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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Indian Constitution – A BAG OF BORROWINGS

ABSTRACT

India while the drafting of Constitution has referred to the constitution of more than 60 countries. This brought Indian Constitution a name called bag of borrowings. But the truth to be looked into is during the drafting it was not mere copying which was happened but a clear reference which was made to make the Constitution more precise. Even though there is an adaptations which was made, the name bag of borrowing still belongs to Indian Constitution.

Introduction

Indian constitution which is the supreme law of the country was adopted on 26th November 1949 after the continuous struggle and efforts of almost 3years. But the legal enforcement of the same took 2 more months, which we are celebrating as the Republic Day that is on 26th January 1950. The reference made to more than 60 country’s constitution made Indian Constitution the lengthiest, precise, and sum total of laws which is necessary for proper guidance of a country. Indian Constitution which upholds the principles of equality, fraternity, secularism etc. are often considered as bag of borrowings due to adoption of provisions of various other countries. But the Indian Constitution clearly indicates that, it’s not mere a copying and something beyond that. 

 Brief History of Indian Constitution.

Indian Constitution is the law of the land. It ensures the rights and imposes obligations to the citizens of the country. Constitution plays a vital role in the proper functioning, to ensure peace and protection of the country.

[1]M. N. Roy was the person who first proposed the idea of Constituent Assembly in 1934, this idea became the official demand of National Congress in 1935. In August, 1940 British government accepted the demand of Constituent Assembly based on adult franchise which was demanded by C. Rajagopalachari. 93 representatives of princely state and 292 representative of the state constituted the assembly. On 9th December 1946 the assembly met for the first time. Based on the references from other nation B.N. Rau created the initial draft where the chairman of committee B. R. Ambedkar prepared a detailed draft.[2] Later 22 committees including 8 major and rest minor were organized for the drafting.[3] Jawaharlal Nehru on 13th December 1946 presented ‘Objective Resolution’ laying principle of constitution which later became preamble. Constitution of India was passed in 26th November 1949 and on 1950 January 26 the Constitution of India came to force. This was after the continuous struggle of 2years, 11 months, and 18 days.

A journey from Britain to India

India is a country which stands out for diversities and secularist nature. Single citizenship which is adopted from Britain Constitution that is from the United Kingdom helps to keep the citizen of country united despite of cultural and regional differences. Federations usually has double citizenship but India doesn’t has citizenship related to the states but only one which relates to the country.[4] Part 2 of Indian Constitution which is Article 5-11 confers the citizenship.

[5]The makers of Indian constitution adopted the Parliamentary form of governmentwhich is also known as Responsible Government from the British. In fact even the system which where prevalent in the country during pre-independence was quite similar to the British model. This system prevails in both center which is under Article 74, 75and state level under Articles 163, 164 which shows the responsibility and relation between legislature and executive. Here the Prime Minister along with cabinet has the real powers while the President has only ceremonial powers.

Rule of Law which is adopted from the British Jurisprudence propounds the supremacy of law that is the person who administers the laws are also governed by these laws. This concept is enshrined in Article 14 of Indian Constitution and [6]Article 7 of UDHR. The basic principle behind it is equality before law, the supreme authority is the constitution and everyone must be treated equally in front of it.

The concept of Prerogative writs adopted from Britain, which are the official orders by the court in form of warrant, direction, command, and order. Writs are issued by Supreme Court under Article 32 and under Article 226 in the High Court. The writs are of 5 types which are Habeas corpus which protect life and liberty of person illegally detained. Mandamus is a command from higher to lower authority to perform the duty imposed on them. Prohibition prevents the authority from exercising powers in excess jurisdiction.Certiorari is used by higher courts to keep the lower within the limits. Quo Warranto is the authority to ask the holder of an office on what authority they are holding it.

DPSP and Ireland

Directive Principlesof State Policy is adopted from Irish Constitution of 1937. Part 4 of Indian Constitution that is Article 36-51 deals with it. These are rights which are non-justiciable. These are the ideologies which should be kept in mind by the states when it formulates policies and enact laws.[7] Even though the concept is adopted from Irish Constitution, the Indian Constitution classified their contents as Socialistic, Gandhian and Liberal-Intellectual Principles. Similarly the Constitution of Ireland, 1937 contain article 45 which is regarding the Directive Principles of Social Policy from where India adopted the same.

Article 54 of Indian Constitution laid down the provisions related to election of president which is adopted from the Constitution of Ireland. President is the first citizen of the country. The election, impeachment, functions of president are provided from Article 52-62. President are elected through indirect method by an Electoral College which has elected representatives of central and state.[8]Article 12-14 of Irish constitution 1937 gives the powers and duties of president from where India adopted the same.
The nomination of 12 members out of 250 members of rajya sabha can be done by president of India under Article 80 of Indian Constitution and this contribution is usually based on the contribution of these members in field of science, literature, arts etc.

Adaptations from USA

The world’s longest surviving written charter of government is the American Constitution which is written in the year 1787. During the drafting of Indian Constitution there were lot of concepts which are adopted from them. The most important among them is the Fundamental Rights which is listed under part 3 from Article 12-35 of Indian Constitution which is an adoption from American Constitution. These are the basic human rights which are guaranteed to all the citizens.[9]These are called as fundamental rights as they are enshrined in constitution and also it’s enforceable by the courts.

Judicial review is one of the distinctive powers to the Supreme Court which is enshrined in the American Constitution. This provides the Supreme Court to review the laws and actions of congress in order to check whether it’s constitutional or not. This is to balance the three branches of federal government, which is the doctrine of check and balance. In 1803 Supreme Court established this power through [10]Marbury v. Madison case. This power is adopted by the Indian Constitution. In India this power of review has[11] three aspects which is the judicial review of legislative action, judicial review for the decisions of judiciary and the review on administrative actions.
Under Article 13 of Indian Constitution in fundamental rights in part 3 the compulsion of judicial review was described. The appliance of right procedure and proper laws is the basic concern behind the judicial review in India. It also acts as the protection to constitution when the three organs try to harm it.

Origin from Australia

Indian Constitution has adopted many concepts from the Australian Constitution of 1901. The most important among them is the Concurrent list which is under 7th schedule of Indian Constitution. The laws regarding the items listed under the concurrent list can be made by both central and the state. These are the items which needs uniformity throughout the country.[12] In Australia concurrent list includes the matter which both common wealth and the state can legislate.

[13]Section 92 of Australian Constitution provides the basis for the Freedom of Tradeand Commerce which is under Article 301 of Indian Constitution. This articles in India provides the freedom of trade without any geographical or similar barriers.
[14]Section 57 of Australian Constitution made provision for the joint sitting to resolve the deadlock between the houses which is adopted by the Indian Constitution in Article 108.

France and Republic

The Constitution of France 1791, had made an important contribution to the Indian Constitution. The preamble of the constitution can be considered as the backbone of the country which ensures the rights to the citizen. The ideas of equality, fraternity and liberty is adopted from the constitution of France through which the ideals of Republic of India came in. These ideologies where adopted by the France as a motto rather that a principle which is also reflected in the Article 2 of Constitution 1946 and 1958 of France. These phrases in Indian Constitution is the basic concept which provides equality and other freedoms to the citizen of the country.

Conclusion

India is a country which adopted its provisions of Constitution from more than 60 countries. The references made to these countries made Indian Constitution the lengthiest of the world. Provisions from other countries made Indian Constitution more accurate and helped to involve major set of provisions which is necessary for a country. Even though India referred to other countries Constitution it cannot be concluded as a mere copying or borrowing. It is evident in the Constitution that it is not bare copying which is happened but a clear adaptation of ideas in a way which is suitable for the Indian society. Such approach or references thus cannot be termed as copying moreover its studying and adapting ideologies in a suitable manner. So it’s better to name Indian Constitution as a bag of adaptations and not a bag of borrowings.

[1]https://www.studyiq.com/blog/constitution-india
[2]https://byjus.com/free-ias-prep/major-committees-in-indian-constituent-assembly/
[3]https://www.constitutionofindia.net/constitution_assembly_debates/volume/1/1946-12-13
[4]https://www.latestlaws.com
[5]https://www.jatinverma.org/parliamentary-form-of-government-in-india
[6]https://www.un.org/en/universal-declaration-human-rights/
[7]https://byjus.com/directive-principles-of-state-policy/
[8]https://www.irishstatutebook.ie/eli/cons/en/html
[9] https://byjus.com/free-ias-prep/fundamental-rights/
[10]5 U.S. 1 Cranch 137. 1803
[11]https://www.latestlaws.com/articles/doctrine-of-judicial-review-in-india-a-judicial-perspective
[12]https://www.aph.gov.au/About_Parliament/House_of_Representatives
[13]http://classic.austlii.edu.au/au/legis/cth
[14]https://www.aph.gov.au/About_Parliament
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