01 Constitution - underpinnings, evolution

GoI 1935

Intro

• Constitutional rehearsal without sovereignty
• designed to perpetuate imperial control, the GoI1935 became blueprint for India’s constitutional democracy

Features

• All India Federation - BritIndia + PS
• 3 fold division of powers - (3 lists)
• provincial autonomy; dyarchy abolished in provinces
  • gave real experience of running government before independence, after 1937 provincial elections
• dyarchy at center
  • defence, external affairs under GG
• bicameralism
• FPSC, PPSC: influenced art 315-323
• Federal court w/ original jurisdiction on disputes b/w Federation, provinces, federated states, appellate jurisdiction
  • institutional predecessor of SC
• expanded franchise: 3% $\to$ 14%
• separate electorate (Muslim, Sikh), reserved/communal representation
• Emergency powers
• Ordinance power to GG
• RBI Act 1934

Did not simply copy?

The constitution democratised, nationalized and moralized the act

GoI 1935	CoI 1950
Sovereignty in British crown	Sovereignty in “We, the People of India”
limited franchise	UAF
Communal electorates	common electoral roll, w/ affirmative representation through reservation
GG/G had real discretionary colonial power	President/Governor are merely constitutional heads
No justiciable FR	FR enforceable by courts
Federation subject to princely accession & imperial control	UoI based on constitutional integration
police state orientation	welfare state orientation through FR, DPSP

Impact on India’s federal structure

1. introduction to federal constitutional language
2. 3 lists == foundation of indian legislative federalism
3. strong center bias inherited
4. provincial autonomy sowed seed for state government
5. federal court == model for federal constitutional umpire
6. emergency centralization clause persists
7. asymmetrical & negotiated federalism

Conclusion

GoI1935 gave India the grammar of constitutional govt but not the soul of constitutional democracy.

Constituent Assembly

Introduction

Worked for 3 years, converting freedom struggle into a constitutional architecture.

Feature	Detail
Origin	CMP; became sovereign after independence
	First sitting: 9 dec 1946
Membership	total 389; representative, indirectly elected from British indian provinces
	Princely states nominated representatives
Diversity	lawyers, women, pol leaders, reformers, professors, former civil servant, religious minorities
Deliberation	165 days meeting, approx 36L words were spoken during debates (PRS)
Dual role	functioned as dominion legislature
Borrwoing	UK - Parliamentary govt
	US - FR
	Ireland - DPSP
	Canada - Residuary powers
	Australia - Joint Sitting
	Germany - Emergency provisions
	South Africa - RS Election

Challenges

Challenge	Nature	Response
Partition, communal violence	worked amid displacement, massacres, insecurity	emphasized secular citizenship, minority safeguards
PS Integration	565PS	designed union capable of political integration & administrative coherence
Poor & illiterate society	many doubted if democracy could work in india	trusted Indian, adopted UAF, parliamentary democracy
Liberty vs Reform	India needed civil liberties but also caste reform, land reform, affirmative action	FR combined w/ DPSP & special provisions for disadvantaged groups
Federalism vs Unity	Partition created fear of Balkanization	Assembly adopted federalism w/ strong center
Minority protection	communal tensions	adopted religious freedom, cultural and educational rights, equality protections
Language	Linguistic diversity, minority linguistic groups	No National lang; official lang both hindi & english
Borrowing vs originality	Criticism of imitation	adapted to indian needs, creating distinct constitutional synthesis
Administrative continuity	sudden rupture from colonial governance could create chaos	preserved administrative structure, changing the source of legitimacy from empire to people
Time pressure	drafting amid crisis and transition	despite complexity, drafting completed in <3 years

Conclusion

Constituent assembly wrote india’s aspirations into a document that defined the basis of this nation.

BR Ambedkar

However good a constitution may be, if those implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good.

Amendments

Drawing 2026-09-06 11.58.58

+−⟲

Link to original

Introduction

• Parl democracy limited by CoI, extent to which the CoI can be amended determines the balance b/w parliamentary oversight & constitutional supremacy
• power to amend lies specifically with parliament under article 368 and not under legislative division of powers under VII schedule
• coi doesn’t place explicit restrictions on power of parl to amend coI, though through Judicial intervention, BSD was created to place principle based limitations

Why Art 368 imp

• parl sovereignty vs constitutional supremacy
• protection of FR
• federalism
• continuity vs change
• preventing abuse of power
• mainatining democratic legitimacy
• avoiding extra constitutional change
• judicial safeguards & checks

Should parl power be restricted

• safeguard against authoritarianism
• JR as constitutional safeguard
• balance b/w flexibility & stability

How?

• BSD
• procedural riguor or article 368
• JR of constitutional amendments
• no enlargement of amending power

Conclusion

Power to amend is a responsibility and must be exercised through conscience of constitutional morality

Basic Structure

Introduction

CJI Dr. DY Chandrachud called the BSD as a north star which guides and gives direction to interpreters & implementers of constitution when path ahead is convoluted.

Based on theory of implied limitation, BSD places reasonable restrictions on amending certain essential principles embedded in the CoI

Impact

• checks & balances to amending power
• constitutionalism in all parliamentary actions
• continuity: parl can’t change the fundamental basis of India
• Domino effect: credited with protecting indian state from collapsing like many of its south asian counterparts
• JR & Constitutional supremacy: grants judiciary the power to review & strike down laws in violation of BS of CoI
• safeguard for FR
• maintaining balance b/w central govt & state govt
• limiting the scope of constitutional amendment
• allows for evolution of constitution in response to changing societal needs, aspirations

Critique

• no constitutional mention
• lengthy, ambiguous
• dangers democracy
• unfettered power to judiciary
  • judicial overreach

Global constitutional protections

• Italy, France: protected central principles
• Portugal, Greece: listed un-amendable provisions
• Pakistan: recognized implied limitations
• Australia: recognized limitations on law making

Application of BSD

• JR: L Chandra Kumar Case - JR held as part of BSD
  • tribunals can’t replace constitutional courts
• Kihoto Hollohan: democracy & elections are basic features
• Indira Gandhi / Raj Narain case: can’t immunize PM election from JR
• 9th Schedule: IR Coelho case: can’t blanket protect laws in 9th schedule
• FR, DPSP: Minerva Mills - harmonized
• Judicial independence: NJAC

Impact on Judicial Review

+ve

• constitutionalization of JR itself
• 2 tier review system
  • article 13
  • BSD
• First application to strike down 39CAA (indira gandhi case)
• checking executive arbitrariness
• protecting electoral integrity

-ve

• democratic deficit, NJAC controversy
• vagueness, uncertainty
• judicial overreach
  • Vishakha guidelines
  • Policy disruptions

BSD as democracy’s bulwark

• defence against authoritarianism
• free and fair elections as structural guarantee
• secularism, pluralism, federalism as basic structure
• multi party democracy protected

BSD Challenges

• counter majoritarian problem: unelected judiciary can strike down laws by elected majorities
• constitutional freezing on certain provisions eg. NJAC
• ambiguity as tool of power (BSD scope undefined)
• abstraction problem: what level of generality does a feature becomes basic structure

Conclusion

BSD is necessary in context of weak party constraints and potential majoritarian excess, but demands judicial self restraints, clear reasoning.

First Amendment

• parliament attempting to recalibrate rights to facilitate socio-economic reform

Through the lens of BSD, 1stCAA1951 has a tension that it uses formal amendment to entrench a transformative socio-economic agenda, while also carving immunity from JR.

IX Schedule

• Article31B inserted by 1CAA1951
• list of laws explicitly placed beyond reach of JR on grounds of violation of FR
• to immune land reform, welfare legislation from challenge under art 14, 19, 31

Stage	Position
post 1st CAA	all IX sch laws immune from FR challenge
post KBC 1973	immunity questioned
Waman Rao 1981	laws added before 24Apr1973 immune
	future laws open to BSD challenge
IR Coelho 2007	laws added after 24Apr1973 can also be challenged on violation of Art 14, 17, 19, 21

Conclusion

IX Sch was originally a social revolution device, protecting land reforms from being struck down by courts. But over time it became a constitutional immunity device.