EDEN IAS

INDIAN CONSTITUTION

SALIENT FEATURES OF THE INDIAN CONSTITUTION

SALIENT FEATURES OF THE INDIAN CONSTITUTION

Indian Constitution

Though borrowed from almost every constitution of the world, the constitution of Indian has several sa- lient features that distinguish it from the constitutions of other countries. These features are:

1)  Longest known written constitution

The Constitution of India is the lengthiest of all the written constitutions of the world. It is a very com- prehensive, elaborate and detailed document. The original constitution of 1949 contained 395 Articles which were divided into 22 parts. Originally there were 8 schedules in the constitution. However since its inception the constitution has underwent numerous amendments which added new articles, parts and schedules. As of Jan, 2019 the Constitution of India has 448 articles in 25 parts and 12 schedules. Sever- al factors have contributed to the elephantine size of our Constitution. They are:

  1. Geographical expanse of the country and its diversity
  2. The Government of India Act, 1935-from which most of the constitution is drawn
  3. Single constitution for the Union and all states, except the state of Jammu and Kashmir (which has right to draw its own constitution under Article 370)
  4. Dominance of legal luminaries in the constituent assembly
  5. The Constitution contains not only the fundamental principles of governance but also detailed ad- ministrative provisions. Further, those matters which in other modern democratic countries have been left to the ordinary legislation or established political conventions have also been included in the Indian constitutional
  6. Indian constitution incorporates some of the judicial interpretations to minimise litigation and this also has added to the bulk of the

2)  Drawn From Various Sources

Most of the provisions of the Indian constitution are substantially borrowed from other known constitu- tions of the world. The constituent assembly assessed many constitutions and drafted one taking all the provisions that best applied to India’s diversity. Dr B R Ambedkar proudly acclaimed that the Constitu- tion of India has been framed after ‘ransacking’ all the known Constitutions of the World.

SOURCES FEATURES BORROWED
Government of India Act, 1935 Federal Scheme, Office of Governor, Judiciary, Public Service Commissions, Emergency pro- visions and administrative details.
Constitution of Britain Parliamentary form of government, Rule of Law, legislative procedure, single citizenship, cabinet system, prerogative writs, parliamen- tary privileges and bicameralism.
Constitution of USA Fundamental rights, independence of judicia- ry, judicial review, impeachment of the presi- dent, removal of supreme court and high court judges, Post of vice president, Functions of president and vice-president and Preamble of the constitution.

 

Constitution of Ireland Directive Principles of State Policy, nomina- tion of members to Rajya Sabha and method of election of president.
Constitution of Canada Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.
Constitution of Australia Concurrent List, freedom of trade, commerce and intercourse, and joint sitting of the two Houses of Parliament.
Constitution of Germany Suspension of Fundamental Rights during Emergency
Constitution of USSR

(Soviet Constitution)

Fundamental duties, The ideals of Justice-So- cial, Economic and Political.
Constitution of France The ideal of Republic in the Preamble and the ideals of liberty, equality and fraternity in the Preamble.
Constitution of South Africa Procedure of amendment, Election of mem- bers to the Rajya Sabha
Constitution of Japan Concept of “Procedure established by law”

3)  Blend of Rigidity and Flexibility

An important distinctive feature of the Indian Constitution is that it seeks to impart flexibility to a writ- ten federal constitution. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution. A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution. The Constitution of India is neither rigid nor flexible but a synthesis of both. Article 368 provides for two types of amendments:

a) Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.
b) Some other provisions can be amended by a special majority of the Parliament and with the
ratification by half of the total states.

 

At the same time, the Parliament has been given the power to alter or modify many of the provisions of the constitution by simple majority and by ordinary legislative procedure, by laying down that such changes shall not be deemed as ‘amendments’ to the constitution. Notably, these amendments do not come under the purview of Article 368. Further post Keshavananda Bharti, the amending powers of the parliament has been circumscribed by the doctrine of basic structure.

4)  Federal System with Unitary Bias

The Constitution of India is essentially federal with subsidiary unitary features. It has all the basic ele- ments of a federal polity viz.

  • Dual Government
  • Division of Powers
  • Supremacy of the Constitution
  • Authority of Courts
  • Bicameralism

However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Center, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Center, all-India services, emergency provisions, and so on.

Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, of the Indian Con- stitution, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement between the states; and two, no state has the right to secede from the federation.

Hence, the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’, ‘quasi-federal’ by K C Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin, ‘federation with a centralising tendency’ by Sir Ivor Jennings, and so on.

However an ardent observer of the Indian constitution like Prof Alexandrowicz has taken great pains to combat the view that the Indian federation is ‘quasi-federation’. He infact says that “India is a case sui generis”.

5)  Parliamentary Form of Government

The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of co- operation and coordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.

The parliamentary system is also known as the ‘Westminster’ model of government, responsible government and cabinet government. The Constitution establishes the parliamentary system not only at the Centre but also in the states. The features of parliamentary government in India are:

a) Presence of nominal and real executives;
b) Majority party rule,
c) Collective responsibility of the executive to the legislature,
d) Membership of the ministers in the legislature,
e) Leadership of the prime minister or the chief minister,
f) Dissolution of the lower House (Lok Sabha or Assembly).

 

Even though the Indian Parliamentary System is largely based on the British pattern, there are some fundamental differences between the two. For example, the Indian Parliament is not a sovereign body like the British Parliament. Further, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy). In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.

 

6)  Reconciliation between Parliamentary Sovereignty and Judicial Review

The Indian constitution wonderfully adopts the via media between the American system of Judicial Su- premacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary with the pow- er of declaring a law as unconstitutional if it is beyond the competence of the legislature according to the distribution of powers provided by the constitution, or if it is in contravention of the fundamental rights guaranteed by the constitution or of any other mandatory provision of the constitution but at the same time depriving the judiciary of any power of judicial review of the wisdom of the legislative policy. Our constitution thus places the supremacy at the hands of the legislature as much as that is possible with-

in the bounds of a written constitution (Art 368). Thus the scope of judicial review is narrower in India when compared to America and the Indian parliament is relatively weaker than the British parliament. This beautiful synthesis makes the Indian constitution unique and attractive. In short India has avoided the extremes

7)  Integrated and Independent Judiciary

The Indian Constitution establishes a judicial system that is integrated as well as independent. The Su- preme Court stands at the top of the integrated judicial system in India. Below it, there are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts, that is, district courts and other lower courts. This single system of courts enforces both the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary. The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution.

8)  Fundamental Rights subject to reasonable restrictions

Fundamental rights are a group of rights that uphold liberty and freedom. They are fundamental and cannot be encroached upon by the state. However the American experience demonstrates that a written guarantee of fundamental rights has a tendency of creating an individualistic-centered society and state which may at times prove to be dangerous to the common welfare. Hence the guarantee of individual rights in our constitution has been very carefully balanced with the need for the security of the sate itself. This has been achieved by incorporating reasonable restrictions in Part III (the part dealing with Funda- mental Rights) of the constitution. Part III of the Indian Constitution guarantees six fundamental rights

  • Right to Equality (Articles 14–18)
  • Right to Freedom (Articles 19–22)
  • Right against Exploitation (Articles 23–24)
  • Right to Freedom of Religion (Articles25–28)
  • Cultural and Educational Rights (Articles 29–30)
  • Right to Constitutional Remedies (Article 32)

The Fundamental Rights are meant for promoting the idea of political democracy. They operate as limita- tions on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in nature, that is, they are enforceable by the courts for their violation. The aggrieved person can directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the restoration of his rights.

The Fundamental Rights are not absolute and are subject to reasonable restrictions. Further, they are not sacrosanct and can be curtailed or repealed by the Parliament through a constitutional amendment act. They can also be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.

It is further added by political scientist that fundamental rights for Indians have also been intended to overturn the inequalities of pre-independence social practices. Precisely, they have also been used to abolish untouchability and thus prohibit discrimination on the basis of religion, race, caste, sex, or place of birth. They also prohibit trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.

9)  Directive Principles of State Policy

They are enumerated in Part IV of the Constitution. They can be classified into three broad categories—

socialistic, Gandhian and liberal–intellectual.

The directive principles are meant for promoting the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India. However, unlike the Fundamental Rights, the directives are non-jus- ticiable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Hence, they impose a moral obligation on the state authorities for their application. But, the real force (sanction) behind them is political, that is, public opinion.

In the Minerva Mills Case (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.

10)  Fundamental Duties

The constitution of 1949 had no provisions for fundamental duties. Fundamental duties were added during the operation of internal emergency (1975–77) by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee. A new part of the constitution viz. Part IV A and a new article viz. Article 51 was created for it. This article added ten fundamental duties which were raised to eleven after the 86th Constitutional Amendment Act of 2002 which added one more fundamen- tal duty.

The fundamental duties serve as a reminder to citizens that while enjoying their rights, they have also to be quite conscious of duties they owe to their country, their society and to their fellow-citizens. However, like the Directive Principles, the duties are also non-justiciable in nature.

11)  Universal Adult Franchise

This part of the Constitution promotes the policy of ‘one person one vote’. According to this part of the Constitution, every individual of 18 years and above have a right to vote irrespective of their age, gender, race, color, religion, etc. The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.

The introduction of universal adult franchise by the Constitution-makers was a bold experiment and high- ly remarkable in view of the vast size of the country, its huge population, high poverty, social inequality and overwhelming illiteracy.

Universal adult franchise makes democracy broad-based, enhances the self-respect and prestige of the common people, upholds the principle of equality, enables minorities to protect their interests and opens up new hopes and vistas for weaker sections.

12)  Single Citizenship

Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship. In countries like USA, on the other hand, each per- son is not only a citizen of USA but also a citizen of the particular state to which he belongs. Thus, he owes allegiance to both and enjoys dual sets of rights—one conferred by the National government and another by the state government.

In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them excepting in few cases like tribal areas, Jammu and Kashmir, and so on.

13)  Independent Bodies

The Indian Constitution not only provides for the legislative, executive and judicial organs of the gov- ernment (Central and state) but also establishes certain independent bodies. They are envisaged by the Constitution as the bulwarks of the democratic system of Government in India. These are:

  1. Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India.
  2. Comptroller and Auditor-General of India to audit the accounts of the Central and state gov- He acts as the guardian of public purse and comments on the legality and propriety of government expenditure.
  3. Union Public Service Commission to conduct examinations for recruitment to all-India ser- vices15 and higher Central services and to advise the President on disciplinary
  4. State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters.

The Constitution ensures the independence of these bodies through various provisions like security of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and so on.

14)  Emergency Provisions

The Indian Constitution contains elaborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationality behind the incorporation of these provisions is to safe- guard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. The Constitution envisages three types of emergencies, namely:

  1. National emergency on the ground of war or external aggression or armed rebellion 16 (Article 352);
  2. State emergency (President’s Rule) on the ground of failure of Constitutional machinery in the states (Article 356) or failure to comply with the directions of the Centre (Article 365); and
  3. Financial emergency on the ground of threat to the financial stability or credit of India (Article 360).

During an emergency, the Central Government becomes all-powerful and the states go into the total con- trol of the centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation of the political system from federal (during normal times) to unitary (during emergency) is a unique but rare.

15)  Three-tier government

The constitution of 1949 provide for a federal polity between the centre and the states however the 73rd and 74th constitutional amendment acts added a third tier viz. PRIs and ULBs.

The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local govern- ments) by adding a new Part IX and a new Schedule 11 to the Constitution. Similarly, the 74th Amend- ment Act of 1992 gave constitutional recognition to the municipalities (urban local governments) by adding a new Part IX-A and a new Schedule 12 to the constitution.

16)  Co-operative Societies

The 97th Constitutional Amendment Act of 2011 gave a constitutional status and protection to co-opera- tive societies. In this context, it made the following three changes in the Constitution:

  • It made the right to form co-operative societies a fundamental right (Article 19).
  • It included a new Directive Principle of State Policy on promotion of cooperative societies (Article 43-B).
  • It added a new Part IX-B in the Constitution which is entitled as “The Cooperative Societies” (Arti- cles 243-ZH to 243-ZT).

The new Part IX-B contains various provisions to ensure that the cooperative societies in the country function in a democratic, professional, autonomous and economically sound manner. It empowers the Parliament in respect of multi-state cooperative societies and the state legislatures in respect of other co-operative societies to make the appropriate law.

17)  No communal representation

The framers of the Indian constitution abolished the communal representation which in its trail had brought in the bloody and lamentable partition of India. In the Indian constitution there is no reservation of seats except for the scheduled castes and scheduled tribes and for Anglo-Indians.