Salient Features of the Constitution

Salient Features of the Constitution

• The Indian Constitution is unique in its contents and spirit, borrowed from various constitutions yet distinct.
• Many original features of the 1949 Constitution have changed due to amendments, especially the 7th, 42nd, 44th, 73rd, 74th, 97th and 101st Amendments.
• The 42nd Amendment Act (1976) is called 'Mini Constitution'.
• Kesavananda Bharati case (1973): SC ruled that Parliament's constituent power under Article 368 cannot alter the 'basic structure'.

1. Lengthiest Written Constitution

• Classified as written (like American) or unwritten (like British). Indian Constitution is the lengthiest written constitution globally.
• Originally (1949): Preamble, 395 Articles (22 Parts), 8 Schedules.
• Presently: Preamble, ~470 Articles (25 Parts), 12 Schedules.
• Amendments since 1951: ~20 Articles deleted, 95 added, 4 Parts (IVA, IXA, IXB, XIVA) added, 4 Schedules (9, 10, 11, 12) added.
• Factors contributing to the size:
  • Geographical: Vastness and diversity of India.
  • Historical: Influence of the Government of India Act of 1935.
  • Single Constitution for Centre and States.
  • Dominance of legal luminaries in the Constituent Assembly.
• Includes fundamental principles, detailed administrative provisions, and matters usually left to ordinary legislation/political conventions.
• Jammu and Kashmir had its own constitution until 2019, enjoying special status under Article 370.
• In 2019, Presidential order "The Constitution (Application to Jammu and Kashmir) Order, 2019" abolished special status and extended all provisions of Indian constitution.
• Jammu and Kashmir Reorganisation Act, 2019, bifurcated the state into the Union territories of Jammu & Kashmir and Ladakh.

2. Drawn from Various Sources

• Borrowed most provisions from other countries and the Government of India Act of 1935.
• B.R. Ambedkar: Constitution framed after 'ransacking all the known Constitutions of the World'.
• Structural part: derived from the Government of India Act of 1935.
• Philosophical part:
  • Fundamental Rights: American Constitution.
  • Directive Principles: Irish Constitution.
• Political part:
  • Cabinet Government, Executive-Legislature relations: British Constitution.
• Other sources: Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan.
• Government of India Act, 1935: Most profound influence. Federal Scheme, Judiciary, Governors, Emergency Powers, Public Service Commissions.
• More than half of the provisions are identical or resemble the Act of 1935.

3. Blend of Rigidity and Flexibility

• Classified as rigid (special amendment procedure, like American) or flexible (amended like ordinary laws, like British).
• Indian Constitution: Synthesis of both.
• Article 368: Two types of amendments:
  • (a) Special majority in Parliament (2/3 of members present and voting + majority of total membership of each House).
  • (b) Special majority + ratification by half of the states.
• Some provisions can be amended by simple majority, not under Article 368.

4. Federal System with Unitary Bias

• Establishes a federal system: Two governments, division of powers, written Constitution, supremacy, rigidity, independent judiciary, bicameralism.
• Also contains unitary features: Strong Centre, single Constitution, single citizenship, flexibility, integrated judiciary, Centre-appointed state governor, all-India services, emergency provisions.
• Term 'Federation' not used. Article 1: India is a 'Union of States'.
  • Indian Federation is not an agreement between states.
  • No state can secede from the federation.
• Described as 'federal in form but unitary in spirit', 'quasi-federal' (K.C. Wheare), 'bargaining federalism' (Morris Jones), 'co-operative federalism' (Granville Austin), 'federation with a centralising tendency' (Ivor Jennings).

5. Parliamentary Form of Government

• Opted for British Parliamentary System, not American Presidential System.
• Parliamentary system: Co-operation and co-ordination between legislative and executive.
• Presidential system: Separation of powers.
• Parliamentary system: Also known as 'Westminster' Model, responsible Government, Cabinet Government. Established at Centre and States.
• Features in India:
  • Nominal and real executives.
  • Majority party rule.
  • Collective responsibility of executive to legislature.
  • Ministers are members of the legislature.
  • Leadership of PM or CM.
  • Dissolution of lower house (Lok Sabha/Assembly).
• Differences from British System: Indian Parliament not sovereign; India has elected head (republic) vs. British hereditary head (monarchy).
• Role of Prime Minister is significant. Political scientists call it 'Prime Ministerial Government'.

6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy

• Parliamentary sovereignty: British Parliament.
• Judicial supremacy: American Supreme Court.
• Judicial review power of SC in India is narrower than in US ('due process of law' in US vs. 'procedure established by law' in Indian Article 21).
• Synthesis: SC can declare parliamentary laws unconstitutional, Parliament can amend major portion of the Constitution.

7. Integrated and Independent Judiciary

• Establishes integrated and independent judicial system.
• Supreme Court: Top of the integrated system.
• High Courts: State level.
• Subordinate courts: District courts and other lower courts.
• Enforces central and state laws (unlike USA).
• SC: Federal court, highest court of appeal, guarantor of fundamental rights, guardian of the Constitution.
• Provisions for independence: Security of tenure, fixed service conditions, SC expenses charged on Consolidated Fund, no legislative discussion of judges' conduct, ban on practice after retirement, power to punish for contempt, separation from executive.

8. Fundamental Rights

• Part III guarantees six fundamental rights:
  • (a) Right to Equality (Articles 14-18).
  • (b) Right to Freedom (Articles 19-22).
  • (c) Right against Exploitation (Articles 23-24).
  • (d) Right to Freedom of Religion (Articles 25-28).
  • (e) Cultural and Educational Rights (Articles 29-30).
  • (f) Right to Constitutional Remedies (Article 32).
• Originally, seven Fundamental Rights. Right to Property (Article 31) deleted by 44th Amendment Act, 1978, now legal right under Article 300-A in Part XII.
• Meant to promote political democracy. Limitations on executive tyranny and arbitrary laws.
• Justiciable: Enforceable by courts. Aggrieved person can go to SC, which can issue writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
• Not absolute, subject to reasonable restrictions.
• Can be curtailed/repealed by Parliament via Constitutional Amendment.
• Can be suspended during National Emergency (except Articles 20 and 21).

9. Directive Principles of State Policy

• Dr. B.R. Ambedkar: 'Novel feature' of Indian Constitution.
• Part IV: Enumerated. Classified as socialistic, Gandhian, liberal-intellectual.
• Meant to promote social and economic democracy, establish 'welfare state'.
• Non-justiciable: Not enforceable by courts.
• Constitution states they are fundamental to governance, duty of state to apply in making laws. Moral obligation on state. Real force is public opinion.
• Minerva Mills case (1980): SC held Indian Constitution founded on balance between Fundamental Rights and Directive Principles.

10. Fundamental Duties

• Original constitution: No Fundamental Duties.
• Added during internal emergency (1975-77) by 42nd Constitutional Amendment Act, 1976, on Swaran Singh Committee recommendation.
• 86th Constitutional Amendment Act of 2002 added one more duty.
• Part IV-A (Article 51-A): Specifies eleven Fundamental Duties, e.g., respect Constitution, national flag, protect sovereignty, promote common brotherhood, preserve composite culture.
• Reminder to citizens about duties. Non-justiciable.

11. A Secular State

• Does not uphold any particular religion as official.
• Secular character revealed through provisions:
  • 'Secular' added to Preamble by 42nd Amendment Act, 1976.
  • Preamble secures liberty of belief, faith, worship.
  • State shall not deny equality before the law (Article 14).
  • State shall not discriminate on religion (Article 15).
  • Equality of opportunity in public employment (Article 16).
  • Freedom of conscience and religion (Article 25).
  • Right to manage religious affairs (Article 26).
  • No taxes for promotion of any particular religion (Article 27).
  • No religious instruction in state-maintained educational institutions (Article 28).
  • Right to conserve language, script, culture (Article 29).
  • Minorities can establish educational institutions (Article 30).
  • State to secure Uniform Civil Code (Article 44).
• Indian Constitution: Positive concept of secularism, equal respect to all religions.
• Abolished communal representation, provides temporary reservation of seats.

12. Universal Adult Franchise

• Adopts universal adult franchise for Lok Sabha and state legislative assemblies.
• Right to vote for citizens >= 18 years without discrimination.
• Voting age reduced from 21 to 18 in 1989 by 61st Amendment Act of 1988.
• Constitution-makers' bold experiment considering country size, population, poverty, inequality, illiteracy.
• Makes democracy broad-based, enhances self-respect, upholds equality, enables minorities, opens hopes for weaker sections.

13. Single Citizenship

• Federal but provides only single citizenship (Indian).
• USA: Dual citizenship.
• In India, all citizens enjoy same political and civil rights irrespective of state.
• Communal riots, class conflicts, caste wars indicate that cherished goal of united India not fully realised.

14. Independent Bodies

• Provides for legislative, executive, judicial organs and establishes independent bodies.
• Bulwarks of the democratic system:
  • (a) Election Commission.
  • (b) Comptroller and Auditor-General of India.
  • (c) Union Public Service Commission.
  • (d) State Public Service Commission.
• Independence ensured through security of tenure, fixed service conditions, expenses charged on Consolidated Fund.

15. Emergency Provisions

• Contains elaborate emergency provisions for President to meet extraordinary situations.
• To safeguard sovereignty, unity, integrity, democratic system, Constitution.
• Three types of emergencies:
  • (a) National emergency (Article 352): war, external aggression, armed rebellion.
  • (b) State emergency (Article 356): failure of constitutional machinery or Article 365: failure to comply with Centre's directions.
  • (c) Financial emergency (Article 360): threat to financial stability or credit.
• Central Government becomes all-powerful during emergency. Federal structure converts to unitary without formal amendment.

16. Three-tier Government

• Originally, dual polity (Centre and states).
• 73rd and 74th Constitutional Amendment Acts (1992): Added third-tier (local governments).
• 73rd Amendment Act: Constitutional recognition to panchayats (rural local governments) with new Part IX and Schedule 11.
• 74th Amendment Act: Constitutional recognition to municipalities (urban local governments) with new Part IX-A and Schedule 12.

17. Co-operative Societies

• 97th Constitutional Amendment Act of 2011: Constitutional status and protection.
• Three changes:
  • (1) Right to form co-operative societies a fundamental right (Article 19).
  • (2) New Directive Principle on promotion of co-operative societies (Article 43-B).
  • (3) New Part IX-B ("The Co-operative Societies", Articles 243-ZH to 243-ZT).
• Ensures democratic, professional, autonomous, economically sound co-operative societies. Empowers Parliament for multi-state societies and state legislatures for other societies.

Criticism of the Constitution

1. A Borrowed Constitution

• Critics: Contains nothing new or original, a 'borrowed Constitution', 'bag of borrowings'.
• Response: Framers modified borrowed features for suitability, avoided faults.
• B.R. Ambedkar: Constitution framed to remove faults and accommodate to the needs of the country.

2. A Carbon Copy of the 1935 Act

• Critics: Large number of provisions from Government of India Act of 1935, "Carbon Copy of the 1935 Act".
• B.R. Ambedkar: “As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing."

3. Un-Indian or Anti-Indian

• Critics: Does not reflect political traditions and spirit of India, foreign nature makes it unsuitable.
• K. Hanumanthaiya: "We wanted the music of Veena or Sitar, but here we have the music of an English band.”

4. An Un-Gandhian Constitution

• Critics: Does not contain philosophy and ideals of Mahatma Gandhi, should have been raised on village/district panchayats.

5. Elephantine Size

• Critics: Too bulky and detailed, contains unnecessary elements.
• Ivor Jennings: "Constitution, generally speaking, was too long and complicated."

6. Paradise of the Lawyers

• Critics: Too legalistic and complicated, legal language makes it complex.
• Ivor Jennings called it a “lawyer's paradise".

Important Tables

Table 4.1: Parts of the Constitution at a Glance

Table 4.2: Important Articles of the Constitution at a Glance

Table 4.3: Schedules of the Constitution at a Glance

Table 4.4: Sources of the Constitution at a Glance