Salient Features of the Indian Constitution

 

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                                          Salient Features of the Indian Constitution

The Constitution of India is unique constitution in respect of its contents and spirit.

Although the provisions of Indian Constitution had been borrowed from many constitutions of the world, even then the Constitution of India has certain essential features which make the constitution of India different from the constitutions of the other countries.

But it is very important to note here that number of original features of the Indian Constitution which was adopted in the year 1949 have undergone a substantial changes, on account of various amendments made in the constitution by the Parliament by virtue of the power under Article 368 of the Constitution.

Out of various amendments, the 42^nd Amendment Act (1976) is very important which is also known as ‘Mini Constitution’ due to large number of changes made by it in various parts of the Indian Constitution.

In the Case of “Kesavananda Bharti Vs. State of Kerala, AIR 1973 SC 1461”, the Supreme Court held that Under Article 368 of the constitution the Indian Parliament cannot alter the basic structure of the Indian Constitution.

So the salient features of the Indian Constitution, as it stands today are as follows:

1.     A Written Constitution

Written Constitution is that constitution under which all the provisions of the constitution can be found in one place.

And if we are talking about the Indian Constitution then it is a written constitution in which all the provisions of the constitution can be found in one place.

If any clarification in the provisions of the constitution is needed that can be clarified from the provisions of the Indian Constitution itself.

2.      The Constitution of India is the supreme law in India

The Indian Constitution is supreme lex in India which contains the basic or fundamental law.

Why the Constitution of India is said to be the basic law of India?

The Constitution of India is said to be the basic law of India because the validity of the others laws enacted by the Legislature (Whether it is the Central or State Legislature) is determined by the Indian Constitution.

A law enacted by the Legislature in India cannot violate the basic provisions of the Indian Constitution.

If at any time the Legislature makes any law which violate the basic provisions of the Indian Constitution then that law can be challenged before the judiciary

and if the Judiciary finds that the law made by the Legislature violates any provision of the Indian Constitution then that law can be declared as unconstitutional by the Court.

3.      Supremacy of the Constitution

There are three organs of the Government in India i.e. Legislature, Executive and judiciary.

These all the three organs of the Government are created by the Indian Constitution.

 It is very important to note here that none of organ in India is supreme.

In India Indian Constitution is supreme

and all three organs of the Government must act within limitations of their power as fixed by the Indian Constitution.

4.      Lengthiest Written Constitution

The Indian Constitution is the lengthiest of all the written constitutions of the world. It is very comprehensive, elaborate and detailed document.

At its commencement in the year 1949, it contained a Preamble, 395 Articles divided into 22 parts and 8 Schedules.

But presently it consists of a Preamble, about 470 Articles which are divided into 25 Parts and 12 Schedules.

5.      Drawn From Various Sources

The Constitution of India has been borrowed most of its provisions from the Constitutions of various other countries. It has also borrowed many of its provisions from the Government of India Act 1935. The following table makes it more clear:

	Sources	Features Borrowed
1.	Government of India Act 1935.	Federal Scheme, Office of Governor, Judiciary, Public Service Commissions, Emergence Provisions and administrative details.
2.	British Constitution	Parliamentary Form of  Government, Rule of Law, Legislative Procedure, Single Citizenship, Cabinet System, Writs, Parliamentary privileges and bicameralism.
3.	US Constitution	Fundamental Rights, Independence of Judiciary, Judicial Review, Impeachment of the President, The Post of Vice-President and Removal of Judges of Supreme Court and High Court.
4.	Irish Constitution	Directive Principles of State Policy, Nomination of members to Rajya Sabha and method of election of President.
5.	Canadian Constitution	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.
6.	Australian Constitution	Concurrent List, Freedom of trade, commerce and inter-course and Joint sitting of two Houses of Parliament.
7.	Weimar Constitution of Germany	Suspension of Fundamental Rights during Emergency.
8.	Soviet Constitution (Now Russia)	Fundamental duties and the ideal of Justice (Social, economic and political) in the preamble.
9.	French Constitution	Republic and the ideals of liberty, equality and fraternity in the Preamble.
10.	South African Constitution	Procedure for the amendment of the Constitution and election of members of Rajya Sabha.
11.	Japanese Constitution	Procedure established by Law.

 

6.      Blend of Rigidity and Flexibility

Constitutions from the amendment point of view can be classified into flexible and rigid constitutions.

A Constitution is said to flexible when the provisions of that constitution can be amended or when the constitution can be changed very easily. That means when the procedure for the amendment of the Constitution is simple then it is said to be flexible Constitution. The example of Flexible Constitution can be taken from British Constitution.

On the other hand, a Constitution is said to be rigid when it is very difficult to amend the provisions of that Constitution. That means when there is complex procedure involved for the amendment of the constitution then the constitution is said to be rigid constitution. The example of Rigid Constitution can be taken from the American Constitution.

In India the constitution of India can be amended under the provisions of Article 368.

Some provisions of the Indian Constitution can be amended by simple majority whereas some provisions of the constitution require the complex procedure i.e. special majority for their amendment.

Hence we can say that Indian constitution is neither too flexible nor too rigid. It is a unique blend of rigidity and flexibility.

  A Federation with Strong Centralising Tendencies

The Constitution of India sets up a federal system of Government with strong centralising tendencies.

The foundation for a federal set-up for the nation was laid down in the Government of India Act 1935. (Prof. Yashpal vs. State of Chhattisgarh AIR 2005 SC 2026).

Federation is a way to protect Units Governments against domination by the Central Government.

It contains all the usual features of a federation viz.,

a.      It is a written constitution;

b.      The supremacy lies with the constitution;

c.       It provides for the division of powers between the central and state governments;

d.      It is a rigid constitution.

e.      It provides for an independent judiciary and

f.        Bicameralism.

However it is very important to note here that the constitution of India also contains a large number of unitary or non-federal features. Some of those unitary features are as follows:

a.      Strong Centre

b.      Single Citizenship

c.       Flexibility of the Constitution

d.      Integrated Judiciary

e.      Appointment of State Governor by the Centre

f.        All India Services

g.      Emergency Provisions

h.      And so on.

Hence we can say that Indian Constitution is quasi-federal or quasi unitary or federal in form but unitary in spirit or federation with a centralising tendency and so on.

Parliamentary Form of Government

The Indian Constitution establishes a ‘Parliamentary Form of Government’ both at the Centre and State Levels.

The essential features of a ‘Parliamentary Form of Government’ are:

a.      That the Head of the State is  merely a Constitutional Head, and

b.      The Executive vested with the real powers is made answerable to the Legislature.

If we read the Constitution of India then we study:

a.      Under Article 74 the President of India is a Constitutional Head of India who will act with the aid and advice of the council of Ministers in the discharge of his functions. and

b.      Under Article 75, the Council of Ministers is collectively responsible to the House of People.

The same pattern has been adopted in the States with some modifications.

Fundamental Rights

Part III of the Constitution of India guarantees 6 types of 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 (Article 29-30);

f.        Right to Constitutional Remedies (Article 32).

This chapter is known as the Bill of Rights for the people of India.

Some fundamental rights are given to all the persons irrespective of the fact whether they are the Citizens of India or not. However some fundamental rights are given only to the Citizens of India.

The Constitution not only declares these fundamental rights but it also provides the remedy for the enforcement of these fundamental rights under Article 32.

A person whose fundamental rights is violated can directly go to the Supreme Court for the enforcement of his fundamental rights and the Supreme Court can issue 5 types of writs namely Habeas Corpus, Mandamus, Prohibition, Certiorari and quo warranto for the restoration of fundamental rights.

However, The Fundamental Rights are not absolute and these subject to some reasonable restrictions.

These fundamental rights can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.

10.  Directive Principles of State Policy

According to Dr.B.R. Amebedkar, the Directive Principles of State Policy is a ‘Novel feature’ of the Indian Constitution.

Part IV of the Constitution contains these principles which are declared as fundamental in the governance of the country and it is duty of the State to apply them while making the laws.

But it is very important to note that these directive principles of State Policy are non-justifiable.

 

11.  Fundamental Duties

Part IV-A of the Constitution (which consists of only Article 51-A) lays down 11 fundamental duties for the citizens of India.

The original constitution did not provide for the fundamental duties of the citizens. These were added during the operation of internal emergency (1975-77) by the 42^nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee.

The object is to remind the citizens that while the Indian Constitution specifically confers on them, certain fundamental rights, it also requires the citizens to observe certain basic norms of democratic conduct and behaviour in India.

The Fundamental duties like the Directive Principles of State Policy are non-justifiable.

12.  Independent Judiciary

The Constitution of India provides for the setting up of an independent judiciary.

Although the judges of the Supreme Court and the High Courts are appointed by the Central Executive. But, once they are appointed they are no more controlled by any authority.

The Constitution secures to the Judges, the tenure of their service and they cannot be removed before the expiry of their tenure except by impeachment under the constitution. (Article 124)

Their salaries and allowances, once determined by the Union Parliament, cannot be diminished to their disadvantage during the tenure of their service (Article 125).

The High Courts and the Supreme Court vested with the power of Judicial Review and they can examine the constitutional validity of a law made by the Parliament as well as by a State Legislature. A law, which is declared as unconstitutional by the Court, becomes void and inoperative.

In Minerva Mills Ltd. Vs. Union of India AIR 1980 SC 1789 as well as in Kesavananda Bharti vs. State of Kerala AIR 1973 SC 1461 The power of judicial review vested in the High Court under Article 226 and in the Supreme Court under Article 32 has been held to be an integral and essential part of the Indian Constitution, constituting part of its basic structure, which, ordinary, can never be ousted or excluded from the Indian Constitution.

13.  Adult Suffrage (Suffrage means right of voting).

In our constitution of India every citizen who is not less than 18 years of age has a right to vote to elect representatives to the Legislatures, both, Central as well as States 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 61^st Constitutional Amendment Act of 1988.

14.  Single Citizenship

The Indian Constitution provides for a Single Citizenship for the whole of India.

In India there is no separate citizenship of the States.

Every Indian is the Citizen of India.

 A Sovereign, Socialist, Secular, Democratic Republic

The Preamble to the Constitution of India declares India to be a Sovereign, Socialist, Secular, and Democratic Republic.

a.      The term Sovereign literally means the ultimate superior, who recognises no master and the term Sovereign State means a State with a defined territory that administers its own government and is not subject to or dependent on another power.

b.      The term Socialism is used in democratic as well as socialistic constitutions. It has no definite meaning. In general, it means a system under which the means of production and distribution are State-owned. India does not go by the traditional meaning of the term.

      What is meant by the term socialism in India?

      It means a Socialist pattern of the society in which equal opportunities are provided 

      to each individual for their progress.

c.       The term “Secularism” means that the State in India has no religion of its own. It treats all the religions equally. In the matter of religion the State is neutral.

The term ‘Secular’ was added to the Preamble of the Indian Constitution by the 42^nd Constitutional Amendment Act of 1976. The Preamble secures to all citizens of India liberty of belief, faith and worship.

d.      The term “Democracy” is commonly used to mean such type of Government which is selected by the people of the state and which is for the people. The Indian Constitution has given this right to every citizen who attains the age of 18 years to select their government by giving them the right to vote.

e.      The term “Republic” means “a State in which the supreme power rests in the people and their elected representative or officers, as opposed to one governed by King or a similar ruler.

16.  Independent Bodies

Apart from the legislative, executive and judicial organs of the Government, the Constitution of India has constituted following bodies which are independent in their work:

a.      Election Commission: The function of Election Commission is to make ensure free and fair election to the Parliament, the State Legislatures, the office of President of India and the office of Vice-president of India.

b.      Comptroller and Auditor-General of India: CAG acts as guardian of public purse and comments on the legality of expenditure made by the Governments. To do this CAG audit the account of Central and State Governments.

c.       Union Public Service Commission: The function of UPSC is to conduct examinations for recruitment to all-India Service and higher Central services and to advice the President of India on disciplinary matters.

d.      State Public Service Commission: The function of SPSC is to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters. 

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

17.  Emergency Provisions

To meet an extraordinary situations effectively, the Indian Constitutions contains detailed emergency provisions.

There are three types of emergencies in India:

a.      National Emergency ( Article 352)

b.      State Emergency ( Article 356) and

c.       Financial Emergency ( Article 260)

During an emergency, the Central Government becomes all-powerful and the State goes into the total control of the Central Government.

Emergency converts the federal structure into a unitary one without a formal amendment in the Constitution.

18.  Preventive Detention:

In order to prevent any abuse of freedom by anti-social elements, the Indian Constitution contains a unique feature in the form of Preventive Detention.

In empowers the State to enact a law providing for preventive detention of persons, even during peacetime, for reasons connected with defence, foreign affairs, security of State, maintenance of public order or maintenance of supplies and services essentials to the community.