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

Detail

1. Three streams that shaped the Constitution

• The Constitution drew on three streams:
• the freedom movement: its values and its practical experience
• civilisational heritage: older Indian ideas about society and government

• learning from the world: provisions taken from other constitutions and from colonial law

• The Rig Vedic line ā no bhadrāḥ kratavo yantu viśvataḥ means "let noble thoughts come to me from every side." It sums up why the framers were willing to learn from abroad.

2. The freedom movement

• The people: many leaders of the struggle sat in the Constituent Assembly (the body elected to write the Constitution, December 1946 – November 1949).
• The values they carried into the text:
• equality: the same status and chances for everyone
• justice: social, economic and political
• freedom: liberty of thought, expression and belief
• fraternity: a sense of brotherhood that keeps the nation together
• preserving cultural heritage

• the idea that the Constitution is a tool for reaching these goals, not just a rulebook

• Answers to "how" questions: the struggle also showed how to put these values into practice:

• how to give every adult a vote, which became universal adult franchise (every citizen aged 18 or more can vote; Article 326; the age was cut from 21 to 18 by the 61st Amendment, 1988)
• how to separate powers, which became separation of powers (law-making, executive and judicial work kept with different organs)
• how to guarantee rights: Fundamental Rights in Part III (Articles 12–35)
• how to amend the Constitution: Article 368

• how to relate the Centre and the states: Part XI and the Seventh Schedule

• Where the ideas came from: they had been rehearsed in earlier documents of the movement, such as the Nehru Report and the Karachi Resolution (covered in §3).

3. Civilisational heritage

• Principles the Constitution reflects:
• accepting different viewpoints: tolerance and pluralism
• nature as sacred, which links to protecting the environment
• the pursuit of learning
• respect for women
• vasudhaiva kutumbakam: "the world is one family"

• sarve bhavantu sukhinah: "may all be happy", meaning well-being for all

• Older ideas of governance:

• janapadas: early territorial states
• sanghas (also called ganas): early republics run by assemblies
• Kautilya's saptanga: the "seven limbs" of a state, namely ruler, ministers, territory and people, fort, treasury, army and ally

• rajadharma: the ruler's duty to protect and serve the people

• Duties first: these traditions stress duties more than rights. The Class 7 NCERT book links this to today's Fundamental Duties.

• The standard account adds two points:
• The original 1950 Constitution had no Fundamental Duties.

• Part IV-A (Article 51A) was added by the Constitution (42nd Amendment) Act, 1976, on the advice of the Swaran Singh Committee [4].

• Later change: the 86th Amendment Act, 2002 added duty (k). Parents or guardians must give their child (aged 6–14) chances for education. That made 11 duties in all [4].

• Origin: standard lists trace the idea of Fundamental Duties to the USSR constitution. They are non-justiciable, which means a court cannot directly enforce them (see the dpsp-fundamental-duties note).

4. Learning from the world: the sources of the Indian Constitution

• Sources of the Indian Constitution means the laws and foreign constitutions whose ideas were adapted into the Indian text.
• The biggest single source: the Government of India Act, 1935. It 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].

Source	What India took	Where it sits in the Constitution
GoI Act 1935	Federal scheme; Governor's office; judiciary; Public Service Commissions; emergency provisions; administrative details	Part XI; Art. 153 onwards; Part V Ch. IV and Part VI Ch. V; Arts 315–323; Part XVIII (Arts 352–360)
Britain	Parliamentary government; rule of law (everyone, including the government, is under the law); law-making procedure; single citizenship; cabinet system; prerogative writs; parliamentary privileges; bicameralism (two Houses); first-past-the-post; the Speaker	Arts 74–75; Part II (Arts 5–11); Arts 32 and 226; Art. 105; Art. 79; Art. 93
USA	Fundamental rights; judicial review (courts can strike down laws that break the Constitution); independent judiciary; impeachment of the President; removal of judges; the Vice-President	Part III; Art. 13; Art. 61; Art. 124(4); Art. 63
Ireland	Directive Principles of State Policy (goals the State must try to meet, but which courts cannot enforce) [5]; nomination of members to the Rajya Sabha; method of electing the President	Part IV (Arts 36–51); Art. 80(1)(a) and 80(3) (12 nominated members); Arts 54–55
Canada	A federation with a strong Centre (quasi-federal: federal in form but leaning towards the Centre); residuary powers (powers over subjects not in any list) with the Centre; Governors appointed by the Centre; advisory jurisdiction (the Supreme Court gives its opinion when the President asks)	Art. 248 and List I Entry 97; Art. 155; Art. 143
Australia	Concurrent List; freedom of trade, commerce and intercourse; joint sitting of the two Houses	Seventh Schedule List III; Part XIII (Arts 301–307); Art. 108
Weimar Germany	Suspension of Fundamental Rights during an emergency	Arts 358–359
USSR	Fundamental Duties; the ideal of social, economic and political justice	Part IV-A (Art. 51A); Preamble
France	Republic; liberty, equality, fraternity (from the 1789 Declaration of the Rights of Man)	Preamble
South Africa	Amendment procedure; election of Rajya Sabha members	Art. 368; Art. 80(4)
Japan	"Procedure established by law"	Art. 21

5. Key procedures behind the borrowed provisions

Amending the Constitution (Article 368; idea from South Africa)

Type	Majority needed	Examples
Simple majority (outside Art. 368)	More than half of the members present and voting	Creating new states (Arts 2–4)
Special majority	A majority of each House's total membership and two-thirds of the members present and voting, in each House separately	Fundamental Rights, Directive Principles
Special majority plus states' ratification	Special majority plus approval by at least half of the state legislatures	Federal matters, such as the election of the President or the Seventh Schedule

• There is no joint sitting for an amendment bill. Each House must pass it on its own.

Joint sitting (Article 108; idea from Australia)

• Step 1: the two Houses disagree on an ordinary bill, or one House keeps it for more than 6 months without passing it.
• Step 2: the President calls a joint sitting.
• Step 3: the Speaker of the Lok Sabha presides.
• Step 4: the bill passes by a simple majority of the members of both Houses who are present and voting.
• A joint sitting is not allowed for money bills or amendment bills.

Impeaching the President (Article 61; idea from the USA)

• Step 1: at least one-quarter of the members of a House sign the charge.
• Step 2: the President gets 14 days' written notice.
• Step 3: the House passes the charge by two-thirds of its total membership.
• Step 4: the other House investigates the charge.
• Step 5: that House also passes it by two-thirds of its total membership. The President is then removed.

Removing a Supreme Court judge (Article 124(4); idea from the USA)

• Grounds: proved misbehaviour or incapacity.
• Vote: in each House, a majority of total membership and two-thirds of the members present and voting, in the same session.
• Final step: an order of the President.
• Inquiry rules: set out in the Judges (Inquiry) Act, 1968.

Suspending rights in an emergency (Arts 358–359; idea from Weimar Germany)

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

6. "Not slavish imitation"

• The charge: members of the Assembly said the draft was not original. They claimed "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]:
• Borrowing was unavoidable. Written constitutions had existed for more than a century, so "what the scope of a Constitution should be has long been settled" [2].
• Originality lay in the changes. The real work was the "variations made to remove the faults and accommodate it to the needs of the country" [2].

• No copying. 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.

• Example: Article 21. It took Japan's narrower phrase, "procedure established by law", instead of the US idea of "due process of law".
• In A.K. Gopalan v. State of Madras (1950), the Supreme Court read this phrase narrowly. Any procedure set down in a valid law was enough.

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

• A fuller evaluation of the Constitution is in §12.

Prelims Hooks

• Directive Principles (Part IV, Arts 36–51) come from the Irish constitution. Fundamental Rights (Part III) come from the USA.
• Fundamental Duties (Part IV-A, Art. 51A) are traced to the USSR. They were added by the 42nd Amendment, 1976, on the Swaran Singh Committee's advice. The 86th Amendment, 2002 added duty (k), making 11 duties in all.
• Residuary powers with the Centre (Art. 248) and the Supreme Court's advisory jurisdiction (Art. 143) come from Canada.
• Concurrent List, joint sitting (Art. 108) and freedom of trade, commerce and intercourse (Arts 301–307) come from Australia.
• "Procedure established by law" (Art. 21) comes from Japan. It is not from the USA, whose principle is "due process of law".
• Suspending Fundamental Rights in an emergency (Arts 358–359) comes from Weimar Germany. The emergency provisions themselves come from the GoI Act 1935.
• Amendment procedure (Art. 368) and election of Rajya Sabha members come from South Africa.
• Nominating members to the Rajya Sabha (Art. 80) and the method of electing the President (Arts 54–55) come from Ireland.
• Trap: the ideals of liberty, equality and fraternity in the Preamble come from France (1789). The ideal of social, economic and political justice comes from the USSR.
• Trap: rule of law, single citizenship, writs and the Speaker come from Britain. Judicial review and impeachment of the President come from the USA.

Mains Points

• "A bag of borrowings"? The best answer is Ambedkar's reply of 4 November 1948 [2]:
• The basic content of a constitution was already settled worldwide by then.
• The real originality was in adapting each provision to India's needs.
• Example: Article 21 was later widened by Maneka Gandhi (1978).

• Example: Canada-style federalism was given a strong Centre to hold together a newly partitioned country.

• Continuity with colonial rule. The heavy use of the GoI Act 1935 [3] has two sides:

• It brought 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 versus foreign borrowing. The Constitution is not only Western:

• Freedom-movement values (adult franchise, rights) and civilisational ideals (pluralism, vasudhaiva kutumbakam, rajadharma) shaped it.

• Some duty-based ideas entered the text only in 1976, not in 1950.

• Duties and rights (GS-II). Part IV-A ties India's heritage of duties to modern citizenship. But the duties are non-justiciable, and adding them during the Emergency raises questions about their legitimacy and how much effect they have.