13.3 — Constitutions, and India's

The Constitution of India is the longest written constitution of any sovereign country — around 145,000 words in its original English text, with 395 articles and 8 schedules at adoption, now over 470 articles and 12 schedules.

The United States Constitution is about 4,500 words.

The difference is not verbosity. It is a design choice, and understanding why India's is long explains a great deal about what a constitution is for.

What a constitution does

Four functions.

It constitutes. It creates the state's organs — legislature, executive, judiciary — and says how each is composed and what each may do. Before the document, they do not exist.

It allocates. Between levels of government in a federation, and between branches.

It limits. It states what government may not do, which is the rights section.

And it entrenches. It is harder to change than ordinary law, which is the whole point: a majority today should not be able to remove a protection by the same procedure it uses to set a tax rate.

Long and short

Short constitutions state principles and leave the detail to legislation and to judicial interpretation. This works where there is an existing legal tradition, a settled political culture and courts trusted to fill the gaps.

Long constitutions specify. They are written where the drafters do not trust future legislatures, or where the country is diverse enough that arrangements must be spelled out, or where the state is being built from nothing.

India's is long for all three reasons, and the Assembly said so. It was writing for a country with no prior tradition of self-government at national level, enormous diversity, a partitioned population, and 560 princely states being integrated (Chapter 6.25). Ambiguity was a luxury it could not afford.

And there is a specific historical reason. Around 250 of its articles are drawn, sometimes verbatim, from the Government of India Act 1935 — the colonial constitutional framework. The Assembly took the administrative machinery it knew worked and attached a democratic and rights-based superstructure to it.

How India's was written

The Constituent Assembly, elected indirectly by the provincial legislatures, met from December 1946 and adopted the text on 26 November 1949. It came into force on 26 January 1950 — a date chosen because it was the anniversary of the 1930 declaration of complete independence.

It took two years, eleven months and eighteen days.

The Drafting Committee was chaired by B. R. Ambedkar (Chapter 6.24), with B. N. Rau as constitutional adviser, who prepared the initial draft after studying constitutions worldwide.

Its borrowings are explicit and were debated. Parliamentary government and the office of a ceremonial head of state from Britain. Fundamental rights and judicial review from the United States. Directive Principles from Ireland. The emergency provisions from the Government of India Act and from Weimar. Federalism with a strong centre from Canada rather than the United States.

And the Assembly's composition is a fair criticism. It was indirectly elected on a limited franchise and was dominated by Congress, and it contained a genuinely wide range of opinion within that — Ambedkar had been a Congress opponent, and the debates are a serious body of political argument, published in full and worth reading.

What it contains

The Preamble declares India a sovereign socialist secular democratic republic securing justice, liberty, equality and fraternity. "Socialist" and "secular" were added by the 42nd Amendment in 1976 during the Emergency (Chapter 6.27), which is a fact both sides of the current argument about them tend to omit.

Fundamental Rights, Part III, enforceable in court.

Equality — Articles 14 to 18: equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in public employment, and Article 17, which abolishes untouchability and makes its practice an offence.

Freedoms — Article 19: speech and expression, assembly, association, movement, residence and profession, each subject to reasonable restrictions on stated grounds, which is the clause that most litigation turns on.

Article 21 — no person shall be deprived of life or personal liberty except according to procedure established by law. This one sentence has become the most productive provision in the document. The Supreme Court has read into it the rights to privacy, to a clean environment, to livelihood, to shelter, to education, to health care and to die with dignity.

Religious freedom — Articles 25 to 28, including the right to profess, practise and propagate religion.

Cultural and educational rights of minorities — Articles 29 and 30, including the right to establish and administer educational institutions.

And Article 32, the right to move the Supreme Court directly for enforcement of fundamental rights — which Ambedkar called the heart and soul of the Constitution, because a right with no remedy is not a right.

Directive Principles, Part IV, are not enforceable in court. They direct the state toward a living wage, equal pay, free legal aid, village panchayats, a uniform civil code, free and compulsory education, public health, and environmental protection. They are statements of objective, and several have been converted into enforceable rights over time by being read into Article 21.

Fundamental Duties, Part IVA, added in 1976, are not enforceable.

Federalism

India is described in Article 1 as a Union of States, not a federation — a wording Ambedkar explained as meaning that the Union is not the result of an agreement between states and that no state has a right to secede.

Powers are divided by three lists. The Union List — defence, foreign affairs, currency, railways. The State List — police, public health, agriculture, land. And the Concurrent List, where both may legislate and Union law prevails in conflict.

The centre is stronger than in most federations. Governors are appointed by the centre. Article 356 permits the imposition of President's Rule on a state, dissolving its government — a power used well over a hundred times, frequently for political reasons, and constrained substantially by the Supreme Court's S. R. Bommai judgement in 1994, which made it judicially reviewable.

And the fiscal relationship is where the current argument is. States have most of the spending responsibilities and the centre has most of the revenue-raising powers. The Finance Commission determines the share of central taxes devolved to states every five years. The Goods and Services Tax, from 2017, unified the indirect tax system and required states to surrender their independent taxation powers in exchange for a share and a compensation guarantee, and the arguments about that bargain are continuing.

The basic structure doctrine

The most important development in Indian constitutional law and one of the most cited constitutional doctrines in the world.

The question: can Parliament amend any part of the Constitution, including fundamental rights?

The sequence. A series of cases through the 1950s and 60s in which land reform legislation was struck down for violating property rights, and Parliament responded by amending the Constitution.

Kesavananda Bharati, 1973. A bench of thirteen judges — the largest ever constituted — held by a majority of seven to six that Parliament may amend any provision but may not alter the Constitution's basic structure.

What the basic structure contains has been developed case by case: supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism, judicial review, free and fair elections, and the rule of law.

Why it mattered immediately. During the Emergency, the 39th Amendment placed the Prime Minister's election beyond judicial review retrospectively (Chapter 6.27). The Supreme Court struck that provision down using the basic structure doctrine. The doctrine was two years old and it was the thing that worked.

And the criticism is real and should be stated. The doctrine is not in the text. It gives unelected judges the power to strike down constitutional amendments passed by elected representatives with a special majority. Defenders answer that a constitution which can be amended into its opposite by a temporary majority offers no protection at all, and Chapter 11.6's Enabling Act is the historical case for that position.

Amendment

India's Constitution has been amended over a hundred times, which is high compared with most.

Why. It is long and detailed, so ordinary administrative changes require amendment where elsewhere they would be legislation. And the amendment procedure is not very demanding: a two-thirds majority of those present and voting in each House, with ratification by half the state legislatures for provisions affecting federalism.

The consequential ones. The First Amendment, 1951, added restrictions on free speech and protected land reform laws from challenge — passed by the Constituent Assembly sitting as the provisional parliament, which is to say the framers amended their own document within sixteen months. **The 42nd, 1976, during the Emergency, was the most extensive. The 44th, 1978, undid its worst parts and made emergency far harder (Chapter 6.27). The 73rd and 74th, 1992, created constitutional local government — panchayats and municipalities — with reserved seats for women and for Scheduled Castes and Tribes. **The 101st created the GST. And the abrogation of Article 370 in 2019 (Chapter 6.25).

The live arguments

Stated as arguments rather than resolved.

The Uniform Civil Code. Article 44 directs the state to endeavour to secure one. Personal law — marriage, divorce, inheritance, adoption — remains religion-specific (Chapter 6.19). The case for a uniform code is equality before the law and, particularly, the rights of women within religious communities. The case against is that it would be imposed on minorities by a majority, and that pluralism in personal law is part of the constitutional bargain. Goa has a common civil code, inherited from Portuguese rule, which is the domestic example both sides cite.

Judicial appointments. The collegium system, in which senior judges select judges, was created by judicial interpretation rather than by the text. An attempt to replace it with a commission including executive representation was struck down in 2015 as violating the basic structure. The current system is criticised for opacity and the alternative is criticised for permitting executive influence, and there is no agreed answer.

Federal balance, as above.

And free speech. Article 19's reasonable restrictions have been used to support sedition law, criminal defamation and internet shutdowns — India records more internet shutdowns than any other country. The Supreme Court has moved on some of these, including staying the operation of the sedition provision in 2022.

Where this shows up in your life

Every case you could bring, every election you vote in, every reservation policy, every tax the centre and your state levy, and every argument about what the government may do to you runs through this document.

And its single most consequential sentence is Article 21's, which contains twenty-two words and has been read to include the right to privacy — established unanimously by a nine-judge bench in 2017 — which is now the basis of India's data protection framework and of the limits on state surveillance.

That is what a constitution does over time: a short general sentence, applied to circumstances the drafters could not imagine, by courts that have to decide.

What the next page covers

Chapter 13.4 covers how law actually works — the difference between common law and civil law systems and why it matters, how a case actually proceeds, what evidence rules are for, what the presumption of innocence actually requires, why criminal and civil standards differ, and the practical state of the Indian judicial system including the pendency problem.