It wasn’t long after India became independent that the country realised it needed a good system of governance – one that is indigenous in character, but also acceptable, and sympathetic of the diverse castes, classes, and the religious and linguistic communities it was seeking to unite. To the new administration, the continuation of the British legal system seemed to be a compromise that could work well. Many of these legal systems, which were heavily influenced by European cultures and customs, were accepted by Indian society and continue to exist long after the departure of colonial powers.
Creation Of The Constitution
The Indian Constitution was adopted by the Constituent Assembly on November 26, 1949, and ratified on January 26, 1950. The Constitution of 1950 was a by-product of the legacy started by the Government of India Act, 1935. With 321 sections and 10 schedules, it was the longest act passed by the British government. Its contents were derived from four sources – the Simon Commission Report, discussions and deliberations at the Third Round Table Conference, the White Paper of 1933, and the Joint Select Committee reports.
This act abolished the system of provincial dyarchy and suggested the establishment of a dyarchy at the centre along with the ‘Federation of India’ consisting of the provinces of British India and most of the princely states. The act formed the basis of the federal scheme, judiciary, public service commission, emergency provisions and administrative details. Most importantly, the act established the office of the Governor, and all the executive powers and authority of the Centre were vested in the Governor. The Constitution features various elements that were borrowed from other countries.
The Father of Indian Constitution and chairman of the Drafting Committee, Dr B.R. Ambedkar said: “As to the accusation that the Draft Constitution has [re]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….”
Thus, the Constituent Assembly incorporated those features from other nations’ constitutions that best suit Indian problems and aspirations, into the Indian Constitution.
For instance, it was the French Constitution that inspired the Indian Preamble’s ideals of Liberty, Equality, and Fraternity. In the lineage of the French Constitution, the Indian state became known as the ‘Republic of India’. The Constitution of Russia inspired the idea of Social, Economic, and Political Justice in the Preamble. A lot of the concepts and features of our Constitution have their roots in Britain. Some of those are the Parliamentary form of government, the idea of single citizenship, Writs and the Rule of Law. Our fundamental rights, i.e. articles 12 through 32, impeachment of the President and the removal of Judges, i.e. articles 61 and 124, and our judicial review are some of the elements adopted from the United States of America.
Similarly, the Directive Principles of State Policy (DPSP) listed in Part IV of the Indian Constitution, were adopted from the Irish Constitution. The procedure for the nomination of members to the Rajya Sabha has also been borrowed from Ireland.
The Canadian constitution provided a Federation with a strong centre, residuary powers, governors appointed by the Centre, and a Supreme Court that has advisory jurisdiction. The Constitution of Australia lent us the provisions of Freedom of Trade and Commerce within the country and between the states. The same are outlined in articles 301 to 307 of the Indian Constitution. The Australian Parliament also provided the concept of the Concurrent List and the joint session of both Houses.
The Constitution adopted the provisions of the procedure of the amendment and the Election of the Rajya Sabha members from the Constitution of South Africa. While the German Constitution gave us the provision of suspension of fundamental rights during an emergency, the Constitution of Japan gave us the procedure established by law. Lastly, the mandate of the Planning Commission to oversee the development of the economy was sourced from the Constitution of the Soviet Union (USSR).
Pre-colonial India had a diverse and heterogeneous cultural, religious, and political framework with no unified Hindu, Muslim, or Christian leadership. ‘Multiple tribes, castes, sects, and familial groups crossed religious and political borders, resulting in a diverse people with a clear sense of authority, but no sense of legality. However, colonial powers such as the British, Spanish, Portuguese, French, Dutch and Belgian changed the country forever by conquering territories, enslaving and dispossessing Indians.
Need For Change
The deterioration of our legal system couldn’t be more damaging. According to the Supreme Court, the laws on land constitute absurdities and undermine the legitimacy of the justice system. Unfortunately, this remark by the apex court has received little attention.
It is self-evident that rules must grow in unison with society if they are not to become an impediment to society’s advancement. Unfortunately, despite its seeming obviousness, this apparent assertion has failed to compel succeeding administrations to act.
The Indian Constitution grants the government vast rights to meddle. India requires a new Constitution that ends the country’s 74-year reliance on colonial laws. A new Constitution would reduce the power of the state in favour of the people, a power that belongs to a constitutional republic where it is rightfully vested. A new Constitution can help them change their trajectory towards boundless prosperity.