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Constitution – The Fundamental Law of the Land

Ajay T.K.

The Republic of India is the world’s seventh largest country in terms of geographical size. It is a unique country with its secular, diverse, and democratic society. India is a federal state with 28 federated entities divided among seven unions. Its system of government is parliamentary and based on the Westminster model. India was under British rule for almost 2 centuries, the first attempt to create a government was made with the Government of India Act of 1919 where the primary intent was to increase native participation in the government. The Act consisted of 47 sections and 5 schedules and was written in a legal style. It introduced a number of administrative changes, the most important being diarchy. It put forth a federal structure for India by creating the institutions of the Governor and provincial legislatures. Eleven provinces were created and some portfolios like public health and education were kept for Indian legislators. A notable feature of the document was a clause that called for a review of the Act’s working after a period of 10 years. To represent more people of colour and increase the number of Indians in the government body, the Act was passed. The imperial legislative council was transformed into a bicameral legislature for all India. Finally, the Act established the position of a High Commissioner with residence in London to Represent India in the United Kingdom. The Government of India Act of 1935 was adopted in response to the opposition from the National Congress to the 1919 Act for doing too little in terms of granting autonomy. The Act was written in a legal style, organised around 11 'Parts' and 10 'Schedules'. Each part was further divided into chapters. It is considered to be one of the longest pieces of legislation passed by the British parliament - parliamentary debates around the Act involved 2000 speeches. The key provisions included abolition of the dual form of government, establishment of a Federation of India, introduction of direct suffrage and extension, membership of the provincial assemblies was altered so as to include more elected Indian representatives, who were now able to form majorities and be appointed to form governments. Also, the Federal Court was also established.

Britishers decided to examine the possibility of granting independence to India in the year of 1946. A British cabinet mission was sent to India to hold discussions with the representatives of British India and the Indian States in order to agree on the framework for writing a constitution and set up a constituent body and an executive council. After this Constituent Assembly was elected by the provincial legislatures comprising 278 representatives and 15 women. Parties represented in the CA were the Congress Party which had a majority, Muslim League, Scheduled Caste Federation, the Indian Communist Party and the Union Party. The CA met for the first time in December 1946 and by November 1949 the draft constitution was approved. The constitution went into effect in January 1950 and the CA was transformed into a Provisional Parliament.

The Constitution of India having been written constitutes the fundamental law of the land. This has several significant implications. It is under this fundamental law that all laws are made and executed, all governmental authorities act, and the validity of their functioning adjudged. No legislature can make a law, and no government agency can act, contrary to the Constitution. No act of the executive, legislature, judicial or quasi-judicial, of any administrative agency can stand if contrary to the Constitution. The Constitution thus conditions the whole governmental process in the country.

In Minerva Mills v. Union of India, it was decided that the constitution is above the people, government, legislature, executive and the judiciary. No one is above or beyond the constitution and the supremacy of the constitution is undisputed and cannot be questioned. As mentioned above, the written constitution is the “fundamental law” of the Country. The following principles must be kept in mind when the Constitution is given such superiority –

1. The Constitution is made by the people. The Constitution must be superior to the legislature which is made by the Constitution itself.

2. The Constitution gives power to all the organs.

Although the Constitution has been clear about what powers every organ has, this has been debated in the Court. Unlike other countries, India has a unique constitution. The Constitution has been inspired by various other countries as well but at the same time, it's very unique to the Republic of India.

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