Sources of the Indian Constitution

5 Oct 2019 Read 13 Views

Indian Constitution is an essential and fundamental document that forms the basis of the Republic of India. It is the origin of the state, the government, citizenship, rights, liberty & justice. However, it is often criticized for not being original per se, because many of its provisions are borrowed from other countries.

Regardless of criticism, the Constitution, because of its borrowed character, is like a bouquet with the best flowers picked up from different gardens. Different legal systems have evolved differently, giving rise to various legal principles as the fruit of evolution. The borrowings have been justified and well defended by the constitution-makers. As is widely quoted, Dr. B.R. Ambedkar said the following: “Nobody holds any patent rights in the fundamental ideas of the Constitution.”

Thus, borrowing provisions have helped the Constitution to build upon the collective learning of the humankind. Let us check the provisions which have been sourced from different legal systems:

i. The Government of India Act of 1935: This was an Act passed by the Parliament of Britain. It provided a framework for the government of India and was passed in the response to demands of the Indian leaders for democracy. The Constitution borrows from it the Federal Scheme of government, Office of Governor, the system of the judiciary (establishing a supreme court), Public Service Commissions, and the Emergency provisions.

ii. British Constitution: Parliamentary system, Bicameralism, Rule of Law (Article 14), Legislative procedure, Single citizenship, Cabinet System, System Writs (Article 32 & 226), the rule of law

iii. US Constitution: Fundamental Rights (Part III), Post of Vice President, Judicial Review, Impeachment of the President, Removal of judges of Supreme Court and High Court(Article 124).

iv. Irish Constitution: Directive Principles of State Policy (Part IV), the nomination of members to Rajya Sabha, and method of election of President.

v. Canadian Constitution: It is exciting that the same parliament (British) Which passed the Government of India Act 1935, made constitutional laws for Canada. Thus, borrowing from Canada means taking something from English Case law. The provisions regarding the Federation with a strong center, the appointment of governors by the center and advisory jurisdiction of the Supreme Court (Article 143), and the residuary powers with the center (Article 248) have been sourced from Canada.

vi. Australian Constitution: Freedom of trade and commerce, Concurrent List, joint sitting of the two Houses of Parliament.

vii. Weimar Constitution (Constitution of Germany): Suspension of Fundamental Rights during Emergency.

viii. Soviet Constitution: The Soviet Constitution is known for its socialism. India, being a welfare state, did borrow the principles like Fundamental duties and the ideals of social, economic and political justice (Found in the Preamble).

ix. French Constitution: Republic character of Constitution. The ideals of liberty , equality and fraternity in the Preamble.

x. South African Constitution: Procedure for amendment, the Constitution and election of the members of Rajya Sabha.

xi. Japanese Constitution: Procedure established by law.

This, the above-mentioned provisions, are those which have been sourced from a foreign legal system. it must not be concluded from the above that it is a copy paste,

and hence constitutional provisions are hard to implement in India. These borrowed provisions are very basic provisions or the procedural provisions. Interpretation has been done in context of Indian society. For example, in addition to “equal protection of law” or the affirmative actions, Indian Constitution provides for reservation in employment. While concept of affirmative action finds its origin in the US constitution, reservations do not exist in the USA. Thus, the Indian Constitution present the best ideas in the worlds with implementation and interpretation in a total Indian context.

About the Author: Akshay Mankar | 59 Posts

Akshay is a Language Enthusiast & an HNLU alumnus. He believes in simplicity & takes legal literacy very close to his heart.

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