A living legend

Though the struggle for independence was over by August 15, 1947, the attainment of independence was not an end in itself. It was only the beginning of a new struggle — the struggle to live as an independent nation, and to establish a democracy based on the ideals of justice, liberty, equality and fraternity. The need for a constitution framing the basic law of the land to realise these ideals was of paramount importance. This led to the first meeting of the Constituent Assembly on December 9, 1946.

The Assembly made substantial progress by adopting an "Objection Resolution", which later became the Preamble of the Constitution. It also appointed a number of important committees, which were presided over by foremost political leaders like Nehru and Sardar Patel. The reports of these committees provided the foundation on which the first draft of the Constitution was prepared by B N Rau, the constitutional adviser. The Drafting Committee headed by B R Ambedkar worked on the revised draft. Then the work of the Constituent Assembly, with Rajendra Prasad as its president, progressed smoothly.

The Assembly held 11 sessions over a period of around 165 days. In the final form, the Constitution had 395 Articles and 8 Schedules. By November 26, 1949, the Constitution in its final form was adopted and enacted. But it came into force only on January 26, 1950, which was the 20th anniversary of the day on which the Indian National Congress adopted the resolution on "Purna Swaraj" — complete political independence — and which has ever since become the Republic Day of India.

In the final analysis, however, the test of a constitution is in its working point. If it is found to be defective in any respect, it should be suitably amended.To its credit then, the Indian Constitution is one of the most highly amended constitutions in the world. In the first 15 years of independent India — from 1951 to 1966 — a relatively stable and placid time, the Constitution had to be amended 15 times. In fact, the provisional Parliament had to pass the first amendment within 18 months of the Constitution.

The Kesavanand Bharati Case was a landmark judgement, with 13 Supreme Court judges presiding over the case. By a majority of seven to six the court held that the Parliament had authority to amend fundamental rights. Thus reversing the Supreme Court’s earlier stand in the Golakhnath case, 1967. However, the court this time invalidated a part of article 31(C) on the ground that it violated the court’s power of Judicial Review. It introduced the idea of a basic structure of the Constitution without giving it any precise definition. There was no challenge to the Parliament’s power to amend fundamental rights. And it was able to regain its supremacy in respect of acquisition of property. The balance between parliamentary supremacy and judicial authority was delicately balanced at this stage.

The 42nd Amendment, 1976, was the most comprehensive and controversial amendment. It was almost like rewriting the Constitution. It deprived citizens of direct access to the Supreme Court, except when violation of the fundamental rights resulted from Central law. The Supreme Court was given exclusive jurisdiction as regards determination of the constitutional validity of laws passed by the union government. It restricted the power of Courts to issue interim orders by way of injunction or stay. Almost all parts of the Constitution from the Preamble to the amending clause saw changes through this amendment.

It reflected the extreme politics of the Emergency times. Formerly in an Emergency, even the right to life could be suspended. This was rectified by the 44th Amendment, 1978. In terms of personal liberty it is an extremely important amendment to the Constitution. It removed most of the restrictions imposed by the 42nd Amendment on the powers of the High Court and the Supreme Court. The right to property which gave rise to more than one amendment of the constitution was omitted. But while it ceased to be a fundamental right, it was given express recognition as a legal right in Article 300 (A) of the Constitution.

Removing property from fundamental rights didn’t affect minorities from establishing educational institutions. It also did not affect the right of a person to own land. Or, receive compensation at market value.

Articles 358 and 359 have proved to be the most controversial Articles since they enable the President to deprive Indian citizens of their fundamental rights during an Emergency. While Article 19 initially granted seven basic rights, including freedom of speech and expression, Article 358 provided for the suspension of these rights, which meant that the citizen could not move any court for the enforcement of the right guaranteed to him by Part III of the Constitution.

— Legal inputs by Advocate Dhananjaya Chandrachud, Mumbai High Court

Information culled from Constitutional History of India — 1600-1950 by M V Pylee, The Indian Constitution — Cornerstone of a nation by Granville Austin, Our Constitution — Defaced and Defiled by N A Palkhivala, The Constitution of India by Phadke & Srinivasan and Constitution, Polity and Society by P A Mechery & Maneesha Tikekar

The salient features of the Constitution

India’s unique pilgrimage to freedom culminated in the transfer of power from Britain to India, in 1947. India declared herself a republic on January 26, 1950. A dedicated team of men and women — fired by patriotism, vision and wisdom — spent a period of over two years drafting the Constitution. A document that is important by the fact that it governs the world’s largest democracy. Highlights: