Sources of the Indian Constitution

Also called: Borrowed features, Borrowed features of the Indian Constitution · Topic: Making of the Constitution: Constituent Assembly, Sources and Salient Features · NCERT: Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 11, Ch 1 "Constitution: Why and How?"

Meaning

The sources of the Indian Constitution are the colonial laws (mainly the Government of India Act, 1935) and the foreign constitutions whose ideas the framers took and changed to suit India. They sit alongside two Indian sources: the values of the freedom movement and India's civilisational heritage.

This matters because UPSC often asks which feature came from which country. It also matters because critics called the Constitution "a bag of borrowings", and Ambedkar answered that charge in the Constituent Assembly.

Explanation

Three streams behind the Constitution

• The freedom movement. Many leaders of the struggle sat in the Constituent Assembly (the body elected to write the Constitution, December 1946 – November 1949).
• They brought in the movement's values: equality, justice (social, economic and political), freedom and fraternity.
• They also brought practical answers, such as how to give every adult a vote (universal adult franchise, Article 326) and how to guarantee rights (Part III).

• Earlier documents of the movement, such as the Nehru Report and the Karachi Resolution, had already tried out these ideas.

• Civilisational heritage. Older Indian ideas also shaped the text:

• tolerance of different views
• vasudhaiva kutumbakam ("the world is one family")
• rajadharma (the ruler's duty to serve the people)

• early republics such as the sanghas or ganas

• Learning from the world. This stream is what "sources" or "borrowed features" usually means in the exam. The Rig Vedic line ā no bhadrāḥ kratavo yantu viśvataḥ ("let noble thoughts come to me from every side") explains why the framers were open to it.

The biggest single source: the Government of India Act, 1935

• The Act had 11 Parts and 10 Schedules [3].
• It set up a "Federation of India" [3].
• It gave the provinces self-rule and ended dyarchy (split rule) in the provinces [3].
• It divided subjects into three lists [3].
• It created a Federal Court to settle disputes between the Centre and the provinces [3].
• The 1950 Constitution took "a significant chunk" of the Act, mainly its administrative provisions [3].
• What India took from it: the federal scheme, the Governor's office, the judiciary, Public Service Commissions (Arts 315–323) and the emergency provisions (Part XVIII, Arts 352–360).

Country-by-country borrowings

• Britain:
• parliamentary government
• rule of law (everyone, including the government, is under the law)
• law-making procedure
• single citizenship (Part II, Arts 5–11)
• cabinet system (Arts 74–75)
• writs (court orders to protect rights; Arts 32 and 226)
• parliamentary privileges (Art. 105)
• bicameralism (two Houses; Art. 79)
• first-past-the-post voting

• the Speaker (Art. 93)

• USA:

• Fundamental Rights (Part III)
• judicial review (courts can strike down laws that break the Constitution; Art. 13)
• independent judiciary
• impeachment of the President (Art. 61)
• removal of judges (Art. 124(4))

• the Vice-President (Art. 63)

• Ireland:

• Directive Principles of State Policy (goals the State must try to meet, but courts cannot enforce them; Part IV, Arts 36–51) [5]
• nomination of 12 members to the Rajya Sabha (Art. 80(1)(a) and 80(3))

• method of electing the President (Arts 54–55)

• Canada:

• a quasi-federal system (federal in form but leaning towards the Centre)
• residuary powers with the Centre (power over subjects not in any list; Art. 248 and List I Entry 97)
• Governors appointed by the Centre (Art. 155)

• advisory jurisdiction (the Supreme Court gives its opinion when the President asks; Art. 143)

• Australia:

• Concurrent List (Seventh Schedule, List III)
• freedom of trade, commerce and intercourse (Part XIII, Arts 301–307)

• joint sitting of the two Houses (Art. 108)

• Weimar Germany: suspension of Fundamental Rights during an emergency (Arts 358–359).

• USSR:
• Fundamental Duties (Part IV-A, Art. 51A)

• the ideal of social, economic and political justice in the Preamble

• France: the Republic, and liberty, equality, fraternity in the Preamble (from the 1789 Declaration of the Rights of Man).

• South Africa:
• amendment procedure (Art. 368)

• election of Rajya Sabha members (Art. 80(4))

• Japan: "procedure established by law" (Art. 21).

How some borrowed procedures work

• Amendment (Art. 368; from South Africa):
• Simple majority (more than half of members present and voting): for matters outside Art. 368, such as creating new states (Arts 2–4).
• Special majority (a majority of each House's total membership and two-thirds of members present and voting, in each House separately): for example, Fundamental Rights and Directive Principles.
• Special majority plus ratification by at least half of the state legislatures: for federal matters, such as the election of the President or the Seventh Schedule.

• There is no joint sitting for an amendment bill.

• Joint sitting (Art. 108; from Australia):

• Step 1: the two Houses disagree on an ordinary bill, or one House holds it for more than 6 months.
• Step 2: the President calls a joint sitting.
• Step 3: the Lok Sabha Speaker presides.
• Step 4: the bill passes by a simple majority of members of both Houses present and voting.

• A joint sitting is not allowed for money bills or amendment bills.

• Impeachment of the President (Art. 61; from the USA):

• Step 1: at least one-quarter of a House's members sign the charge.
• Step 2: the President gets 14 days' written notice.
• Step 3: that House passes the charge by two-thirds of its total membership.
• Step 4: the other House investigates the charge.

• Step 5: the other House also passes it by two-thirds of its total membership, and the President is removed.

• Removal of a Supreme Court judge (Art. 124(4); from the USA):

• Grounds: proved misbehaviour or incapacity.
• Vote: in each House, a majority of total membership and two-thirds of members present and voting, in the same session.
• Final step: an order of the President.

• Inquiry rules: the Judges (Inquiry) Act, 1968.

• Emergency suspension of rights (Arts 358–359; from Weimar Germany):

• Article 358: Article 19 is suspended automatically once a national emergency is declared on grounds of war or external aggression.
• Article 359: the President can order that courts will not enforce other Fundamental Rights.
• Limit: after the 44th Amendment (1978), Articles 20 and 21 can never be suspended.

In the Constitution and practice

• The charge of copying. Members of the Assembly said "half of it has been copied from the Government of India Act of 1935" and the rest from other constitutions [2].
• Ambedkar's reply on 4 November 1948 [2]:
• Written constitutions had existed for over a century, so "what the scope of a Constitution should be has long been settled" [2].
• The real originality lay in the "variations made to remove the faults and accommodate it to the needs of the country" [2].

• The Drafting Committee had avoided "blind and slavish imitation" [2].

• The Class 11 NCERT view: each borrowed provision had to be defended in the Assembly as suited to India's own problems.

• Article 21 shows how a borrowing can change over time:
• The framers chose Japan's narrower phrase, "procedure established by law". They did not take the US idea of "due process of law".
• A.K. Gopalan v. State of Madras (1950): the Supreme Court read the phrase narrowly. Any procedure set down in a valid law was enough.

• Maneka Gandhi v. Union of India (1978): the Court held that the procedure must also be "fair, just and reasonable". This brought Indian practice close to US-style due process.

• Fundamental Duties came later:

• The 1950 Constitution had no Fundamental Duties.
• Part IV-A (Art. 51A) was added by the 42nd Amendment Act, 1976, on the advice of the Swaran Singh Committee [4].
• The 86th Amendment Act, 2002 added duty (k), which makes parents or guardians responsible for giving their child (aged 6–14) chances for education. This made 11 duties in all [4].

• The duties are non-justiciable, which means a court cannot directly enforce them.

• Universal adult franchise grew out of the freedom movement: Article 326 gives every citizen the vote. The 61st Amendment, 1988 lowered the voting age from 21 to 18.

Don't confuse with

• "Procedure established by law" (Japan) vs "due process of law" (USA): Article 21 uses Japan's phrase. Due process is the US idea. Maneka Gandhi (1978) only brought Indian practice close to it. It did not change the text.
• Emergency provisions (GoI Act 1935) vs suspension of Fundamental Rights in an emergency (Weimar Germany): the power to declare an emergency (Arts 352–360) comes from the 1935 Act. Only the suspension of rights (Arts 358–359) comes from Germany.
• Rule of law (Britain) vs judicial review (USA): rule of law means everyone is under the law. Judicial review is the courts' power to strike down unconstitutional laws (Art. 13).
• Liberty, equality, fraternity (France) vs social, economic and political justice (USSR): both are in the Preamble, but they come from different sources.

Prelims Hooks

• Directive Principles (Part IV, Arts 36–51), nomination to the Rajya Sabha (Art. 80) and the method of electing the President (Arts 54–55) all come from Ireland.
• Residuary powers with the Centre (Art. 248) and the Supreme Court's advisory jurisdiction (Art. 143) come from Canada. The Concurrent List and joint sitting (Art. 108) come from Australia.
• Amendment procedure (Art. 368) and election of Rajya Sabha members come from South Africa, not from Britain or the USA.
• Fundamental Duties come from the USSR. They were added by the 42nd Amendment, 1976, on the Swaran Singh Committee's advice. The 86th Amendment, 2002 made them 11 [4].
• Trap: single citizenship, writs, rule of law and the Speaker come from Britain. Impeachment of the President, the Vice-President and judicial review come from the USA.
• Trap: the GoI Act 1935 is the biggest single source, with 11 Parts and 10 Schedules [3]. It gave India the federal scheme, the Governor's office, Public Service Commissions and the emergency provisions.

Mains Points

• "A bag of borrowings"? Use Ambedkar's reply of 4 November 1948 [2]:
• By then, the basic content of any constitution was settled worldwide.
• The real originality lay in adapting each provision to India's needs. For example, Canada-style federalism was given a strong Centre to hold together a newly partitioned country.

• Article 21 shows that borrowed text can grow: Japan's narrow phrase was widened by Maneka Gandhi (1978).

• Continuity with colonial rule has two sides:

• Using so much of the GoI Act 1935 [3] gave India tested administrative machinery and continuity.

• It also kept colonial-era features, such as strong emergency powers and the Governor's office. The Sarkaria and Punchhi Commissions later had to examine these.

• Indian roots, not only Western borrowing:

• Freedom-movement values (adult franchise, rights) and civilisational ideals (pluralism, rajadharma, vasudhaiva kutumbakam) shaped the text.
• But the duty-based ideals entered only in 1976. The duties cannot be enforced in court, and they were added during the Emergency. Both points raise questions about how legitimate and effective Part IV-A is.

Read more

• Influences and sources: freedom movement, civilisational heritage and other constitutions