The Constitution Of India And Its Recent Changes

India is one of the four great ancient civilizations of the world who created abrilliant culture for the mankind.The ruling art of the Mauryan Empire, GuptaDynasty,Harsha Dynasty and the Mughal Dynasty is one of the important contentsof human institutional history.From1600to1857with infiltration, encroaching andfinally conquere on India, the British East India Company brought pains to IndianCicivilization,at the same time, it also brought new mode of governance toIndia.The administrationl model of governor with councilors has embryonic form ofparliamentary cabinet system. From1601to1757the British government and theBritish Parliament does not intervene directly in the affairs of East India Company inIndia. The British King awarded the company the monopoly privileges through theissuance of "Charter" and these Charters mainly played a role of special companylaw.In1757, after the battle of Plassey, East India Company conquered Bengal.TheBritish government and the British Parliament also started to rule India indirectlythrough the East India Company. The Regulating Act1773is the first milepost ofconstitutional documents in the colonial history of India. The Act provided that Indiawas governed by a Governor and four Coucilors who are appointed by the King ofEngland,at the same time, the Act set up the Supreme Court in Calcutta whoes judgeswere also appointed by the King.To the Great Rebellion of1857the BritishParliament passed the,East India Company Act1784, The Regulating Act1786, the Charter1793, the Charter1813, the Charter1833and the Charter1853.Theseconstitutional documents made sporadic modification to the dual governance modelwith the British government and East India CompanyThe90years from1858of the direct ruling of the British King on India toAugust15,1948of India’s Independence is the process of India gradually realizingparliamentary cabinet system and achieveing autonomy.The Government of India Act1919adopted “half responsible government” in States and the Government of IndiaAct1935adopted by the form of parliamentary cabinet system with fullresponsibility in States,while implementing “half responsible government "in theUnion. The content of the Republican Constitution of India was originated inthe Government of India Act1935with the content of more than75%.The independence and the partition of India and Pakistan brought trauma to thepeople of India.However,it also brought to the people of India the chance to decidetheir fates. The first Constituent Assembly was held on December9th1946with299members(the actual number of participants is210)who are elected indirecly by theLegislative Assembly of States or appointed by the Princely States. Dr. RajendraPrasad was elected the President of the Constitutent Assembly and Dr. B. R.Ambedkar was appointed the Chairman of Drafting Committee and B.N. Rau theconstitutional adviser.The Constituent Assembly lasted for2years11months and17days and met11times with165days of the duration of the meetings TheConstitution of India which came into effect on January26,1950is the greatbeginning for Indian people to move towards democracy and constitutionalism.TheConstitution of India of1950with a total of22Volumes (now26volumes),395Articles (now448Artilces) and8Schedules (till2012with12schedules) had a totalof more than ten thousand of words.The Constitution of India established the threefundamental systems of constitution: the fundamental rights, the parliamentarycabinet system and the federal system. The following are the reasons that India canmake and keep republican Constitution:the long time of British colonial rule,complicated caste system, pluralistic religions and languages and weakcentralization tradition. The fundamental rights of the Constitution of India are divided into6groupsrespectively:Right to Equality, Right to Freedom, Right against Exploitation, Righ toFreedom of Religion,(Minority) Cultural and Educational Rights and Right toConstitutional Remedies. The core or the heart of these rights are the Right toConstitutional Remedies in the thirty-second article of the Constitution,which is thefoundation of all the other fundamental rights. This article designes5kinds ofprerogative writs to protect the fundamental rights which are the Writ of HabeasCorpus, the Writ of Mandamus, the Wirti of Prohibition, the Writ of Certiorari andthe Writi of Quo Warranto.At the same time Article32provides the Indian SupremeCourt to release any Diretions and Orders through suitable proceedings to protectfundamental rights. What’s more, the Indian judiciary had strong constitutional reviewmechanism to protect fundamental rights.The court of India not only reviewadministrative behavior and the law whether they are unconstitutional but also havepowers to review the constitutionality of the constitutional amendments--if aconstitutional amendment violated the basic structure of the Constitution,theconstitutional amendments can also be struct down and become void.The SupremeCourt of India established the theory of basic structure in the case of KesavanandaBharati v. State of Kerala.It is an important part of changes of the Right to Equality with theimprovement of the satatus of the scheduled castes, scheduled tribes and otherbackward class since1980’s. The Personal Liberty in the twenty-first article of theConstitution is the core of substantive fundamental rights,from which many newfundamental rigts such as Right to Peddling for hawkers,Right against Handcuffingand Right to Die etc are derived since1990’s.From1980through the case of SunilBatra v. Delhi Administration, the Supreme Court broke through the traditional theoryof Locus Standi and established Public Interest Litigation(PIL)-any person with bonafides can sue the defendant to protect rights on the basis of public interest beinginfringed.At the same time the fundamental rights are also remedied strongly throughPILThe enlightenment from the fundamental rights relief and judicial review in Indian Constitution for China is: China should take a gradual way to realize thefundamental rights relief and judicial review(or constitutional supervision mode): thefirst step is to authorize ordinary judiciary to give relief to the fundamental rightswhich have not been made into concrete legal rights; the second step is to authorizeordinary judicial organs the power to review the constitutionality of the administrativeact (not including the Administrative Regulations and Governmental Rules);the thirdstep is the ordinary judicial organs submit the Acts,Administrative Regulations,LocalLaws and Governmental Rules to the National People’s Congress or the StandingCommittee of National People’s Congress when the judiciary find the “laws”unconstitutional during civil litigation, administrative litigation and criminallitigation,then according to the decision of the National People’s Congress or theStanding Committee of National People’s Congress,the Court decide the case; thefourth step is to authorize ordinary judicial organs the power to review theconstitutionality of Local Laws and Governmental Rules;the fifth step is theestablishment of the Constitutional Court or Constitutional Committee which is underthe National People’s Congress to review the constitutionality of Acts enacted by theStanding Committee of NPC and Administrative Regulations; the sixth step is theestablishment of Constitutional Court which is completely independent from theNational People’s Congress to review all Acts and Administrative Regulations (theNational People’s Congress and the Standing Committee of National People’sCongress now only serve as the Highest Organ of State Power and the LegislativeBody).The Constitution of India made the constitutional convention of BritishParliamentary Cabinet System into written law and provides in the Par V and Part VIof the Constitution of India the Parliamentary Cabinet System with detailedprovisions.The core of the Parliamentary Cabinet System is the responsibility of theCouncil of Ministers headed by the Prime Minister to the lower house of theParliaments and the Council of Ministers should resign or request the Presidentdissolve parliament and to begin re-election once the Council of Ministers are votedagainst by the lower Parliament with majority.The Constitution of India established President as the Head of the Executive and the Head of the State, but must act inaccordance with advice the Coucil of Ministers,so the President “reigns but does notgovern”. In the case of a Hung Parliament--without any party to gain a majority seatsin Parliament and with the emergence of government distrust crisis, the Constitutionof India has not provides whether the president should accept the advice of theCouncil of Minsiters who have not been tursted by the lower parliament to dissolvethe lower Parliament. The practice of Indian Constitution has not adopted theBritish Constitutional Convention to dissolve the lower parliament immediately andorder for reelection and it is a difficult problem in the field of Indian constitutionalpractice.The civil service system is the content of Administrative Laws as to traditionaltheroy of law, but the Constitution of India provides specifically the system of civilservant in Part XIV,for the6.4million India civil servants is the foundation ofefficient operation of the Indian parliamentary cabinet system. All governmentemployees(including judges) except for elected politicians, soldiers and employeesin state-owned enterprises are civil servants which has a wide scope. The IndianConstitution set up the Public Service Commission for the Union and the States whichare authoritative and independent to manage different kinds of civil servants and theConstitution also provides the procedural rights of civil servants.It is a big subject under discussion of the power of the President when the HungParliament arise or when the government loses the confidence of the Parliament. Thecurrent practice of Indian Constitution is the President will give a chance to the partyor coalition to strive to get the confidence from the Parliament when there arises aHung-Parliament.When the party or the coalition succeed, then they can form thegovernment.When there is a trust crisis during the administration, the President alsogive the Council of Ministers or other party a chance to get confidence from theParliament,if they failed then the President dissolve the Parliament and order forreelection.The reason behind this is India as a big developing country can not affordtoo frequent Parliament election. The fifty-second and ninety-first "Anti-Defection "Constitutional Amendments in1985and2003is a response to too frequent fall of governments which are caused by the defection of members of pary in House.TheAmendment provides that a members of a House shall be disqualified for being amember of the House if he defect his party and shall be disqualified to hold anyremunerative political post for duration of the period commencing from the date of hisdisqualification till the date on which the term of his office as such member wouldexpire or till the date on which he contests an election to a House and is declaredelected.The problem of Anti-Defection is also a new subject of Indian parliamentarycabinet after the end of the era of one-party rule.If the Indian Fundamental Rights, Parliamentary Cabinet System are madethrough learning or transplantation from foreign constitution, then the India’s FederalSystem are originally made.The biggest characteristic of India’s Federal System isthe strong Union and weak States.The Constitution of India provides a very detaileddivision of the legislative powers between the Union and the States,therefore Indiabelongs to the federal system undoubtedly. At the same time many system withunitary characteristic are devised, such as with the agreement of the Council of Statesthe Parliament have powers to enact the matters in the State List, and the Union cangovern the States directly throuth Presidential Governance(Article356) in case offailure of the constitutional machinery in that state and that the Union posess alarger proportion of fiscal resources etc. So some person say that the India’s FederalSystem is one kind of federal system which has the federal system frameworkwith the essence of the unitary model.The Emergency Provisions are not provided in the federal system, but itsimpact on the federal system is very serious--under certain conditions theEmergency Provisions can transformed the federal system into unitary system.Thereare three kinds of Emergency in Indian Constittuion--National Emergency, i.e.theEmergency which are declared under the conditions of war, invasion and armedrebellion; State Emergency which is declared when the state government cant workin accordance with Indian Constituion; the Financial Emergency which is declaredwhen there is a fiscal crisis. The National Emergency not only affects the federalsystem but also affects the Fundamental Rights but the State Emergency and the Financial Emergency mainly affect the federal system--state power can becompletely replaced by the central government or restricted by it.The ninety-third and ninety-fourth "Panchayat Constitutional Amendment"and "Municipal Self-Government Constitutional Amendment" in1992are animportant trends in India federal system during recent years, which are alsoimportant measures to improve local self-government in India.The traditionaldecentralization in federal system are the decentralization between Federation andStates, but three is three levels of decentralization tendency in the establishment oflocal autonomy.The ninety-third Constitutional Amendment provides the constitutionof the framework of the rural self-government–the Panchayat with three levels,whilethe ninety-fourth Constitutional Amendment provides three kinds of Municipalself-governments–the Municipal Corporation,the Municipal Council and the NagarPanchayat. But the legislative power related to self-governments belongs to the States,so it is vital that how States to refine the ninety-third and ninety-fourth ConstitutionalAmendment and if States are willing to delegate authority to self-goverments.Localautonomy in India in reality is less than satisfactory and local autonomy has the samemeaning with "low efficiency and corruption".With Asia, Latin America and many countries in Africa adopting authoritariansystem or exercising dictatorship soon after World War II, the democraticconstitutionalism had not collapsed after60years in India, which is a greatcontribution to the development of democracy and Rule of Law in the world.However, the quality of India democracy is low with serious corruption andinefficiency. What is more,the modernization (mainly industrialization) in India is notvery successful.The inner reason which hinder the development of India is the lack ofthe fair competition mechanism.So, it is the vital way for India to realize democraticconstituion to continue to promote the economic liberalization and to take part in thefair competition in the world and then to form a strong middle class in India.Although the civilization of industry and commerce and the powerfulmiddle-class are the foundation of Indian Constitutionalism, the accomplishment ofthe legal professionals is also a key factor for the success of Constitutionalism.Beginning from1855at Elphinstone College in Mumbai, Indianmodern legal education has been more than158years to this day. The most importantlegal document for legal education nowdays is the Advocate Act,1961whichauthorize the Bar Council of India the power to oversee Indian legal education andauthorize it to recognize law schools and departments in India. The AdvocateAct,1961provides3-year legal educational system after bachelor degree which issame to that of the United States.But from1987with the establishment of theNational Law School of India University in Bangalore,India started5-year legaleducational system after high school.India implements the parallel legal educationalsystem model with3years after bacherlor degree and5years after highschool.Indian legal educational management and system are scientific, but thequality of India legal education is poor.The poor quality of law students, poor salaryfor teachers in law schools and backward hardware facilities limit the developmentof legal education in India, which is also the important reason for the low quality ofIndian Constitutionalism.