Salient Features of the Indian Constitution
The Indian Constitution is a monumental document that serves as the foundation of the Republic of India, embodying the principles and values that govern the nation. Adopted on November 26, 1949, and coming into effect on January 26, 1950, it reflects the aspirations of the Indian people for justice, liberty, equality, and fraternity. The Constitution is not only the longest written constitution in the world but also a unique blend of various elements drawn from different global constitutions, tailored to meet the specific needs and circumstances of India.
Contents
Salient Features of the Indian Constitution
A. Lengthiest Written Constitution:
The Indian Constitution is one of the longest written constitutions in the world, comprising 25 parts and over 450 articles, along with numerous amendments.
Written vs. Unwritten Constitutions
Written Constitution:
– Definition: A formal document that codifies the fundamental laws and principles governing a country.
– Examples: The Indian Constitution and the United States Constitution.
– Characteristics:
– Codified in a single text with clearly defined rules.
– The supreme authority lies with the constitution itself.
– Strong judicial power to interpret and enforce constitutional provisions.
– Requires a formal amendment process.
Unwritten Constitution:
– Definition: A constitution that is not codified in a single document but is based on statutes, conventions, and judicial decisions.
– Examples: The British Constitution and New Zealand’s constitution.
– Characteristics:
– Lacks a single authoritative text; relies on customs and practices.
– Parliamentary sovereignty is a key feature.
– Changes occur gradually through evolving practices rather than formal amendments.
Factors Contributing to the Length of the Indian Constitution
1. Geographical Diversity: India’s vastness and diversity necessitate detailed provisions to accommodate various cultures, languages, and regional needs. This geographical factor contributes significantly to the length of the Constitution.
2. Historical Context: The influence of historical documents like the Government of India Act of 1935, which was bulky, has shaped the structure of the Indian Constitution. The framers incorporated many elements from this act to create a comprehensive legal framework.
3. Single Constitution for Centre and States: Unlike many countries that have separate constitutions for federal and state governments, India operates under a single constitution that governs both levels. This necessitates extensive detailing to ensure clarity in governance.
4. Legal Expertise in Constituent Assembly: The dominance of legal luminaries in the Constituent Assembly led to a thorough examination of various provisions. Their expertise ensured that even intricate administrative details were included in the constitutional text.
5. Comprehensive Governance Framework: The Constitution outlines not only fundamental principles but also detailed administrative provisions that cover various aspects of governance. This includes areas typically left to ordinary legislation or political conventions in other democracies.
6. Amendments Over Time: Since its adoption, numerous amendments have been made to address changing societal needs and political realities. Originally consisting of 395 Articles across 22 Parts and 8 Schedules, it now comprises approximately 470 Articles (number of article may change according to amendments) divided into 25 Parts and 12 Schedules due to these amendments.
B. Drawn from various sources
The Indian Constitution is a remarkable document that draws from a wide array of sources, reflecting the diverse influences that shaped its formation. The framers of the Constitution meticulously studied various constitutions from around the world to create a legal framework that would suit the unique needs of India. Below is a detailed account of the primary sources from which the Indian Constitution has borrowed features, along with the specific elements incorporated from each source.
Sources of the Indian Constitution
1. Government of India Act, 1935 (British India)
– Features Borrowed:
– Federal structure: Establishes a distribution of powers between the central and state governments.
– Office of the Governor: Role and powers of the Governor in states.
– Judiciary: Framework for the judicial system.
– Public Service Commissions: Provisions for recruitment and services.
– Emergency provisions: Guidelines for declaring emergencies.
– Administrative details: Various administrative functions and structures.
2. British Constitution (United Kingdom)
– Features Borrowed:
– Parliamentary system: Adoption of a parliamentary form of governance.
– Rule of law: Ensures that all individuals are subject to the law.
– Legislative procedure: Detailed procedures for making laws.
– Single citizenship: Provision for citizenship in India regardless of state.
– Cabinet system: Establishment of a cabinet responsible to the legislature.
– Prerogative writs: Judicial remedies available to protect fundamental rights.
– Bicameralism: Creation of two houses in Parliament (Lok Sabha and Rajya Sabha).
3. United States Constitution (USA)
– Features Borrowed:
– Fundamental Rights: Inspired by the Bill of Rights, ensuring individual liberties.
– Independence of judiciary: Ensures separation of powers among branches of government.
– Judicial review: Authority of courts to invalidate laws conflicting with the Constitution.
– Impeachment process: Procedures for removing high officials, including the President.
– Removal of judges: Mechanisms for dismissing Supreme Court and High Court judges.
4. Irish Constitution (Ireland)
– Features Borrowed:
– Directive Principles of State Policy: Guidelines for policy-making aimed at social justice.
– Method of election for the President and nomination to Rajya Sabha.
5. Canadian Constitution (Canada)
– Features Borrowed:
– Federal structure with a strong central government.
– Residuary powers vested with the central government.
– Appointment of Governors by the central government in states.
6. Australian Constitution (Australia)
– Features Borrowed:
– Concept of Concurrent List: Powers shared between central and state governments.
– Joint sitting of Parliament (Article 108): Procedure for resolving legislative disagreements.
7. Weimar Constitution (Germany)
– Features Borrowed:
– Provisions regarding emergency powers and suspension of rights during emergencies.
8. Soviet Constitution (USSR, now Russia)
– Features Borrowed:
– Fundamental Duties: Enshrined responsibilities for citizens towards the nation.
9. French Constitution (France)
– Features Borrowed:
– Ideals of Liberty, Equality, and Fraternity embedded in the Preamble.
10. South African Constitution (South Africa)
– Features Borrowed:
– Procedures for amending the Constitution requiring special majorities.
11. Japanese Constitution (Japan)
– Features Borrowed:
– Procedure established by law for restricting fundamental rights during emergencies.
The Indian Constitution is often described as a “bag of borrowings,” but this characterization overlooks the thoughtful adaptation and integration of various features to meet India’s specific needs. The framers did not merely copy elements from other constitutions; instead, they critically analyzed these features and modified them to align with India’s historical context, cultural diversity, and democratic aspirations. This unique blend has resulted in a robust constitutional framework that has stood the test of time, guiding India’s journey as a sovereign republic since its adoption on November 26, 1949.
C. Blend of Rigidity and Flexibility
The Indian Constitution is often described as a unique blend of flexibility and rigidity, allowing it to adapt to changing circumstances while maintaining a stable framework for governance. This dual nature is essential for accommodating India’s diverse social, cultural, and political landscape.
Flexibility and Rigidity in the Indian Constitution
1. Flexibility:
– Amendment Process: The Indian Constitution provides for a relatively flexible amendment process. While certain amendments require a special majority in Parliament and ratification by half of the state legislatures (Article 368), many provisions can be amended by a simple majority.
– Adaptability: This flexibility allows the Constitution to evolve with societal changes, enabling lawmakers to address contemporary issues without the need for a complete overhaul.
– Judicial Interpretation: The judiciary plays a crucial role in interpreting constitutional provisions, allowing for dynamic interpretations that can adapt to new circumstances.
2. Rigidity:
– Protection of Fundamental Rights: Certain fundamental rights are entrenched in the Constitution and cannot be easily altered, ensuring the protection of individual liberties.
– Special Amendment Procedures: Some provisions, especially those related to the federal structure and fundamental rights, require more stringent procedures for amendment, reflecting a commitment to preserving core democratic principles.
– Stability: Rigidity in specific areas ensures that essential features of the Constitution remain intact against transient political pressures.
Comparison with Other Countries
| Feature | Indian Constitution | United States Constitution | United Kingdom Constitution | Canadian Constitution |
|---|---|---|---|---|
| Nature | Blend of flexibility and rigidity | Rigid with limited flexibility | Unwritten; flexible through conventions | Semi-rigid; flexible but with some rigidity |
| Amendment Process | Simple majority for some; special majority for others | Requires two-thirds majority in Congress and ratification by states | No formal amendment process; relies on conventions | Requires approval from Parliament and provinces |
| Judicial Review | Strong judicial review | Strong judicial review | Limited judicial review | Strong judicial review |
| Protection of Rights | Fundamental Rights protected but amendable | Bill of Rights is rigidly protected | Rights are protected through statutes and conventions | Charter of Rights and Freedoms is entrenched |
| Stability vs. Adaptability | Balances stability with adaptability | More stable but less adaptable | Highly adaptable due to unwritten nature | Balances stability with adaptability |
Detailed Analysis
– United States Constitution:
– The U.S. Constitution is known for its rigidity. Amendments require a two-thirds majority in both houses of Congress and ratification by three-fourths of the states. This makes significant changes challenging, ensuring stability but limiting adaptability.
– United Kingdom Constitution:
– The UK has an unwritten constitution characterized by flexibility. It relies on statutes, conventions, and judicial decisions. Changes can occur through ordinary legislation without a formal amendment process, allowing for rapid adaptation but potentially leading to instability if not managed carefully.
– Canadian Constitution:
– Canada’s Constitution combines elements of rigidity and flexibility. The amending formula requires approval from both federal Parliament and provincial legislatures for certain changes, providing stability while still allowing for adaptations in response to societal needs.
D. Federal System with Unitary Bias
The Indian Constitution establishes a federal system characterized by a strong unitary bias, often described as “quasi-federal.” This unique structure reflects a blend of federal and unitary features, aimed at maintaining national unity while allowing for regional autonomy.
Key Features of Indian Federalism
1. Union of States
Article 1 of the Constitution defines India as a “Union of States,” indicating a federation without explicitly using the term “federal.” This phrase underscores the indissoluble nature of the Indian Union, distinguishing it from other federations where states may have sovereignty.
2. Division of Powers
The Constitution delineates powers between the central and state governments through three lists in the Seventh Schedule:
– Union List: Subjects on which only the central government can legislate.
– State List: Subjects exclusively under state jurisdiction.
– Concurrent List: Subjects where both levels can legislate, but central laws prevail in case of conflict.
3. Supremacy of the Constitution
The Constitution is the supreme law, governing the relationship between the Union and states. Any law inconsistent with it can be declared void by the judiciary.
4. Independent Judiciary
An integrated judiciary interprets and enforces laws across both central and state jurisdictions, ensuring that disputes over power division are resolved fairly.
5. Unitary Features
Despite its federal framework, several aspects reflect a unitary bias:
– Residuary Powers: These powers rest with the central government, allowing it to legislate on matters not enumerated in any list, which enhances its authority.
– Governor’s Role: Governors can reserve state legislation for presidential assent, giving the Centre significant control over state affairs.
– Emergency Provisions: The Constitution allows for a shift to a unitary system during emergencies, enabling central dominance over states without formal amendments.
Historical Context and Evolution
The roots of Indian federalism can be traced back to the Government of India Act of 1919, which introduced elements of federal governance. However, post-independence, the framers of the Constitution opted for a system that would prioritize national integrity over regional autonomy. This decision was influenced by historical factors such as colonial legacies and diverse cultural contexts within India.
Challenges to Federalism
Indian federalism faces several challenges:
– Unequal Representation: States are represented in the Rajya Sabha based on population, leading to disparities in influence among states.
– Fiscal Disparities: The Centre collects most taxes and redistributes funds based on its discretion, often leading to inequitable fiscal relationships with states.
– Political Dynamics: The dominance of a single party at the national level has led to confrontations with opposition-led state governments, complicating cooperative federalism efforts.
E. Parliamentary Form of Government
The Indian Constitution adopts the Westminster Model of parliamentary system, borrowed from Britain, establishing a system where the executive is directly responsible to the legislature.
Key Features:
Dual Executive System:
Nominal Executive: President serves as the constitutional head of state (de jure executive)
Real Executive: Prime Minister and Council of Ministers constitute the actual executive authority (de facto executive)
Majority Party Rule:
The political party securing majority in Lok Sabha forms the government
President appoints the party leader as Prime Minister
Other ministers appointed by President on PM’s advice
Collective Responsibility:
Council of Ministers collectively responsible to Parliament, particularly Lok Sabha (Article 75)
Lok Sabha can remove entire ministry through vote of no-confidence
Double Membership:
Ministers must be members of either Lok Sabha or Rajya Sabha
If not a member, must become one within six consecutive months
Leadership of Prime Minister:
PM leads Council of Ministers, Parliament, and majority party
President dissolves Lok Sabha on PM’s recommendation for fresh elections
Political Homogeneity:
Ministers belong to same political party or coalition bound by common ideology
Constitutional Provisions:
Articles 74 & 75: Central parliamentary system
Articles 163 & 164: State parliamentary system
F. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
The Constitution achieves a unique balance between British parliamentary sovereignty and American judicial supremacy.
Constitutional Supremacy:
India follows constitutional supremacy rather than absolute parliamentary sovereignty
Parliament’s law-making powers are circumscribed within constitutional boundaries
Parliamentary Powers:
Parliament enjoys constituent power under Article 368 to amend most constitutional provisions
Legislative sovereignty within constitutional framework
Power to make laws on subjects in Union and Concurrent Lists
Judicial Review Powers:
Supreme Court can declare parliamentary laws unconstitutional
Power to strike down legislation violating constitutional provisions
Basic Structure Doctrine (Keshavananda Bharati case, 1973) limits Parliament’s amendment power
Balanced Approach:
Legislature, executive, and judiciary exercise powers with checks and balances
Neither absolute parliamentary sovereignty nor unchecked judicial supremacy
Maintenance of constitutional harmony through institutional balance
G. Integrated and Independent Judiciary
The Constitution establishes a judicial system that is both integrated and independent.
Integrated Structure:
Hierarchical System:
Supreme Court at apex
High Courts at state level
Subordinate Courts (District courts and lower courts) at bottom
Single System of Courts:
Unified judiciary enforces both central and state laws
No separate federal and state court systems (unlike USA)
Constitutional Authority:
Supreme Court as federal court and highest appellate authority
Guardian of Constitution and fundamental rights
Independence Provisions:
Security of Tenure:
Fixed service conditions for judges
Protection from arbitrary removal
Judges of Supreme Court and High Courts removable only through impeachment
Financial Independence:
Supreme Court expenses charged on Consolidated Fund of India
Fixed salaries and allowances
Administrative Independence:
Prohibition on discussing judicial conduct in legislatures
Power to punish for contempt of court
Separation of judiciary from executive
H. Fundamental Rights
Part III (Articles 12-35) contains fundamental rights, described as the “Magna Carta of India”.
Six Fundamental Rights:
1. Right to Equality (Articles 14-18):
Article 14: Equality before law and equal protection of laws
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, place of birth
Article 16: Equality of opportunity in public employment
Article 17: Abolition of untouchability
Article 18: Abolition of titles
2. Right to Freedom (Articles 19-22):
Article 19: Six freedoms including speech, expression, assembly, association, movement, residence, profession
Article 20: Protection in respect of conviction for offenses
Article 21: Protection of life and personal liberty
Article 22: Protection against arrest and detention
3. Right Against Exploitation (Articles 23-24):
Article 23: Prohibition of traffic in human beings and forced labor
Article 24: Prohibition of employment of children in factories
4. Right to Freedom of Religion (Articles 25-28):
Freedom of conscience and religion
Right to manage religious affairs
Protection from religious instruction in state institutions
5. Cultural and Educational Rights (Articles 29-30):
Protection of language, script, culture of minorities
Right to establish and administer educational institutions
6. Right to Constitutional Remedies (Article 32):
“Heart and Soul of Constitution” (Dr. B.R. Ambedkar)
Right to approach Supreme Court for enforcement of fundamental rights
Power of Supreme Court to issue writs
Note: Right to Property was deleted as fundamental right by 44th Amendment, 1978 and made legal right under Article 300-A.
I. Directive Principles of State Policy
Part IV (Articles 36-51) contains DPSPs, described as “Novel Features” by Dr. B.R. Ambedkar.
Key Features:
Non-Justiciable Nature:
Not enforceable by courts but fundamental in governance
Moral and political obligations for the state
Welfare State Objectives:
Promote social order permeated by justice – social, economic, political
Secure adequate means of livelihood for all citizens
Classification of DPSPs:
1. Socialistic Principles:
Article 38: Promote welfare of people by securing social order
Article 39: Secure right to adequate means of livelihood, equal pay for equal work
Article 39A: Promote equal justice and free legal aid
Article 41: Right to work, education, public assistance
Article 42: Just and humane conditions of work, maternity relief
Article 43: Living wage and decent standard of living
Article 47: Raise nutrition level and improve public health
2. Gandhian Principles:
Article 40: Organize village panchayats
Article 43: Promote cottage industries
Article 46: Promote educational and economic interests of SCs, STs
Article 47: Prohibit intoxicating drinks and drugs
Article 48: Prohibit cow slaughter and improve breeds
3. Liberal-Intellectual Principles:
Article 44: Uniform Civil Code
Article 45: Free and compulsory education for children up to 14 years
Article 48A: Protect and improve environment
Article 49: Protect monuments and places of national importance
Article 50: Separation of judiciary from executive
Article 51: Promote international peace and security
J. Fundamental Duties
Added by 42nd Amendment, 1976 in Part IV-A, Article 51A based on Swaran Singh Committee recommendations.
Eleven Fundamental Duties:
Original Ten Duties (1976):
Article 51A(a): Abide by Constitution and respect its ideals, National Flag, National Anthem
Article 51A(b): Cherish noble ideals of national struggle for freedom
Article 51A(c): Uphold and protect sovereignty, unity, integrity of India
Article 51A(d): Defend the country and render national service
Article 51A(e): Promote harmony and common brotherhood; renounce practices derogatory to women’s dignity
Article 51A(f): Value and preserve rich heritage of composite culture
Article 51A(g): Protect and improve natural environment including forests, lakes, rivers, wildlife
Article 51A(h): Develop scientific temper, humanism, spirit of inquiry and reform
Article 51A(i): Safeguard public property and abjure violence
Article 51A(j): Strive towards excellence in individual and collective activity
Eleventh Duty (Added by 86th Amendment, 2002):
11. Article 51A(k): Parent/guardian to provide education opportunities to child/ward between 6-14 years
K. A Secular State
The Constitution establishes India as a secular state with no official religion.
Secular Provisions:
Constitutional Additions:
Word “Secular” added to Preamble by 42nd Amendment, 1976
Key Features:
Religious Neutrality:
State maintains neutrality in religious matters
No state religion or official religion
Separation of Religion and State:
Government not influenced by religious institutions
Religious organizations don’t interfere in political matters
Equal Treatment:
All religions treated equally by state
No discrimination based on religious beliefs
Religious Freedom:
Right to practice, profess, propagate any religion
Freedom of conscience guaranteed in Article 25-28
L. Universal Adult Franchise
Article 326 provides foundation for elections based on universal adult suffrage.
Key Features:
Eligibility Criteria:
Minimum Age: 18 years (reduced from 21 years by 61st Amendment, 1988)
Citizenship: Must be Indian citizen
No Discrimination: Regardless of caste, religion, race, gender, economic status
Democratic Foundation:
Based on principle of equality – “one person, one vote”
Every adult citizen has equal voting power
Foundation of democratic participation
Significance:
Promotes equality before law in political sphere
Enables participation of marginalized sections
Strengthens democratic legitimacy of government
Constitutional Evolution
Adopted in present form in 1949, implemented January 26, 1950
Before independence, only 13% citizens had voting rights
M. Single Citizenship
The Constitution provides for single citizenship – Indian citizenship only.
Unitary Feature:
Single Allegiance:
Citizens owe allegiance only to Indian Union
No separate state citizenship (unlike USA)
Constitutional Provisions:
Articles 5-11: Deal with citizenship provisions
All Indians are citizens of India regardless of state of residence
Benefits:
National Unity: Promotes sense of belonging to one nation
Equal Rights: Same rights and privileges throughout India
Mobility: Free movement and settlement across states
Comparison with Federations:
Unlike USA, Canada, Australia where dual citizenship exists
Strengthens national integration over regional loyalties
N. Independent Bodies
The Constitution establishes several constitutional bodies with guaranteed independence.
Key Independent Bodies:
Election Commission of India (Article 324):
Composition: Chief Election Commissioner + Election Commissioners
Tenure: 6 years or 65 years of age, whichever earlier
Functions: Conduct free and fair elections to Parliament, State Legislatures, President, Vice-President
Comptroller and Auditor General (Article 148):
Tenure: 6 years or 65 years of age
Functions: Audit government accounts, ensure financial accountability
Independence: Cannot hold office of profit after retirement
Union Public Service Commission (Articles 315-323):
Functions: Conduct recruitment for All India Services and Central Services
Independence: Security of tenure, fixed service conditions
Finance Commission (Article 280):
Functions: Recommend distribution of tax revenues between Centre and States
Composition: Chairman + four members
National Commissions:
NCSC (Article 338): Protection of Scheduled Castes
NCST (Article 338A): Protection of Scheduled Tribes
NCBC (Article 338B): Backward Classes welfare
Independence Features:
Constitutional status and protection
Security of tenure
Fixed service conditions
Functional autonomy
O. Emergency Provisions
Part XVIII (Articles 352-360) provides for three types of emergencies.
Types of Emergency:
1. National Emergency (Article 352):
Grounds:
War: Official armed conflict with another country
External Aggression: Attack or invasion by foreign power
Armed Rebellion: Internal armed uprising (substituted for “internal disturbance” by 44th Amendment)
Proclamation Process:
President declares on written advice of Union Cabinet
Must be approved by both Houses of Parliament within one month
Can be revoked by Lok Sabha through simple majority
Effects:
Fundamental Rights under Article 19 automatically suspended (Article 358)
Other Fundamental Rights can be suspended (Article 359)
Centre can give directions to states
Life of Lok Sabha can be extended
Historical Instances:
1962-68: China War Emergency
1971-77: Pakistan War Emergency
1975-77: Internal Emergency (most controversial)
2. President’s Rule/State Emergency (Article 356):
Grounds:
Failure of constitutional machinery in states
Governor’s report or President’s satisfaction about breakdown
Effects:
President assumes all executive powers of state
State legislature dissolved or suspended
Parliament can make laws for the state
3. Financial Emergency (Article 360):
Grounds:
Threat to financial stability or credit of India
Threat to any part of territory
Effects:
President can give directions to states on financial matters
Reduction in salaries of government servants possible
Money bills can be reserved for President’s consideration
Note: Financial Emergency has never been declared in India.
44th Amendment Safeguards:
“Armed rebellion” replaced “internal disturbance”
Written Cabinet advice mandatory for National Emergency
Parliamentary approval required
Emergency to be reviewed every six months
Judicial review of emergency proclamation allowed
P. Three-tier Government
The Constitution provides for decentralized governance through 73rd and 74th Constitutional Amendments (1992).
73rd Amendment – Panchayati Raj:
Three-Tier Structure (Part IX):
1. Village Level – Gram Panchayat:
Covers village or group of villages
Gram Sabha: Comprises all adult registered voters in area
Direct election of members
2. Intermediate Level – Panchayat Samiti/Block Panchayat:
Also called Mandal, Taluka, or Block Panchayat
Optional for states with population below 20 lakh
Indirect election of chairperson from elected members
3. District Level – Zilla Panchayat:
Covers entire rural area of district
Apex tier of panchayati raj system
Indirect election of chairperson
Key Features:
Regular Elections: Every 5 years for all three tiers
Reservation: 1/3rd seats for women; proportionate reservation for SC/ST
Constitutional Status: Part IX gives constitutional backing
Financial Powers: Own sources of revenue and grants
74th Amendment – Urban Local Bodies:
Three-Tier Urban Structure:
Nagar Panchayat: Transitional areas (rural to urban)
Municipal Council: Smaller urban areas
Municipal Corporation: Large urban areas
Similar Features:
Regular elections every 5 years
Reservation for women, SC/ST
Constitutional protection under Part IX-A
Significance:
Grassroots Democracy: Power to people at local level
Decentralization: Transfer of powers from state to local bodies
Development: Focus on local needs and priorities
Participation: Increased citizen participation in governance
Functions (11th Schedule for PRIs):
Agriculture, animal husbandry, fisheries
Rural housing, drinking water, roads
Education, health, family welfare
Poverty alleviation programs.
These features make the Indian Constitution unique, combining elements from various constitutional systems while maintaining its distinct character suited to Indian conditions and requirements. The synthesis of federal and unitary features, along with provisions for both individual rights and collective welfare, reflects the Constitution’s comprehensive approach to governance in a diverse democracy.
