An Eagle’s View of The Constitutional Law in India: Brief, Evolution, Features and Recent Developments

October 11, 2024

Always heard of the Constitution of India, Constitutional law and the celebration around its utmost importance! The constitution of India is often hailed as a living document. Constitutional law deals with the study and the provisions of the Constitution. Wondering and inquisitive of why and how? The piece below, as you scroll through will lead you to answers and much more.

Scope and Nature of Indian Constitution

The constitution is often termed as the law of the land or supreme law of the land, as it acts as the foundation stone for all the laws, rules, regulations and legislative or executive acts.

As a matter of record and general norm, the Constitution can be written or oral. The Indian Constitution is written and is the longest in the world. United Kingdom, Israel and New Zealand are the prominent illustrations of the countries having an unwritten constitution for their country.

The constitution is a living document as it is flexible to interpret for effective application and can be amended or modified to suit the needs of changing times and legal tangents. The document acts as the fundamental law of the land and the basis of other legislative pieces and regulations.

The Supreme Court of India acts as the guardian and interpreter of the constitution and its provisions. For a piece of legislation or any act to be valid, it has to withstand the test of constitutionality.

History and The Making of The Constitution of India

The constitution acts as a fundamental tool of governance. As for India the suggestion of forming a constitution was given by the revolutionary and philosopher M.N Roy.

A Constituent Assembly of 389 members was formed for this in November 1946, following the Cabinet Mission Plan and it held its first meeting on December 9, 1946.

On record, it took 2 years, 11 months and 18 days to frame the Constitution of India, with Dr. BR Ambedkar as the head of the ‘Drafting Committee’.

The objective resolution moved by Pt. Jawahar Lal Nehru was adopted as the Preamble of the Constitution.

The reading of the draft was conducted in three stages and the Indian Constitution was passed and enacted on November 26, 1949, and it came in effect and enforcement on January 26, 1950.

At its inception, the Indian Constitution constituted of a Preamble, 22 Parts, and 8 Schedules.

Now the Constitution on record has 25 Parts in number and 12 Schedules.

Constitution: A Book of Supreme Functionality

The constitution works and acts at different dimensions and in different magnitudes, as the foundational stone and the basic law of the country- serving the provisions and guidelines for individual rights and duties, rights, duties and functioning of State and other Constitutional bodies and relations between different organs and constitutional tangents.

Sets the foundational principles of existence and functioning like liberty, sovereignty, unity, integrity, secular existence by its preamble and other provisions.
Broadly sets the social and legal aspirations and ideals of the country and the State.
Deals with the geographical boundaries of countries.
Fundamentals, granting and withdrawal of citizenship.
Fundamental Rights
Fundamental Duties
Directive Principles of State Policy
Functioning and Structure of Centre and State (Executives), including constitutional appointments and positions and the local governance.
Centre- State Relationship.
Provisions of Emergency.
Constitutional Amendments (Article 368).
Inter-se functioning of various constitutional instrumentalities.

Inherent Features of The Indian Constitution

The constitution works as the linking thread of harmony and due exercise of the constitutional power in the country. The constitutional law balances the individual and the community rights and its co-existence.

Some prominent features of the construct are-

Lengthiest Constitution of the world
A written Constitution which has grown into (448 Articles and 22 Parts by count via various amendments).
Provides for a Parliamentary form of Government, with the President and the Governor as the head of the Union Government and the State Government respectively.
Quasi-federal – The Constitution of India is a necessary blend of unitary and federal features. It functions as a federal system with separation of power between organs, written format, independent judicial system, and bicameral legislature. On the other hand, it stabilizes itself with unitary elements like single citizenship for Indian citizens, provisions of Emergency providing for National, State, and Financial Emergency (Article 352 to Article 360).
A Rigid structure with necessary flexibility (with the apt provisions of amendment and scope of judicial interpretation of constitutional law).
Independent Judiciary with Supreme Court as the apex court (Article 124).

Constitutionalism by this provides for legitimacy and legality of legislative and government’s actions and ensures necessary constitutional compliance in lieu of fundamental validity. The constitution is needed to act as a cornerstone for inception and development of other laws and provisions. The Indian Constitution is needed as an enabler of fair and harmonious functioning, in the well defined parameters of the fundamental law and directives in the form of the written constitution itself that lays down and at the same time limits the power play and power functionality at different levels of the democratic country.

The Preamble of The Indian Constitution

The preamble acts as the preface and source of the Constitution. As the basic structure of the constitution, it sets the tone and broader outline for the provisions and ideals of the constitution along with the fundamental features at play.

The preamble necessarily sets the tone and monologue as a citizen of India, as it says -”we the people of India…”

It provides for a – Sovereign, Socialist, Secular and Democratic Republic. The preamble provides and aims at Justice, Liberty, Equality and Fraternity and hence highlights the nature of the constitutional law.

Is Preamble A Part of The Constitution?

In the Berubari Case (1960), the apex court held that though the preamble reflects on the general ideals and purpose it is not a part of the constitution and not a source of authority.

This was followed by Kesavananda Bharati vs. State of Kerala, where the 13 Judge Bench held that the Preamble is the part of the constitution and guides the interpretation of the constitutional law and its provisions.

The highest court of the country later deliberated on the issue of amendment of preamble in Minerva Mills vs. Union of India (1980)- The majority opinion penned back then, held that the Preamble being the part of the constitution can be validly amended by the way of a positive amendment i.e. an addition or a modification, as per the provision of Article 368 of the constitution.

S.R Bommai vs. Union of India (1994) – the Supreme Court following the earlier view held that the preamble was very much the part of the Constitution. The court went on to hold that the Preamble hence can be amended by the virtue of Article 368 subject to the limitation that no changes can be made to the basic structure of the Constitution of India.

Amendment of The Preamble

Till date the preamble has been amended only once by the 42nd Amendment in the year 1976- by which three words Socialist, Secular and Integrity were added to the preamble.

Important Provisions and Parts of The Constitution

The Fundamental Rights (Part 3 – Article 12 to Article 35)
- Right to Equality ( Article 14)
- Article 19 ( Right to Freedom)
- Article 21 ( Right to life)- Article 21 has with the wave of time expanded its magnitude
  to various rights via various judicial interpretations and cases and gained immense significance in terms of being the right to life, that in itself for effective application and living, is a bundle of rights. The latest and significant ones being the right to health, right to privacy ( K.S Puttaswamy Case), right to marry ( a combination of Article 19 and Article 21).
- Right to Freedom of Religion (Article 25 to Article 28)
- Educational and Cultural Freedom (Article 29 and Article 30).
- The Golden Triangle- Article 14, 19 and 21, owing to their fundamental interplay and immense significance as Right to Equality, Right to Freedom, Right to Life and Liberty are marked as forming a golden triangle.
- Article 32 – is one of the most effective rights as it infuses functionality and enforceability in other rights. Article 32 provides for the remedy against the infringement of the fundamental rights of an individual that can be exercised by approaching the Supreme Court under the writ jurisdiction.
  (5 writs – Habeas Corpus, Prohibitory, Quo Warranto, Certiorari, Mandamus).
Directive Principles of State Policy – Article 36 to Article 51- these are directive and are guiding in nature (based on Gandhian, Liberal and Socialist Principles) for the State policies and are not legally enforceable.
Fundamental Duties- Article 51 A (Part IV-A) was added to the Constitution of India by the 42nd Amendment in the year 1976 with 10 fundamental duties for the citizens. The 11th fundamental duty was added in the year 2002 by 86th amendment – with an obligation to provide education to the child between the age of 6 years to 14 years.
Part I- The Union and Territories.
Part II- Citizenship.
Part V and VI -The Union and the State.
Part VIII- Union Territories.
Part IX- Panchayats.
Part IX-A- Municipalities.
Part IX-B- Cooperative Society.
Part X- Scheduled and Tribal Areas.
Part XI- Union and State Relations.
Part XII- Finance and Property.
Part XIII- Trade and Commerce.
Part XIV- Union and State Services.
Part XIVA – Tribunals.
Part XV- Elections.
Part XVI- Special Provisions.
Part XXVII- Official Language.
Part XVIII- Emergency.
Part XIX- Miscellaneous.
Part XX- Amendments
Part XXI- Temporary Provisions
Part XXII- Short, Title and Commencement.

Sources that Inspired The Indian Constitution

The makers and the constituent assembly drew inspiration from a lot of sources for the Indian Constitution, as it was a process of thorough analysis, examination, analysis of different legal systems and debates.

SOURCE	FEATURES
Government of India Act, 1935	Federal Structure Post of Governor Judiciary Public Service Commissions
British Constitution	Bicameral Structure Parliamentary form of Government Rule of law Legislative procedure Single Citizenship Writ Jurisdiction
Irish Constitution	Procedure of President’s Election Directive Principles of State Policy Nomination of Rajya Sabha members
Germany	Suspension of Fundamental Rights (during the Emergency Period)
USA	Vice President’s Post Fundamental Rights Independent Judicial System Judicial Review Impeachment of the President Removal of Supreme Court and High Court Judges
Australia	Concurrent list (3rd list) Freedom of Trade Commerce and intercourse. Joint sitting of the Upper and Lower House.
South Africa	Amendment of the Constitution (Article 368)
USSR	Fundamental Duties Social, Economic and Political Justice.

Significant Amendments to The Constitution of India

The constitutional law of India that stands firm on its rigid elements, illustratively in terms of basic structures and certain other features discussed above, has a unique sense of flexibility to it. Law is something that governs the society and the individual social beings, and the society, living norms, regulatory requisites and thresholds are bound to change and need to change with changing times. This element of flexibility makes it adaptable to changes, interpretations and needful modifications or alterations to its provisions, as and when required as per the changing requirements of law. A very fluid illustration of this as discussed in previous paragraphs, is the evolution of Article 21 (Right to Life and Liberty), which with time has attained and encompassed within itself lots of new elements and rights of life.

Article 368 of the Constitution of India, provides for the power of amendment of constitution by the parliament and its procedure, whereby the amending bill can be introduced in either of the two houses of the parliament. Every amendment so made by the parliament is open to the process of judicial review and has to withstand the test of basic constitutionality and validity.

3 Types of Amendments:

An amendment by simple majority i.e. majority of members present & voting, of both the houses of the parliament.
- Example in cases of change in the name of the state.
An amendment by special majority- i.e. majority of 2/3rd of members present and voting in both the houses.
- For instance in cases of amendment to the fundamental rights or the fundamental duties under the constitution.
An amendment by special majority along with due ratification by half of the states- i.e. majority of 2/3rd of members present and voting in both the houses and ratified by half of the states.
- Illustratively- such a ratification is needed in case an amendment is sought to be made
  to the Article 368 itself or if amendment is to be made to the 7th Schedule (i.e. 3 lists of subjects).

List of Significant Amendments till Date

AMENDMENT NO.	YEAR	SUBJECT
1ST Amendment	1951	Added Article 31A & 31 B. Saving of laws, providing for the acquisition of estates, etc. Added 9th schedule preventing land reforms from judicial review.
7th Amendment	1956	Abolished the existing categorization of states in parts. Extension of the jurisdiction of high courts to union territories and establishment of a common high court for two or more states.
42nd Amendment	1976	MINI CONSTITUTION Three new words were added by the 42nd Amendment Act, i.e., socialist, secular, and integrity, which were added in the Preamble. 10 Fundamental Duties for citizens were inserted. As per amendment, the President shall be bound to act in accordance with the advice of the Council of Ministers in the discharge of his functions under Article 74. Provided for the provision of administrative tribunals and tribunals for other matters. (Added Part XIV A). Constitutional amendments were made to operate beyond judicial scrutiny. The tenure of Lok Sabha and state legislative assemblies was raised from 5 to 6 years. Laws enacted to implement Directive Principles cannot be deemed invalid, unless it violates any of the Fundamental Rights. 3 new Directive Principles of State Policy inserted- equal justice and free legal aid, participation of workers in the management of industries, and protection of the environment, forests, and wildlife.
44th Amendment	1978	Substituted the term “internal disturbance” with “armed rebellion” as for the ground of national emergency. President could declare a national emergency only on the written recommendation of the cabinet. ‘Right to property’ was removed from the list of Fundamental Rights, making it a legal and constitutional right only. Fundamental rights guaranteed by Articles 20 and 21 could not be suspended during a national emergency.
52nd Amendment	1985	Provision for Anti -Defection Law (10th schedule).
61st Amendment	1989	The voting age was reduced from 21 years to 18 years.
65th Amendment	1990	Established the National Commission for SC & ST.
69th Amendment	1991	Delhi was designated as NCT of Delhi (Special status).
73rd Amendment	1992	Added the Panchayati Raj Institutions (11th Schedule) with reservation of seats for SCs and STs in proportion to their population, and one-third reservation of seats for women were granted.
74th Amendment	1992	Constitutional status to the urban local bodies ( i.e Part IX A – Municipalities and 12th Schedule)
85th Amendment	2001	Consequential seniority in cases of promotion on the basis of reservation for Scs and STs.
86th Amendment	2002	Inserted Article 21-A as Right to Education “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine.” (State’s obligation and a fundamental right). Simultaneous changes were made to Fundamental duties – “It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years”.
92nd Amendment	2003	Official languages were increased from 18 to 22 with the addition of Bodo, Dogri, Maithili and Santhali.
97th Amendment	2012	Cooperative societies were given a constitutional status with insertion of Part IX B.
99th Amendment	2014	Collegium system was replaced by NJAC (This was later struck down by the SC as unconstitutional and restored the collegium system for appointment of SC and HC Judges).
100th Amendment	2015	Gave effect to the LBA agreement with Bangladesh.
101st Amendment	2016	Introduced the new system of taxation i.e. Goods and Services Tax (GST).
102nd Amendment	2018	Constitutional status to the National Commission for Backward Classes.
103rd Amendment	2019	Economically Weaker Section (EWS): A maximum of 10% Reservation for Economically Weaker Sections of citizens of classes other than the classes mentioned in clauses (4) and (5) of Article 15. Inserted Article 15(6) and 16(6) This amendment was upheld by the apex court in Janhit Abhiyan vs. UOI.
104th Amendment	2020	Extension of deadline for the cessation of seats for SCs and STs in the Lok Sabha and state assemblies from 70 to 80 years. Removal of the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.
105th Amendment	2021	Restored state governments’ power to prepare the list for Socially and Educationally Backward Classes (SEBC).
106th Amendment	2023	Reservation of 1/3rd Seats For Women- Reserves 1/3rd of all seats for women in Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory of Delhi, including those reserved for SCs and STs.

Now that you have scrolled through the making, evolution and developments of the Indian Constitution and the constitutional law, let us briefly explore the modern day understanding and changes of the constitutional law by touching upon the recent constitutional bench cases of the Supreme Court.

A constitutional bench is a scenario where 5 or more Judges of the Supreme Court form a bench to decide a substantial question of law that involves the interpretation of constitution, scrutinizing constitutionality or hearing a reference from the President under Article 143.

2023 was a year of many prominent constitutional bench decisions, to list down a few-

Vivek Narayan Sarma vs. UOI – Upheld the constitutional validity of demonetization of 2016 (4:1).
Kaushal Kishore vs. State of UP- Held that the fundamental rights can be asserted against private individuals and only reasonable restrictions listed under Article 19(2) can be used as limitations.
Joseph Shine vs. UOI– held that the decriminalization of the offence of adultery wouldn’t affect the ambit of disciplinary proceedings against the armed forces personnel.
Anoop Baranwal vs. UOI – The apex court held that there was a gap in law regarding the procedure of the appointment of members of the Election Commission of India (ECI), as it was being solely done by the President and hence created an appointing committee. A law later in the year, was passed by the parliament filling in the lacuna and replacing the committee that was earlier formed by the SC Judgment.
Animal Welfare Board of India vs. State– Upheld the validity of the practice of Jallikattu. The Supreme Court clarified that animal rights are not at par with the individual’s (human) fundamental rights.
Supriyo @ Supriya Chakraborty v Union of India- dealt with the issue of marriage equality i.e. granting marital rights to the LGBTQ community. The court rejected the plea stating that bringing in such a change could only be carried by the means of a law and that fell in the ambit of the legislature.
In Re: Article 370 of the Constitution– that challenged the validity of the abrogation of the special status of the Jammu and Kashmir State- the Supreme Court upheld the validity and constitutionality of the abrogation of the temporary status.

CONCLUSION

Concluding, this traces down the constitutional law, its ambit and quasi federal functioning in India. The Indian Constitution serves as the fundamental guiding light for all other laws and allied acts or actions and is needed to maintain a valid legal balance and prevent arbitrary actions guided by tools of power. The constitution is the need for a functional law, and its dutiful compliance and implication is the need of the constitution itself.

Related Books

For more information, references, and critical appreciation of the Constitution, constitutional provisions or constitutional law refer to

Statement of Indian Law by Govind Goel (2^nd Edition)

An exhaustive and professionally chiselled commentary on the Constitutional Bench Judgments of the Supreme Court of India, with a foreword by the Chief Justice of India- Justice DY Chandrachud.

The commentary lays down an in-depth interpretation on the development of the Indian Constitution and its adaptive interpretation, via the cases decided by the Constitutional Benches of the apex court.

Bare Text on The Constitution of India

This Bare Text on the Indian Constitution is the latest and updated with all the recent amendments to the Indian Constitution.

Constitutional Law eBook Packages

Constitutional Law eBook package consists of eBooks on constitutional law including the latest titles such as Dr J N Barowalia and Abhishek Barowalia: Commentary on The Right to Information Act, DD Basu: Introduction to the Constitution of India, MP Jain: Outlines of Indian Legal and Constitutional History, M P Jain: Indian Constitutional Law (8^th Edition), P M Bakshi: The Constitution of India (19^th Edition).
It has an exhaustive range of reference resources for the subject at one place.

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Introduction to the Constitution of India by D D Basu

Durga Das Basu’s Introduction to the Constitution of India is a classic commentary and an evergreen resource book to scroll through the origin and development of the Constitution of India.

One of the most trusted reference resources to study about the making and development of the Constitution. This edition is Includes notable judgments of the Supreme Court of India such as In re: Article 370 of the Constitution, Government of NCT of Delhi v UOI, Sita Soren v UOI, M K Ranjitsinh v UOI, etc. The latest, the 27^th edition is available to order.

Hindi Translation of the much talked about book is also available, currently in its 15^th edition to order.

Lay your hands and clicks on these and get some of the best books to read about the Constitutional law of India!

Outlines of Indian Legal and Constitutional History by MP Jain (8th Edition)

It is a classic and comprehensive text authored by Professor MP Jain, one of the founders of the modern Indian legal education and research. For many years, Professor M P Jain’s books and other writings on Indian legal history have been prescribed texts for students of law. An essential reference aid for law students, researchers, academicians, judges, advocates, and people preparing for competitive examinations.

Indian Constitutional Law by M P Jain (8th Edition)

The commentary is diligently updated with the case law, the book remains rooted to the original essence by setting out the legal principles drawn by these cases. This edition also comes with exhaustive critiques The book also covers the issues of contemporary jurisprudence along with its evolving tangents.

Constitution of India by P M Bakshi (19^th Edition)

This book offers a comprehensive and yet concise commentary on the Constitution, providing accurate and up-to-date information on legislative developments and significant judicial pronouncements. Each article is accompanied by short notes for understanding of the concept.

Also Read: 6 Books That Will Deepen Your Understanding of the Indian Constitution

Constitutional Bites (FAQs)

How many constitutional laws are there in India?
There is one constitution of India (longest and written in format), which has 395 Articles, 12 Schedules and 22 Parts.
Who wrote the Constitution Law of India?
The Constitution was framed by the Constituent Assembly, with Dr. BR Ambedkar as the head of the drafting committee and Dr. Rajendra Prasad as the President of the Constituent Assembly.
Who is the father of the Constitution?
Dr. BR Ambedkar is hailed as the father of the Indian Constitution.
How big is the Indian Constitution?
The Indian Constitution is the longest written constitution in the world. At present it has 395 Articles, 22 Parts and 12 Schedules
What is the 1st Article of the Indian Constitution?
Article 1 lays down that –
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.
(3) The territory of India shall comprise —
(a) the territories of the States;
(b) the territories specified in Part D of the First Schedule; and
(c) such other territories as may be acquired.