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We have a curated list of the most noteworthy articles from all across the globe. With any subscription plan, you get access to exclusive articles that let you stay ahead of the curve.
We have a curated list of the most noteworthy articles from all across the globe. With any subscription plan, you get access to exclusive articles that let you stay ahead of the curve.
We have a curated list of the most noteworthy articles from all across the globe. With any subscription plan, you get access to exclusive articles that let you stay ahead of the curve.
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules, 5 appendices and 98 amendments (out of 120 Constitution Amendment Bills).
Dr. Bhimrao Ramji Ambedkar is widely regarded as the father of the Indian Constitution.
The Constitution provides that there shall be a Council of Ministers with the Prime Minister as its head to aid and advice the President, who shall exercise his/her functions in accordance with the advice. The real executive power is thus vested in the Council of Ministers with the Prime Minister as its head.
The Constitution was adopted by the India Constituent Assembly on 26 November 1949 and came into effect on 26 January 1950. The date of 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930.
The Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavors to promote fraternity among them. The words “socialist” and “secular” were added to the definition in 1976 by constitutional amendment (mini-constitution). India celebrates the adoption of the constitution on 26 January each year as Republic Day.
At the time of commencement, the constitution had 395 articles in 22 parts and 8 schedules. It consists of almost 80,000 words and took 2 years 11 months and 18 days to build.
The Indian Councils Act 1892 established provincial legislatures and increased the powers of the Legislative Council. Although these Acts increased the representation of Indians in the government, their power still remained limited. The Indian Councils Act 1909 and the Government of India Act 1919 further expanded participation of Indians in the government.
The major portion of the Indian subcontinent was under British rule from 1857 to 1947. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic.
First Revolution of India, 1857 urged British Government to pass this Act. To calm down the after effects of 1857 revolt, the Act of 1858 was introduced. This act abolished East India Company and transferred powers towards the British crown to establish a direct rule.
Indian Councils Act 1861 enacted by Parliament of the United Kingdom that transformed the Viceroy of India’s executive council into a cabinet run on the portfolio system. This cabinet had six “ordinary members” who each took charge of a separate department in Calcutta’s government: home, revenue, military, law, finance, and (after 1874) public works.
Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India.
A citizen among other things, to abide by the Constitution, to cherish and follow noble ideals which inspired our national struggle for freedom, to defend the country and render national service when called upon to do so and to promote harmony and spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities.
The Forty Second Constitution Amendment Act, 1976 has incorporated ten Fundamental Duties in Article 51(A) of the constitution of India. The Eighty-Six Constitution Amendment Act, 2002 has added one more Fundamental Duty in Article 51(A) of the constitution of India.
The Fundamental Duties noted in the constitution are as follows
It shall be the duty of every citizen of India —
To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
To cherish and follow the noble ideals which inspired our national struggle for freedom;
To uphold and protect the sovereignty, unity and integrity of India;
To defend the country and render national service when called upon to do so;
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
To value and preserve the rich heritage of our composite culture;
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
To develop the scientific temper, humanism and the spirit of inquiry and reform;
To safeguard public property and to abjure violence;
To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;
Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years
The Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties.
The laws pertaining to Arbitration and Conciliation can be found in Arbitration and Conciliation Act, 1996. The Act applies throughout the country, except for the state of Jammu and Kashmir.
Arbitration
Definition of Arbitration:
Arbitration is the mode of settlement of the dispute between the parties, by means of a nominated person (called as arbitrator) without going to the court of law.
When the parties involved in a dispute make an agreement, that instead of going to court, they would settle the dispute through arbitration, the agreement is called as Arbitration agreement.
Once when the Arbitration agreement is made, no party can take up any matter pertaining to the dispute to the court of law.
Any person capable of entering into a contract can enter into Arbitration agreement.
Advantages of Arbitration:
1) Less costly in comparison to the court of law.
2) Less time taking and simple
3) Dispute is not publicized
4) Award is final (except in rare instances)
Disputes of Arbitration:
Disputes arising out of the legal relationship between the parties (present or future state) can be referred to arbitration.
However, following disputes cannot be referred to arbitration:
1) Proceedings of insolvency
2) Proceedings of lunacy
3) Proceedings for the appointment of guardian to a minor
4) Matter of criminal nature
5) Matter pertaining to Public Charitable Trust
Appointment of Arbitrator
Qualification of an Arbitrator:
There is no hard and fast rule defined for the qualification of an arbitrator. And the parties can select any person as an arbitrator. However, it is in the interest of parties to select an intelligent, rational, impartial person as their arbitrator. An arbitrator can be disqualified if he has a personal interest in the matter pertaining to the dispute
The number of Arbitrator should be of odd number (i.e. 1,3,5,7 etc.)
Nationality of an Arbitrator:
An Arbitrator can be of any nationality unless otherwise agreed by the parties. However, in the case of an international dispute, the Chief Justice of India may appoint an arbitrator other than the nationality of parties.
Appointment of Arbitrator by Agreement:
If there is an agreement regarding the procedure for appointment of the director, the parties must appoint the director in accordance with the agreement. The agreement may provide for:
• Number of arbitrators
• Qualification of arbitrators
• Procedure for appointment of arbitrators
• Procedure for termination of arbitrators
• Place, the language of arbitration etc.
Appointment of Arbitrator by Chief Justice of India:
The Chief Justice of Indian may appoint arbitrators in the following cases:
1) When the parties fail to agree upon a sole arbitrator within 30 days.
2) When a party fails to appoint an arbitrator within 30 days.
3) When the two appointed arbitrators fail to agree upon the third arbitrator within 30 days of appointment.
4) When the party (or parties) or arbitrators fail to act in accordance with the agreement.
Termination of Arbitrator:
An arbitrator can be terminated on following ground:
1) When the arbitrator becomes unable to perform his function (either by law or in fact).
2) When the arbitrator fails to act within the specified time period
3) When the arbitrator withdraws from his office.
4) When the parties agree for termination.
At the end of the arbitral proceeding, an Arbitral Award is to be made in writing, duly signed by all the members of Arbitral Tribunal. The Arbitral Tribunal should also mention the date and place of Arbitration. A copy of award is to be given to each of the parties.
The Arbitral shall be final and binding upon the parties.
An Arbitral Proceeding is terminated when:
1) The Arbitral award is made
2) The continuity of proceeding becomes unnecessary or impossible.
3) The parties agree on the termination.
4) The claimant withdraws his claim, and the respondent does not object to it
The Arbitral Award becomes enforceable to the parties, normally after 3 months from the date it has been received by the parties. However, any of the parties can appeal to the court for setting aside the award before this period (3 months).
The court can set aside the Arbitration award on following grounds:
1) Incapacity of a party.
2) Invalid arbitration agreement.
3) Invalid arbitral tribunal or its proceedings.
4) The subject matter of dispute cannot be settled through arbitration.
5) The Arbitration award is in conflict with the public policy of India.
Conciliation
Definition of Conciliation:
Conciliation is the mode of friendly settlement of the dispute between the parties, with the assistance of a nominated person (called as conciliator) without going to the court of law.
Although both in Arbitration and Conciliation the dispute is settled outside the court, there is a fundamental difference between two. While, in the case of Arbitration, an award is given by the arbitrator, at the end of the tribunal; in the case of Conciliation, the two parties arrive at mutually agreed decision with the help of the conciliator.
Notice of conciliation:
A party initiating conciliation will send a written invitation to the other party. If the other party accepts the invitation, the conciliation proceeding will start from that point.
However, if the party initiating conciliation does not receive the reply within 30 days of from the date of invitation, the invitation is treated as the rejection.
Unless otherwise agreed, there shall only be one conciliator. However, the parties on mutual consent can even select more conciliator.
Settlement Agreement:
If the conciliator feels that a settlement is possible for the dispute, he will formulate a possible settlement and submit a copy to the parties for observation. If the parties feel satisfied with the solution given by the conciliator, they may give approval to it by signing to it. The settlement agreement thus reached will be binding and final to both the parties.
The Supreme Court of India in its judgment in the case of T.K. Rangarajan Vs. Government of Tamil Nadu and Others (the case of the dismissal of over 170,000 striking Tamil Nadu Government employees and teachers) ruled on August 7, 2003 that the government employees do not have either a Fundamental or Statutory or equitable, moral right to strike, whatever the cause, just or unjust.
The Division Bench of Supreme Court comprises of Justice M.B. Shah and Justice A.R. Lakshmanan observed that apart from statutory rights. Government employees cannot claim that they can take society at ransom by going on strike.
The Supreme Court in 1961 in the case of Kameshwar Prasad Vs. State of Bihar had held that even a very liberal interpretation of Article 19(l)(C) of the Indian Constitution could not bad to the conclusion that the trade unions have a guaranteed Fundamental Right to strike.
In stating that the Government employees have no legal, moral or equitable right to strike the Court has evolved a new industrial jurisprudence unthought of earlier.
Though earlier decisions of the courts have rejected the right to strike as a Fundamental Right but not as a legal, moral or equitable right.
The question of strike not being a statutory right or legal right has never been considered in the court.
The decision of Rangarajan Case has ignored the statutory provisions in the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger benches that have recognised the right to strike.
It also fails to consider International Covenants that pave the way for this right as a basic tenet of international labour standards.
In Kameshwar Prasad’s Case, the apex court had settled that the right to strike is not a Fundamental Right.
But time and again the court has also settled that the right to strike is a legal right, one that is recognised by most democratic countries of the world.
The Supreme Court evidently carried away by the fact that nearly two lakh government employees went on strike in the instant case and the Government machinery came to a standstill, also 90% of the state revenue of the state is spent on salaries of the government servants.
It is true that the Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against the Government employees who go on strike. But that is no justification for the Supreme Court to say that the Government employees have no moral justification to go on strike in every case.
The demand for the establishment of a Constituent Assembly was first embodied in a resolution of the Indian National Congress passed at its Faizpur session on December 8, 1936. The same demand was further raised by the provincial legislatures where the Congress had a majority. But this was all one-sided. The British rulers were not yet prepared to entertain the demand. It was during World War II and under the stress of international conditions that Sir Stafford Cripps was sent over to India to win over the support of Indian political leaders.
The proposals of Sir Cripps contained provisions for setting up a body for preparing the Constitution of India after the termination of the War. The proposals of Sir Cripps were not accepted by the Indian political parties. Later in 1946, the Cabinet Mission came to India and put across a proposal for the setting up of a Constituent Assembly. The proposal was accepted by the major political parties in India. Members of the Constituent Assembly were elected on communal basis indirectly by members of the provincial legislatures through the method of proportional representation and single transferable vote. Seats were allotted to the various provinces and communities. The Constituent Assembly thus created had 389 members in all, including 93 representatives of the Indian States.
The first meeting of the Constituent Assembly was held on December 9, 1946, under the chairmanship of Dr. Sachchidanand Sinha, the oldest member of the Assembly. On December 11, 1946, Dr. Rajendra Prasad was elected its permanent Chairman. The Muslim League boycotted it. The work of the Constituent Assembly was seriously handicapped. It held several sittings, but die work of constitution-making made little headway. The situation in the country deteriorated seriously. Communal riots broke out throughout the country and the whole situation culminated in the sad partitioning of the country in accordance with the Mountbatten Plan of. Tune 3, 1947.
The Constituent Assembly minus the Muslim League members restarted the work. The Constituent Assembly of India then consisted of about 300 members, including the representatives of the states acceding to India.
The Constituent Assembly, as established in 1946 according to the Cabinet Mission Plan, was not a sovereign body. Its authority was limited both in respect of basic principles and procedure. According to the Indian Independence Act of 1947, the Constituent Assembly became a sovereign body and all other limitations imposed upon it under the Cabinet Mission Plan were lifted.
The method which the Constituent Assembly adopted was to formulate first its objectives. This was done in the form of an “Objective Resolution”, moved by Pandit Jawaharlal Nehru on December 13, 1946. The resolution was, however, adopted by the Assembly on January 22, 1947. The objectives of the Constituent Assembly were: India was to be the independent Sovereign Republic in which both British India and the princely states were to be included. Each unit was to be given a certain amount of autonomy as well as residuary powers. All authority and powers of the States were to be derived from the people who were to be guaranteed freedom of economic and political justice, equality of status and equality before the law. They were to be guaranteed freedom of thought, vocation, association, expression, belief, faith, worship and action subject to law and morality. The minorities, the backward, and tribal people were to be provided adequate safeguards.
Between December 9, 1946, and August 14, 1947, five sessions of the Constituent Assembly were held. In accordance with Indian Independence Act of 1947, the Constituent Assembly became a sovereign body. It was no longer to confine itself to the limitations laid down by the Cabinet Mission. On August 29, 1947, the Assembly set up a
Drafting Committee to prepare a draft constitution. The committee consisted of eminent constitutionalists like Dr. B. R. Ambedkar (Chairman), Sir Alladi Krishnaswamy Iyer, N. Gopalswamy Ayvangar, Syed Mohammad Saadullah, T. T. Krishnamachari, Dr. K. M. Munshi, etc. Dr. Rajendra Prasad was elected President of the Assembly.
Promulgation Of The Constitution
The Constituent Assembly took two years, 11 months and 11 days to complete its work. It concluded its work on November 26, 1949, when the Constitution was signed at an impressive ceremony. Some provisions of the Constitution like citizenship, elections, etc., were brought into operation at once but the rest of the Constitution came into force on January 26, 1950. The original Constitution is a voluminous document containing 395 Articles and eight Schedules. A number of other Articles and Schedules have been added by some constitutional amendments made thereto since its promulgation.
The following are the main sources of the Constitution of India :
(i) Debates of the Constituent Assembly : The debates of the Constituent Assembly are a good source of the Indian Constitution. We can understand the wishes and aspirations of our Constitution-makers by reading these debates.
(ii) Previous Enactments : The past enactments, like the Government of India Acts of 1919, 1935 and 1947, are very” important sources of our Constitution, Many provisions in our Constitution have been borrowed from the Government of India Act, 1919. In reality, three-fourths of our Constitution is based upon the Government of India Act, 1935. According to Prof. Srinivasan, “Both in language and substance the new Constitution is a close copy of the Act of 1935 and its description as a palimpsest of that Act is not incorrect.”
(iii) Opinions of the Constitutional Jurists : The commentaries which have been written on the Indian Constitution by the Indian and foreign writers, like V. N. Shukla, D. D. Basu, Gledhill, W O. Douglas and Alexandrowic, are also a very good source of the Indian Constitution.
(iv) Enactments of the Indian Parliament: The Parliament of India has also passed several Acts to clarify certain constitutional matters like delimitation of areas, boundaries of States, the decision on the numerical strength of the Lok Sabha, etc. These Acts also form a part of the Constitution.
(v) Decisions of the Judiciary : The decisions of the Supreme Court and the High Courts are also an important source of the Constitution. These decisions interpret the Constitution and throw a lot of light on its provisions. The judicial decisions thus help in understanding the Constitution.
(vi) Foreign Decisions : The decisions of the foreign courts like the Supreme Court of the United States of America and Privy Council of the United Kingdom also serve as good sources for understanding our Constitution.
(vii) Conventions and Usages of the Constitution : Although the Constitution of India is a written constitution, certain conventions and usages have been developed in our country. In reality, the parliamentary type of government in our country is based on the conventions and usages as prevalent in the United Kingdom.
The Indian Constitution makers tried to adopt the best features from the important constitutions of the world. Mainly, we have borrowed features from the constitutions of the United Kingdom, the United States of America, Canada, Ireland, etc. Following are the main influences of these constitutions :
British Constitution: We have borrowed the following features from the Constitution of the United Kingdom :
(i) The office of the President of India is based upon that of the British Queen who is the nominal head of the state.
(ii) The Cabinet system of government in India is based upon the Cabinet system as prevailing in the United Kingdom.
(iii) Our Prime Minister is also a replica of die British Prime Minister.
(iv) The parliamentary type of government has also been adopted from the British system.
(v) Just like the United Kingdom, our Parliament is also bicameral, i.e., it has two Houses, the Lower House, and the Upper House.
(vi) The Lok Sabha, the Lower House of Parliament of India, is as powerful as the House of Commons.
(vii) As in the United Kingdom, the Council of Ministers is mainly responsible to the Lower House, i.e., the Lok Sabha.
(viii) Like the United Kingdom, the presiding officer of the Lok Sabha is also known as die Speaker. Some of his powers resemble those of the Speaker of the House of Commons in the UK.
(ix) The privileges of members of Parliament in India are also based on their counterparts in the United Kingdom.
American Constitution : Following features of our Constitution has been adopted from the American Constitution :
(i) Our Constitution is a written one like that of the United States. The concept of a written Constitution has been adopted from the Constitution of die United States of America.
(ii) The federal system of government in India is influenced by the American Constitution.
(iii) The Fundamental Rights in our Constitution are inspired by the American Constitution.
(iv) Like the American head of state, our head of state is also known as President.
(v) Like the American Constitution , we have also made a provision for Supreme Court of India.
(vi) Our provinces are known as States after the American Stance under the Constitution of the United States.
(vii) Just like the Senate of the Initial States, the Rajya Sabha in India again represents the States.
Constitution of Canada : From Canada, we have borrowed the scheme of federation. Influenced by the Constitution of Canada, India is also known as a “Union of States” and as “United States of India” as is the cast with United States of America.
Constitution of Ireland : From Ireland, we have adopted the concert of Directive Principles of State Policy; Ireland itself had borrowed the is principles from the Republics. Constitution of Spain.
Although our Constitution-makers borrowed these provisions from many foreign constitutions, they have tried to make the Indian Constitution document which is most suitable to the Indian conditions and environment According to Jawaharlal Nehru, “In air event, whatever system of government we may establish here must fit in with the temper of our people and be acceptable to them.”
