The Constitution and Its Originality

Introduction:

In layman’s language, the constitution can be understood as the basic foundation on which the wall of political structure, legal and relationship of the public with government and vice-versa is erected or constructed.  

The Constitution is a document having special legal sanctity, which sets out the framework and the principle functions of the organ of the Government within the state and declares the principles by which those organs must operate. _{(B.R. Kapur v. State of Tamil Nadu- 2001-7 SCC 231-Supreme Court).}  

The Constitution establishes the main organ of the state, the executive, the legislature, and the judiciary and defines their powers, demarcates their responsibility, and regulates their relationship with each other and the people. 

Historical background:

To understand the originality of the Constitution it is very vital to have a basic understanding of the historical facts. 

It would not be incorrect to say that all Constitutions are heirs of the past as well as testators of the future. _{(Sir Evor Jennings-some character of the Indian Constitution, page no. 56, 1953)}  

The very fact that the Constitution of the Indian Republic is the product not of a political revolution but of the research and the deliberation of a body of eminent representatives of the people who sought to improve upon the existing systems of administration makes a retrospect of the constitution development indispensable for the proper understanding of the constitution. _{(D.D. Basu, Introduction to the Constitution of India, pg. 3 (3rd edition 1946)}  

Broadly there are different faces of the evolution of the Constitution which goes back to advent of the entry of East India Company to Indian (dynastical regime) soil. The historical period can be categorized into: 

The year 1935 played a very important role in framing the basic structure of the Constitution of India. At that time three round table conferences were called by the British government to consider and adopt the proposals. Thereafter, a White paper on Constitutional Reforms was published by the British Government in March 1933 containing provisions for a federal set-up and provincial autonomy. A Joint Committee of the Houses of the British Parliament was set up under Lord Linlithgow to further consider the Scheme. Its report was submitted in 1934 and based on the report bill was prepared and passed by the British Parliament to become The Government of India Act of 1935. 

Sources of Constitution:

The laws during colonial were slavery laws and the poor Indians did not have any voice in it. On the eve of the Independence, the framers of the Constitution were quite enthusiastic about framing the Constitution, which would not only represent a definite departure from the Colonial past but also provide a comprehensive document, to fulfill the aspirations of swarming millions – illiterate, suffering from starvation poverty and want besides, they wanted to produce the most suitable constitution after avoiding its certain inherent defects like rigidity, religious intolerance and apathetic social disparities found in the existing constitutions of the civilized world, and therefore the framers though for drafting such a document best provisions from the world’s best constitutions have been adopted. 

The sources from which the Constitution borrowed or adopted features are as tabulated herein below:-

Other constitutions from which the constitution had borrowed features are the Australian Constitution, Weimar Constitution, Soviet Constitution (earlier USSR), French Constitution, South African Constitution, and Japanese Constitution.

Originality & Criticism against the Constitution:

The Constituent Assembly drafted the Constitution of India which took two years, 11 months, and 18 days to draft the Constitution for Independent India. During this period, it held 11 sessions covering 165 days, and its members submitted around 7,600 amendments to the draft Constitution. 

An Interesting fact springs out is that the Congress has not in the beginning been in favor of Dr. B.R. Ambedkar entry into the constituent Assembly. However, Dr. B.R. Ambedkar was elected from a constituency in Bengal, which on partition went to Pakistan. As such he lost his seat in the Assembly. By now, the Congress had changed its mind about Ambedkar. Dr. Rajendra Prasad wrote to the then Prime Minister of Bombay State, asking him to get Dr. B.R. Ambedkar elected from Bombay and Dr. B.R. Ambekar was duly elected in July 1947 from Bombay as a member of the Constituent Assembly. 

The Constituent Assembly appointed several to work on the framing of the Constituent.

These committees submitted their reports between April and August 1947, and, based on these reports Dr. B.N. Rau, the Constitutional adviser to the Constituent Assembly, prepared a draft constitution with 240 clauses and 13 schedules.  

The drafting committee was set up under the chairmanship of Dr. B.R. Ambedkar on 29th August 1947. The constitution was developed in phases. In last phase, officially called the third reading commenced on November 14, 1949, and came to an end 26th November 1949 the motion was declared as passed. The preamble was also passed. The President and members signed and authenticated the Constitution of India. 

Criticism against the Constitution:

The constitution so adopted forefronts the criticism. It is rightly quoted that “Don’t be distracted by Criticism. Remember, the only taste of success some people have is when they take a bite of you”. The Constitution was criticized from all forefronts. Some of the criticism elucidated as under:-

1. A Bag of Borrowings or lacks originality:–
   The constitution was criticized by the critics as a bag of borrowings. Nothing new has been created. In other words, the Indian constitution is copied, cut, and paste from the World’s Constitution. It is nothing but a hotchpotch compilation of the World’s constitution. There is very little in the constitution that claims Originality. To this criticism, Dr. B.R.Ambedkar replied:-
   “One like to ask whether there can be anything new in the constitution framed at this hour in the history of the world. More than hundred years rolled over when the first written constitution was drafted. It has been followed by many countries reducing their constitution to writing. What the scope of the scope of a constitution should be has long being settled. Similarly, what are the fundamentals of a constitution are recognized all over the world. Given these facts, all constitution in their main provisions must look similar. The only new things, if there can be any, in a constitution framed so late in the day are the variation to remove the faults to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitution of other countries is based, I am sure on inadequate study of the Constitution.” 

2. The Indian Constitution is the Revamped Act of the Government Act, 1935:–
   Critics have criticized that the Indian Constitution is a Carbon copy of the Government Act 1935 and it is not different from colonial law. Dr. P.R. Desmukh, a member of the Constituent Assembly, commented that “the constitution is essentially the Government of India Act, 1935 with only adult franchise added”. In other words, critics criticized the constitution as old wine in a new bottle. To this criticism was answered by Dr. B.R. Ambedkar:- 
   “As to the accusation that the Draft Constitution has produced 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. What I am sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to details of the administration” 

3. The other criticisms about the constitution are (1) a non-Gandhian Constitution, (2) an elephant-sized Constitution (3) a Lawyer’s Paradise. However, these criticisms do not hold good looking at the size of the country, demography of the country and linguistic sub-division of the country, prevailing customs and traditions etc., 

Even after seven decades of adoption of the Constitution

4. Future trend
   Since its adoption on 26.11.1949 there have been 106 Amendments, which means the Constitution has been amended 106 times. Needless to say, some amendments were needs of the time and some amendments were/are for achieving political gains at the cost of the interest of the country.  
   
   In the case of Kapila Hingorani vs. the State of Bihar case, the Supreme Court observed that the interpretation of the constitution or the statutes would change from time to time. Being a living organ, it is ongoing and, with time, the law must change.  
   
   Article 368 of the Constitution empowers the parliament to amend the constitution and procedure however, it may be noted that the basic structure of the Constitution cannot be amended_{(Keshavnanda Bharati V. State of Kerala-Supreme Court).}
   
   T.R. Andhyarujina , a former solicitor general of India, had made a bold statement, in his words; “whatever its origins, the basic structure theory plays a useful part in our constitutional Jurisprudence. Parliament does not and should not have unlimited power to amend the Constitution. However, in the glorification of the basic Structure theory, it is important to bear in mind it’s inform roots and how predilections and prejudice of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation in it” 

Conclusion

Despite the criticism on various grounds and emphatically criticized on the grounds of its originality, the Constitution has tirelessly been serving the country for more than seven decades. The peculiarity of the Constitution it accepts the necessity of modification according to the changing needs of society. Judiciary time and again has shown its maturity in interpreting the Constitution, it upholds the law, protects citizens’ rights, and resolves conflicts between the government and other institutions and therefore it is known as the guardian of the Constitution of India.