Perspective: Constitution Day

Context: In this episode of the Perspective Prog. based on Constitution Day. Constitution Day is celebrated every year on 26th November to commemorate the adoption of Constitution of India on the same day in 1949. It came into effect two months later on 26th January, 1950. In today's episode of Perspective we will discuss and analyse the glorious journey and evolution of this document and all other related aspects.

Key Points

• Constitution Day or Samvidhan Diwas is also known as National Law Day. The day commemorates the adoption of the Constitution in India.
• On this day in 1949, the Constituent Assembly of India formally adopted the Constitution of India that came into force on 26 January 1950.
• The Ministry of Social Justice and Empowerment on 19 November, 2015, notified the decision of the Government of India to celebrate 26 November as 'Constitution Day'.

Facts about the Constitution of India

• The framing of the Constitution took over 2 years, 11 months and 18 days.
• The original copies of the Indian Constitution weren’t typed or printed. They have been handwritten and are now kept in a helium-filled case within the library of the Parliament.
• Prem Bihari Narain Raizada had written the unique copies of the Structure of India.
• Originally, the Constitution of India was written in English and Hindi.
• The Constitution of India has borrowed some of its features from a number of countries, including Britain, Ireland, Japan, USA, South Africa, Germany, Australia, and Canada.
• The basic structure of the Indian Constitution stands on the Government of India Act, 1935.

World's lengthiest Constitution

• Federal System with Unitary Features
• Parliamentary Form of Government

Background

• In 1934, M N Roy first proposed the idea of a constituent assembly. Under the Cabinet Mission plan of 1946, elections were held for the formation of the constituent assembly.

Drafting Committee

• The Drafting Committee had seven members: Alladi Krishnaswami Ayyar, N. Gopalaswami, B.R. Ambedkar, K.M Munshi, Mohammad Saadulla, B.L. Mitter and D.P. Khaitan.
• At its first meeting on 30th August 1947, the Drafting Committee elected B.R Ambedkar as its Chairman.

Constitutional morality

• It has been regarded as a paramount reverence for the constitution. It provides a principled understanding for unfolding the work of governance. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. It also makes the governing institutions and representatives accountable.
• Constitutional Morality is scarcely a new concept. It is written largely in the Constitution itself like in the section of Fundamental Rights (Article 12 to 35), Directive Principle of State Policy (Article 36 to 51), Preamble and Fundamental duties.

Supreme Court's Judgements and Constitutional Morality

• Constitutional morality is not limited only to following the constitutional provisions literally but is based on values like individual autonomy and liberty; equality without discrimination; recognition of identity with dignity; the right to privacy.
• Constitutional morality means adherence to the core principles of constitutional democracy.

For Example: In Supreme Court’s Sabarimala verdict religious freedom, gender equality and the right of women to worship guaranteed under Article 14, 21 and 25 of the Constitution was reinstated which struck down the practice of banning entry of women of a certain age to the Sabarimala temple in Kerala as unconstitutional.

• Constitutional morality here went against social morality that discriminates against women based on biological reasons like menstruation.

Other Judgments by the Supreme Court defining Constitutional Morality

• In Kesavananda Bharati Case, the Supreme Court restricted the power of the Parliament to violate the Basic Structure of the Constitution.
• In the Naz Foundation case, the Supreme Court opined that only Constitutional Morality and not Public Morality should prevail.
• In Lt Governor of Delhi case, SC proclaimed constitutional morality as a governing ideas that "highlight the need to preserve the trust of people in the institution of democracy.
• In Sabarimala case, the Supreme Court bypassed the “doctrine of essentiality” to uphold the Constitutional morality

Significance

• Constitutional morality ensures the establishment of rule of law in the land while integrating the changing aspirations and ideals of the society.
• Constitutional morality as a governing ideal that highlights the need to preserve the trust of the people in institutions of democracy. As such an ideal, it allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly.
• Constitutional morality can use laws and forms to impact and change the persisting social morality. For example, by abolishing the practice of Sati by legislation, the right to dignity and life was passed on to the widows which later on affected the perception of the practice in the society.
• Constitutional morality recognises plurality and diversity in society and tries to make individuals and communities in the society more inclusive in their functioning by constantly providing the scope for improvement and reforms. For example in Navtej Singh Johar v. Union of India, the SC provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.

Concerns

• The term has not been clearly defined by the SC, which leaves the scope of its subjective interpretation by the individual judges.
• This top-down approach to morality can affect the possibility of organic emergence of the solutions to the persisting ethical problems in society.
• Violates the principle of separation of powers: It establishes judicial supremacy over parliamentary supremacy. Against the very principle of democratic government.
• It is claimed that the application of this doctrine amounts to judicial overreach and are thereby pitting “constitutional morality” against “societal/popular morality”

Need to Uphold Constitutional Morality

• The central elements of constitutional morality are freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under a proper constitutional government.
• To uphold constitutional morality, the constitutional methods must be used for achieving social and economic objectives.
• Commitment to the ideals and aspirations of the Constitution.
• Awareness creation among the common public regarding their rights which are protected by the Constitution.
• Following the Fundamental Duties while exercising Fundamental Rights.

Important Constitutional Amendment
First Amendment Act, 1951

• Provided for the saving of laws providing for the acquisition of estates, etc.
• Added Ninth Schedule to protect the land reforms and other laws included in it from the judicial review. After Article 31, Articles 31A and 31B were inserted.

The Constitution (Seventh Amendment) Act, 1956

• The Second and Seventh schedules were substantially amended for the purpose of the States Reorganization Act.

The Constitution (42nd Amendment) Act, 1976
The major Amendments made in the Constitution by the 42nd Amendment Act are:
Preamble

• The characterization of India as ‘Sovereign Democratic Republic’ has been changed to ‘Sovereign Socialist Secular Democratic Republic’.
• The words ‘Unity of the nation’ have been changed to ‘Unity and integrity of the nation’.

Fundamental Rights and Directive Principles

• A major change that was made by the 42nd Constitutional Amendment was to give primacy to all Directive Principles over the Fundamental Rights contained in Articles 14, 19 or 31.

Fundamental Duties

• The 42nd Amendment Act inserted Article 51-A to create a new part called IV-A in the Constitution, which prescribed the Fundamental Duties to the citizens.

The Constitution (44th Amendment) Act, 1978

• A new provision was added to Article 74(1) saying that the President could require the council of ministers to reconsider its advice to him, either generally or otherwise and the President should Act in accordance with the advice tendered after such reconsideration.
• It has been provided that an Emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet.
• Right to Property has been taken out from the list of Fundamental Rights and has been declared a legal right.

The Constitution (73rd Amendment) Act, 1992

• A separate part IX has been added to the Constitution with the addition in Article 243A and a fresh Schedule called the Eleventh Schedule enumerating the powers and functions of Panchayati Raj Institutions.

The Constitution (74th Amendment) Act, 1992

• The Act provides constitutional status to Urban Local Bodies. After part VIII of the Constitution, a separate part IXA has been added to the Constitution with the addition in Article 243A and a fresh schedule called Twelfth schedule enumerating the powers and functions of urban local bodies has been incorporated.
• The Act provides Municipal Panchayat, Municipal Council and Municipal Corporation, reservation of seats for SCs and STs in proportion to their population and one-third reservation of seats for women.

The Constitution (101st Amendment) Act, 2017

• Introduced the Goods and Services Tax.

The Constitution (102nd Amendment) Act, 2018

• Constitutional status to National Commission for Backward Classes

The Constitution (103rd Amendment) Act, 2019

• A maximum of 10% Reservation for Economically Weaker Sections (EWSs) of citizens of classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e. Classes other than socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.

Constitution (104th Amendment) Act, 2020

• Extended the deadline for the cessation of seats for SCs and STs in the Lok Sabha and states assemblies from Seventy years to Eighty. Removed the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.