The Constitution of India

Salient Features

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❑Meaning and Definition:
• The word ‘Constitution’ is developed from the word ‘Constitute’, which means ‘to frame or
to establish or to compose’.
• According to the Oxford English Dictionary, ‘Constitution’ means a ‘system’, according to
which the laws and principles of the State is governed.
• A constitution is the basic fundamental law of a State. It lays down the objectives of the State
which it has to achieve.
• It is a document which is the supreme law of the land. It has derived from a Latin word
‘salus populi suprema lex’ meaning ‘welfare of the people is the supreme law’.
• It consists of those of its rules or laws which determine the form of the government and the
respective rights and duties of the citizens towards the government – Lord Bryce
• The document containing laws and rules which determine and describe the form of the
government, the relationship between the citizens and the government, is called a
Constitution.
• In addition, it describes the rights and duties of the citizens.
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A Constitution is desired for a variety of
Reasons:
• To provide a set of basic rules that allow for minimal coordination amongst
members of a society.
• To specify who has the power to make decisions in a society.
• To decides how the government will be constituted.to set some limits on what
a government can impose on its citizens.
• These limits are fundamental in the sense that government may never trespass
them.

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➢Kinds of Constitution:
1. Written/Enacted- A written constitution means a constitution written in the form of a
book or a series of documents combined in the form of a book. It is a consciously framed
and enacted constitution. It is formulated and adopted by a constituent assembly or a
council or a legislature.
2. Unwritten/Evolved- An unwritten constitution is one which is neither drafted nor
enacted by a Constituent Assembly and nor even written in the form of a book.
3. Flexible- no difference in constitutional amendment and ordinary law amendment.
4. Rigid- Amendment procedure is complex, special majority is required

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SALIENT FEATURES OF THE CONSTITUTION
1. Lengthiest Written Constitution
• The Constitution of India is the lengthiest of all the written constitutions of the
world. It is a very comprehensive, elaborate and detailed document.
• Four factors have contributed to the huge size of our Constitution. They are:
• (a) Geographical factors, that is, the vastness of the country and its diversity.
• (b) Historical factors, e.g., the influence of the Government of India Act of
1935.
• (c) Single Constitution for both the Centre and the states.
• (d) Dominance of legal luminaries in the Constituent Assembly.
• The Constitution contains not only the fundamental principles of governance
but also detailed administrative provisions.

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➢2. Drawn From Various Sources
• Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed
after ‘ransacking all the known Constitutions of the World’.
• The Constitution of India has borrowed most of its provisions from the constitutions
of various other countries as well as from the Government of India Act of 1935.
• The structural part - Government of India Act of 1935.
• The philosophical part- from the American and Irish Constitutions respectively.
• The political part - the British Constitution.
• However, the criticism that the Indian Constitution is a ‘borrowed Constitution’, a
‘patchwork’ and contains nothing new and original is unfair and illogical.
• This is because, the framers of the Constitution made necessary modifications in the
features borrowed from other constitutions for their suitability to the Indian
conditions, at the same time avoiding their faults.

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➢3. Blend of Rigidity and Flexibility
• Flexible- UK
• Rigid- USA
• The Constitution of India is neither rigid nor flexible but a synthesis of both.
Article 368 provides for two types of amendments:
• (a) Some provisions can be amended by a special majority of the Parliament
• (b) Some other provisions can be amended by a special majority of the
Parliament and with the ratification by half of the total states. (Related to
Federal Structure)
• At the same time, some provisions of the Constitution can be amended by a
simple majority of the Parliament in the manner of ordinary legislative
process. Notably, these amendments do not come under Article 368. {Art.
4/169/239A(2)}

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4. Federal System with Unitary Bias
• features of a federation:- two government, division of powers, written Constitution,
supremacy of Constitution, rigidity of Constitution, independent judiciary and
bicameralism.
• Features of Unitary System:- a strong Centre, single Constitution, single citizenship,
flexibility of Constitution, integrated judiciary, appointment of state governor by the
Centre, all-India services, emergency provisions, and so on.
• India has Features of Both.
• The term ‘Federation’ has no where been used in the Constitution. Article 1,
describes India as a ‘Union of States’ which implies two things:
oIndian Federation is not the result of an agreement by the states;
ono state has the right to secede from the federation.
• Hence, the Indian Constitution has been variously described as ‘federal in form but
unitary in spirit’.

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➢5. Parliamentary Form of Government
• The parliamentary system is based on the principle of cooperation and co-
ordination between the legislative and executive organs while the presidential
system is based on the doctrine of separation of powers between the two
organs.
• (a) Presence of nominal and real executives;
• (b) Majority party rule,
• (c) Collective responsibility of the executive to the legislature,
• (d) Membership of the ministers in the legislature,
• (e) Leadership of the prime minister or the chief minister,
• (f) Dissolution of the lower House (Lok Sabha or Assembly).
• Some fundamental differences between the India and England- Republic vs
Monarchy, Membership of PM, Sovereignty,
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➢6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
• The doctrine of sovereignty of Parliament -British Parliament
• Principle of judicial supremacy -American Supreme Court.
• The scope of judicial review power of the Supreme Court in India is narrower
than that of what exists in US.
• This is because the American Constitution provides for ‘due process of law’
against that of ‘procedure established by law’ contained in the Indian
Constitution (Article 21).
• The Supreme Court, can declare the parliamentary laws as unconstitutional
through its power of judicial review.
• The Parliament, can amend the major portion of the Constitution through its
constituent power.
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7. Integrated and Independent Judiciary
Integrated Judiciary The Supreme The Constitution has made various provisions to
Court ensure its independence:
• security of tenure of the judges,
High Courts • fixed service conditions for the judges,
• all the expenses of the Supreme Court charged
Subordinate on the Consolidated Fund of India,
Courts • prohibition on discussion on the conduct of
judges in the legislatures,
• ban on practice after retirement,
• power to punish for its contempt vested in the
• This single system of courts enforces both Supreme Court,
the central laws as well as the state laws,
unlike in USA, where the federal laws are • separation of the judiciary from the executive,
enforced by the federal judiciary and the state and so on.
laws are enforced by the state judiciary.

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8. Fundamental Rights-
The Fundamental Rights are meant for Part III of the Indian Constitution
promoting the idea of political democracy. guarantees six fundamental rights to all the
• They operate as limitations on the citizens:
tyranny of the executive and arbitrary laws • (a) Right to Equality (Art.14–18),
of the legislature.
• Guaranteed- They are justiciable in • (b) Right to Freedom (Art. 19–22),
nature, that is, they are enforceable by the • (c) Right against Exploitation (Art. 23–
courts by issuing Writs for their violation. 24),
• Not absolute and subject to reasonable • (d) Right to Freedom of Religion (Art.
restrictions. 25–28),
• They can also be suspended during the • (e) Cultural and Educational Rights (Art.
operation of a National Emergency except 29–30), and
the rights guaranteed by Articles 20 and
21. • (f) Right to Constitutional Remedies
(Art. 32).

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9. Directive Principles of State Policy
• According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel
feature’ of the Indian Constitution.
• Part IV of the Constitution.
• Socialistic, Gandhian and liberal–intellectual.
• DPSP are meant for Promoting the ideal of social and economic democracy.
• They seek to establish a ‘welfare state’ in India.
• Non-justiciable in nature- not enforceable by the courts for their violation.
• Yet, the Constitution itself declares that ‘these principles are fundamental in the
governance of the country and it shall be the duty of the state to apply these
principles in making laws’.
• In the Minerva Mills case (1980), the Supreme Court held that ‘the Indian
Constitution is founded on the bedrock of the balance between the Fundamental
Rights and the Directive Principles’.
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10. Fundamental Duties
• Not a part of the original constitution.
• Added by the 42nd Constitutional Amendment Act of 1976 on the
recommendation of the Swaran Singh Committee.
• Part IV-A
• The fundamental duties serve as a reminder to citizens that while enjoying
their rights, they have also to be quite conscious of duties they owe to their
country, their society and to their fellow-citizens.
• Non-justiciable in nature.

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➢11. A Secular State
• It does not uphold any particular religion as the official religion of the Indian
State.
• The term ‘secular’ was added by the 42nd CA Act of 1976.
• The Preamble secures to all citizens of India liberty of belief, faith and
worship.
• Art. 14/15/16/25-30/44.
• Negative concept : the Western concept of secularism is based on complete
separation between the religion (the church) and the state (the politics).
• It is not applicable in the Indian situation where the society is multireligious.
• Positive concept : giving equal respect to all religions or protecting all
religions equally. Based on “Sarva Dharma Sambhav”
• Acc to SC- The Indian Constitution embodies the positive concept of
secularism i.e., all religions in our country (irrespective of their strength) have
the same status and support from the state.
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➢12. Universal Adult Franchise
• UAF is adopted as a basis of elections to the Lok Sabha, the state legislative
assemblies and local levels.
❖Every citizen who is not less than 18 years of age has a right to vote 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 61st CA
Act of 1988.
• It was a bold experiment
• UAF makes democracy broad-based, enhances the self-respect and prestige of
the common people, upholds the principle of equality, enables minorities to
protect their interests and opens up new hopes and vistas for weaker sections.
• UAF adopted in other major countries- 1920 United States, 1928 Britain,
1944 France, 1971 Switzerland

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➢13. Single Citizenship
• Though the Indian Constitution is federal and envisages a dual polity (Centre and
states), it provides for only a single citizenship, that is, the Indian citizenship.
• In countries like USA, on the other hand, each person is not only a citizen of USA
but also a citizen of the particular state to which he belongs.
• Thus, he owes allegiance to both and enjoys dual sets of rights—one conferred by
the National government and another by the state government.
• In India, all citizens irrespective of the state in which they are born or reside enjoy
the same political and civil rights of citizenship all over the country and no
discrimination is made between them excepting in few cases like tribal areas, Jammu
and Kashmir, and so on.
• Despite the constitutional provision for a single citizenship and uniform rights for all
the people, India has been witnessing the communal riots, class conflicts, caste wars,
linguistic clashes and ethnic disputes.
• This means that the cherished goal of the Constitution-makers to build an united and
integrated Indian nation has not been fully realised.

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 • (a) Election Commission to ensure free and fair
14. Independent elections to the Parliament, the state legislatures, the
office of President of India and the office of Vice-
Bodies president of India.
The Indian Constitution not only • (b) Comptroller and Auditor-General of India to audit
provides for the legislative, executive the accounts of the Central and state governments. He
and judicial organs of the government acts as the guardian of public purse and comments on the
legality and propriety of government expenditure.
(Central and state) but also establishes
certain independent bodies. • (c) Union Public Service Commission to conduct
examinations for recruitment to all-India services and
The Constitution ensures the higher Central services and to advise the President on
independence of these bodies through disciplinary matters.
various provisions like security of • (d) State Public Service Commission in every state to
tenure, fixed service conditions, conduct examinations for recruitment to state services
expenses being charged on the and to advice the governor on disciplinary matters.
Consolidated Fund of India, and so on.

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15. Emergency Provisions
• The Indian Constitution contains elaborate • The Constitution envisages three types of
emergency provisions to enable the President emergencies, namely:
to meet any extraordinary situation effectively. • (a) National emergency on the grounds of war
• To safeguard the sovereignty, unity, integrity or external aggression or armed rebellion
and security of the country, the democratic (Art.-352);
political system and the Constitution. • (b) State emergency (President’s Rule) on the
• During an emergency, the Central ground of failure of Constitutional machinery
Government becomes all-powerful and the in the states (Article 356) or failure to comply
states go into the total control of the Centre. with the directions of the Centre (Article 365);
• It converts the federal structure into a and
unitary one without a formal amendment of • (c) Financial emergency on the ground of
the Constitution. threat to the financial stability or credit of India
• It is a unique feature of the Indian (Article 360)
Constitution.

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16. Three-tier Government
• Originally, the Indian Constitution, like any other
federal constitution, provided for a dual polity
and contained provisions with regard to the
organisation and powers of the Centre and the
states.
• Later, the 73rd and 74th CA Acts (1992) have
added a third-tier of government (i.e., local)
which is 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
IX17 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-A18 and a new Schedule 12 to the
Constitution.

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17. Co-operative Societies
• Added by the 97th CA Act of 2011.
1. It made the right to form co-operative societies a fundamental right (Article 19).
2. It included a new DPSP on promotion of co-operative societies (Article 43-B).
3. It added a new Part IX-B in the Constitution which is entitled as “The Co-operative
Societies” (Articles 243-ZH to 243-ZT).
• The new Part IX-B contains various provisions to ensure that the co-operative societies in
the country function in a democratic, professional, autonomous and economically sound
manner.
• It empowers the Parliament in respect of multi-state cooperative societies and the state
legislatures in respect of other co-operative societies to make the appropriate law.

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Criticism:
• 1. A Borrowed Constitution
• 2. A Carbon Copy of the 1935 Act
• 3. Un-Indian or Anti-Indian
• 4. An Un-Gandhian Constitution
• 5. Elephantine Size
• 6. Paradise of the Lawyers

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Sources-
• Indian polity by M. Laxmikanth
• Introduction to the Constitution of India by D.D. Basu
• Indian Government an Politics by Peu Ghosh

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