Sources of the Indian Constitution
The Constitution of India which came into effect in 1950 is said to be the result of borrowings, both external as well as internal. The framers of the Constitution, indeed, were influenced by numerous other constitutions. Dr. Ambedkar expressed the opinion that no constitution in the world is anew and that the constitutions are copied from the earlier ones, but they are made to suit the conditions and needs of the people and that the Indian Constitution of 1950 had been modelled accordingly. He admitted saying: “……… all constitutions in their main provisions must look similar, the only new things, if there be any, in a constitution …….. are the variations made to remove the faults and to accommodate it to the needs of the country.” There is, therefore, much in our Constitution that has been borrowed from the constitutions of other countries, but what has been borrowed has been modified, here and there, so to suit our requirements. A tentative list of what has been taken, by way of inspiration, from other constitutions may be, briefly, summed up as under:
From the Constitution of the United Kingdom
- The position of the President (like the British Queen) as the constitutional head;
- The cabinet (parliamentary) system of governance;
- The powers and functions of the Prime Minister as head of the government;
- The Lower House (the Lok Sabha) relatively more powerful than the Upper House (the Rajya Sabha);
From the Constitution of the United States of America
- The ideas of the rule of law and equality before law;
- Civil services and police system;
- Majoritarian principle in the functioning of the parliamentary system;
- Law-making procedure, and
- Local system of administration.
From the Constitution of the United States of America
- The concept of written constitution;
- The position of the executive head, i.e., the President, as the supreme commander of the armed forces;
- The Vice-President as the ex-officio chairman of the upper chamber, i.e., the Rajya Sabha;
- The role of the Supreme Court as the custodian of the Constitution; the independence of judiciary;
- The idea that the Preamble to the Constitution should be stated to indicate the resolve to constitute the nation into a democratic polity;
- The doctrines of judicial review and of judicial activism, and
- The incorporation of the Fundamental Rights in the Constitution (The US Constitution incorporates Fundamental Rights in the first ten amendments made within a couple of years of the enactment of the Constitution)
From the Constitution of Canada
- The federal form of government together with a strong center;
- The residuary powers to be vested in the Union Government;
- The office of the Governers in the provinces to be an appointed one;
- Advisory jurisdiction of the Supreme Court
From the Constitution of the Irish Free State
- The idea of the Directive Principles of State Policy;
- Procedure of the election of the President.
From the Constitution of Ireland
- The nomination of certain members in the upper House, i.e., the Rajya Sabha.
From the Weimer Constitution of Germany
- The provision of emergency clauses; and
- The suspension of certain rights during the period of emergency.
From the Constitution of the Union of South Africa (1910)
- The procedure of amending the Constitution;
- The election of the members of the Upper House i.e., the Rajya Sabha.
From the Constitution of France
- Republican system; and
- The ideals of liberty, equality and fraternity
From the Constitution of Australia
- The idea of having the concurrent list for purpose of legislation; and also of federation; and
- Freedom of trade.
From the Constitution of the USSR-1936 (now Russia)
- The idea of incorporating the list of the Fundamental Duties in the Constitution.
From the Constitution of Japan
The idea of procedure established by law.
The Government of India Act, 1935 is among the internal sources, one of the major sources from where much has been borrowed in the 1950 Constitution of India. Ivor Jennings says: “The Constitution derives directly from the Government of India Act, 1935 from which, in fact, many of its provisions are copied almost textually”, Some critics are of the view that the Constitution of India is “a glorified edition of 1935 Act’. Dr Punjab Rao Deshmukh observes : “The new Constitution is essentially the Government of India Act, 1935 with only adult franchise added,”: Admitting so, even Dr, Ambedkar remarked: “As to accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. 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.”
Indeed, there is a lot that resembles between the provisions of the Act of 1935 and those of the 1950 Constitution. Some such resemblances may be given below:
- Article 251 of the Constitution and Section 107 of the Act have the same language;
- Article 256 of the Constitution and Section 126 of the Act too have the same words;
- Articles 352 and 353 of the Constitution have words which were in Section 102 of the Act; and
- Article 356 dealing with the breakdown of the constitutional machinery in the States has a language which is that of Section 92 of the Act.
Besides the resemblance of phraseology as stated above, both the Act of 1935 and the 1950 Constitution have close similarities of certain principles and ideas. These similarities may be pointed out, briefly, as under:
- The federal scheme envisaged in the Act of 1935 (though the federal part of the Act never came into existence) and the one in the Constitution of 1950, structurally, give the same pattern;
- The division of subjects into three lists and the items given in each list as part of the federal scheme of the Act of 1935 are almost similar to those of the 1950 Constitution;
- The federal pattern of the Act was heavily tilted towards the centralization while the Constitution too provides a federal government with a very strong Centre—in fact, unitary in spirit;
- The safeguards constituted a part of the functioning of the government both at the Centre as well as in the provinces in the Act of 1935. So are also included restrictions and limitations on the exercise of the functioning of the Government in the Constitution as well; and
- The ideas and concepts relating to the Election Commission, the Public Service Commission, the control of the Supreme Court over the High Courts, the power of the Central Government to take over the administration of the provinces in certain circumstances, the protection of minorities bear strong similarities in both the Act and the Constitution.
It is true that the Act of 1935 and the Constitution of India (1950) had significant resemblances but they related mostly to the “details of administration” as Dr. Ambedkar had rightly stated. The fact of the matter is that they (the Act of 1935 and the 1950 Constitution) differed drastically, both in essence and in approach. Some major points of departure are:
- The Act of 1935 was the product of the British Parliament and was imposed on the people of dependent India; the Constitution of India was framed by a completely free nation—indigenous in the real sense of the term;
- The Act of 1935 did not provide either the Fundamental Rights or the Directive Principles of State Policy while the Constitution gave prominence to both—Part III and Part IV of the Constitution had both of them respectively;
- The franchise, in the Act of 1935, was restrictive, limited, discriminatory, and communalized; the Constitution of India provides for universal adult franchise;
- The Act of 1935 had envisaged parliamentary form of government, with a despotic Governor-General at the Centre, and autocratic Governors in the provinces— with discretionary powers: parliamentary in form, but presidential or say dictatorial in spirit. The Constitution of India provides a form of government which is parliamentary in all fairness and to an extent, possible;
- The Act of 1935 was, as Nehru had said, a charter of slavery, undemocratic from the beginning to the end. The Constitution of India is not only democratic but is also sovereign in its essence;
- The Act of 1935 had two Indias: the British India and the Princely India—one partially democratic and another largely monarchical; one ruled amidst inadequately empowered legislative councils, and another, amidst completely absolute autocracies; one, semi-literate and another, almost traditionally nurtured.
- The Act of 1935 had no Preamble whereas the 1950 Constitution had it as the very soul of the Constitution, declaring the resolve of the people to constitute India into a sovereign democratic republic and assuring its people liberty, equality and justice; and
- The Act of 1935 did not provide any method of amendment—it was an Act of the British Parliament which alone could amend it. The Constitution of India was a ‘constitution’ in the real sense of the term and, therefore, contained the method of amendment, especially one as in Article 368 of the Constitution.