Salient Features of the Indian
Constitution
Introduction
The Indian Constitution is unique in
its content and spirit. Though borrowed from almost every other constitution in
the world, the Indian constitution has several salient features that
distinguishes it from others.
The Constitution has undergone a
substantial change on the account of several amendments, particularly the 7th,
42nd, 44th, 73th, 74th Amendments. Infact, the 42nd Amendment Act(1976) is also
known as the 'Mini Constitution' due to the numerous important changes.
However, in the Kesavananda Bharathi case(1973), the Supreme Court ruled that
the constituent power of Parliament under Article 368 does not enable it to
alter the 'basic structure' of the Constitution.
(1)Lengthiest Written
Constitution
Constitutions are classified into
written, like the American Constitution, or unwritten, like the British
Constitution. The Indian Constitution is lengthiest of all the written constitutions
of the world. It is a very comprehensive, elaborate and detailed piece of
document. Originally, the Constitution consisted of a Preamble, 395 Articles(
divided into 22 parts) and 8 Schedules.
Four factors have contributed to the
elephantine size of the Constitution, namely:
(1.1)Geographical factors, the
vastness of the country and its diversity.
(1.2)Historical factors, e.g, the
influence of the Government of India Act of 1935 which was bulky.
(1.3)Single Constitution for the
Centre and the State except for the state of Jammu and Kashmir.
(1.4)Dominance of legal luminaries
in the Constituent Assembly.
(2)Drawn from Various Sources
The constitution has borrowed most
of its provisions from the constitutions of the other countries as well as from
the Government of India Act of 1935.
The structural part of the
Constitution has been drawn from the Government of India Act of 1935, The
Philosophical part(the Fundamental Rights and the Directive Principles of State
Policy) has been drawn from the American and the Irish constitutions
respectively. The political part(principles of the Cabinet Government,
relations between the legislature and the executive) have been largely drawn
from the British Constitution.
(3)Blend of Rigidity and
Flexibility
Constitutions are also classified
into flexible and rigid. A rigid constitution is the one that requires a
special procedure for its amendments, like the American Constitution. Whereas,
in a flexible Constitution, amendments can be made like other ordinary laws,
like the British Constitution.
The Indian Constitution is neither
rigid nor flexible but a blend of both. Article 368 provides for two types of
amendments, they are;
(3.1)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(i.e. more than 50%) of
the total membership of each house.
(3.2)Some other provisions can be
amended by a special majority of the Parliament and by ratification by more
than half of the total number of states.
At the same time, some other
provisions can be amended by a simple majority of the Parliament in case of
ordinary legislative process. These amendments do not fall under article 368.
(4)Federal System with a Unitary
Bias
The Constitution establishes a
Federal system of Government. It contains all the features of a federation,
i.e., a two governments, division of power, supremacy of the Constitution,
independent judiciary and bicameralism.
However, there are a large number of
Unitary or Non-Federal features such as a strong centre, single Constitution,
single citizenship, flexibility of Constitution, integrated judiciary,
appointment of Governors by the Centre, all-India Services, emergency services
and so on.
Moreover, the term 'Federation' is
nowhere used in the Constitution. Article 1, on the other hand, describes India
as a 'Union of States' which implies two things:
(4.1)the Indian federation is not an
agreement by the states.
(4.2)no state has the right to
secede from the federation.
(5)Parliamentary form of
Government
The Constitution has opted for the
British Parliamentary form of Government rather than the American Presidential
form of Government. The Parliamentary form of Government is based on the
principle of cooperation between the legislative and the executive while the
Presidential form is based on the 'Doctrine of Separation of Powers' between
the two.
Also known as the Westminster model
of Government. The Constitution not only establishes Parliamentary system at
the Centre but also in the States. Key features include:
(5.1)Presence of nominal and real
executives.
(5.2)Majority Party rule.
(5.3)Collective responsibility of
the executive to the legialature.
(5.4)Membership of the Ministers to
the legislature.
(5.5)Leadership of the Prime
Minister or the Chief Minister
(5.6)Dissolution of the Lower
House(the Lok Sabha or the Assembly)
Even though the Indian Parliamentary
system has been based on the British pattern, there are fundamental differences
between the two. For e.g. Indian Parliament is not a sovereign body like the
British Parliament, further Indian state has an elected head whereas the
British State has hereditary head(monarchy).
(6)Synthesis of Parliamentary
Sovereignty and Judicial Supremacy
The doctrine of the sovereignty of
the Parliament is associated with the British Parliament whereas the judicial
supremacy is associated with the American Constitution.
The Supreme Court, on one hand, can
declare the parliamentary laws as unconstitutional through its power of
judicial review. The Parliament, on the other hand, can amend a major portion
of the Constitution.
(7)Integrated and Independent
Judiciary
The Constitution establishes a
judicial system that is integrated as well as independent. The Supreme Court of
India stands at the top in the integrated judicial system. The High Courts are
below it, at the State level. Under a high court, there is a hierarchy of
subordinate courts. This single system of courts enforces both Central as
well as the State laws.
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. Hence, there are various
provisions to ensure its independence-security of the tenure of the judges,
fixed service conditions for the judges, all the expenses of the Supreme Court
charged on the Consolidated Fund of India, prohibition on the discussion on the
conduct of judges, ban on practice after retirement, power to punish for its
contempt.
(8)Fundamental Rights
Part III guarantees 6 Fundamental
Rights
(8.1)Right to Equality(Article
14-18)
(8.2)Right to Freedom(Article 19-22)
(8.3)Right against
exploitation(Articles 23-24)
(8.4)Right to Freedom of
Religion(Articles 25-28)
(8.5)Cultural and Educational
Rights(Articles 29-30)
(8.6)Right to Constitutional
Remedies(Article 32)
These are meant to promote the idea
of political democracy, they operate as limitations on the executive and the
arbitrary laws of the legislature. They are justiciable in nature. The
aggrieved person can directly go to the Supreme Court which can issue writs of
habeas corpus, mandamus, quo warranto for the restoration of his rights.
However, they are not absolute and are subject to reasonable
limitations(constitutional amendment). They can also be suspended during the
operation of emergency(except the rights guaranteed by Articles 20 and 21).
(9)Directive Principles of State
Policy
They can be classified into 3
categories, socialistic, Gandhian and liberal-intellectual.
They 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 Directive Principles of
State Policy are non-justiciable, they cannot be enforced by the courts for
their violation. Yet, the constitution itself declares that these are
fundamental to governance in the country and it shall be the duty of the state
to apply to these principles in making laws. Hence, imposing moral obligation
on the State authorities to apply these.
(10)Fundamental Duties
The original Constitution did not
provide for the Fundamental Duties for the citizens. These were added during the
operation of the internal emergency(1975-77) by the 42nd Amendment Act of 1976
on the recommendation of the Swaran Singh Committee.
They are: to respect the
Constitution, national flag, national anthem, to protect the sovereignty, unity
and integrity of the country, to promote the spirit of brotherhood, to protect
the rich heritage and composite culture of the country and so on.
These serve as the reminder to the
citizens that while enjoying their rights, they have to be conscious to the
duties they owe to the country, their society, their fellow citizens. However,
like the Directive Principles of the State Policy, they are non-justiciable.
(11)Secular State
The Constitution of India stands for
a secular state, hence it does not uphold any particular religion.
Following provisions reveal the secular character of the Indian state:
(11.1)The term 'Secular' was added
to the Preamble by the 42nd Amendment Act of 1976.
(11.2)The Preamble secures liberty
of belief, faith and worship.
(11.3)The State shall not discriminate
against any citizen on the grounds of religion.
(11.4)The State shall not deny any
person equality before law.
(11.5)Equality of opportunity in
terms of public employment.
(11.6)Right to freely profess,
practice and propagate any religion.
(11.7)Every religious denomination
or any of its section shall have the right to manage its own affairs.
(11.8)No person shall have be
compelled to pay taxes for the promotion of a particular religion.
(11.9)No religious instructions
shall be provided in educational institutions maintained by the State.
(11.10)Any section can preserve its
distinct language, script or culture.
(11.11)All minorities shall have the
right to establish and monitor their own educational institutions.
Old system of communal representation
has been abolished, however, it provides for temporary reservation for the SCs
and STs for their adequate representation.
(12)Universal Adult Franchise
The Indian Constitution adopts the
universal adult franchise as a basis of elections to the Lok Sabha and the
State Legislatures. Every citizen who is of 18 years of age or more has the
right to cast his vote without any discrimination of caste, race, religion,
sex, literacy, wealth or so on. The voting age was reduced from 21 years to 18
years by the 61st Amendment Act of 1988. It was a bold experiment and highly
remarkable given the vast size of the country, its huge population, high
poverty, social inequality and overwhelming illiteracy.
(13)Single Citizenship
Though the Indian Constitution is
federal in nature and envisages a dual polity(Centre and State), it provides
for only a single citizenship, i.e. the Indian citizenship.
In countries like the USA, on the
other hand, a person is a citizen of the state he belongs to and also a citizen
of the USA. Thus, he owes allegiance to both and enjoys dual sets of rights -
conferred by the state as well as the centre.
In India, any person living anywhere
in India(for the exception of Jammu & Kashmir, few tribal areas etc) enjoys
equal sets of civil and political rights.
But a history of communal rights,
class conflicts, caste wars, linguistic clashes and ethnic disputes have not
helped for the cause of a united and an integrated India.
(14)Independent Bodies
The Indian Constitution not only
provides for the legislature, the executive, the judicial organs of the
Governments but also establishes certain independent bodies. These are:
(14.1)Election Commission of
India
to ensure free and fair election to
the Parliament, the State Legislatures, the Office of the President of India
and the Office of the Vice-President of India.
(14.2)Comptroller and Auditor
General of India
to audit the accounts of the Central
and the State governments. He acts as he guardian of the public purse and comments
on the legality and propriety of government expenditure.
(14.3)Union Public Service
Commission
to conduct examinations for
recruitment to all-India services and higher Central services and to advise the
President on disciplinary on disciplinary matters.
(14.4)State Public Service
Commission
to conduct examinations for
recruitment to the state services and to advise the Governor on disciplinary on
disciplinary matters.
(15)Emergency Provisions
The Constitution contains elaborate
emergency provisions to enable the President to meet any extraordinary
situation effectively. The rationale behind the incorporation of these
provisions is to safeguard the sovereignty, unity, integrity and security of
the country, the Democratic Political system and the Constitution.
The Constitution envisages three
types of emergencies:
(15.1)National Emergency on grounds
of war or external aggression or armed rebellion.
(15.2)State Emergency(President's
Rule) on the grounds of failure of the Constitutional machinery in the state(Article
356) or failure to comply with the directions of the Centre(Article 365).
(15.3)Financial Emergency on the
grounds of threat to the financial stability or the credit of India(Article
360)
During an emergency, the states go
in total control of the Centre. It converts the federal structure to a
unitary one without a formal amendment of the Constitution. This is a
unique feature of the Indian Constitution.
(16)Three-Tier Government
Like any other Federation, the
Indian Constitution originally provided for the dual polity and contained
provisions with regard to the organization and powers for both the Centre as
well as the state. Later, the 73rd and the 74th Amendment Acts added a third tier
of government(i.e. local) not found in any other constitution of the world.
The 73rd Amendment Act of 1992, gave
Constitutional recognition to the Panchayats(rural local governments)by adding
a new Part IX and a new Schedule 11 to the Constitution. Similarly, the 74th
Amendment 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.
Credits : Indian Polity by M.
Laxmikanth
