: Each House of the Parliament is empowered to make rules for its efficient working. The President has also got the right to make rules for fixing the constitutional subjects. President of India is also empowered to make rules with respect to the condition of services of the members of the Union Public Service Commission. He can also frame rules to establish peace and efficient administration of the Union Territories. Above all, the President has also the power to issue ordinances when Parliament is not in session. All these rules, regulations and ordinances serve as sources of the Constitution.

Constitutional Practices: Although the Constitution of India is the most detailed in the world, still certain practices independent of the Constitution have developed in India. A few examples of such a practice can be enumerated as follows:

_ The Central Government takes before hand the advice of the State Government in the appointment of its Governor.

_ Governor can be recalled by the Central Government on the advice of the State Government concerned.

_ Governor should not belong to the state to which he is appointed.

_ One of the judges of the Supreme Court must belong to the minority community.

_ The senior most judge of the Supreme Court should be appointed as the Chief Justice of India.

_ The leader of the majority party in Lok sabha is appointed as the Prime Minister.