Constitutional journey of India from a Colony of British to Independent Democratic Republic of India

By admin On Oct 19, 2022

42nd & 44th Constitution Amendments appear diluting authority of President for protecting Constitution
Generations must carry Story of Journey of India from a Colony of British to Demo- Republic of India

DAYA SAGAR

The Constituent Assembly for independent India Dominion had 11 sessions. First Session: 9-23 December, 1946 Second Session: 20-25 January, 1947 Third Session: 28 April – 2 May, 1947 Fourth Session: 14-31 July, 1947 Fifth Session: 14-30 August, 1947 Sixth Session: 27 January, 1948 Seventh Session: 4 November,1948 – 8 January, 1949 Eighth Session: 16 May – 16 June, 1949 Ninth Session: 30 July – 18 September, 1949 Tenth Session: 6-17 October, 1949 Eleventh Session: 14-26 November, 1949. While deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled. The Constituent Assembly took almost three years (two years, eleven months and seventeen days to be precise) to complete its historic task of drafting the Constitution for Independent India. During this period, it held eleven sessions covering a total of 165 days out which 114 days were spent on the consideration of the Draft Constitution
It was on 26th of November 1949 that Constitution of India was adopted and enacted (We, the people of INDIA, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: Justice, social, economic and political ; Liberty of thought, expression, belief, faith and worship ; Equality of status and of opportunity ; and to promote among them all Fraternity assuring the dignity of the individual and the unity of the Nation; In our Constituent Assembly this twenty sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution) by Constituent Assembly of India containing 395 articles where Art-392 said ” (l) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as maybe specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient : Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V. (2) Every order made under clause (1) shall be laid before Parliament. (3) The powers conferred on the President by this article, by article 324, by clause (3) of article 367 and by article 1 shall, before the commencement of this Constitution, be exercisable by the Governor- General of the Dominion of India ” which reflects that the Article 392 was designed to prevent difficulties which are likely to present themselves during the transition from the provisions of the Government of India Act, 1935, to the provisions of the Constitution. It is provided that during the transitional period, adaptations will have to be made in various provisions of the Constitution by order issued by the President under sub-clause (1) .
Article 393 of COI says “This Constitution may be called the Constitution of India, Article 394{ This article and articles 5 (Citizenship at the commencement of the Constitution ) , 6 (Rights of citizenship of certain persons who have migrated to India from Pakistan ) , 7 ( Rights of citizenship of certain migrants to Pakistan. ), 8 ( Rights of citizenship of certain persons of Indian origin residing outside India. ) , 9 (Persons voluntarily acquiring citizenship of a foreign State not to be citizens. ) , 60 ( Oath or affirmation by the President…… “I, A, B., do swear in the name of god / solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.” ) , 324 ( Superintendence, direction and control of elections to be vested in an Election Commission. ) , 366 ( Definitions. ) , 367 (Interpretations ) , 379 ( Provisions as to provisional Parliament and the Speaker and Deputy Speaker thereof ) , 380 ( Provision as to President election ) ,388 (Provisions as to the filling of casual vacancies in the provisional Parliament and provisional Legislatures of the States ) , 391 ( Power of the President to amend the First ( The States and the territories of India) and Fourth (Allocation of seats in the Council of States ) Schedules in certain contingencies , Art- 392( Power of the President to remove difficulties.-(1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, ……. at. (3) The powers conferred on the President by this article, by article 324, by clause (3) of article 367 and by article 391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India) and 393 ( Short title.-This Constitution may be called the Constitution of India. ) shall commencement come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution ) said that a few Articles would have immediate effect and the rest will come in force w.e.f 26-01-1950.except for a few article. Article 395 ( The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed ) repealed Government of India Act 1935 and the Indian Independence Act 1947 and hence w.e.f 26-01-1950 India no more remained a Dominion and became independent Republic.
Members of C Constituent Assembly of India met again on 24 Jan 1950 and appended their signatures to it on 24 January, 1950. In all, 284 members actually signed the Constitution. On that day when the Constitution was being signed, it was drizzling outside and it was interpreted as a sign of a good omen.
Although some of the Articles Constitution of India became immediately effective on 26-11-1949 ( see Art-394) but The Constitution of India is formally taken as having become the constitution of the India Democratic Republic on 26 January, 1950. On that day, the Constituent Assembly ceased to exist, transforming itself into the Provisional Parliament of India until a new Parliament was constituted in 1952 . Article 395 -says ” The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed and hence w.e.f 26-01-1950 India no more remained a Dominion and became independent Republic with President as the head of State and supreme commander of armed forces with duty and authority to protect the Constitution of India under an Oath ( Art-60). Ofcourse 42nd constitution amendment of 1976 {In article 74 of the Constitution, for clause (1), the following clause shall be substituted, namely: “(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.”) and 44rth amendment of Constitution 1978 (Amendment of article 74.-In article 74 of the Constitution, in clause (1), the following proviso shall be inserted at the end, namely:-“Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration”} may appear to some to have diluted the authority of the President for protecting the constitution by making the advice of his council of ministers ‘ultimately binding’ on him ( President).
(The author is a Sr Journalist & analyst of J&K Affairs. [email protected]).