BASIC FEATURES OF THE INDIAN CONSTITUTION

BASIC FEATURES OF THE INDIAN CONSTITUTION

1.     Lengthiest Written Constitution :

Originally 395 Articles and 8 schedules. Presently about 465 articles(Divided into 25 parts) and 12 Schedules.

2.     “ A Tag of Borrowings” – Drawn from various sources

A)   Federal features             -   Govt of India Act, 1935

B)    Parliamentary System     -    British Constitution

C)    Fundamental rights, Judiciary, Vice-President – US Constitution

D)    Directive Principles etc..- Irish Constitution

E)     Strong  Centre – Canadian Constitution

F)     Concurrent list,Joint session – Australian  Constitution

G)   Emergency – Rights suspension –German (Weimar const)

H)   Fundamental Duties, Justice – Russian Constitution

I)       Amendment Procedure     - South African Constitution

J)      Procedure established by Law – Japanese Constitution

3.     Federation with Unitary Trends

·        Federal inform, but Unitary in spirit

·        ‘ Quasi- Federal’  --- K.C.Wheare

·        ‘Bargaining Federalism’ – Morris Jones

·        ‘Co-operative Federalism’ – Granville Austin

4.     Blend of Rigidy and flexibility (article 368)

-         Depens on amendment procedure

-         A) special majority (2/3 present & voting in each house)

-         B) special majority + at least half-of-the states

-         C) simple majority like any other bill (not covered by article 368)

5.     Parliamentary system

-         British system of Govt i.e. west minister model

-         Based on the relationship between the legislature and the executive.

-         Also called ‘ cabinet Govt’, ‘ Respective Govt’, ‘ Prime ministerial Govt’

-         Collective responsibilities of the ministers

* Still British & Indian systems differ

-         British parliament is soverign, unlike Indian

-         India has elected president unlike British.

6.     Independent Judiciary

-         Indian judiciary is integrated hierarchical structure -> High courts -> subordinate courts -> district courts -> lower courts.

-         In US, federal laws are under supreme court (federal court) jurisdiction, and state laws are under state judiciary – unlike India

-         Independence of judiciary

-         Appointment, service conditions, express charged on consolidated fund of india(CFI), ban on practice after retirement, ‘Contempt of court’ and separation from executive.

7.     FUNDAMENTAL RIGHTS – Part III

Legally enforceable by the law courts

-         1) right to Equality (Article 14-18)

-         2) Right to freedom (Article 19-22)

-         3) Right against exploitation (Article 23&24)

-         4) Right to freedom of religion (Article 25-28)

-         5) Cultural and Educational rights (Article 29&30)

-         6) Right to constitutional remedies (Article 32)

-         The FRs are meant to realise political democracy

-         Reasonable restrictions are placed on each right. No right is absolute.

-         FRs can be repealed or curtailed or suspended during emergency by the president.

8.     DIRECTIVE PRINCIPLES OF STATE POLICY

-         Part-IV of the constitution. Article 36 to 51

-         Classified into 3. Socialistic, Gandhian and Liberal. Intellectual principles

-         Promote social and economic democracy

-         Establish ‘ Welfare State’

-         Not legally enforceable, but ‘fundamental in the governance of the country’

-         Impose moral obligations on the state.

9.     Fundamental Duties

-         Introduced by 42 amendment during emergency(1975-77) in 1976 – part IV-A. Article 51A

-         11 fundamental Duties – Reminders of duty sense

-         Non-justiceable like DPSP

10.                         Secularism

-         Term ‘Secular’ added to the preamble in 1976 (42 amend)

-         Articles 14,15,16,25,26,27,28,29,30 & 44

-         India is multi-religious, Positive secularism

-         ‘Social Justice’ and ‘Protective discrimination’

- Disputable = Reservation Policy

-     Pseudo-Secularism

-     Equal respect to all religious or protecting all religious equally.

-     State control on Hindu temples, properties and endowments, while autonomy for Wakf-Boards?

11.                         Universal Adult Franchise

-         Every citizen of not less than 18 years has right of vote, no discrimination on the basis of caste, religion, sex etc.

-         Age of voting from 21 to 18 reduced in 1989 (61 amend)

12.                         Single Citizenship

-         Though a federation, citizens have only single citizenship i.e. Indian, unlike US.

-         Equal respect and treatment, equal civil and political rights of citizenship all over the country

-         No discrimination excepting in few cases like tribal areas, jammu and Kashmir & so on.

13.                         Autonomous Institutions

-         The bulworks of democratic system of govt.

-         Election Commission

-         UPSC

-         Comptroller & Auditor General

-         State P.S.Cs

14.                         Emergency Provisions

1)    National Emergency due to War/ External aggression or armed rebellion – Article 352.

2)    State Emergency due to failure of Const / machinery in the states -Article 356 OR failure to comply with the directions of the central govt – Article 365

3)    Financial Emergency due to threat to financial stability or credit of India – Article 360

-         Federal structure assumes unitary system without formal  amendment

-         Fundamental Rights may remain suspended.

15.                         The Preamble itself

-         Unique in many ways – it is the preface or summary or essence of the constitution.

-         ‘Identity card of the constitution’ – Nani palkhivala

-         Based on the ‘ Objections Resolution’

-         Amended by 42 Amendment in 1976, Added 3 new words – ‘Socialist, Secular & Integrity’.

-         Political and Social ideals – Justice, Liberty, Equality, Fraternity, Unity & Integrity.

-         Popular Sovereignty - ,We, the people’. 

THE PREAMBLE

“ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

SIGNIFICANCE

1)    People are the source of the authority of the Constitution.

2)    India to be a Sovereign, Socialist, Secular, Democratic and Republican state.

3)    Objectives of the Constitution are – Justice, Liberty, Equality & Fraternity.

4)    Date of adoption of the Constitution is 26 November,1949.

CONTROVERSY

Is Preamble a part of the constitution? or not?

1)      In Berubari Union Case(1960), Supreme court ruled that the preamble is not a part of the Constitution. However, the preamble assists in the right interpretation of any Article which is ambiguous or capable of more than one meaning.

2)      In the Kesavananda Bharathi Case (1973), the SC held that the preamble is a part of the Constitution. It also held that the preamble is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.

3)      In the LIC of India case (1995), the Supreme court again reiterated that the preamble is an integral part of the Constitution.

LIMITATIONS ON THE PREAMBLE

The President of the Constituent Assembly said that ‘ the preamble stands part of the Constitution’ before it is put to vote. It was voted and adopted.

A)     The preamble is neither a source of power to the Legislature nor a prohibition upon the powers of the legislature.

B)      It is not legally enforceable by the courts

The preamble was amended only once so far in 1976 by 42 Amendment Act which added 3 new words : Socialist, Secular and Integrity.